Better to Be Lucky
Simple Justice: Reading a post over at Grits, about the false confession prosecution of Frank Esposito, got me thinking. Scott Henson’s point was about videotaping confessions, a concept about which I am ambivalent because I’ve seen otherwise fine ideas undermined by the perpetual tension between the need to convict at any cost and honesty, but this isn’t about videotaping. It’s about luck.
Frank Esposito was represented at trial by Nicholas A. Gravante Jr., of Boies, Schiller & Flexner. His family mortgaged their home to pay the $150,000 legal fee. When that ran out, as it was nearly certain to do with the Boies firm unless it was a quickie plea, the Esposito family caught a break. When Gravante informed David Boies that the cellphone records proved the confession to be false, Boies told him to run with the case even though the defendant couldn’t pay. The legal bill ended up in the half million neighborhood. Esposito was acquitted.
On its surface, this sounds like a success story. After all, defendant wins and justice is done, right? But on deeper scrutiny, Esposito’s acquittal is due to a series of fortunate events, strung together to produce the result. I don’t want to negate the efforts of Gravante, as good lawyering creates good fortune and capitalizes on it, and he did everything he could use luck in the defendant’s favor.
But even the fact that Esposito had Gravante in his corner was a matter of good luck. He had a family willing and capable of paying a $150,000 retainer to the Boies firm. The law firm was willing to eat 70% of the legal fee and expenses. And ultimately, the cellphone company’s records remained intact until they were obtained by the defense.
One of the most disturbing aspects of this job of criminal defense lawyering is watching luck run…