Nancy Grace versus “The Shish Kebob Defense”
Note: DO NOT READ THIS IF YOU ARE UNDER 21! It contains explicit material, and is not intended for children.
This was my first jury trial since graduating from Emory Law School. My success in this case clearly sent me a message that trial law is the field of endeavor in which I belong.
The case involved a pair of young Mexican immigrant boys who were accused of rape, kidnap, and aggravated assault upon a street prostitute. The facts of the case are nearly as amusing as the outcome. From one perspective, the case involved a fight about the worth of a prostitute’s services. From the other vantage point, it involved a test of a set of rather incredible witnesses. The last portion of the case which I will never forget is that the State’s second chair in the case was none other than Nancy Grace, the now TV personality who claims that she never lost a case. Although she was not the main counsel in this case, she did take part in prosecuting it, rather than not prosecuting it as she and her trial counsel should have done.
My client and his codefendant whose name I do not recall were arrested after contracting the services of an Atlanta prostitute on Stewart Avenue. My client told me from the beginning, while he was in jail with no bond, and on finally on the witness stand at trial, that he and his friend drove the complaining witness to an isolated place for the provision of illicit services. She performed oral services on my client which were totally unsatisfactory because she used her teeth in her professional work. In other words, she bit him where it hurts. He then refused to pay her. The prostitute later called the police, and my client and his buddy found themselves in jail accused of rape, aggravated assault and kidnapping.
I was appointed by the late Judge Joel Fryer to handle this case, primarily because I was fluent in Spanish at a time when Spanish speaking lawyers were in very short supply in Atlanta. The charges were the most serious I had defended in my brief career to date, which amounted to a grand total of about 5months. The most serious case I had defended before this one was a burglary allegedly committed by a Marielito Cuban.
The State’s first witness was apparently a crack addict. He wanted to testify that he saw the two young men kidnap the complaining witness at gunpoint with a huge knife. My recollection of this case is that I was able to whittle down the size of the knife on cross examination to that of a switch blade or even a Swiss army knife. I was also able to get him to admit that neither he nor the police were able to recover the alleged knife. My client vehemently denied that a knife was involved in the encounter with the complaining “Lady of the Evening.”
The biggest pre¬trial problem for me was how to get into evidence, i.e. how to let the jury know, the fact that the complaining witness was a prostitute. Rape shield laws are designed to prevent the defense lawyers from “putting complaining witnesses on trial.” Generally, the prior sexual proclivities of a complaining witness are off limits to the defense. In this case, one can easily imagine how difficult this case might have been if
We had not been able to tell the jury that the complaining witness was a professional engaged in the business of providing sexual services,
Nancy Grace argued for the State of Georgia on this seemingly pivotal question of law. She argued that the jury was barred from disclosure of the witness’s profession under the Georgia “rape shield” statute as it had previously been interpreted by the Georgia Supreme Court. I countered that the U.S. Supreme Court had “held,” or had ruled in a very recent case called Olden v. Kentucky that the right of a criminal defendant under the Sixth Amendment of the U.S. Constitution to confront the witnesses against him shall not be abridged by state rape shield laws. In short, we wanted the jury to learn that the complaining witness was a prostitute in order that the whole story could be heard by the jury.
Ms. Grace and Mr. John Turner, the lead prosecutor for Fulton County, Georgia did not want the jury to hear it. Judge Fryer issued a ruling which I will never forget. Famous for his acerbic wit, Judge Fryer ruled more or less as follows, “I don’t know exactly what Olden v. Kentucky means but I am sitting in Georgia and I am bound to follow the Georgia Supreme Court.” Your motion is denied, Mr. Hill but you may take it up in habeas corpus proceedings if you need to at a later date. In other words, the Judge just ruled that the Georgia Supreme Court and Georgia’s rape shield law trumped the U.S. Supreme Court’s recent ruling. Maybe it was at that moment that I made the transition from law student where “the law” is King, and everything else, including the critical facts of a given legal, hypothetical problem are spoon fed to you. In the real world, facts often reign supreme, and the law sometimes helps you if you are lucky with the right judge in the right mood when you represent the “underdog” as the author usually does. If you are a criminal defense lawyer, or a deportation defense lawyer and you represent indigents like Mr. Penaloza, or other criminal defendants, don’t count on the law always helping you. I thought that I had lost a critical portion of the trial and it would he totally uphill from there on. I was to find out otherwise.
The case started to get funny, instead of totally scaring me to death for what might happen to my client if he were convicted. During a break I was approached by another Atlanta prostitute. I admit that I do not recall her name after all of these years. She said, “Mr. Hill, I heard Mr. Turner, the prosecutor, coach the victim to cry on the witness stand! He also told the rape counselor to tell the witness to ‘be emotional.'” By way of background, the reader is informed that at that time in the State of Georgia there were no criminal pre¬trial discovery rules ¬you could only get what the Georgia Constitution, the State Legislature, and the U.S. Constitution allowed the State, or the prosecutor to give to you. It wasn’t very much, other than a witness list, and the exact charges against the Defendant. On the other hand, I as the defense did not have to reveal my witnesses’ names or even his or her existence as we do now under the Felony discovery statute. This “old way” of conducting felony criminal cases has all changed with the enactment of Georgia’s discovery statute in the early 1990’s.
Once I found and interviewed this witness, I decided to put her up on the witness stand after the State had rested. I swore her in as a witness and asked her name. She answered. I then asked her to tell the jury what her profession was. Although she was not wearing her work outfit, she still bore a resemblance to a member of her profession. She hesitated, and then she looked up at Judge Fryer and said, “Do I have to answer that?” The jury, Judge Fryer, and probably even the prosecutors burst out into uncontrollable laughter. I thought that Judge Fryer might falloff the bench! After all these years I do not even remember what Judge Fryer ruled but at that point “the cat was out of the bag” and everyone on the jury knew that the complaining witness was a prostitute. She then testified about the coaching of the two witnesses in the foyer which she had witnessed earlier. The future of her Spanish speaking market was being placed in jeopardy because of this case, and she wasn’t going to let it happen! I am still surprised that Mr. Turner never argued that she had a financial motive to say what she said later on although had he done so it might have reinforced the good fact for us ¬the case may well have been based upon a dispute over the quality of services rendered.
Another funny part of this case occurred when the complaining witness testified. Mr. John Turner, the primary prosecutor in this case, had the complaining witness on the stand. She testified that her legs were bruised and scratched. However, while she was testifying, I had noticed that Mr. Turner’s file contained photographs on the table of the alleged victim’s legs which showed that they were not scratched or bruised at all but that that her legs were free of any scratches or abrasions.
At this point, I told Judge Fryer that I had a motion. This is a signal for the Judge to dismiss the jury. I argued outside of the jury’s presence that under a landmark U.S. Supreme court case entitled Brady v. Maryland the pictures were exculpatory material. As such, I was entitled to this material, probably before trial, and that I wanted a mistrial. Georgia law generally requires a criminal defendant to move for a mistrial in order to preserve key errors of law for appeal. The State is not under this burden because they cannot appeal an acquittal. I felt that I just could not let the State get away with this one even though I was a rookie lawyer; Mr. Turner became quite angry with me during the hearing because I was accusing the State of misconduct in prosecuting this case. In a clandestine fashion Mr. Turner “flipped me a bird,” as the showing of the middle finger to another is commonly referred to. I then said to Judge Fryer, “Let the record reflect that the prosecutor has just made an obscene gesture at defense counsel.” The record was protected, both for the error in procedure and for “the bird” flipped at me but Judge Fryer denied the motion for a new trial. When the jury came back in, Mr. Turner succeeded in introducing the photos of the scratchless and bruiseless legs of the prostitute into evidence. I had wanted to introduce these pictures on cross¬ examination which might have been more effective for my client’s interests. I was not quick enough for that one. The impact on the jury would not be as dramatic if Mr. Turner showed photos which lacked the bruises and scratches first than if I had been able to bring out on cross examination.
When all of the witnesses had finished their testimony, including my client and his “she bit me” “defense,” we were all sent home until the next day to deliver closing arguments. The next day the jury also received “the charge.” The charge is the part of a criminal trial when judge tells the jury what the law of the case is, i.e. he reiterates that the State must prove its case beyond a reasonable doubt, a Defendant is presumed innocent, throughout the case, each and every element of the offense must be proven beyond a reasonable doubt, etc. This was my chance for a closing argument that mattered.
I was taught at Emory Law School that an effective closing argument is one that just doesn’t regurgitate and repeat that the State failed to prove its case beyond a reasonable doubt. Rather, a successful advocate should come up with an analogy or story which ordinary people can relate to which proves the advocate’s side of the case. I woke up the next morning at 4:30 a.m. with a rush of adrenalin which has become familiar whenever I have a contested court case that day. I made a hot bath and sat in it in my small apartment. Suddenly, my argument came to me! I now do this almost as a matter of routine because I think clearer early in the morning, especially when it involves a part of the law which is more intellectual, like writing an appeal, or if it involves formulating a theory of the case, or in this case incoming up with a closing argument which a jury might buy in a tough case.
It suddenly occurred to me sitting in the bath tub at 5a.m. that this case was like a shish kebob. Yes, a shish kebob! How was this? When I eventually presented my closing argument, I went through the inconsistencies in the State’s ease. I emphasized that the State didn’t find the knife that was used to kidnap the prostitute although they had admitted looking for it. I also said that the State’s first witness wasn’t sure at all of the size of the knife. I told the jury that my client’s defense was that she bit him, and he would not pay her. However, I did not finish on this point because in my judgment some conservative members of Fulton County who were coerced into jury duty might not be impressed enough with this fact to acquit.
I chose ultimately to finish my closing by saying, “Ladies and Gentlemen of the Jury, I would like for you to think of this case like a shish kebob. What happens to a shish kebob when you remove the knife? The meat, potatoes and vegetables all fall on the ground, and you know what that means? You can’t eat it!!!” I turned around and walked back to the Defense counsel table and I heard the jury burst out laughing. I thought to myself, “oh no, my client is going to go to prison for 20 years!” I had not come up with this unique “defense” to finish my closing argument with a good joke but it sure came out that way.
The jury deliberated for about three hours. Mr. Turner had also done his closing. In his closing, he talked about the “ABC’s of rape.” In my rebuttal argument, I told the jury that Mr. Turner argued and instructed about the ABC’s of rape because he didn’t want to talk about the facts of his case. I simply stated that the facts were weak and did not prove his case.
When the jury was about to announce their verdict, I noticed that the clothes provided to Jose at the jail to wear at trial had started to look really bad. (Maybe they were no longer appropriate…!). I recall in particular that Mr. Penaloza’s shirt and pants were severely wrinkled after he had to wear them to Court for three straight days. Nevertheless, the jury found my client not guilty on all three counts. They had to take Jose back to jail before they released him. I thought that this was bizarre and unfair but due to Sheriff Department rules my client had to endure a few more hours of incarceration after being cleared of all charges.
Yes, the jury could not swallow the State’s menu of shish kebob. My client went free. My career as a trial lawyer had begun in earnest.