"BA"

One of the most fun and amusing moments that I have had in court came last week. While in jail court, we had a stipulated bench trial that centered around one issue: does mooning a police officer after you have been arrested for DUI constitute lewd conduct. I had to keep a straight face as I argued that it is possible to have one's genitals exposed while mooning, because showing one's behind is not enough to constitute lewd conduct. After court, the judge and I continued the conversation and he thinks it is possible to moon somebody without exposing one's genitals, but the reason the city lost was because he didn't think that the intent of the lewd conduct ordinance was to punish people for that kind of behavior. He also did not think the officer was offended either. It was one of those fun arguments that I really did not care if I won because the defendant was already pleading guilty to the DUI, and it is exactly the kind of thing that makes me want to continue practicing criminal law.

The rest of my courtroom time this week was not nearly as fun. I did a jury trial on Tuesday on a charge of telephone harassment domestic violence. We had a weak case and he was acquitted, which has had me thinking all week about what I could have done better. I was again reminded how the most important part of a trial is getting your good evidence from your witnesses out in a simple understandable logical manner. Taking direct testimony is very difficult and it is so easy to get all tied up and have it come out in a jumble. It did not help that we had a recanting victim and I was handed the case 30 minutes prior to when I had to get up in front of the jury.

From a pedagogical perspective, it is really better to loose a trial. When I have won, I usually just enjoy the victory and forget about it. Loosing causes you to think about what you could do better. I would feel worse if there was a victim who really was on board; on the other-hand, I loath the fact that somebody gets away with hitting or harassing another person because the victim goes along with the perp's version of events. It kind of left me with a bad taste and I think I have been a bit harsher in plea negotiations this week. I wonder how a prosecutor balances that sense of punishing people for their wrongs and making sure that punishment is imposed fairly and not based on the whims of one's mood. Something to ponder. . .