If you can’t introduce your jury to the villain, be the villain.

Would you mind giving me a little background on the case?  

My client’s name is Eli.  He’s a nice kid but he kind of dabbles in the drug world.  The villain in this story is his friend’s Dad, Michael Ballantyne Sr.  He’s a heroin addict, he’s a hustler, been in and out of prison.  He’s from a family down here in Cochise County that is three generations of druggies and criminal types.  Ballantyne asked Eli if he would take him to Tucson to score some heroin.  Eli agreed because Ballantyne was out of heroin and when heroin addicts don’t have heroin things can get kind of messy.  Eli’s driving and Ballantyne is in the front seat cooking heroin in the top of a 40 ounce beer bottle cap and they get pulled over.  The cops see the syringe and the bottle cap and they know that it’s heroin so they yank everybody out of the car.  They search them. They search the car. Ballantyne has half an ounce of heroin and a handful of pills in his pocket.  Eli doesn’t have anything on him but the cops arrest him anyway.  They were sitting on the side of the road while the cops searched the car and Ballantyne says to Eli “Look, take the heat for me.  Tell them we went up there for you to score and this is just my personal stash but you paid $900 for an ounce to sell and you threw it out the window.  Then I’ll tell them the same thing and then they can’t charge you because they don’t have the heroin”.  He didn’t threaten him or intimidate him, it was kind of like an understanding.  The cops talked to Ballantyne first and he says “yeah this was all Eli’s idea.  This is just my personal stash.  He bought an ounce, I don’t know what happened to it. It was my connection but that’s all I know.”  Then they talked to Eli and they told him, “Look we just want to get Ballantyne we don’t care about you.  Tell us what you know.”  Eli tells them that he threw it out the window and specified the intersection.  They go out to that intersection with half a dozen cops and a drug dog and of course they don’t find anything because there’s nothing there to find.  They still charged him with possession for sale, conspiracy to possess for sale, transport for sale, all these real serious prison mandatory offenses and that’s the case.

 

If there wasn’t any heroin then he couldn’t be charged, right?

That’s usually they way it works. In this case they decided that since they had the heroin in Ballantyne’s pocket that he said had been bought at the same time and we have Eli’s testimony that he brought this guy, that was enough to overcome corpus and the judge agreed with it.  So we went to trial.  All they had were the two cops that interrogated him and the chemist that tested the heroin in Ballantyne’s pocket.  Ballantyne ended up going to prison for the heroin in his pocket because he had a warrant out for his arrest for a dozen different felonies, so they didn’t bother to bring him down.  All of this was sort of cobbled together from basically selective hearsay statements.  The judge ruled that some of them weren’t hearsay and they got in the general story.   

How do you approach a case like this where the deck is already stacked against you?

I started out picking a jury with the question “why would you say you did something that you didn’t do?”  We got to talking about imbalance of power or feeling threatened by somebody.  We spent a lot of time talking about why someone would take the blame so before we even got started they had heard a theory in my case.  I also tried to be very vulnerable with the jury.  I stood in front of them and said, “Look I’m very nervous because my guy here has this tattoo of a bulldog on the side of his neck and if you look at him…”  I mean the poor guy was nodding off while we were sitting there.  I think he was smoking heroin during the breaks out in his car.  So I said to them “I’m a little nervous here”.  Since they didn’t get to see the co-defendant/villain of the story, I decided to do a first person narrative where I was Ballantyne Sr.  They had photos of the guys sitting in handcuffs on the sidewalk right next to each other so they could see spatially how close they were to each other.  At my close I took the picture of Michael Ballantyne Sr. and taped it to my tie.  In the picture he’s sitting on the sidewalk with his hands behind his back and his feet crossed in front of him, so I got three chairs and I sat in the middle chair and I put my hands behind my back like I’m in handcuffs and I cross my feet.  Then I gave them a narrative of what I imagined Ballantyne was thinking.  I’m 50 years old.  I’m a heroin addict.  I’m high as a kite right now.  I’m sitting here in handcuffs while the cops are searching my kid’s friend’s car.  They had actually pulled him over right in front of Ballantyne’s house.  So I’m sitting in front of my house.   My neighbors are all looking at me.  I got half an ounce of heroin and a bunch of pills in my pocket.  I got a warrant out for my arrest.  I got to think of a way out of this.  So I kind of whispered towards where Eli would have been sitting and said, “Hey Eli, you got to take the heat for me.”  It was the first time that I had done the first person narrative.  It was the first time I had ever done anything like that and it’s only because I got to practice at Grad I back in August.  I went to the Trial Lawyers College four years ago and I just went to Grad I again.  You kind of get away from it and once you get back into it, you get your confidence back up and you can – what the hell, the kid had nothing to lose.

  

How could you tell it was well received by the jury?

In Arizona you can talk to the jury if they want to talk to you afterwards and about half a dozen of them hung out.  They said it really worked because they didn’t have any idea what this guy Ballantyne was like or why he would have said these things and they were moved by it.  So they convicted my client.  I told them to convict him of being an accomplice to this possession because he admits that he drove them up there to get heroin and under Arizona law that’s probation mandatory offense.  They convicted him of the paraphernalia that the other guy had in his lap and the judge ended up dismissing the pill charges because there was no evidence that Eli knew about the pills.  Then they hung up 10 to 2 to acquit on the possession for sale, transportation for sale, conspiracy and all that stuff.  Now the prosecutor is threatening to try the case again for the charges that they mistried but I’m not too worried about it.

 

What was it like when you first began working with your client?

He was quiet and I had to draw this stuff out of him.  He didn’t really trust me, I don’t think he was used to dealing with lawyers – I think I made him nervous.  He came to my office and we would go down to this little food truck and I would buy him tacos and just talk to him like a normal person. I’m not very lawyerly in my demeanor like some of my colleagues are with the tight haircuts and wearing a suit every day – that’s not me.  So I just got to work building up trust and finally he told me what really happened.  I knew I had to go with that.  I hardly ever rehearse testimony with clients.  If a direct examination seems rehearsed then the jury is going to figure that out and they are not going to buy anything that they say.  So I just let him tell his story.  This is a guy who is young, I doubt he graduated from high school, he’s scared, he’s charged with some serious charges and he’s got a court appointed lawyer.  He is pretty rough around the edges but he is respectful.  He’s not a motor mouth.  He’s not trying to impress you.  He follows directions when you give them to him.  I had to get the jury to see him so he got on the stand and he testified. He’s not a perfect guy but he’s not a liar.  It was good.

Your discovering the story technique really just involved hanging out and getting tacos?

Yeah.  Some lawyers go to their house and hang out and get to know their family.  This guy probably would have been embarrassed if I would have gone over there.  I wanted him to be able to trust me and just see that I’m a normal guy so I showed up in a pair of jeans and a pair of boots or something. I try to avoid ties if at all possible.  He needed to trust me and before you can trust somebody you have to like them.  You know?  So buying him a taco was about getting him to talk to me like a normal person.  I wanted him to know that I care about what happens to him,  I care that he’s treated fairly and if they are going to convict him it’s only going to be after he’s had a fair trial and we’ve gotten all of our points across.  One of the main differences between domestic relations lawyers, divorce lawyers and criminal defense lawyers is in a divorce you have people who are usually very nice, pleasant people under their worst circumstances and so they are on their worst behavior around you and they are being completely unreasonable.  When you’re doing criminal law you get people who are often bad people but they are on their best behavior around you.  I mean when you break it down, if you’re doing criminal defense there is really basically two categories of defendant; there are people who are real criminals that’s very rare, they live the life of crime, steal from other people, hurt them, come up with grand designs to take stuff that doesn’t belong to me, etc.  But most people are ordinary people who are just addicted to drugs or alcohol and commit property crimes to sustain their addiction.  When you’ve been doing this long enough you recognize the real criminals from people who are either addicts or are stuck in extraordinary circumstances.

Are you going to try it with your next case?

I’m going to try it with all my cases from now on.  I was out of my comfort zone.  I’m lucky enough to live in a small area that has several Trial Lawyers College grads so I worked with Perry Hicks and Chris Russell.  We got together three or four times for a couple of hours and went over cases and this is one we worked on.  They were very helpful.  We have a little working group we do.  We are really lucky – there are 4 of us down here in a pretty small jurisdiction that have all gone to Trial Lawyers College.  It felt really good to take the stuff that I had learned and work with it. When I was doing Grad I I was getting frustrated with the work because I’m not especially clever.  That’s the reason that I don’t work in a big city for a big firm because I’m not the brightest guy in the whole world and I wanted the Trial Lawyers College stuff to be like a recipe for me.  First you do this then you do that and then you do that.  But it doesn’t work that way.  That’s not the way you do it.  It’s a framework.  When I was at Grad I something clicked.  It’s discovering your client’s story, caring about your client, caring about what happens to them, making sure they are treated fairly, being brutally honest with the jury which I’ve never done before this case.  If you’re vulnerable, you’re honest, you admit that you’re not as smart as everybody seems to think you are, you’re vulnerable with the client too.  It just all came together and it was pretty cool.

About David Thorn:

David Thorn an Arizona native. He graduated from Arizona State University in 1994 where he received a Bachelor of Arts degree from the College of Public Programs. He attended Gonzaga University School of Law, was an Associate Editor of the Gonzaga Law Review and participated in the University Legal Assistance Program as a student/lawyer helping seniors and low-income people with legal problems. In 1998 David was admitted to the State Bar of Arizona. He was admitted to the State Bar of Texas in 2000. David is a member of the National Association of Criminal Defense Attorneys, is a member of Arizona Attorneys for Criminal Justice, and is a graduate from the Trial Lawyers College in Dubois, WY.