Growing up the son of a former federal prosecutor in Connecticut, I would often find myself as a teenager years errands to various courts. My father introduced me to judges, prosecutors, defense lawyers, and the like. One of the more colorful characters was a local bail bondsman with a business card that read: “NOBODY TALKS, EVERYBODY WALKS.” It seemed funny at the time but more and more I have learned (usually the hard way) that client’s will always get hung by their own words — their own statements.
Fast forward to a recent trial that we did on Staten Island, People of the State of New York v. Ozan Williams. We got asked to try the case after a jury hung on the original trial on all three remaining counts: Kidnapping in the Second Degree, Robbery in the Second Degree (Causing Physical Injury to the Victim) and Robbery in the Second Degree (Aided by Another in the Commission of the Crime). The District Attorney worked hard to clean up his case from the first trial. For example,at the original trial, one witness took the stand and would not promise to tell the truth. She did not come back for a repeat performance. Another witness who signed a cooperation agreement, in the DA’s estimation, perjured herself. No word from her at Round 2. The DA also took to heart the adage of “less is more” and stripped the case down to its bare bones, which unfortunately included several recordings from jail of our client talking about the charges and what he did to the victim.
After three weeks of trial, and four days of jury deliberations, the verdict was split. The client got acquitted of the top count: Kidnapping in the Second Degree, an B violent Felony. The jury was hung again on Robbery in the Second Degree (Aided by Another in the Commission of the Crime), a C violent Felony. But the jury convicted the client of Second Degree (Causing Physical Injury to the Victime), a C violent Felony. Walking out of the courtroom, we had the chance to speak with several jurors who were also talking to the two prosecutors who tried the case of the District Attorney. They all said the same thing – but for the client’s own words, they would have acquitted him of all charges. NOBODY TALKS, EVERYBODY WALKS. The inverse proposition: The client talked and now he doesn’t walk.
It is easy to tell clients to not make a statement. In the heat of the moment, we all think that we can talk our way out of anything. It is human nature but it is wrong. That is why the back our business cards have the following warning:
MY LAWYER HAS TOLD ME NOT TO TALK TO ANYONE ABOUT MY CASE, NOT TO ANSWER ANY QUESTIONS, AND NOT TO ANSWER ANY ACCUSATIONS. CALL MY LAWYER IF YOU WANT TO ASK ME QUESTIONS, SEARCH ME OR MY PROPERTY, DO ANY TESTS, DO ANY LINEUPS, OR ANY OTHER IDENTIFICATION PROCEDURES.
I DO NOT AGREE TO DO ANY OF THESE THINGS WITHOUT MY LAWYER PRESENT AND I DO NOT WANT TO WAIVE ANY OF MY CONSTITUTIONAL RIGHTS.
Bottom Line: Keep your mouth shut and let your lawyer protect you. He or she will do a lot better than you will do for yourself. I know that it is odd that I learned this lesson when I was in high school. That comes with the territory of being raised by a former federal prosecutor. Hopefully, through, the next client will have the benefit of this advice before he talks on jail house tapes or to a detective other law enforcement agent.
