Splitting Hairs Over Trial Themes

Ever had a stubborn client who refused to consider any plausible explanations for the conduct at issue besides his own? We’ve all been there, and this week, Bull joins the ranks.

In this week’s episode of “Bull” (Season 3, Episode 12), we meet New York City’s chief medical examiner, Dr. Julia Martin, who is arrested and charged with evidence tampering on a case she closed (and law enforcement subsequently solved) six years prior. A serial rapist/murderer ended up behind bars, and the conviction catapulted her career from helper-bee to queen bee.

Fast forward to the present, and we meet a criminal defense attorney who’s looking to bust his client out of prison based on allegations that Dr. Martin tampered with the evidence that convicted him. Counsel claims that DNA from a key piece of evidence – a pubic hair, of course – exonerates his client. Benny, Dr. Jason Bull’s go-to staff-litigator-who-wins-almost-every-case, simply cannot believe that Julia Martin would ever tamper with evidence, and he and Dr. Bull agree to take the case pro bono.

Mistakes Happen

This week’s episode – “Split Hairs” – offers a glimpse into the critical issue of theme development. A trial theme has to work with the evidence, be consistent with the legal argument, resonate with jurors, and be promoted by key witnesses. This is a lot harder than it sounds.

Dr. Bull pitches this theme: Mistakes happen.

• It’s consistent with the evidence. Her analysis six years ago was an unintentional error: she was new to the field, she was tired (it was after midnight), and she was trying to advance her career (so perhaps she jumped to a conclusion that she shouldn’t have).
• It was consistent with the legal argument. If the trial team could sell the “mistakes happen” theme, then jurors might conclude there was no intent to deceive, or no intent to tamper. And if there’s no intent, then there’s no crime.
• And it would likely resonate with jurors. With rare exception, most people are willing to acknowledge that human beings are fallible and that mistakes happen despite the best intentions. (Caution: If “mistakes happen” is perceived as a nonchalant “shi* happens,” it’s most likely going to bite you in the backside.)

Apparently, Mistakes Do Not Happen

Despite meeting the essential criteria, the theme is a non-starter because their client wants nothing to do with it. She. Does. Not. Make. Mistakes. Ever. Period, end of story. To even imply that Dr. Martin had erred – unintentionally or not – was an affront to her sense of self. So, what to do? Prepare the witness for testimony and cross your fingers. And maybe your toes.

Chunk (the witness-whisperer) attempts to prepare Dr. Martin for her testimony (seemingly the night before, which is another article for another day). Not only has she dug her heels six feet into the ground with her I-Don’t-Make-Mistakes position, but she basically says people are a distraction to her work (translation: I hate people). Let’s be honest, having a stubborn misanthrope for a client is not the best way to build rapport with jurors or to convey credibility.

Chunk talks with Dr. Martin about the potential impact of her testimony and how jurors might perceive her message. He explains how certain messages may alienate the jurors or play into the District Attorney’s narrative. He reminds her that the jurors mustunderstand her side of the story and like her enough to want to listen to what she has to say. She doesn’t care, because in her world, there is no grey—only black and white. Any attempts to convey her message in a truthful, yet less obstinate manner, were met with a hard “NO.”

Faced with a stubborn witness who is on the side of truth but can’t seem to convey it in a believable manner, Dr. Bull – as any good consultant or litigator would – chooses to work with what he’s got. Dr. Martin is who she is, so he embraces it and finds another theme: Why would a woman so obsessed with perfection and so driven to find answers intentionally create error? It’s inconsistent with her personality. So, they put her on the witness stand and hope for the best.

And apparently, Miss Perfection drank some milk of human kindness between her prep session and her live testimony because somehow she provided a plausible (albeit long) narrative on why she could not have possibly done what is alleged. She’s so obsessed with finding the right answers and solving puzzles, and she’d never find the truth if she cheated. Boom. And the bonus? She delivered her message in a credible, likeable manner.

Spoiler Alert

Remember the pubic hair? It had pollen on it, which Dr. Martin said was impossible because (a) unless you’re rolling around naked in the grass, you’re probably not going to have traces of pollen on one of those hairs, and (b) according to her, there’s no pollen during winter. (Clearly, she’s never been in Texas.) This of course sends Bull’s team onto frenzy to solve the pollen mystery, which they manage to do before they close their evidence (because, really, don’t they always?).

Turns out, the real evidence tamperer is the criminal defense attorney who made the tampering claim in the first place. Apparently, Dr. Martin was the M.E. whose forensic exam revealed evidence that ultimately put the defense attorney’s brother behind bars. He’s put on the stand, and a few questions later the District Attorney drops all charges against Dr. Martin and everyone lives happily ever after.

Well, almost everyone. The criminal defense attorney probably won’t enjoy his new surroundings.

This article was originally published by Texas Lawyer on January 24, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.