Washington Lawyer

Legal Spectator: Curtis Mitchell Wins Another One

From Washington Lawyer, January 2007

By Jacob A. Stein

Legal Spectator

A friend of mine who has a busy trial practice remarked that years ago he made it a point to watch other lawyers try cases. Now he never does.

We agreed that most trials must be followed from beginning to end in order to know what is going on. Today’s trials go on for weeks. Furthermore, the cases and the lawyers are not as interesting as they used to be. The civil cases and the white-collar cases are just one document after another.

Often there is expert testimony. The cross-examination consists of the lawyer saying to the expert witness, “You said on direct examination that the major defect was the device. I now show you on the screen page 256 of volume 4 of your deposition, in which you said it wasn’t the device.” Is the expert trapped? No. The expert says, “Please turn to page 457 of volume 2 and you will see the proper explanation for what I said.”

In the 1960s trials were shorter and the lawyers were less prepared and more colorful than they are now. There was much to learn watching them perform. I was interested in the style and technique of those who were winners.

One of the winners was Curtis Mitchell. He was a big man, imperturbable, with a dignified, commanding presence. There was about him an undercurrent of shrewd observation and lively invention. When I heard he was to be defending a man charged with first-degree murder, I decided to watch the trial from beginning to end.

After the jury was selected, the prosecutor outlined his case.

All trials have a backstory. It consists of the places, the people, and the events that took place in real time. The trial is a one-act, one-set play, with that one set being the courtroom.

The prosecutor said that John Fowler (the name I use for the victim) was murdered in cold blood by Roger Dunn (the name I use for the defendant). The facts were simple. Dunn was sitting in his front yard on June 3. He was drinking beer. John Fowler came by. An argument started. There was pushing and shoving. Dunn retreated into his house. He got a knife and murdered Fowler.

As the prosecutor was speaking, I looked at Roger Dunn, the alleged murderer. He was a man in his fifties who showed no anxiety. He had Curtis Mitchell on his case.

Curtis Mitchell made a short opening statement. He said that the jury will learn that John Fowler was a bad person and the defendant, Roger Dunn, was a good person, a very good person.

Detective Corboy was the government’s first witness. He said he took a statement from Dunn, who admitted there was a fight and that he stabbed Fowler, who had threatened him. The next witness, the coroner, described the point of entry of the knife and its impingement on Fowler’s heart, causing death.

After the government rested, Mitchell began his defense. He asked for a preliminary ruling from the court. He intended to call two character witnesses. Each would testify that John Fowler’s reputation in the community was that he was aggressive, started fights, and carried a knife.

The judge, a retired congressman, enjoyed wearing the robe. He liked to banter with the lawyers. He asked Curtis Mitchell if Dunn was going to testify and, if so, would he say he was aware of Fowler’s bad reputation. Mitchell said Dunn would so testify.

The judge had questions concerning the relevance of this testimony given the fact that the defendant, Dunn, should have gone into his house and locked the door. Furthermore, if Dunn knew that Fowler was a bad person, that was even more reason why he should have gone into his house and locked the door. Nevertheless, the judge said he would admit the testimony.

Both witnesses said they lived in the neighborhood, they knew Fowler, and they knew Dunn. They said that Fowler had a bad reputation for starting fights, but Dunn had a good reputation for peacefulness.

The final witness was the defendant, Roger Dunn. He admitted that the fight took place and that he went into his house. He did get a knife. He said he thought he had a right to defend himself on his own property. He knew Fowler and knew him to be a bully. The prosecutor, in cross-examining Dunn, got him to admit that when he got the knife and came out of the house, he knew the fight would resume and he knew he might have to use the knife.

The prosecutor, in his closing argument, emphasized that Roger Dunn’s conduct was unreasonable, a criminal act. Knowing that he was dealing with someone such as Fowler, Dunn was required by law to retreat and, in this case, go in his house and lock the door. When Dunn came out with the knife, he had the intention of stabbing and killing Fowler.

The case remains in my mind because of Curtis Mitchell’s daring and resourceful closing argument.

He said, “Ladies and gentlemen, this is a suicide case. John Fowler committed suicide. You know it and I know it. The only thing missing is the suicide note. Fowler was the neighborhood bully. Fowler knew it was just a matter of time when he would push someone around who would not be bullied. Roger Dunn happens to be that person.”

At this point Curtis Mitchell dropped his voice and said, “Ladies and gentlemen, the mills of God grind slowly, but they grind exceedingly fine. Send Roger Dunn back to his home and you shall leave this courtroom having done your own community service.”

There was an acquittal.

A year after that trial Curtis Mitchell died suddenly of a heart attack, at the peak of his career, riding the crest of the wave.

Jacob A. Stein can be reached by e-mail at [email protected].