Sometimes when we lose, We win.

Sometimes when we lose, We win.

August 27, 2020

I walked down the old narrow hallway. I didn’t want to get to the door ahead of me. I needed time to slow down.

Nobody wants to deliver bad news but that task laid ahead of me. I had lost. Just a few moments before the scene played out how I expected but not how I hoped.

The jury of six people entered into the courtroom. We all rose as they walked in. The judge, a slight man who wielded his authority with total conviction, could barely be seen over the front of the judge’s bench. The bailiff stood with his handcuffs ready. I thought to myself, maybe, just maybe I did it.

My years as a trial lawyer taught me to read every little movement or sign as an indication of a specific result. Most of the time they didn’t matter, but times of desperation called for any hope I could find. I tried to see if the jury would look at me. They wouldn’t.

In my world, when the jury refuses to look at me, it’s bad. They don’t want to deliver the bad news. Does this work every time? Of course not. But this theory has been right more often than not.

The jury sat down. The attorneys, judge, and defendant followed. Every person looked ahead, except for me.

I looked back into the audience. Praying I would not see anybody back there to hear the bad news I expected. I had a bad feeling. I knew how the trial had played out. I knew the choices I had made.

Thankfully, the gallery was empty.

The pain of defeat would be the final blow to an already battered woman. The defendant stood. The judge read the verdict. The two words I dreaded most came out of his mouth.

Not Guilty.

I shook the hand of the opposing lawyer. We exchanged pleasant words, offering praise to one another on a fine trial. To be fair, it was a great trial. Both sides presented a smart and persuasive case. The jury had deliberated for nearly an entire day. But that didn’t take the sting out of those words.

Not Guilty.

Did I really lose?

I had lost the trial but I wondered if I had actually lost. What do I mean by this? Everybody has heard the phrase “lose the battle to win the war.” Trial was the battle, but the war was the future for the woman victimized by the abuser.

See, I had changed my strategy for the closing argument. Instead of arguing to the jury, like normal, I spoke to my victim and to the defendant. I delivered a speech to send a message. A message of hope to my victim. A message that I knew she would hear. I knew the defendant would hear it too. I wanted them both to know that people would step up for those who are victimized and fight to protect them.

Why did I make this change in strategy? I knew I was going to lose the trial, that loss was all but inevitable. So who better to reference than Harvey Specter when he said, “win a no-win situation by rewriting the rules.”

That’s what I did.

Losing the trial would be the game most lawyers would play. They’d see only two options: win the case or lose the case. Those are the rules.

However, I could rewrite the rules. I could win differently by sending a message to both the victim and the abuser.

The abuser may escape the handcuffs and jail but I could also let my victim escape from her fear, pain, and regret.

She was afraid that nobody would care. That nobody would fight for her. That nobody would believe her.

She was in pain from a failed marriage. A failed promise of hope. America, not what she expected.

She regretted not speaking up earlier. She regretted letting a man control her. She regretted that she had supported him even after she called the police.

Why rewrite the rules?

My instincts told me we were in trouble during the trial. Think of it a bit like that Spidy sense in Spiderman.

The victim testified and there were many hurdles to overcome. She was from Nigeria and came over to the United States for an arranged marriage with the defendant. She was in the process of gaining citizenship but was not one at the time of the trial. This presented a huge obstacle in the case.

Under the Violence Against Women Act, a victim of domestic violence can gain citizenship to the United States. I had already checked and her application was well on the way to acceptance even before she called the police. She did not need to make something up to get citizenship, but that didn’t change the fact that the defense attorney would exploit this for all its worth.

The victim got slammed about this on cross-examination. I mean slammed. And the worst part, I couldn’t do a thing to stop it. it hurt to watch. She broke down and started to cry.

“Why sir, do you keep asking me this?”

Over my objection, the judge allowed the defense attorney to continue asking her this question every possible way he could think. She answered each question with total honesty. But she did not understand the law, immigration policy, or much of the wording the defense attorney used.

I saw the growing doubt in the jury’s eyes. Doubt that would lead to a not guilty.

The defense attorney moved on and hammered her on the delayed reporting. If her husband was so abusive why didn’t she call the police right away? She had time to make up her story. Time to self inflict bruises.

Time to plan everything.

I watched the jury. I saw them buying into this story. Maybe not fully, but enough.

All a jury needs to find a defendant not guilty is a reasonable doubt. This means they could believe it was more likely that the defendant did abuse the victim but if they have one reasonable doubt they find him not guilty.

I knew they had been given reasonable doubts in their minds. I knew we couldn’t come back from this damage. The only way we stood a chance was if the defendant decided to testify. That would be my moment. My moment to show the jury the truth of the man.

I waited.

As my case came to a close, I stood up and announced “Your honor, members of the jury, the State of Texas rests its case.” I was done. Now I waited to see what would happen.

The Judge rose up so he could see over the front of the bench and looked down at the defense attorney. He asked the question with his eyes. “Is the defendant going to testify?”

I waited. I wished. I hoped.

The defense attorney stood up from his chair. Buttoned his suit jacket. Took off his glasses.

“Your honor, members of the jury, the defense rests its case.”

The trial was over. The defendant would not testify. My fate was sealed.

As most people know, the 5th Amendment of the United States Constitution entitles a person accused of a crime the right to silence and the right not to testify. In a criminal trial, this means only the defense can call the defendant to testify. The prosecutor, in this case, me, cannot call the defendant as a witness.

So no matter how much I wanted to ask him questions and show what a monster that man was, I was completely powerless to do so. I had to hope the defense attorney would make a mistake. But remember earlier, how I said that both sides tried a great trial? Unfortunately, that was true and the defense attorney did not make that mistake. He knew, just as I knew, that the jury had reasonable doubt and would find the defendant not guilty.

Did I fail?

Maybe

It was time to find out as I took that walk back from the courtroom.

Judgment Time

I pulled out my badge and placed it up against the black pad. The light flashed from red to green. I opened the door and saw my boss’s office on the right. Thankfully, she wasn’t in there. I kept walking and turned left at the first hallway.

“Nothing you could do Robbie.” “Keep your head up.” “That sucks bro.”

Messages from my co-workers flooded my ears as I walked past the offices in the hallway. I remember hearing them and ignoring them. It didn’t change anything. It was time.

I reached the final office in that hallway and walked in. I saw the woman sitting on that old couch staring down at her phone.

I wished I knew the right words. I’m a trial lawyer and public speaker. I rarely lack the ability to talk but at this moment I had nothing. I just looked at her.

She knew by my look. We lost.

I couldn’t speak. I was broken for her. Then I saw it happen. She stood up from that couch and walked straight towards me.

“Thank you Mr. Robert. Thank you so much. I’ll never forget you.”

She hugged me. One of those hugs your mother gives you to tell you everything will be okay. She cried as she hugged me. Sobbing on my suit.

All while saying Thank You, Mr. Robert.

I told her I was sorry. She asked why I would be sorry. I explained to her that the man who had beat her and abused her was found not guilty. That was my fault. Maybe I could have done more or fought harder or found a way to pull out some miracle.

She stepped back from me. She looked at me.

“Mr. Robert, you don’t say sorry.”

She embraced me once again. When she let go, I walked out of the room. Unable to take anymore as her kindness created shame from me. She deserved a win.

I never saw her again.

But I did hear from her.

She emailed me a month later. It was a long email of gratitude and letting me know how good she was doing. She had a job. She had a safe place to live. She felt like she finally had a real home and a chance in America.

Maybe we really had won.

I felt good as I read that email. But like the hug she had given me, this too made me regret my decision even more. I felt like my decision was the wrong one and I had let her down.

My grief ate at me but I buried it. I told myself that if she was happy then I should be happy. I wasn’t happy though. For whatever reason, I deeply cared about this woman and felt I had let her down. I thought about her often. The case haunted me over the next few months. But, life goes on. More cases came up. More victims to help.

The Moment

Nearly a year later I was working on a different domestic violence case. A woman who worked at one of the local domestic violence charities happened to be involved as she helped the victim navigate the judicial system. I knew her through my work but nothing more than that.

Her words would change everything.

Her words helped me finally understand that sometimes when we lose, We win.

“Hey, Robert, I brought a message for you from somebody you know.”

“Tell Mr. Robert I’m doing just fine. I have a home. I have a job. I have my life.”

“Tell Mr. Robert Thank you. Tell him He did good.”

I walked to my office, closed the door, and tears of joy streamed down my face.

I did good.

Reach out to me at Robbie@robbiecrab.com

Photo by Saffu on Unsplash

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