Dr. Dino's "Terrible Trumpet"

"There are ways and ways of losing."

-- John Mortimer, The Dock Brief, Sc. 2

To her credit, Nicole Lozare slips in a bit of courtroom color in her article summarizing yesterday's doings at the trial of Dr. Dino. At last, readers are given a taste of the real flavor of the courtroom, with all the bumblings and fumblings and missteps and outbursts that try judge's souls and make the proceedings ever so human:

"[O]n Tuesday, it wasn't always clear where [defense lawyer] Richey's lengthy cross-examination of Schneider was going. The Washington attorney was admonished by U.S. District Judge Casey Rodgers for asking irrelevant questions.

"One example: Richey questioned Schneider about a letter U.S. Sen. Bill Nelson sent to Hovind in response to the evangelist's questions about taxation. Nelson wrote that the IRS is committed to ensuring that "everyone pays their fair share of taxes."

"'Does everyone in your office pay their fair share of taxes?'" Richey asked Schneider. Schneider didn't respond because Assistant U.S. Attorney Michelle Heldmyer objected and the judge agreed it was irrelevant."

Although Lozare doesn't give us an exact body count, offering that snippet as "one example" suggests that, overall, Tuesday wasn't a good day for the defendants -- or Dr. Dino's defense lawyer.

"When Richey spent several minutes looking for documents, [Judge] Rodgers excused the jury. She then told Richey he was wasting their time. Rodgers then suggested Richey come in earlier or stay later to make sure his files were organized."

Who is this Richey fellow? "DodgerDean" over at The Panda's Thumb speculated last September in the comments section that he might be the same Port Hadlock, Washington, attorney who previously represented one Nadine Griffen who was convicted of filing a false tax return on her earnings as a saleswoman of off-shore seminars which "promoted and marketed fraudulent tax schemes."

Well, as they say, there are many opportunities to specialize in the law. You just have to find your niche.

The larger question Lozare's dispatch inspires is this: Is there any method to Dr. Dino's madness in having Mr. Richey as his lawyer? One precedent, of a literary kind, comes to mind: John Mortimer's classic radio play, The Dock Brief.

The play was later filmed and released under the title "Trial and Error" starring Peter Sellers and Richard Attenborough. As Bosley Crowther explained in a New York Times review at the time of original release, the film, like the play on which it is based, is --

"[N]othing more than a long dialogue ... between a meek little man [played by Attenborough] accused of murdering his eternally cheerful wife and the ponderous and dull-witted barrister [Peter Sellers] assigned by the court to defend him.
* * *
"The humor is in the fumbling discourse, the clumsy clichés by which these two expose their pathetically dull backgrounds and their horribly middle-class minds.

"The law's a tricky business," Mr. Sellers sagely observes, and Mr. Attenborough, after some cogitation on that weighty observation, replies, with the profundity of a pundit, "It is a bit chancy, yes."

We can't find a full text version of the play on-line, but Wisconsin law professor John Kidwell's essay offers a deliciously detailed description of the plot and liberally quotes from the script of this hilarious satire of lawyers at their work:

"The Dock Brief ... gives new meaning to the phrase 'ineffective assistance of counsel.' It opens with Morgenhall, a barrister played by Peter Sellers, being admitted to the cell of a man who has been accused of murdering his wife. Morgenhall, we quickly learn, is an unsuccessful barrister who has been waiting for years for the court to assign him a case; in England such an assigned case is referred to as a 'dock brief' -- hence the name of the film. Morgenhall’s first dock brief -- and in fact, apparently, first case of any kind -- is the defense of the unfortunate Mr. Fowle, played by Richard Attenborough. Fowle is the meek proprietor of a birdseed shop who has killed his wife because she saw humor in everything, and her raucous laughter and practical jokes finally drove him over the edge.
* * *
Most of the film is set in Fowle’s cell, and consists of Morgenhall’s discussion with Fowle about the strategies to be employed to obtain Fowle’s acquittal, notwithstanding ... that Perry Mason, Clarence Darrow and Cicero working together couldn’t have succeeded in getting Fowle off.
* * *
Ordinarily we expect the client to be the victim of some predicament, who turns to the lawyer to be rescued. Here ... that assumption is turned on its head. Morgenhall the lawyer is the one who needs help lest his whole career be a complete failure. When Fowle admits his guilt Morgenhall suggests he is being selfish and inconsiderate.

Morgenhall [the lawyer]: You think you killed your wife.
Fowle [the defendant]: Seems to me.
Morgenhall: Mr. Fowle. Look at yourself objectively. On questions of birdseed I have no doubt you may be infallible -- but on a vital point like this might you not be mistaken . . . ? Don’t answer.
Fowle: Why not sir?
Morgenhall: Before you drop the bomb of a reply, consider who will be wounded. Are the innocent to suffer?
Fowle: I only want to be honest.
Morgenhall: But you’re a criminal, Mr. Fowle. You’ve broken through the narrow fabric of honesty. You are free to be kind, human, to do good.
Fowle: But what I did to her . . .
Morgenhall: She’s passed, you know, out of your life. You’ve set up new relationships. You’ve picked out me.

When the defendant gently points out that, in fact, he hadn't picked Morgenhall to defend him -- instead the court had assigned the lawyer to his case at random -- Morganhall is momentarily crushed. But he recovers quickly:

Morgenhall: Never mind. You hurt me temporarily, Fowle, I must confess. It might have been kinder to have kept me in ignorance. But now, it’s done. Let’s get down to business. And Fowle -
Fowle: Yes, sir.
Morgenhall: Remember, you’re dealing with a fellow man. A man no longer young. Remember the hopes I’ve pinned on you and try . . .
Fowle: Try?
Morgenhall: Try to spare me more pain.
Fowle: I will, sir. Of course I will.

And so it goes with the two of them, lawyer and client, sitting in the jail cell before trial as the lawyer Morgenhall tries out first one defense and then another, practices imaginary witness examinations, and dreams of delivering the clinching final argument that will win the day in court. With every exercise, however, the client gently, so as not to hurt the lawyer's feelings, points out there is no such witness as he has imagined exists. There is no evidence of his innocence, no reasoned basis for the lawyer's fantasies, because the defendant really did it.

In the end, it seems, the husband is convicted of killing his wife. It develops, as well, that his lawyer has thoroughly botched the trial. He cross-examined no one, he called no witnesses of his own. He was struck dumb before the jury when it came time for his summation.

Back in the cell after the jury has returned its verdict, the lawyer continues to be assailed by self-doubts while simultaneously yearning for his client to assuage them. From a hard copy of the play we happen to have on hand:

MORGENHALL: And then they called that doctor.
FOWLE: You were right not to bother with him.
MORGENHALL: Tactics, you see. We'd decided not to trouble with science.
FOWLE: So we had. And with Bateson . . .
MORGENHALL: No, Fowle. I must beware of your flattery. I think I might have asked Bateson . . .
FOWLE: It wouldn't have made a farthing's difference. A glance told them he was a demon.
MORGENHALL: He stood there, so big and red, with his no tie and dirty collar. I rose up to question him and suddenly it seemed as if there were no reason for us to converse. I remembered what you said about his jokes, his familiarity with your wife. What had he and I in common? I turned from him in disgust. I think that jury guessed the reason for my silence with friend Bateson.

As for the final argument:

MORGENHALL: I stood up, Mr. Fowle, and it was the moment I'd waited for. Ambition had driven me to it, the moment when I was alone with what I wanted. Everyone turned to me, twelve blank faces in the jury box, eager to have the grumpy looks wiped off them. The judge was silent. The prosecutor courteously pretended to be asleep. I only had to open my mouth and pour words out. What stopped me?
FOWLE: What?
Morgenhall: Fear. That's what's suggested.

Eventually, however, it dawns on Morgenhall that his client may not appreciate the gravity of what he supposes to be the court's judgment:

MORGENHALL: I lost, Mr. Fowle. You may not be aware of it. It may not have been hammered home to you yet. But your case is lost.
FOWLE: But there are ways and ways of losing.
MORGENHALL: That's true, of course.
FOWLE: I noticed your artfulness right at the start, when the policeman gave evidence. You pulled out that red handkerchief, slowly and deliberately, like a conjuring trick.
MORGENHALL: And blew?
FOWLE: A sad, terrible trumpet.
MORGENHALL: Unnerved him, I thought.
FOWLE: He never recovered. There was no call to ask questions after that.

The surprise comes when the lawyer at last notices that Fowle appears altogether too happy for a man who has just been convicted. As Prof. Kidwell describes the scene:

"Fowle, somewhat reluctantly, discloses that he is about to be released. When Morgenhall asks why, Fowle even more reluctantly admits it is because the trial has been ruled 'no good at all—it is all null and void—because the barrister selected for him was no good—an old crock.'

Morgenhall's incompetence, it seems, was the best defense of all.

FOWLE: Don't you see? If I'd had a barrister who asked questions and made clever speeches I'd be as dead as mutton. Your artfulness saved me... . The dumb tactics. They paid off! I'm alive!"

It seems improbable that here in Pensacola we will see Dr. Dino escape justice by relying on a similar collection of "dumb tactics" orchestrated by his out of state defense lawyer. Still, it isn't totally out of the question. As The Dock Brief defendant points out (above) to his own court-appointed lawyer, "There are ways and ways of losing."