Let’s face it, the government controls the process within which myself and the accused must function. The what, when, where and how are largely decided for us with little or no input from our side .

I never refer to an individual I am representing as “my client”. Not in open court, not in legal filings and never in correspondence. First of all it is inappropriate to profess to possess a person in any manner. This is a matter of abstract philosophy. They are not mine or anyone else’s at least since adoption of the 13th Amendment. As a matter of advocacy, use of the third person tends to dehumanize, depersonalize and objectify which is something to be avoided, especially in criminal defense. Much better to state that, “Mr. Wrongly accused was nowhere near the scene of the crime,” rather than, “My client was….”

Similarly I never refer to the opposite side in a criminal case as “The People”. To the judge I most often refer to my opponent as “The Prosecution” or “The Prosecutor”. In front of a jury it is “The Government”. I can’t call them “The People” because we are people too. In actuality it is not “The People” but The Government or at least one arm of government. This also helps to depersonalize the opposition.

Neither myself nor anyone I represent are allowed to wear leather in court at any time, under any circumstances, except for shoes. No matter how nice or what the cost, leather garments look hoody. I have sent people back to their car with a thousand dollar leather coat from Nordstroms.

Men in custody tend to mess around with their facial hair for no other reason than sheer boredom. They can do all they want but whether in or out of jail they are not permitted to attend any substantive court appearance with a van dyke/goatee. Full beards, outrageous moustaches are acceptable along with of course, a clean shaven look. My absolute bar on the goatee is founded in fact not superstition because it makes a man look evil. There is subliminal sinister quality to that particular configuration because every single visual representation you have ever seen in your entire life of the Devil, he is sporting a van dyke. I cringe every time I see a news report of a high-profile defendant with this configuration of facial follicles. Sometimes the big city lawyers aren’t paying attention to obvious detail.

Seating during a jury trial is very important. The prosecution would like the defendant as far away from them and the jury as possible. I like to seat my client between me and the prosecutor. In Marin courts this has to be conceded with an in-custody defendant because the security concerns of the Sheriff mandate that they sit in a certain chair that is not in fact furniture but part of the real estate. It has special hardware in the back so that an unruly individual can be chained to the chair without the jurors seeing the steel wrapped around his waist. As a point of honor I once sat in that chair for a portion of the trial so that the accused individual would not be isolated at the end of the table. We subsequently had to switch seats when he failed to show midway through the proceedings and got himself remanded into custody for the duration.

In the appropriate case I like to sit before the jury with as little paper in front of me as possible. The prosecutor will wheel in a cart full of files while I sit beside one or two manila folders and a writing tablet. This is done subliminally to convey my feeling that the whole thing is no big deal. Every once in a while I get caught short without the correct police report for the present witness but what the hell, that’s what improvisational skills are for.

During a trial I will eat lunch anywhere but the courthouse cafeteria. If the defendant is in custody we go to great lengths to insure that the jury is not informed of this fact. If I am seen dining without the client the natural conclusion is that he or she is chomping down a baloney sandwich at county expense out of view. While the jurors probably figure it out at some point, it is not a good thing to remind them of it at every turn so I take my repast elsewhere. Even with the luxury of an out-of-custody defendant I try to avoid dining in the vicinity of the jurors to avoid the possible mis-speak in their presence which may present an image which differs from the one we are portraying in the courtroom.

Whatever beastly acts the individual sitting next to me may be accused of is no excuse to treat him or her as anything other than a family member. I always take an opportunity to touch the shoulders or arm of the person on trial to convey the thought that he is not the disease that the government alleges he is.

I never use the word ‘victim’ except after guilt has been established and then only as an expression that the accused is accepting culpability for this actions in a ploy for mercy. The V-word has no place in a courtroom prior to that. There is no crime and therefore no victim unless and until there has been a jury verdict or a plea of guilty. I have a standard pre-trial motion which asks that the prosecutor to refrain from use of the V-word. This motion was routinely granted because the authority behind it is solid. The prosecutors are so married to the concept that they are there to make things right and that there must therefore be a victim would inevitably violate the order by uttering the V-word usually on direct examination of a police officer. I would then scream for a mistrial which would be denied and used later by an appellate lawyer seeking to overturn a conviction. Lately the local judges, having heard this play out no longer grant the motion but politely ask the DA to do their best to avoid use of the V-word.

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