Persuasion Matters

Chunk Palmer and client Eddie Mitchell, two characters in the CBS drama

From Prosecutor to Defender: Benny Switches Sides on “Bull”

Justice delayed is far from ideal, but it’s better than life behind bars.

Chunk Palmer and client Eddie Mitchell, two characters in the CBS drama "Bull"This column is supposed to address the realities and absurdities of jury consulting as depicted in CBS’ “Bull.” But what’s an author to do when the episode has little to no actual jury consulting in the storyline? You dig deep and find something else to write about. So, this week, I’m addressing four scenes that piqued my interest.

But first, a disclaimer: I am not, nor have I ever been, an attorney. Never went to law school. Don’t really want to. But I’ve been in enough courtrooms over the past 20 years to know a thing or two. Second, there are about 9-bazillion things I don’t know about the law (obviously), so my apologies if my musings aren’t perfectly consistent with the law.

The Story

This week’s episode deals with a hot-button social issue: wrongful criminal convictions. The beginning scene takes place in a seedy laundromat where three young men are having a turf war over who can sell what drugs where. Marcus Lott holds a gun to his so-called competitor’s head, frisks him and discovers an unloaded Glock tucked into his jeans. Words are exchanged and the competition, Eddie Mitchell, walks out the door unscathed.

Fast-forward 17 years, and we learn Eddie was tried and convicted for three murders in the laundromat that night: Marcus Lott, a young woman named Karla Angel, and her unborn baby. Eddie – like many serving jail time – claims he didn’t do the crime and has written letter after letter to various agencies for help in seeking a new trial. Finally, someone steps up.

Chunk Palmer – one of Bull’s team members, and a law school student – takes the case pro bono through his law school’s legal aid clinic. Eventually, a new trial is granted. Game on.

If you’re thinking, “Man, what a coincidence Eddie would get someone from Bull’s team to represent him,” but that’s nothing. Care to hazard a guess who was second chair for the ADA in the original murder trial? None other than Benny Colón.

Through his own research, Benny concludes there was “pretty flagrant” prosecutorial misconduct and wants to right that wrong by representing Eddie Mitchell in the new trial.

[SPOILERS FOLLOW] 
The Switch

Have you ever known a lawyer to prosecute a murder trial, get a conviction, and then, once they’re on the other side of the bar, defend the same person in a retrial of the same exact charge? Me neither.

Bull, who’s been riding the ethical train more than usual lately (impending fatherhood, perhaps?), insists that if Benny is going to partner up with Chunk and defend Eddie Mitchell, they must get the court’s permission.

The judge has never heard of such a thing either, and gets a little excited about the possibility of “making a little history” with the switcheroo. She asks the prosecutor if he objects, and he rightfully refers the court to the American Bar Association’s Rules of Professional Conduct: specifically, §1.7 (Competence) and §1.11 (Special Conflicts of Interest). Seems logical. But Benny points the court to §3.8 (Special Responsibilities of a Prosecutor) and argues that because the DA has ignored Eddie’s pleas for assistance, it’s Benny’s duty to step up to the plate.

The court agrees, and Benny is allowed to defend his former target in the retrial. Now, I have no earthly idea whether a judge in the real world would ever allow a 180 degree turn, but that’s how it played out on TV.

My ruling: Close enough to reality.

The Lying Witness

The prosecutorial misconduct that ultimately gave rise to the new trial involved the testimony of a prostitute. While incarcerated, Eddie Mitchell discovered she had testified seven times in seven different criminal trials, all of which were handled by the same investigating officer. The court agreed her testimony was most likely false, which on a normal day would have been great news for the defense. Unfortunately, she died a while back. Not great news.

The judge instructed counsel that, because the witness was no longer able to testify, all references to her and/or her prior testimony would be excluded from evidence.

My ruling: Close to reality. Another point to the writers.

Post-trial Interviews… 17 years after the fact

Here’s where it starts to get a little dodgy. As Bull’s team starts to gather evidence for their defense, Marissa, the in-house psychologist, reports she contacted jurors from the first trial – 17 years prior – and discovered what drove their decision to convict. I think I literally laughed out loud.

Don’t get me wrong: post-trial interviews can provide a treasure trove of information and I’m a huge fan. But there’s “post-trial” and then there’s 17 years. Connecting with jurors a few days after a trial is challenging enough; for Bull’s team to have such success 17 years after the fact stretched my suspension of disbelief to the breaking point. This wasn’t a case that garnered national attention or lasted more than a few days, so the information gathered would be generic, at best.

Jurors stated it was “easy to convict” because Eddie had a motive to kill the competition, and the defense did not present any other suspects. (Yes, the burden is on the state, but jurors in real life would likely feel this way, too). But hey – any information is helpful information, so kudos to Marissa. The team is now focused on finding an alternate suspect to blame.

My ruling: Absurd timing, but a realistic info-gathering strategy.

DIY 3D Modeling

Call me a cynic, but I do not know of a single jury consulting firm that owns 3D-modeling software to analyze the trajectory of bullet, let alone the staff to know how to do it within hours or how to analyze the results. But since Bull’s team is comprised of an NSA’s worth of experts with endless connections and know-how, this doesn’t surprise me.

Taylor, their tech genius, managed to put together a 3D rendering which suggested they were working off inaccurate facts. And she did this in what seemed like minutes. Everyone was operating under the assumption Marcus Lott was the target, and the pregnant woman, Karla Angel, was simply in the wrong place at the wrong time. The modeling, however, indicated the first victim was actually Karla and Marcus was collateral damage. Now they shift their focus to finding someone with a motive to kill the young, pregnant woman.

My ruling: split verdict. The unrealistic tech toys would be the envy of Mossad, but they did good work with what they got out of it.

The Miracle Ending

Of course, the team finds the mysterious guy who was at the laundromat the night of the scuffle. Funny how nobody thinks about him until the very end. He shares that the woman was texting with her boyfriend/lover, yet family members said she had nobody special in her life. Bull has his usual a-ha moment and wants to review the cell phone records.

Next thing we know, we’re back in court and Benny is questioning Angela’s brother-in-law, who turned out to be Angela’s lover and the baby’s father. We also learn he purchased a Glock for his wife about a year earlier because she worked in a rough part of town – can you hear the dun-dun, the signature bleat from “Law & Order?” Brother-in-law/lover had a solid alibi for that night, so we then watch Benny “question” Angela’s sister (he was basically testifying with no objection from opposing counsel). She eventually breaks down into convulsive sobs and, well, it doesn’t take a rocket scientist to conclude she killed her own sister. Harsh.

My ruling: typical Hollywood.

The First “Win” of the Season

Bull et al. secure their first “win” of Season 4. Their client is acquitted of the murder charges. Benny apologizes to Eddie Mitchell for robbing him of 17 years of his life, and Eddie responds, “That’s okay. You gave me back the next 40.”

Bull offers to hook him up with legal counsel for the civil suit which is bound to happen, and to connect him with people who can help him acclimate to the new world. Eddie simply wants to spend the rest of his day walking the streets of New York and basking in his newfound freedom.

Unfortunately, you can’t pay for rent or groceries with newfound freedom, but let’s take a happy ending when we can get one.

 

This article was originally published by Texas Lawyer on October 10, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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