Fury Bailey - Personal Injury - Wrongful Death Attorneys

THE GREAT COUGH SYRUP BOTTLE CAPER - MY FIRST TRIAL

By William S. Bailey ©

There are desperate times in a trial lawyer's life when you want to be beamed up by an enemy alien spaceship or else dissolved into the floor like the wicked witch of the west after Dorothy douses her with a bucket of water. My first trial 20 years ago was one of those times.

Though it had been suggested by some that I consider the courtroom as a venue for my life's work, the mock trial I did in law school made me believe that I'd die of a heart attack from the stress of such a life. So, for my first two years in practice, I drafted legislation for a governor's commission and nearly died of boredom instead, relying on copious amounts of coffee, tea and toothpicks to hold my eyelids open.

Taking Horace Greeley's advice, I then moved west to Seattle and interviewed for any job I could get. The response was depressingly uniform - “Thanks, but no thanks . . . don't call us, we'll call you” (including two law firms in which I was later a partner). My big break came at last from the local public defender agency - one of their misdemeanor attorneys would be taking a family leave to go back to New Jersey after her father suffered a major heart attack. I got the call to see if I would fill in over this period. I was at home doing work therapy stained glass projects, despairing of ever getting a job as a lawyer, let alone a trial lawyer. My living room looked like
the day room of a state mental hospital, littered with debris from multiple arts and crafts projects. I happily accepted the job as a public defender substitute.

I inherited the departing attorney's full case load, with multiple trials coming up with frightening frequency in an unconscionably short period of time. My euphoria over getting the big chance to prove myself quickly turned to nail biting anxiety. After all, I only had one mock trial two years ago under my belt, which now seemed a distant memory. I frantically read a number of books on trial advocacy and found out that all the information left me with about as much residual substance as eating a box of Hostess Twinkies. I was in trouble and so were all of my new clients. The only scant comfort I could take is that all the charges were misdemeanors. At least nobody was relying on my questionable legal skill to escape the gallows.

My first trial was coming up in a week on a drunk driving charge. I knew that there would be no deal making reprieve on this case as my predecessor had written on the outside of the folder after the arraignment, “prosecutor says no deal on this one”.

My client was a pleasant, affable, somewhat chunky man in his early 50's, who had been pulled over by the Seattle Police Department in the course of making dry cleaning deliveries for his friend Ike in Seattle 's Central District. He came to the arresting officer's attention by swigging from what was described in the police report as a beer bottle while going through an intersection - this indiscretion caused the officer to pull him over and administer a field sobriety test. The client's luck turned from bad to worse as a loaded pistol dropped out of his pants and clunked onto the pavement during the heal-toe walk.

The client later explained that a weapon was a necessary tool for his job. It seems the dry cleaning deliveries were somewhat similar to being a clerk on the night shift at a Seven-Eleven Store. Naturally, my client's gun was not accompanied by a permit or license of any sort. (The weapons charge was going to a separate court and thankfully I would not be responsible for that.)

After his initial detention, my client failed the field sobriety test and blew over the limit on the breathalyzer when he was taken later to the police station. His blood alcohol level was too high to qualify for a plea bargain to a reduced charge.

In those days, the Seattle Police Department added insult to injury by taking a video of any drunk driving suspect in custody, cruelly making the helpless defendant recite tongue twisters, close their eyes and put their fingers to their nose and do a heal-toe walk. Not infrequently, defense lawyers would be treated to a video rendition of the client falling “splat” on their face, during the heal-toe walk. This was candid camera all right, but no Alan Funt or Durward Kirby was in sight and I wasn't laughing.

A colleague told me before I went over to the Public Safety Building to view my client's video, “Maybe you'll get lucky and the police will have lost the video. Whenever that happens, we routinely move for a dismissal and it's always granted”.

I prayed fervently all the way over to the evidence room that my client's video had come to an unfortunate and unexplained end. This prayer was not answered as the Police Department clerk found it without delay.

My client did an acceptable job on the video tongue twisters, but he stood as unsteadily as a sailor on a pitching deck in rough seas. His hands were firmly locked on the adjoining table for support. He was somewhat
loud and argumentative, repeating with distressing frequency and belligerence, “How many times do I have to tell you, I'm not drunk?” Apparently more than the 20 times the camera recorded, as the officer still charged him with drunk driving.

With no “lost video reprieve”, I now had to face the reality of a trial in this case. All my promises in getting the public defender job about what a quick study and resourceful person I was now felt like ashes in my mouth. I was going to have to face the ugly reality of going into court without much more than the raw survival instincts possessed by any beast when cornered. Instinct would have to be enough, but I doubted it would be. I kept looking up for signs of the enemy alien spaceship that would deliver me from this fate. Nothing but the usual Seattle clouds were all that I saw in the sky.

My next move was to make the rounds of all the misdemeanor attorneys and beg for them to come to court with me. I was reminded of the western movie from my childhood, High Noon , in which Sheriff Gary Cooper unsuccessfully begs the leading citizens of the town to help him stand up to the bad guys.

But I was soon to discover why “public defender” and “overworked” were a natural coupling on a psychological word association test. The response was uniformly, “Are you kidding? I've got more cases than I know what to do with and not one sliver of daylight in my schedule . . . Look, you're smart, just do the best you can”. I got a vague promise from one lawyer that he would “try and check up on [me] when [he] was through with the afternoon calendar”. A slender reed which did little to reassure me.

I met with the client to discuss the case two days before trial. His story was that this was all a “big misunderstanding”. He was actually
drinking from a big brown glass bottle of cough syrup as he went through that intersection. He always carried this bottle with him for acute “asthma attacks”. While I was more than a little skeptical, he promised me that he would produce the bottle for trial. And he did, the biggest cough syrup bottle I have ever seen, before or since. It looked like he had gotten it second hand from some institutional source like a tuberculosis ward.

I brightened some at my client's resourcefulness. There was a valid defense here after all, now that the giant cough syrup bottle had appeared! And besides, the client didn't fall flat on his face like so many others during his police video. Yes, this was clearly a medical emergency for which we could all be thankful that my client had a generous supply of the miracle cough syrup close at hand. I would tell the jury that this was all a big misunderstanding. Surely the jury would see this and set my innocent client free, just like at the end of a Perry Mason episode.

We got assigned to a judge who was an admiral in the Navy Reserve with a reputation for being amiable but dingy. He was known to speak in naval rather than legal terms from the bench. For example, if you made an objection too late, he would respond “TGB” which was naval speak for “target gone by”. My lack of military experience in this court was going to compound my lack of legal experience.

My opponent from the prosecutor's office was a plus - a gentle laid back soul who ultimately left Seattle for Hawaii because Seattle was “too intense”. He was not out for my client's scalp and was a reluctant warrior at best. He would do this case by the numbers, with no particular spin or urgency. I needed this casual attitude from my opponent for any benefit it might bring.

I hoped for a worldly wise jury panel who if they did not have a consistent thirst for alcoholic beverages, would nonetheless not be strangers to the bottle. Perhaps a bartender, cocktail waitress or even a kind little old lady who was known to sip some elderberry wine in the afternoon. Another prayer not answered. The jury panel filed in and looked like a group of missionaries who passionately believed in the saying, “Lips that touch wine will never touch mine”. There wasn't a W. C. Fields prototype in the lot of them. A man in his 60's in the front row, Juror No. 3, looked like Cotton Mather's administrative assistant - severe, stern and humorless. The people waiting in the reserves in the back of the courtroom looked even worse, so I kept Juror No. 3 on the panel as the lessor of multiple evils.

My client sitting beside me could see me coming close to a meltdown during voir dire. He eyed the door a few times, like maybe it was a better alternative to make a break for it and bolt to freedom while he still could.

The trial began and the arresting officer came in squeaking of stiff leather, sounding like a field of crickets in the summertime. He was swathed in the usual authority figure regalia, looking like a participant in a Memorial Day parade.

On cross-examination, I got the police officer to admit that my client had done “a pretty good job” on the field sobriety test. He hadn't retained the beer bottle he said he saw my client drinking from. I tried to leave some suggestion of destruction of evidence as I finished his examination. I remembered Irving Younger's advice and didn't ask him too many questions, not to mention the immortal words of Abe Lincoln, “Better to keep one's mouth closed and be thought a fool than to open it and remove all doubt”.

When his turn came, my client took the stand nervously. We were a shaky pair, a rookie know nothing lawyer and a client with a flimsy story. I kept looking back to see if the other lawyer from my office would make good on his vague promise to come in and “check up on me”. This guardian angelship never materialized.

I had my client's cough syrup bottle marked for identification and proceeded to establish its life and death role in my client's continued existence. “I take it with me wherever I go. I never know when I am going to have a bad asthma attack, just like I had the day I was arrested.” Convincingly, the bottle was only about half full, which helped to relieve any juror suspicion that it was a recent acquisition for purposes of trial.

My father always gave me the advice to look people in the eye when you're telling them something important that you need them to believe. I desperately needed this jury to believe our story so I told my client to look the jury in the eye when I asked him the ultimate question, “Mr. ______, I want you to look this jury in the eye and tell them if you were drinking on the night in question”. I was very pleased by his performance. He did not blink and said an emphatic “No” with good eye contact.

The jurors were like so many statues in an art museum sculpture exhibit. I have seen plaster death masks with more expression. I feared that Juror No. 3 was thinking evil thoughts about my client, me and this case.

It took us a half day to try the case and submit it to the jury. As they filed out, I shook my client's perspiration dampened hand with my own of the same description. His eyes were darting around in their sockets like crazed goldfish in a bowl. I tried to reassure him that all was well but my words choked to a halt, constricted by anxiety and doubt that this was really so.

As the jury retired, I took leave of my opponent and went back to talk to the judge to inquire of his views of my performance. Of course, I tried to maximize whatever sympathy was available to me as a novice, telling the court at the outset that it was my first trial. As I spoke with him in chambers, he was kind and said, “You really did a pretty good job. They just might acquit your man. But you know, you really should have introduced that cough syrup bottle as an exhibit and let the jury take it back with them.”

I went numb - oh no, in this acid bath of constant anxiety, I had forgotten to do the most obvious thing - introduce the cough syrup bottle into evidence in a cough syrup bottle defense case.

I was well into a cycle of self-flagellation when the jury buzzed with a question that the bailiff went off to field. The question? Of course, the jury wondered why they didn't have the cough syrup bottle to examine as evidence.

I looked at the jury foreman's note after the judge handed it to me and I plunged into a new depth of numbness and despair. I was as miserable as I could ever remember. “I knew I shouldn't have tried to be a trial lawyer for a living. I should have stuck to the solemn vow I made after law school that trial work was too stressful.”

The jury was out for about an hour and I was not surprised to see that Juror No. 3 was the foreman. He avoided my anxiously inquiring eyes and looked the other way before the verdict was read. That told me all I needed to know. “Guilty as charged of drunk driving.”

I must have been a pitiful sight to the judge because after the jury was dismissed, he turned to me and asked pointedly, “Is the defense going to make a motion for a reduced charge on the ground that the verdict was against the manifest weight of the evidence?” Though still mentally gasping for breath like a boxer that has been slugged in the solar plexus, I stammered out, “Yes your honor, we would move for judgment notwithstanding the verdict for the lessor included charge of physical control.”

“Thank you Mr. Bailey.” The judge turned to the prosecutor and suggested helpfully, “You wouldn't have a problem with this would you Mr. Wooten?” My opponent smiled and said, “No, I don't think I'd have too much of a problem with that.” “Good, then Mr. Bailey's motion will be granted and judgment entered on the lessor included charge of physical control” (one that we would have gladly pled to if it had been offered!). In my own bungling way, with a little help from the judge and my opponent, justice had been served after all.

I walked back the three blocks to the office. It was a dreary Seattle fall day, but I was oblivious. I had survived my first trial and my client was none the worse for it. I even heard myself brag a little when I got back to the office. “So how did it go?” “Great! The evidence was overwhelmingly against us but I got the judge to knock it down to physical control after a post-trial motion.” My colleagues were supportive and unfailingly gave me an “atta boy” pat on the back. I sat down at my desk and looked at the sea of open files that resided upon it. I thought, “maybe I have a future in this business after all.” Twenty years later, the memory of my first trial and that big brown bottle of cough syrup sitting on counsel table is as vivid as if it happened yesterday.

© 1996 William S. Bailey. All rights reserved.

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