Horace Rumpole, the fictional Old Bailey barrister, once said that he could win most of his cases if it weren’t for his clients. Some clients display a stubborn insistence upon ignoring your advice or otherwise undermining your efforts to help them. Sometimes, despite your best efforts on the part of your client, he will say or do something which undoes all your good work.
In a long ago drug trial, the testimony revealed that a confidential informant had purchased cocaine from the defendant under the surveillance of several law enforcement officers. Instead of immediately arresting the defendant, the officers allowed several weeks to go by before obtaining a warrant. Of course the defense was mistaken identity. The officers advanced the defense by being in hopeless conflict as to what the defendant was wearing. On cross-examination the defense attorney skillfully highlighted each conflict, hammering home the inconsistencies and causing the prosecutor himself to wonder about the credibility of the officers. One officer said the defendant was wearing a brown shirt. One said a green shirt. Another said the shirt was striped. One officer said the defendant was wearing tan pants. One said beige. Another said brown. One officer said the defendant was wearing brown shoes. Another said he was wearing sneakers. They could not agree on the description of a single item of the defendant’s clothing.
The prosecutor’s concern about the wide divergence in testimony deepened during final argument as the defense attorney eloquently argued the discrepancies, reminding the jurors that the judge would instruct them that “a reasonable doubt can arise from the evidence, the lack of evidence, or a conflict in the evidence.” The defense attorney had spun the conflicts into enough reasonable doubt for a dozen acquittals. As he sat listening to defense counsel, the prosecutor could see that the argument was connecting with the jury. They were leaning forward and listening intently. The prosecutor even saw one of the jurors nod as the defense attorney made a point. Unable to continue looking at the jury, the prosecutor allowed his eyes to wander about the courtroom. Before long, they fell on the defendant sitting alone at counsel table. The prosecutor did a double take and then studied the defendant intently. He was wearing a green and brown striped shirt. His pants were a color that could fairly be called beige, brown, or tan. The prosecutor looked down at the defendant’s shoes; they were brown sneakers. The defendant was wearing the same clothing he had worn when he sold the drugs!
The prosecutor decided to work a comment or two on the defendant’s dress into his rebuttal final argument. He would have to be circumspect in his remarks, however, because the clothing that the defendant wore to court was not in evidence. How might he comment on the defendant’s courtroom attire without provoking a mistrial for commenting on facts not in evidence? The prosecutor decided to use the defendant’s clothing as a non-evidentiary demonstrative aid. His closing remarks went something like this: “Ladies and gentlemen of the jury, my learned colleague has made much of the fact that one officer described the defendant’s shirt as brown, while another said it was green, and another said it was striped. He says this so-called conflict gives rise to a reasonable doubt about his client’s guilt. Could it be that the defendant on the night in question wore a green and brown striped shirt much like the green and brown striped shirt he is now wearing? Where is the conflict in testimony if that is the case? As for the conflict about brown shoes or sneakers, could the defendant have worn a pair of brown sneakers, much like the brown sneakers he wears today? Could …. ” You get the picture. The jury did too. The prosecutor got his conviction without ever having to say, “Look, ladies and gentlemen of the jury, the defendant is either so arrogant or so stupid that he thinks we won’t notice that he’s wearing the same clothing he wore the night he sold the drugs.” An excellent job of cross-examination and an eloquent final argument were set at naught by the client’s own actions. Perhaps defense counsel would be wise to add “dressing the client” to their pretrial checklist of things to do.