My brain had not come from the factory wired for quick thought or action. Emotionally introverted, physically uncoordinated and socially inept, I spent more time on my back in one semester of elementary school than Jenna Jamison did in her entire career. Only they weren’t called bullies back then. I was being beaten up by jocks and top students who gained maturity in the year or two their parents held them back. They were kickball team captains who refused to pick me for their team because I tripped over my own feet, and student hall monitors who cut me in line and took my lunch money because they could.
Intellectually I was somewhere between challenged and lazy. However, being labeled dyslexic was something I never bought into; considering the diagnosis a cunning move by my parents to keep me away from the trouble I’d consistently found in public school. There had been disciplinary action for the altercations with other students and little things I didn’t see the harm in like looking up the teacher’s skirt. But the exploding locker was the final straw. It took a parent teacher meeting to unearth the mystery of how I could be failing every class without a single paper arriving home. Thank goodness father was too busy to attend. My teacher suggested beginning with a warrantless locker search. My poor Mother’s face registered pure terror when the door finally came unwedged. Both educator and parent were forced back by the landslide. And when the few papers that floated upward gently came to rest, each and every one prominently displayed a failing grade.
This led to the tests, and when the results were in I was sentenced to two years in a special needs school. My parents will tell you this helped me tremendously and I find it difficult to argue because it was there I discovered weed and Ritalin, two tools that helped me stay focused.
“Through prayer things will work out and your path will be clear,” my Mother would say towards the end of junior high, and I couldn’t have agreed more. By then I’d begun praying for female companionship and the two-to-one ratio of girls to boys at my new Christian High School kept my truancy low and my new found love for partying on the rise.
College was more of the same. In Vermont the drinking age was eighteen, a fact that helped rank Saint Michael’s one of the top party schools in the country. But by sophomore year I’d given up drinking and late nights to pursue a passion for bodybuilding. Astonished? You won’t be if you consider there was no better activity to feed my budding egotistic narcissism.
Law school became the next logical step. Is there any other profession whose practitioners are almost as full of them as they are of shit? “But what about getting in; the grades, LSAT scores and work ethic?” I told you I’d found ways to focus and by this time had developed into a better than decent student, yet for me this required twice the amount of study time than most of my peers. Foolishly I had not given adequate consideration to the public speaking requirements. There was no way I could talk intelligently in front of a group. Concepts that played eloquently in my head hit an impenetrable roadblock at my larynx. Classroom and lecture hall time was spent hyperventilating under the terrifying burden of being called on by the professor. The only way I could avoid complete embarrassment was to spend hundreds of extra hours outlining the outcome of every case assigned, summarizing court opinions into concise answers I could covertly read if called upon. In a lecture hall filled with over three hundred students being chosen was infrequent, yet inevitable. I felt like a frightened fish in a stocked pond.
Under this backdrop any suggestion of a career as a trial attorney could only be a sick joke. The fact that it came to be, that I would find myself here at the top of the profession trying a murder case, required unusual happenings beginning with my willingness to escape the confines of the classroom.
Boston College Law School offered internships working in the field for course credit. Second year I interned at the legal assistance bureau an entire semester working on a landlord tenant matter that ended up settling. Third year’s clinical study was in criminal law. My first inclination was to join the public defenders office. Criminal thinking was something I had experience with. I’d spent much of my life behind a mask, always heavily armed. I craved violence; pistol wiping uncooperative branch managers, threatening open safes with intimidation and when necessary, torturing by means of extreme atrocity and cruelty. I didn’t spare hostages. When we put together a crew I never chose to be a good guy. I was perpetually the fugitive during recess, after school play, and weekend recreation.
With this early degree in criminology I prepared the intern application from the defender’s office for submission. That’s when my father pulled me aside for a little chat: “The prosecution is the one with the resources. They have the best training. If you want to learn how to keep people out of jail, it’s best to know everything there is about putting them in.” I couldn’t have received better advice. The problem was I didn’t see the sense in listening when I thought I already knew everything. Still, I ended up throwing out the defenders application and submitting one to the DA’s office for a reason a thought made perfect sense: a girl.
Sitting in my first law school lecture I looked around the arc of auditorium seating and spotted her instantly. Auburn curls reflected overhead lighting off angelic features. I had to have her and I was not alone. Her father was Chief of Police in a suburban town and her brother a federal prosecutor. Her career path was predestined. She possessed oratory fearlessness while I spasmed epileptically at the thought of public speaking. It was a miracle I ever got a word out. Despite my fears when she signed on for the DA’s internship I followed in an effort to impress her. So whether or not she understood then or realized it years later when I was on Court TV, despite the extent of our drunken lust lasting one night, she was my initial inspiration.
No other law office was going to give an insecure, inexperienced newcomer an armload of files, point him in the direction of the courthouse and say: “Go!” The reason the DA’s Office did was Assistants were severely overworked and underpaid. The reason they could get away with it was prosecutorial immunity. If the prosecution lost a case and the accused went home there is no one to sue, period.
Under Massachusetts’s Law second and third year students were allowed to practice in court as long as a lawyer from our office sat with us. Eventually I was assigned to Lowell District, one of the state’s most active courts, where they seemed to expand SJC Rule 3:03 to allow interns to practice as long as someone from the office was on the same planet.
With my head stretched like an giraffe to see over the files in my arms I pushed opened the swinging doors of the First Session Court Room, moved slowly through the crowd, and “passed the bar” separating the lawyers from the surrounding scum. It was my first good look around and for a second I thought I’d walked into a refugee camp. There were a multitude of ethnicities from South America to Asia crammed in among the strained faces of black and white. If I were to spend every day here I’d have to brush up on Spanish, Vietnamese, Khmer Cracker and Ebonics. The number of bodies startled me almost as much as the stench hovering in the unventilated space.
The Clerk began calling the list of arraignments alphabetically with Commonwealth v. Jose Alvarez. A bustle of activity came from several different areas of the room before three men joined to make their way down the left isle. “No!” the Clerk shouted, halting them in their tracks. “The Jose Alverez charged with stabbing his brother last night.” All three looked perplexed until the Clerk continued, this time in Spanish. This turned one of the men around leaving the others to continue to the bench and sort the mess out.
Unlike the chaste arena of the classroom the courthouse seethed immorality. Each case called alleged crimes of robbery, rape, prostitution, pedophilia, assault, narcotics and homicide. Dense fumes of chaos waft through the air; stirred by lawyers frantically running from one session to the next; all far too busy to notice whether I stuttered, stammered, sweat, puked or passed-out. And because I was no longer under a microscope, I didn’t.
At one point the object of my affection, the reason I got into this in the first place, was transferred to a different court. Unexpectedly I felt relief. What started as a way to be near her and get out of the classroom began shaping into a portal to my future career.
It didn’t happen all at once, but I began conquering anxiety. The key was winning. Winning gave me a sense of accomplishment that overrode everything else. It had nothing to do with the cases, at this point most were low-level misdemeanors where I’d recommend probation anyway. It had everything to do with how people perceived and treated me. And there was a definitive secret to my eventual success. It was called de novo.
A Latin expression meaning “afresh,” “a new,” “starting over,” de novo was a trial system that gave defendants two bites at the apple. Generally a defendant could have a bench trial before a judge or a jury trial decided by six persons from the community. Under de novo if the accused went before a judge first and was convicted he could appeal and have a fresh trial before a jury. This meant two chances for alleged criminals, twice the business for defense attorneys, and double the workload for the courts. For me it was the opportunity of a lifetime, a chance for unlimited trial experience.
Pushing forward I gained an assignment in the Six-Person Jury Session and the attention of its presiding Judge. An Italian from the old school Judge Constantino ran the District Court Jury Session in Lowell with his long time friend Judge Hunter. Taking me under his wing, Constantino must have seen something in me that reminded him of himself as a young lawyer.
During one memorable trial I recall cross-examining a witness: “ So you arrived at the party at 8:00 P.M, isn’t that correct Mr. Johnson?” “This is ridiculous,” Johnson yelled back at me from the witness stand. “I have shoes older than you, and I’m wearing them! Just because you went to law school, and your mother bought you a new suit your birthday, doesn’t give you the right to ask me squat!“
How did he know my mother bought me this suit? His outburst caught me off guard, making me mad as the Hulk and proving I was just as green. Doesn’t he have to listen to me? Do what I say? Answer my questions? What could possibly compound this tragedy? I could have sworn I caught Judge Constantino smirk from behind the open hand covering his mouth.
“Your Honor, please, can you instruct the witness to answer the question?” With a curious tilt of his head Constantino adjusted the Mr. Magoo thick glasses on the bridge of his Jimmy Durante nose and let go an exasperated breath before replying: “Well counsel, it was your decision to become Perry Mason, so I guess you’re on your own.”
With this I began to melt down. “On my own;” what the fuck is he talking about? Struggling, I tried to approach the subject from another angle, yet no matter how I phrased the question Johnson came back with his own: “How much did you have to drink at this party Mr. Johnson?” “ You don’t live around here, do you kid? Did you ever think you might be better off in a court closer to home.” Having lost all control, I ended the examination. The defense smelt blood in the water. My incompetence resonated with the jury. There was no salvaging a verdict.
Back in chambers I was furious, which served to amuse the judges. “What did you want him to do?” chuckled Judge Hunter after hearing the recap. “The witnesses don’t have to listen to us either.“ “Half these people are screwballs to begin with,” Constantino said in his own defense, “throw in alcohol and drugs, ma-don! If we give them an order we better be sure they’re going to listen or be prepared to hold them in contempt, which means a mistrial, delays and more work for everyone. Nobody wants that. Plus, when we have to get involved the jury thinks you can’t handle yourself.” “ So what am I supposed to do?” “Ask the question again.” Constantino continued, “Look the witness in the eye and ask it again. Make him the bad guy for holding everything up. Stand there like you own the courtroom and ask the same thing the same way. The jury will side with a composed, controlled you. Then pose leading questions that give the answers you want – ‘so you got there at eight and started drinking and you drank non-stop straight through the night until it was time to leave. That’s when you crawled behind the wheel of your car and drove off isn’t it Mr. Jonson’ –- it won’t matter what he says- don’t even give him a chance to talk - made your point on cross and sit down.”
I absorbed every word like a parched sponge. Each morning and every afternoon we’d hang out and drink coffee while the judges critiqued my performance and told war stories from the days when they were ADAs and public defenders. Hunter and I became close but none of this would have been possible if not for Constantino. I was his protégé. He openly mocked the incompetence of other ADAs from my office. They were never allowed in his chambers unless it was for a formal lobby conference with opposing counsel. Rather than gloat over my good fortune, I should have seen the angle and diffused their jealousy. This could have prevented trouble years later.
During the month of April the other Assistant DA assigned to the jury session was out with Mono. Having me to run ragged brought so much visible joy to Constantino and Hunter one might have thought it was Christmas. They would have me try and OUI in the morning, a drug case in the afternoon and when I thought the day was over I’d be summons back to choose a jury on a barroom melee, ensuring an early start to the following day. Not once did I complained; I knew that seeing me crack, even a little, would make them ecstatic.
Whatever case happened to be at bar always got my full attention before moving on to the next. The pace and volume caused time to blur. “It’s already the end of the month,” my secretary Barbara informed me while hacking through phlegm and mucus from across our tiny office. Chain-smoking her tenth cigarette of the morning, the smoke swirled up to a black spot on the sealing tile above her desk that made the Exxon Valdez oil spill appear miniscule. “And I know you don’t keep track but you haven’t lost a case all month. I don’t want to jinx you but after today it’ll be forty-two in a row.” I always considered Barb a good luck charm, but that day one of the juries came back with a not guilt. Before we left for the evening we shared a good laugh over her timing. Well, I laughed while Barbara coughed up what was left of her lung.
By the end of the year I was promoted to Superior Court. Not long after that Judge Hunter passed away, Constantino retired and in an effort towards fiscal conservatism and judicial reform the Massachusetts Legislature abolished de novo in 1992. Personally, I could never place a value on what I learned in Lowell District’s Jury Session. An opportunity was created there that no one could have planned and would never be duplicated. It transformed me.
The second Kelly finished you could have heard a piece of lint drop in 12B. Like a gated greyhound waiting for the rabbit to be released I sat on the balls of my feet with taunt, coiled legs. Kelly’s ass hitting his seat sounded the bell catapulting me upward: “Your honor I solemnly swear the only tears that will be shed here will be those of Mr. Kelly and his client when the jury returns a verdict of murder in the first degree."
A burst of muffled laughter erupted behind me followed by the sound of bodies readjusting in their seats. Forced to face forward, I could only read the judge who couldn’t conceal a glimmer of amusement before assuming his game face and instructing Officer Morrison to summons the jurors for closing arguments.
