Please Find Him Not Guilty

One time, when trying a case as a prosecutor, I asked the jury to find the defendant Not Guilty. I did not ask them this on purpose. As you might imagine, if I take a case to trial, my job as the prosecutor is to get a Guilty verdict. So to ask the jury to find the defendant Not Guilty isn’t what you’d consider setting yourself up for success.

Why did I say it? It was a slip of the tongue, I suppose. Probably because I didn’t believe the defendant was guilty. Then why was I trying the case?

Because I didn’t know any better. Because as the case went on and after the victim testified, I started to believe the defendant more than the victim. Because misdemeanor assaults are always a mess, and without clear, visible injuries to the victim, such cases can easily unravel into chaos mid-trial.

There’s no worse feeling as a trial lawyer than hearing your witness say something on the stand for the first time. “Ah,” you’re thinking to yourself, seething, “Glad you shared that for the first time for everyone to hear. Wish you’d have told me that before I put you on the witness stand.”

In this case, it seemed that the defendant was trying to protect himself from the victim, and because he got the better of the victim, he got charged with assault by the police when they responded to her phone call. But I couldn’t see all this until the victim testified. (Lack of time plays a role, too. As a misdemeanor prosecutor, you are trying cases every single week. You don’t have the time to devote hours of witness interviews, research and analysis into a case like you would for a felony trial.)

Now, it wasn’t all for nothing. They found this defendant guilty on count 2, and the guy went to jail for a minute. Count 2 was something like Interference with an Emergency Phone Call, which is also a misdemeanor charge.

What the jury did was “split the baby”. They did not want to find the defendant guilty of assault, but they wanted to make sure he was guilty of something, and since they had the count 2 option to pick, that’s the way they went.

When I told the jury to find the defendant Not Guilty, there were several snickers from the jury, not to mention the judge, and a stiff side-eye from my trial partner, who projected a look of something akin to “what the f*ck did you just say?” (Keep in mind, a Not Guilty verdict reflects poorly on your trial partner, too. After all, they participated in the losing effort right there with you, and they too will get one in the “L column”, same as you. So me asking the jury to do such a thing was not what she had in mind.)

When I realized what I’d said, I was halfway back to counsel’s table. I turned around, went back to the jury box, and tried to put on a serious face. I couldn’t help but laugh a little myself—how can you not? I messed up, best to own it. And when I got back to the jury box I gave them some bullshit like “if this wasn’t a serious case, my comment would be funny, but it is serious, very serious, and you need to find him guilty.”

Nah, the jury said, we’re good. We like what you said the first time around. But tell you what, we’ll find him guilty on Count 2 because we like you, prosecutor. How about that?

What did I learn from this blunder? Well, first I learned not to try cases that suck. That’s a good place to start. I also learned not to take cases to trial when the defendant isn’t clearly guilty, as such a notion might creep into your subconscious at the worst time: closing argument to the jury. But the most important thing I learned was that mistakes happen—this was the first of many during my time as a prosecutor—and all I can do that’s productive from here on out is embrace it, and learn from it. I mean what else can I do? As they say, they call it the “practice” of law for a reason.

The defense attorney was such a nice guy that I was kind of OK with the fact that the jury found the defendant Not Guilty on Count 1. This defense attorney was immensely likable, and he earned every bit of that Not Guilty verdict for his client. And for what it’s worth, there is a nearly 100% chance that the jury was going to find the defendant Not Guilty on Count 1 whether I said what I said or not. I simply opted, unconsciously, to ask them politely to do so.

Misdemeanor assault cases are the hardest cases in the courthouse to prosecute, a 30-year prosecutor once told me. He wasn’t the only one to say it. Such cases render more Not Guilty verdicts than any other criminal case that you’ll try. There are myriad reasons for this, but a couple stand out.

First, the injuries usually aren’t bad, i.e., visible, in a misdemeanor assault case. If the injuries were any good, i.e., serious, then the case would be a felony, and some other prosecutor in the felony division would be trying the case, not you.

In other words, you’re lucky if the victim actually had a bruise or a scrape to speak of, let alone had it documented in a photo.

Second, misdemeanor assaults are usually stupid tussles, almost always with alcohol involved, with both defendant and victim participating in the fight. Usually it’s a lot of pushing and shoving back and forth until finally one side gets a good blow in, and the fight is over. By the time it’s done, no one in sight can tell who started it, or what set it off. “Because he was talkin’ to my girl!”; “Because he looked at me funny!”; “Because he called me a lil’ bitch!”

Because if the victim started the fight, it’s kind of hard for a jury to get mad at a defendant for finishing it. Even when a woman starts a fight against a man, I’ve seen a jury find the man Not Guilty because they didn’t like the woman. She had no marks on her, she started the fight, when she tried to hit him ten times, he pushed her away, she fell down, and hit her elbow, and she called the cops. Jury says he’s Not Guilty. Right call? Who knows. You weren’t there. It doesn’t make it right, but a jury will do what a jury does. You weren’t in the room, they’d say. You didn’t hear her speak.

I have had a jury tell me these exact words: “Yeah, we think he did pick her up and slam her, but we don’t think he assaulted her. Plus, she had it coming.” I am not kidding. They literally said those words. They said this to me and my trial partner, verbatim, after finding the defendant Not Guilty.

Imagine that feeling. Imagine being the prosecutor. Imagine being the victim. And the jury tells you this after the trial. How would you feel? “Sounds like you just said he assaulted her, ladies and gentlemen, so tell me, why exactly did you find him Not Guilty of assault?

Because hell if I know. If you think you would never, you might think again. Once the facts come out, and the victim is unlikable, it’s hard to come back from that.

But let’s get back to this story.

I am not proud of telling the jury to find a defendant Not Guilty. It’s exactly what you DON’T want your prosecutor to do. I went on to prosecute some good cases, and had many Guilty verdicts to my name, but of course you only remember the losses, and the blunders. And don’t worry, I’m not a prosecutor anymore. I am no longer in a position, on behalf of the state of Texas, to try a case against a defendant and then the jury to find this defendant Not Guilty.

I will always have the utmost respect for prosecutors. It is a stressful job, and it leads to a stressful life. You take your cases home with you. Their facts and emotions and pictures sit like a cloud over your dinner table, your drive home, your ceiling fan as you try to fall asleep. Especially the ones involving children. Every move, every word, every step and misstep, every woulda-coulda, every if-only-I’d have-said-this…they all count in front of a jury.

Once you try the big cases, a mess-up can be catastrophic. That’s why you cut your teeth trying misdemeanor cases, like I was doing in this story. This was maybe my 5th trial or so, ever, and I had so much to learn. I was just trying to keep everything straight in my head, juggling all the balls in the air, putting on a decent case, only to tell the jury at the very end of it to: “ignore all that, find him Not Guilty.”

The truth is, they would’ve found him Not Guilty anyway, not because of what I said, but because it was the correct decision, and my case never had a chance. I didn’t know that until I tried it, and learned it, the hard way.

Many more mistakes were to come. I have won many more cases than I’ve lost. But I barely remember the victories. Mostly I remember the losses. Such is being human. I can only look back on these mistakes with gratitude for what I learned and how I learned it, and with love for such a rookie prosecutor.

I tell this story to other younger lawyers, and I hope that maybe by telling them these stories, they can put their mistakes in context, learn from them, and not be so goddamn hard on themselves. You’ll never forget your failures. They’ll swirl in your head for the rest of your life. You might as well use them for good.

Radio Randomness

When I was growing up, from 2nd grade to 4th grade, I attended a private school in Addison. We lived in Allen, my dad worked in Downtown Dallas at the time, and he would drive me to school every day on his way to work. We had a lot of time in the car.

Dad had some CDs in the 6-loader, but we mostly listened to the radio. This was before podcasts and before audiobooks. Well, they had audiobooks, but they were on CDs or cassette tape. How cumbersome.

To this day many say it’s a bit of a miracle that Radio has survived. That it’s still going. It was pegged dead decades ago. If I can listen to any talk-show (podcast), any book (Audible), or any song in history (streaming) any time I want, then what do I need the radio for?

Yet the radio is still hitting our car antennae. How? I’ll tell you how: Randomness. The good kind of randomness, mind you. Even today I often prefer the radio over my smartphone, certainly when it comes to music. Call me a Luddite, but the randomness of the radio still appeals to me.

Now I’m not naïve enough to think that what is played to me on the radio is not also curated, like a Spotify playlist, by studio execs who think I might like such-and-such song or artist.

But here’s the main difference: Spotify is tracking me. The radio, so far, is not. At least not me personally. It is not feeding me recommendations, like Spotify might. “Here,” the Spotify A.I. says, “because you liked ‘Song in My Head’ by Madison Cunningham, you might also like ‘Bones’ by Soccer Mommy.” (Yes and yes, by the way.)

The “here’s a song you might like, because you liked X” is not the same as turning the dial, without being tracked, to happen upon a beautiful song that never in a thousand years would have been recommended to me in that moment. There’s still a thrill, however small, in that randomness.

A chance to track without being tracked.

Let me give you another example of this pleasant Luddite randomness: reading a newspaper. Accent on the paper, the actual printed black and white paper, crisp but it won’t cut you, surrounding 50 pages of slick-gloss ads from the grocery stores.

When I pick up a newspaper and hold it in my hand, there is no A.I. behind the paper tracking me, eyeing what I click on. I can flip to the comics, to the arts section, to the book reviews, and then cut out a recipe on page E14.

The folded paper does not know I’m a 30-something male from Texas, nor does it care. It’s just glad to have arrived on my doorstep and be perused. It doesn’t know my gender, my horoscope, my fear of heights, and it has no idea what I’ve just read.

With the newspaper in hand, I can meander, how I want, with no suggestions like “here’s an article we think you might be interested in.” It’s like (another example) being in a library or a bookstore and browsing the books. There’s curation there to some degree, by the store employees, but for the most part, I can be looking for one book, see the spine of another sticking out, pull it off the shelf, open it, and fall in love. You can’t engineer that.

To browse without the help of a browser.

Keats' "Negative Capability"

John Keats was an English poet who produced a prodigious amount of work before dying at the ripe age of 25 from the same affliction that Doc Holliday succumbed to. He was hardly recognized for his work, until after his death, when he became posthumously world-renowned, studied in English classes all over the world, to this day.

Keats coined a term that piqued my interest—“Negative Capability”—which I understand to mean the ability to accept uncertainty or confusion in whatever your pursuit is or in whichever line of work you find yourself, and to pursue it anyway, maybe even for that reason.

But why use my understanding of it. Here’s what Keats wrote himself, in a letter:

“[A]t once it struck me what quality went to form a Man of Achievement, especially in Literature, and which Shakespeare possessed so enormously — I mean Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason….” (emphasis added)

This “Negative Capability” is a mindset, or a skill that can be developed, I’d like to surmise, that might allow us to be able to pursue something just for its own sake, for its beauty, precisely because it is heading into uncharted territory. We pursue it even though there is a very real possibility that at the end, the pursuit will not have a satisfying resolution. And Keats might say that this uncertainty is the very reason to pursue the task.

It takes bravery to do this. How much of what you do in your work—hell, in life—is certain? Short of being a nail-hammerer, in your line of work there are probably numerous contingencies you can try to plan for, too many to count, and after you’ve accounted for those, what about all the possibilities that you cannot plan for, those that were never on your radar because you’ve never seen it before. You don’t know what you don’t know. See the book “Black Swan” by Nicholas Taleb.

I find this notion of “Negative Capability” to tie in, if somewhat loosely, with this F. Scott Fitzgerald quote:

“The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.”

This ability, seeing both of these opposing ideas in your mind, held up, in all their glitter and blemish, while being comfortable with the fact that when those ideas clash, anything could happen and someone might lose?

Well, that sounds like being a lawyer.

More pointedly, that’s the crux of being able to live with being a lawyer. Many people cannot embrace uncertainty. Indeed, that’s where anxiety comes from—fear of uncertainty—and we all have it. I am no exception. And when it comes to “legal anxiety”, it is hard to let go of the fact that no outcome is ever guaranteed, and I’ll tell clients as much.

For it is one thing to have your own anxiety, and to use whatever coping mechanisms you’ve come up with, poisonous and not, to work through them. But when it’s a client’s—someone else’s—livelihood in the balance, well, how do you cope with the uncertainty of what could happen to them?

You could work harder, of course, but this isn’t Suits—there is no Harvey Specter in the real world, an omniscient legal mind that knows how every case could possibly go, which way it could turn, holding an ace in the hole at the end of every episode, especially one that’s only practiced law for 15 years or so. (To say nothing of how nice it would be to have a boy-genius associate working with you that can read a million words a minute and memorize all of it. Yeah, OK.)

“Look, we can take this case to trial,” I will tell a client, “But there’s no guarantee we’ll win. We can have all the facts on our side, but it can still go sideways, it does not matter how good of a case we put on. Maybe the jury doesn’t like you. Maybe the judge has it out for you. Maybe there are facts yet to be uncovered that could expose you. Litigation is messy, and its stressful, not least because of the uncertainty of the outcome.”

This struggle to hold two opposing ideas in the mind at the same time is good for law school exams. It allows you to write a solid, focused-with-some-meandering, two thousand-word answer to the numerous issues that the professor’s problem presents, and your ability to go down all sorts of rabbit holes to show off your knowledge of the law and how it might affect a factual situation will get you near the top of the curve.

In the real world, however, you eventually you have to pick a side. Don’t you? Don’t we all? Just because you know the possible angles of what you think is every possible outcome, just because you can see both sides… where does that get you? If you do not actually get in the ring, what then?

It feels safe outside the ring. I like staying out of the ring too. But once you pick a side—and a lawyer cannot escape picking the side of the client that hires him or her—now you have to put aside what you know to be your weaknesses. You think your client wronged someone else? Well, you have to defend them anyway. You must take their side, as you swore to do when you received your bar license. You must put on a mask that tries to downplay what your client did, and “win” at all costs, short of ethical or legal violations. Morality may go to the wayside.

You do not get to play both sides in a legal dispute. Even a judge just calls balls and strikes—they take no sides (they’re not supposed to anyway)—and they make a ruling based only on the facts and legal issues presented.

Lawyers must do their best to foresee all the issues that could come up, but they cannot plan for everything. They must embrace the fact that the whole case could go to hell, yet take their client’s side, try to tear up the other side, and stress all the while about where the verdict will end up.

And we must accept that we may lose. We must have the Negative Capability to sit in the balance of uncertainty.

Unless the case settles (which most do), there will be a clear winner and a clear loser. I have been on both sides of that. It is not fun to talk outside of the courthouse with your client after you just lost the case. After all the money they spent on you? After all that work and effort, months, sometimes years, only to lose?

It’s really no different than in life. Only thing is, it’s your client’s livelihood in the balance, not yours. I can lose and beat myself up. But when I feel I’ve let someone down, that’s hard. “If only I’d have done this or that differently,” I mutter to myself, as I drive home to see my family, trying to rid my mind of what happened so I can be present for the dinner conversation.

But then that’s where Negative Capability comes in. And that’s what you must relay to your client:

“You have a decent case, buddy, but as good as your case is, and as capable of a lawyer as I am, we may still lose, and so long as you are OK with this possible uncertainty, then let’s go, full speed ahead.”

Know this upfront. Convey it to yourself and the others involved. Manage expectations, they always say, because it’s a maxim, no doubt.

We control very little of our fate, in life and in the courtroom. But you already knew this. You just have a hard time, like me, of living with the uncertainty of what could be. But the uncertainty will never not be there, so try to remember Keats’ bliss when describing “Negative Capability,” and practice it every day.