by Justice William W. Bedsworth
"Ladies and gentlemen: The story you are about to hear is true. Only the names have been changed to protect the innocent.”
The quote above was the opening voice-over for a television program called Dragnet. Its initial incarnation, in the 1950s, was essentially a thirty-minute infomercial for the LAPD. It starred Jack Webb as Sergeant Joe Friday, the quintessential TV detective whose relentless efficiency and boreal demeanor was the police paradigm my generation was raised with.
I absolutely loved Jack Webb, who was forever telling excited crime victims to calm down: “Just the facts, Ma’am, just the facts.” So I’m going to try to emulate him here by providing facts—the facts of two episodes of Orange County jury trial history that should not be lost in the mists of time.
And I’m going to change the names. Not to protect the innocent—there’s very little innocence involved in these stories—but to avoid unnecessary embarrassment. I think avoiding unnecessary embarrassment is a commendable objective, and I figure the more commendable objectives I strive for, the better off I’ll be.
Let me hasten to admit I was not personally present for either of these incidents. But they are neither mythic (entirely imaginary) nor legendary (based in fact, but greatly embellished).1 My facts come from people who were there and have vouched for the truth of the stories.2
Okay, with the overture behind us, let’s get into Act One of what will be a two-act play with an epilogue.
I had a beloved colleague in the district attorney’s office. Beloved is a word I rarely get to use, but Whop Philyor3 fits the bill. We deputy DAs all loved him, the defense bar loved him, the judges loved him, small children and dogs loved him. Bees loved him. He was beloved.4
He was a sweet, kind man whose basic decency was unquestioned—no small accomplishment for a prosecutor.
He was also a very effective trial attorney with an almost magical ability to connect with middle-aged and elderly women. Whop was a bachelor longer than most, and his bright smile and self-effacing manner made every prospective juror who wasn’t comparing him favorably to her husband want to take him home to introduce to her daughter or granddaughter.
Whop had figured this out fairly early in his career, and his juries all looked pretty much the same: 9-11 women, 1-3 men.
Whop would glide through voir dire, flashing that smile and acting vaguely disorganized and convincing everyone—especially the women—that his mother probably took good care of him at home, but he was a little lost out here in the real world. If only there were someone in the jury box who could take care of him . . . .
He chalked up quite a record with this style. I had received the same training Whop got, and they taught us that all we had to do was keep from losing. We had the evidence, we had professional witnesses, we had pro-prosecution jurors, we were gonna win most of the time anyway. But if you threw in ten jurors who had noticed you weren’t wearing a ring and would be just right for their niece . . . well, you were gonna win more than most of them.
But one day Whop’s “barefoot boy with cheek” routine hit a land mine.
He had almost completed a full day of jury selection, and had just finished charming everyone in the room with his gentlemanly questioning of an attractive young woman. As he sat down, however, she raised her hand. The judge looked at her and said, “Juror 10, was there something else?”
“Well, Your Honor, I’m not sure. I thought I would be disqualified, but nobody asked me about it.”
“Asked you about what?”
“Well, I know the prosecutor.”
Every head in the room turned toward Whop, who was clearly bewildered by this revelation. The confusion on his face said, “I have no idea who this woman is,” much more clearly than words could have.
“And how do you know Mr. Philyor, Juror 10?”
The entire room hung on the answer. Especially Whop.
“Oh, he picked me up in a bar a few months ago.”
The silence that followed that revelation would have been complete enough to hear a pin drop except that the pin would not have reached the floor before the guffaws, titters, gasping exhalations, and astonished exclamations erupted through the courtroom.
Whop now had twelve people he desperately wanted not to be on this jury, and he had exactly three peremptory challenges left. Some days are better than others.
My other story concerns Plaxico Burress.5 Plaxico was the opposite of Whop Philyor. Whatever the opposite of “beloved” is, that’s the word for Plaxico.
I tried to come up with the word, but nothing in my thesaurus did the trick. I believe my opinion, that he was an unalloyed jerk, was very much the prevailing assessment.6
Plaxico was, however, a terrific lawyer. He was one of Orange County’s most highly regarded criminal defense attorneys, and his success was all the more remarkable since anything he got was given to him grudgingly. When he won, he won with everyone rooting against him, everyone hoping he would fail, and only after having had to surmount every obstacle people who shared my opinion of him could put in his way.
One day, as two days of voir dire were winding down and Plaxico completed voir dire of a juror he was pretty happy with, he asked the proverbial one question too many. “You seem very intelligent and well-qualified to serve as a juror,” he intoned, “Is there anything you can think of that would make it difficult for you to be fair in this case?”
“One thing.”
“What’s that?”
“I can’t stand you.”
Yikes.
Plaxico did what any decent trial lawyer would do. He tried to play it off. With a sickly smile, he said, “Well, I guess we better make sure we resolve that problem. Does anybody else feel that way?”
At least eight hands went up in the jury box. And a larger number in the audience, where prospective jurors were seated.
The judge, after choking down his own laughter, called a recess, listened to the lawyers’ arguments about remedying the situation, and declared a mistrial—but only after telling Plaxico, “You only get a mistrial this way once, Mr. Burress. I’m going to make sure all the other judges know about this. Don’t think you can get out of a bad voir dire this way again. Don’t ever ask that question again.”
These are two of my favorite war stories. I was only a trial lawyer for five years, but I spent ten more arguing law and motion in the trial courts, ten more on the trial bench, and now almost a quarter-century reviewing trials. So most of my war stories are about trial law.
And lessons are easily learned in trial law because you generally get a result immediately. You know right away if your gambit worked; you learn what jurors thought of that witness; you find out if it really was “a crazy defense.” You have a W or an L to help you figure it out.
And one of the things I have learned is this: The practice of law is much easier—and usually much more successful—for the Whops of the world than the Plaxicos. Being a “nice guy,” being a good person, is as valuable an asset for a lawyer as an encyclopedic memory or a fine vocabulary.
You should aspire to civility not just because you were raised right, but because it will make your life easier and more successful.
Whop Philyor was a fine lawyer and would have been successful under any circumstances. But the fact everyone liked him made his life easier and more productive.
Plaxico Burress won a lot of cases. He would have won more if he hadn’t made people dislike him so much.
The business is tough enough. Your career will include plenty of cases you can’t win. Treat people right, and you have a better chance of winning the ones you can.
BEDS NOTES
(1) Not everyone can fulfill the MCLE requirement with two parentheticals. Use this distinction to impress the next English major you run across.
(2) Although it’s been a while, and my version may not match the version you heard (a footnote I would not need if the stories were not true and current among the . . . shall we say . . . more experienced members of the legal community).
(3) A name I’m borrowing from a very talented wide receiver I had the pleasure of watching the other day.
(4) I’m sorry. I couldn’t resist. Discipline is not my long suit.
(5) Plaxico is another wide receiver—or was until he retired with more money than God. My youngest child is just lucky she was born before I knew Plaxico was a name.
(6) I dunno. There may have been a half-dozen people not named Burress who liked Plaxico, but the most positive description I ever heard for him was “not so bad.”
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.