Vandenburg verdict: Is it too soon to mention legal malpractice?

Is it too soon to talk about legal malpractice?

Am referring to defense debacle in the Nashville rape case.  The case starred Vanderbilt football player and sex crime facilitator, Brandon Vandenburg; who coached his teammates, including the also convicted, Cory Batey, to sexually attack Brandon’s date.  A woman who was unconscious at the time.

Yes.  You read that correctly.

I ask having worked for a police department, then decades with plaintiffs and defense attorneys as my clients which explains why my very first thought upon hearing opening statements, was –

‘Wow!  Sure hope those retainer agreements included the appellate process!’

Vandenburg defense attorneys Albert Perez, Fletcher Long, Worrick Robinson

Knowing what good lawyering looks like, (and hey there pretty blonde defense attorney; it doesn’t look anything like chewing gum in the courtroom, especially during court) part of me watched the trial the way one watches a continuing train wreck.  It was horrifying, yet there was no turning away.

Separate from deciding to base a legal defense on the indefensible, “It’s alcohol” and “It’s the culture” the Nashville defense team, accompanied by the California tag-a-long, presented a case that in football terms, didn’t take the field.

Another problem – and one the prosecutors missed, is the defense didn’t offer that the Defendants quit drinking.  That would have been a tremendous opportunity to show contrition.  But as noted earlier, prosecutors didn’t ask.

The kicker came during closing arguments when defense counsel advised jurors to,

“use your common sense.”

How is that remark not legal malpractice?

Which may explain why after the verdict was read it was reported Brandon asked,

“What happened?”

Clearly, Brandon had no clue.

Part of me wonders what Brandon thought about during the victim’s testimony.  Did it escape his notice the victim was a textbook example how to respond?  Did he not notice the victim was so good that Worrick Robinson, who was clearly treading dangerously close to appearing combative, suddenly and visibly realize he was treading too close to asking one question too many, and end his questioning?  Did Brandon’s parents not realize the woman was awesome? 🙂

So what was the defense “team” thinking?

Attorneys had before them Brandon Vandenburg; the facilitator of many crimes, as well as post-crime-crimes, including a fast trip to California to commit, more crimes!  Yet with all that, the entire defense team decided they’d go with with “Alcohol made me do it.”  And, “It’s the culture.”

As Jeff Foxworthy might say,

 “Here’s your sign.”

Still, Vandenburg and Batey deserved good legal representation.

By way of background and totally by luck as a child deciding what I’d do for a living; I had the great good fortune to accidentally parachute into John Flynn’s criminal defense firm, the best defense firm in the country.  That was about a decade after John argued the Miranda case before the Supreme Court.  Yeah.  That Miranda.  Now Ernest Miranda was a kidnap rapist scumbag – for sure.  But he was a kidnap rapist scumbag who deserved a good attorney because, this is America and that’s how it’s supposed to work.

Luckily, with John Frank and John Flynn, the scumbag eventually got two.  (John was so good the joke between the secretaries around the office was, “If you hired John, you were probably guilty”)  So how to defend the indefensible?  As John did before the Supreme Court.  With humility.  I saw no evidence of humility in the defense.  What I saw was “devil alcohol” posturing by a lame defense.

Which caused me to wonder why case even got to trial in the first place.  Why didn’t defense attorneys do everything in their power to explain to the parents that if ever there existed an occasion to “throw one’s self on the mercy of the Court and beg for mercy” this case was it?  Especially with video and audio – with Brandon laughing;  followed by the trip to California to attempt to facilitate yet another cover-up.  Seriously.  What were they thinking?!

In fairness, maybe they did exactly that; and the Vandenburgs blew it off.  That would explain a lot.

What defense would I have suggested?  Well something credible.  For example.

“Your honor, my client is significantly mentally ill” followed by at least four doctors swearing it was true, including test results.   Maybe cite other examples, to verify. Again, maybe they did, but given the egos involved, one can understand why it wouldn’t have been palatable to the Vandenburgs.  At least, then.

However, as they say – everything happens for a reason.  Personally, I’m happy the Vandenburgs didn’t hire the same counsel responsible for defending Robert Durst through the years.  Lots of dead people are in old Robert’s wake.  He’s a rich guy so creepy his family is afraid of him.  So many unexplained dead people in Robert’s orbit that HOB is doing a special on him next month; and yet, the dude is out on the streets as a free walking man.

My preference is the victim returns to pursuing her goals in life.  Media will pursue her, wanting to interview her for their needs, not hers.  However, I commend the City of Nashville for making this brave woman feel safe enough to testify.  I commend The Tennessean for their excellent coverage.  I commend Channel Five’s Nick Beres for announcing on-air in a no-nonsense tone to anyone who called who wanted to blame the victim,

“Don’t bother calling, you’re not getting on the air.”

I called both detectives to thank them for their service.

And oddly enough, I am grateful the defense.  As Justice works in curious ways, it was very helpful defense attorneys were to a one, tone-deaf to reality.