"If You Lose This Case, You Should Turn in Your Bar Card"
By Bill Collins:
Sonny R. was a stunning, drop-dead gorgeous young woman. Not since I represented Wayne Newton's mistress had I had a client with such physical beauty. She retained me to defend her in a case in which she was charged with Assault With a Deadly Weapon, or in the alternative, Assault By Means Likely To Cause Great Bodily Injury, a violation of section 245(A) of the California Penal Code.
The charges didn't seem to fit this beautiful Latina—hardly what you would expect from her physical appearance. Jurors draw inferences not only from the demeanor of a witness while testifying but also by their physical appearance. At my first interview with Sonny, she told me that she was working on her Doctorate at California State University, Northridge, with her thesis study on abnormal psychology.
From that point on, her story veered wildly to a scenario worthy of a soap opera, proving that emotions trump intellect when a love triangle is involved. She and her boyfriend, Darryl, had been dating exclusively for six months. He had a circle of friends that Sonny felt excluded her because she was Hispanic. One of Darryl's friends was Karen, whom Darryl viewed as a friend only. Karen didn't see it that way. Whether in fact the circle of friends disliked liked Sonny because of her Hispanic heritage was debatable, but what wasn't in question was Karen's determination to disrupt Sonny's relationship with Darryl, and Sonny resented it. That was the background for the events that formed the basis of this prosecution.
On a weekend night, Darryl and Sonny went to a nightclub located on the Southeast corner of La Brea and Hollywood Boulevard. This was a trendy club that attracted a lot of the "hip crowd.” Alcohol and food were served in one section, while another was reserved for dancing. Darryl had invited some of his friends, including Karen, to join him. Sonny and Darryl arrived first and had dinner and drinks—two glasses of wine for Sonny. After dinner, they found a table near the dance floor. It was at this time Karen and the others arrived and joined Darryl and Sonny. More drinks were ordered.
The atmosphere typical of dance clubs at the time—dark, plushly decorated, with pounding, ear-splitting disco music blaring, making conversation impossible. Sonny excused herself and went to the ladies room. Shortly thereafter Karen did as well. The restrooms at the club had attendants whose job it was to hand out complimentary toiletries to the patrons. Their subtle, unspoken job, however, was security.
"After I entered the restroom, Karen came in," said Sonny.
"Was the attendant there?" I asked.
"She was when I first entered, but she left when Karen came in."
"Then what happened?"
"I asked her why she was there. She said Darryl invited her and the others. I said I didn't believe her. Karen walked toward me and said, 'Are you calling me a liar, you fucking bitch?'”
”The arrest report says you hit her in the head with a beer bottle," I said. "Did you do that?"
After a long pause, Sonny said, “Yes.”
Yikes, I wasn't expecting that. The arrest report stated the police found no evidence of glass in the restroom, in the trash bins, or in the wastebaskets. The statement of the attendant was that she didn't find any glass either when she searched the restroom before the police arrived.
"Was the attendant in the restroom during the altercation?" I asked.
"No," said Sonny. "She didn't come in at all until after everything was over."
"The attendant said she left the restroom for less than a minute."
"I don't know," said Sonny. "I wasn't keeping track of her or time, but it seemed longer than a minute."
I told Sonny I had some good news and some bad news. The bad was that I couldn't put her on the witness stand. If I did, I would be expected to ask her if she hit Karen with a beer bottle, and even if I don't ask her that, the prosecutor would. If Sonny lied on the witness stand, that would be perjury, and I would be guilty of suborning perjury. The good news was . . . I thought we could still win.
"How, if I can't testify?" Sonny's eyes flashed anger. "She was threatening me, walking toward me, calling me names! Can't I defend myself?"
"Did she have anything in her hands when she approached you?" I asked.
"Self defense is available, but the force you use must be proportional to the threat. I don't think the jurors will think smashing a beer bottle into the head of a romantic rival who was unarmed was proportional."
"What about her calling me a 'fucking bitch'? Actually a 'fucking burrito bitch'?"
I shook my head. "No words, no matter how vile, justify the use of force." This concept is so old it was immortalized in the case of Tuberville v. Savage (1688).
"Show me how close she got to you before you hit her," I said.
I was aware what I was asking for. Sonny walked close to me, so close that I was feeling uncomfortably physically attracted to her. I thought I saw Sonny smirk just a little.
"Okay," I said. "I see . . . too close."
After our meeting, I went to the club in question to talk to the attendant and the manager. I went on a weeknight, thinking it wouldn't be crowded—wrong. It was packed and loud. I found the attendant, and she was not happy to see me. In fact, she refused to talk to me.
“I am a witness,” she snarled.
I told her that was the reason I was there, to seek an interview. She refused, and I suspected she was advised not to talk to me. That was certainly her right, as it was mine to try. Since I was already there, I decided to look for the manager. Instead I found the owner, Mr. Tehrani, on the second floor, and he was eager and happy to talk to me.
"To your knowledge was any glass found in the restroom?" I asked.
"No, definitely not," said Tehrani. "I spoke with the attendant on duty that night, she didn't find glass anywhere."
I had heard enough to figure out what had happened. There had to be broken glass in the restroom. After all, my client admitted hitting her with the glass beer bottle. I suspected Tehrani told the attendant to clean up the glass and all evidence of a fight, including any blood. He also told her to lie. The attendant had left the room a lot longer than one minute—long enough for the confrontation to escalate into a violent fight. Furthermore, what was a glass bottle doing in the restroom? This was clearly a violation of club policy, which was posted on several signs outside each restroom door. The attendant and the club owner had a lot to answer for if Karen decided to sue them for negligence.That's why they were denying any glass was found. I would use Tehrani's and the attendant's dishonestly to cause reasonable doubt.
On the day of trial, the case was sent to the courtroom of Ronald Schoenberg—exiled to the Civil Courthouse ever since he handled the Domestic Violence case of Nicole Simpson. After her murder, he was roundly criticized for not imposing stricter supervision. He had been excoriated in the press for treating O.J. like any other Domestic Violence defendant. Needless to say, Schoenberg was perpetually in a bad mood.
Before trial there was a flurry of activity, and it seemed there was a possibility of the case being dismissed. Unfortunately, to Sonny's dismay, this did not materialize. She explained to me that if she was convicted, her chances of getting a doctorate would be jeopardized along with any potential employment opportunities. I was aware of the importance.
The prosecution called the bathroom attendant. She testified that she left the restroom briefly to listen to the music. When she returned she found both women disheveled, their hair a mess, makeup smeared—they looked like they had been in a fight. She insisted there was no glass and no blood. I had no reason to question her even though I knew she was lying.
Next, the prosecution called Karen.
Karen related that she and Sonny had had words. Sonny had picked up a beer bottle that was on the counter and struck Karen in the head. She bled profusely from the scalp. Broken glass and blood were all over the floor. Karen left the restroom to seek medical attention.
I had very few questions for Karen. I was content with what the prosecution had done to their own witness. Karen said blood and glass were everywhere, and the attendant who entered right after the fight said there was no glass and no blood, and the police confirmed this fact when they searched the restroom.
Defense counsel is an advocate, not a truth seeker. That role is supposed to be for the prosecution. But the prosecution, like the defense, become advocates as well. Expecting the truth to emerge when each side wants to win is always problematic.
I put Darryl on the stand to describe the love triangle as well as Sonny's academic accomplishments. He came off as God's gift to women, and it was obvious that the jury did not like him, but his testimony helped frame Sonny's image as a serious student. My closing argument to the jury was simple.
“The judge will instruct you that the prosecution has the burden of proving my client's guilt beyond a reasonable doubt. She does not have to prove her innocence. Reasonable Doubt is defined as follows: it is not an imaginary doubt, for everything subject to human affairs is subject to some doubt. It is that state of mind in which you cannot say you have an abiding conviction to a moral certainty (the language "moral certainty" was later deleted from the instruction). How can you square the account given by Karen and that given by the attendant and the police?"
I portrayed Karen as unreliable and motivated by jealousy and envy. It was not my place to explain the truth to the prosecution. They had the opportunity to investigate, and they had not done so. I'm not versed in Biblical scripture, but isn't there something about “reaping what you sow?”