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Legally Speaking

 

Issue: February, 2007
Author: Lynn Boak

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Trial by Fire

In 1980, I was a young lawyer not yet a year out of law school, employed at a stuffy Seventeenth Street law firm in Denver, Colorado. For reasons I did not fathom at the time, Dale Tooley, Denver’s exceedingly colorful District Attorney, offered me a job as a deputy district attorney. I quickly accepted, and was to start in March 1980.

When I got to the office for my first day, I assumed the day would be taken up with paperwork, introductions, and maybe observing a few courtroom procedures. Dale informed me I needed to be sworn in and asked me which judge I preferred for this task. Taken by surprise, I mentioned Judge Sparr, because I knew his son and had been to their house for Christmas dinner three months prior.

“Very well,” said Dale, “I’ll drive.”

There were immediate sounds of consternation and rolling of eyeballs among the people loitering in Dale’s office. These people turned out to be my immediate supervisor, Larry, and a first assistant district attorney named Dick, who was apparently also interested in my swearing-in. I didn’t think much of it until we set forth. Dale was seated behind the steering wheel, operating the car, but he was turned toward me; and I was in the back seat! It suddenly occurred to me that my first day on the job might also be my last day on earth. I remember a fleeting feeling of gladness that there were several hospitals nearby, and that some of my closest friends were medical residents at these hospitals.

As we hurtled down East Colfax toward the Courthouse, horns blared. I flung up my arms at least twice, expecting immediate annihilation. Larry had, wisely and probably due to prior exposure to Dale’s driving, placed the palms of both hands on the ceiling of the car to brace himself. I later learned that this bracing of oneself was something the police urged passengers to do when they were running “code ten.” Dick, in the front seat, occupied himself by periodically grabbing the steering wheel and telling Dale to watch out, although he never raised his voice or screamed, as I would have done. Other drivers, apparently realizing that their lives were at stake, got out of our way and we made it to the courthouse without the demolition derby and mayhem I was expecting. Dale expertly parked the car, which was a retired patrol car, with one wheel on the curb.

My hair must have been standing on end when I emerged from the back seat, because Judge Sparr didn’t recognize me. I’m sure Dale and his entourage were puzzled as to why I had chosen this judge to swear me in, when he didn’t seem to know me from someone off the street. Nevertheless, I was soon deputized and ready for action. To my complete chagrin, Dale immediately assigned me to a courtroom and told the deputy there that I would try the case on the docket for that day. My protestations that I had never tried a case were in vain. “The best way to learn is to do it,” Dale remarked, as he threw me to the lions.

It was a misdemeanor assault case with a car as the weapon. The defendant had allegedly hurled ethnic insults at a group of people on the sidewalk, then driven a car into their midst, injuring one of them. The vehicle in question did not belong to the defendant and could have been driven by any number of people. My only identification witness was a very young male with the IQ of a walnut. The deputy in charge of the courtroom tersely explained the things I had to prove using the acronym LOVID : L- location; O- offense; V- venue; ID- identification; and went about his business. I studied the file, which was thin, and tried to quell my panic.

Then the trial began. About jurors, I had no clue. I picked people I thought I would like if I met them socially. I kept a school teacher, a doctor whose father was a former public defender and now was a judge, a minister, and three housewives. I noticed Larry sitting in the gallery shaking his head, but I assumed I couldn’t recess the trial to find out what I was doing wrong. Later, I learned that teachers, housewives, ministers and anyone connected to a public defender were considered the worst possible prosecution jurors.

I called my first witness, a police officer. Fortunately, he had testified before and all I had to do was to keep asking what happened next. Unfortunately, he didn’t see who was driving the “assault weapon.”

After I announced I was finished questioning the officer, I noticed that the judge kept flashing “V” signs at me with his fingers every time the defense attorney’s back was turned. I suddenly realized I had not asked the officer where the events had taken place. When my chance for re-direct came, I asked the officer the critical question. The defense attorney objected because it was beyond the scope (whatever that meant– I didn’t know that either at the time), but the judge was merciful and allowed the question. (It would have been exceedingly strange if he hadn’t.)

Then it was time to call my identification witness. I knew I was in trouble when he couldn’t recall the date of the incident. Or whether it was summer, winter, spring or fall. Or why he was on the sidewalk with the group of people at whom the ethnic epithets were directed. Or what type of car was driven into the group. Then I asked him if the person who had been driving the car was in the courtroom. He said no. Startled, I looked imploringly at Larry, who made a circular gesture with his finger. I interpreted this as well as I could and asked the witness to look carefully at everyone in the room. For an eternity, he studied the gallery, then he studied the bailiff, then he turned and studied the judge. Then he looked at the defendant’s table. “Oh, there he is.” I was limp with relief.

The rest of the trial went by with yours truly fumbling through admission of the defendant’s drivers’ license suspension and a few other technical things that I only vaguely remembered from Evidence classes in law school--all made much, much worse by my nervousness. I don’t remember what the verdict was. I think it was not guilty. This would be too good a story if it had been “guilty” anyway.

Early on, in my four years at the D.A.’s office, I like to think I discovered that winning and losing were not as important as the truth, and that juries really try to do the right thing. I knew it most of the time, and the merciless teasing of my peers helped me develop a thicker skin. My identification witness in that first trial wasn’t sure about much of anything, and so, although someone was hurt, I couldn’t prove beyond a reasonable doubt who did it. I suppose it was a good lesson about the realities of the criminal justice system, and that my ego should not be invested in the process. Dale’s terrible driving was legendary, but so was his ability to make his deputies realize that their role was not to win so much as to do the right thing. It’s an important lesson for a young lawyer, and something that has stayed with me throughout my career.


Lynn Boak graduated from the University of Denver College of Law in 1979 and moved to Wyoming in 1982 after three years at the Denver District Attorney’s office. She worked in private practice from 1982-1983, was a staff attorney for the Public Service Commission from 1983-1986, served as a law clerk for Judge Barrett in the U.S. Court of Appeals from 1986-1988. Boak was an attorney for the Internal Revenue Service until 2006 and is now a sole practitioner in Cheyenne. Boak also serves as the 1st Judicial District Commissioner for the Wyoming State Bar.

Copyright © 2007 – Wyoming State Bar

     

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