“A Prosecutor Screws Up…Significantly!”

We had the case in the bag. As a young prosecutor, I was helping another colleague in the trial of a career criminal/violent offender accused of armed robbery. The evidence we had presented was considerable and compelling and we had just called our last witness, a cop. I didn’t think we should have called him to testify. After all, his entire role was to show up at the scene after the fact and then haul the guy off to jail. He didn’t have any role in the investigation. But who was I to make a decision like that? This was my partner’s case and I was just helping out, happy to get the trial experience.

The officer took the stand and my colleague asked him a few questions about his role transporting the accused to jail. As I expected, the cop’s answers added nothing exceptional to our case. When my partner finished his line of questioning he asked the judge if he could have a moment to confer with me. “Absolutely,” the judge said.

When he came over to the prosecution table I whispered vehemently “That’s all. You covered it. Let the defense have him and then let’s rest.”

My colleague turned back to the judge, but he didn’t say “nothing further, your honor.” Instead, his face lit up with some kind of epiphany. “Just one more question, your honor,” he said. Suddenly I saw everything in slow motion. I thought “Oh, no, what is he doing?” In his most confident voice, my colleague asked the witness, “Officer, do you see the person you transported in the courtroom today?” “Oh, shit,” I thought. My mind was suddenly flooded with the image of O.J. Simpson struggling to pull on the little glove and Johnnie Cochran making his famous pronouncement: “If it doesn’t fit, you must acquit.” “I do,” answered Officer Friendly, pointing to the defense table. “That’s him right there.” There were three people at the defense table and it wasn’t clear to whom he was pointing. “Can you describe what that person is wearing?” the judge asked. “Yes, your honor,” the witness said. “He’s the one wearing the blue pin-striped suit with the red tie.”

Of the three people sitting at the defense table there were two black men and one white man. The white guy and one black guy were wearing suits. The other black guy was wearing a button-down shirt and khakis. No tie. Do I have to tell you who the defendant was? His black defense attorney had just been identified as the perpetrator who had been driven to jail.

I credit the defense attorney for not laughing out loud. In his closing arguments he confidently told the jury, “Ladies and gentlemen, I couldn’t have scripted it any better myself.” He then developed his entire defense around the cop’s flawed identification and a bad guy who should have been headed to jail walked.

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