Episode Synopsis: Carrying out his father’s legacy, criminal defense attorney Steve Frey offers stories from his own successful career spanning 28 years, beginning with his decision to go to law school and the lessons he learned then from his father Pete, an accomplished trial lawyer himself. Frey also shares advice on preparing for a jury trial and how to best use cross examinations to benefit your case.
Steve: He looked at me, though, and he said, “You know, son,” he said, “I’m proud of you, and you’re a lawyer now.” He said, “But if you think that’s the end-all-be-all, you need to move on.” I couldn’t really figure out what he was talking about until, you know, he really wanted me to know that, “Hey, look, you still gotta roll your sleeves up. You’re gonna work harder than you think you should. You haven’t made it to a point of coasting.”
Scott: That was criminal defense attorney, Steve Frey, talking about his father’s reaction to the day he passed the bar and became a lawyer. His father was both proud of him but also was being tough on him, telling him that the real work was beginning at the moment he became an attorney. I was grateful to spend an hour with Steve, talking about his development as an attorney, his decision to go to law school, and some of the things he’s learned along the way in many years of criminal defense practice. You’re listening to the “Advocate’s Key” podcast. For more information about this podcast and more about my practice, you can check us out at scottkeylaw.com or give me a call at 678-610-6624. Steve Frey, how are things?
Steve: I’m wonderful. How are you?
Scott: I am good. So, it’s really good to have you on the podcast. When I figured out that I wanted to start this up, you were one of the first people I thought about. You were probably one of the first lawyers I met when I first started practicing and, all right, because I know very well who you are. But for those who are listening, who is Steve Frey? Just kind of take a second to introduce yourself.
Steve: I’m a lawyer. I practice in Jonesboro, Georgia. I grew up in this town. I love this town. I no longer live here, but my father practiced law here. And I practiced law with him for a while, and then he passed away. And I’ve been practicing solo since he passed away in 2000.
Scott: And talk a little bit about Pete Frey, your dad. I never actually met him. I think when I was a third-year law student was when he passed away, and, of course, I worked in Jonesboro when I first started out with Lee Sexton. And he’s told me stories about you, and he’s told me stories about Pete, but tell me about Pete and what it was like growing up with Pete as your dad and what it was like practicing with your dad.
Steve: He was my hero. He was a cowboy. He was a first-generation college graduate. He put himself through school. He married my mother while he was still in undergraduate school, and my mother put him through law school. And he came out of law school, worked for a couple of firms, and then decided to try it on his own. We moved to Clayton County in 1971. He was elected state court solicitor in 1972. At the time, it was a part-time job, so he was able to practice law and be the solicitor. And then I think around 1982, they made it a full-time job, and John Carbo became the first full-time solicitor in Clayton County.
Scott: And when did you start practicing law, or when did you go to law school?
Steve: I went to law school in 1990 and graduated past the bar in ’93. I was sworn in by Bill Eisen.
Scott: Well, so for people who don’t know who Bill Eisen was, talk a little bit about Bill Eisen. I sort of remember him from when I first started practicing, but kind of paint a picture, what was it like in the ’80s and early ’90s to practice in Clayton County, Georgia? What was everybody like? You know, you talk about Pete and…
Steve: It was a smaller group. So, there was…you know, they had a snack bar in the Clayton County Courthouse, and that was a point of a lot of social contacts. There was a lot of camaraderie. Judge Eisen had been the…he had been an assistant district attorney, and then he was the elected district attorney, and then he became a superior court judge. And without going into many “Judge Eisen stories,” he was like having a big brother that used to just beat the snot out of you, so that whenever you went anywhere else, you weren’t afraid of any judges. So, he was wonderful in that regard. I do remember the first or at least the last time I ever used the words “judicial economy,” and he pointed out to me that judicial economy was him calling my case for trial right now. And I pointed out to him that that wasn’t necessary. He’s still doing some senior judging. He’s a little on up in age, but, you know, he really was that judge that you kind of felt like whenever you left your circuit and you, you know, were hunkered down, and the whole world was after you and your client, you know, and you were getting menacing glares from a judge. I’m not here to say that that was comfortable by any stretch of imagination, but you knew you’d been there before, and you knew that you could survive this.
Scott: So, talking about your dad. I don’t know how much you wanna talk about all this, but I know that from stories you told me in the past that maybe as a teenager, I don’t know if the word rebellious is the right word to use, but I know that maybe things were difficult between you and your dad when you were a teenager. Talk a little bit about your dad back in those days and sort of the path that you took from there to become a lawyer.
Steve: Rebellious would be the most polite word. You know, like I said, I was not a good student really at any level of school. I somehow was able to pass every test that mattered, but when I was in high school, my father had a dragster. And so we drag raced on the weekends, and that’s what I thought I wanted to do. And when it came time to graduate from high school, I think, my mother overheard me tell somebody that I wanted to drive a funny car for a living. And, I think, within six months, everything race car had been sold, and my mother had me at Clayton State enrolling me. And as always, you know, my mother was correct.
Scott: So, was your mom the formative one when it came to sort of…you know, she cleaned house and took care of the race car stuff when you were talking about that. What was your relationship with your dad like in that time?
Steve: He was an alpha bear without a doubt, and he cast a large shadow, and so sometimes we clashed. He used to have a saying that, you know, “Hard head makes for sore rear.” And I put him to task. I wanted to prove to him that I had the hardest head in the world, and he was more than willing to prove to me that he could redden my rear end.
Scott: So beyond just, you know, enrolling in college, did you know going into college? I mean, it sounds like that’s something that your mom sort of, not compelled you to do, but maybe compelled you to do because she didn’t want you to take a career path that she thought maybe was dangerous or wouldn’t be potentially lucrative or could have been destructive, so she got you to college as a way to steer you away from another thing. But when did you decide that you were gonna go to law school?
Steve: Again, you know, I was not the best student. I wanted to be like my dad. I cycled through college. I realized that, you know, now’s the time to enter law school. I had an LSAT score. I shocked myself to the law schools, ended up going to night law school. I had a professor at Georgia State tell me that I needed to go back to college and, you know, improve my grades, come back with a little better track record of being a better student, and my father stepped in and said, “No, you’re going to night law school, and you’re gonna pass the bar the first time you take it.”
You know, I went to night law school. I’m not gonna say that I became a grad student then, but I did have some successes. And every time I pointed those out, my father would tell me that…you know, he thought that was wonderful, but that it was going to be sad when I failed the bar. So, when the bar rolled around, I scared the living daylights out of me, and he was kind enough to give me a leave of absence for about 60 days. And I, what were those, PMBRs. Yeah, I put my head in those PMBR books and took those multi-state tests over and over and over again. By the grace of the good Lord, I passed the bar the first time.
Scott: So, when you were in law school, you were working for your dad, you were working in your dad’s practice then?
Steve: I was.
Scott: What was your job, or what was your daily…? Sort of what was your daily routine like when you were in law school?
Steve: We went to school at night. So, I along with most other students, you know, non-traditional law school students, most of us had 40-hour jobs. So, my day would begin here at the office. My father would dispatch me to do certain things for him. Some of the judges would have probably accused me of blurring the lines a little bit, you know. A couple of them hollered and screamed at me, but, you know, I did what my dad wanted me to do. He got sick while I was in law school. So, he was able to get a cancer-free diagnosis, but it came back a couple years after I got out of law school. So, I really never had a chance to try cases with him or do anything like that.
So, you know, my job largely as a law school student was to try to be the best right-hand man I could for him. And when I practiced law along with him, he started getting sicker towards the…you know, about ’96 until his passing. He was sick and unable to really withstand the rigors of trying serious cases. So, I didn’t get a chance to do that much with him. We would sometimes talk it in the evenings when I was trying a case, but, you know, unfortunately, we never really had a whole lot of shared stories about practicing law.
Scott: So, you said a minute ago that when you were in law school and you were kind of working there in the practice that the lines were blurred. I take that to mean that probably you were doing some actual lawyering, that maybe you were pretty close to being a lawyer when you were in law school. And some [crosstalk 00:10:57].
Steve: You know, I was answering some calendars kind of getting prosecutors to hold for Pete’s announcement. Usually, he would dispatch me within the Clayton County Courthouse. He would go where the conflict had him go first, and then I would alert the judges that, you know, he was in route where he was from when he would be here. I did get a chance in my third year of law school. Matt Simmons swore me into practice under the third-year practice act, and I prosecuted some in the solicitor’s office with Elizabeth Baker. She was my mentor, a longtime friend. I’ve known Elizabeth almost all my life.
So, I did get to practice law. I remember, you know, a couple times Pete sent me someplace. I remember one time I got a continuance because it was a preliminary hearing, and I was over in east point in front of George Barron, who was just a wonderful man and a good judge. And I got out there, and I realized it was a preliminary hearing, so I got Judge Barron to continue it, and came back and told Pete, and, of course, we marked the calendar. And back then, Judge Barron would hold court sometimes in the evening hour, you know, around 5:00 or something 4:30 or something like that. So, as Pete’s leaving the office one day, I said, ” Hey, man, don’t forget so and so,” you know, and he kind of looked his watch. You could tell he was a little agitated about that. And I said, you know, “Man, they’re expecting a lawyer to show up this time.” And he looked at me, and he said, “Well, you need to get on over there. I guess we’re gonna find out what you’re made out of.”
Scott: And you were still a law student at this point?
Steve: Yes. They weren’t expecting a law school student. You know, bless George Barron’s heart. He was kind enough to not call me out. I think he saw the predicament I was in. I ended up negotiating a plea to a city ordinance. We took a plea and paid a fine. And I’ll never forget because the guy…Judge Barron was like, “Well, so you’re not representing my counsel.” He’s turned around, and I shook my head, “No, you’re not.” He said, “Okay.” But I mean, it worked out wonderfully for the client because it went from a felony to a city ordinance, and we paid a fine and walked off.
Scott: You did great.
Steve: Yes. I was proud of myself we’re outside the statute of limitations. I did practice law a little bit there and got away with it. But, you know, the one thing that Pete did when I passed the bar, Scott, he got me in here. We had survived a tumultuous teenage years, and, you know, I’d gotten through four years of college without any troubles. And I saw him cry for the first time, and he looked at me, though, and he said, “You know, son,” he said, “I’m proud of you, and you’re a lawyer now.” He said, “But if you think that’s the end-all-be-all, you need to move on.” I couldn’t really figure out what he was talking about until…he really wanted me to know that, “Hey, look, you still gotta roll your sleeves up. You’re gonna work harder than you think you should. You haven’t made it to a point of coasting” or, you know. So, I miss him terribly. He always had a knack for summing up your circumstances in a couple of words that made sense to you, gave you some assurance that you could tackle what lied ahead.
Scott: So it sounds like in two instances he did that. So, with the bar, he said, “You’re gonna go to night law school, and then you’re gonna pass the bar.” But then once you got into law school, and you were having a little bit of success, it sounds like he sort of used the prospect of you failing the bar as a way to motivate you a little bit.
Steve: Without a doubt.
Scott: And then when you became a lawyer, he was so proud of you that he cried about it, but he also…it seems like the second half of that was, “But you’re gonna have to work hard,” like you haven’t really done anything yet.
Scott: And was that something that he continued to use and motivate you kind of in your early years of your practice?
Steve: You know, he’d been a criminal defense lawyer for all I’d ever known, and so, you know, there were a lot of other things that he told me about the practice that I was getting into like, “You’re gonna go to other courtrooms and courthouses. You’re in a profession, son, where most people are dying to tell you no, and that’s gonna be, you know, from the bailiff to the clerk to the judge’s secretary. So, you know, you’re gonna need…And, I think, I heard you talking with Lester Tate about this. You know, I mean, nothing replaces politic in that courthouse a little bit, getting in there, being nice to the people at the door, being nice to the people that are sitting at desks. There’s nothing can replace that.” And he had a knack to try to, you know, instill in me that looks on, you know, no matter who you are, you still gotta get past these folks, and you need to treat them with all the respect they deserve.
Scott: And so starting off in your practice, did you primarily practice in Clayton, or right off the bat, were you going all over Georgia or all over Metro Atlanta?
Steve: I ventured outside of Clayton some. While Pete was still alive, I worked for him. So, there weren’t many instances where I went too far outside about 100-mile radius. I found myself in Gray, Georgia one time.
Scott: Jones County.
Steve: Yes. Down there, wondering, “What have I done to get here?” Fortunately, those folks were good to me, and we were able to work something out. You know, since he’s passed, I’ve been all up and down the Eastern Coast and, you know, been a lot of places practice law in a lot of different places.
Scott: Because I know at some point in time you got into some federal practice, and, I think, you still do a fair amount of federal work.
Steve: I do. I don’t do as much as the folks that I call and lean on when I have dumb questions and pray that they have the time to answer them. You know, my father told me, he said, “Son, if you’re gonna really be a criminal defense lawyer, then you’ve gotta go practice in federal court.”
Scott: When did you start doing federal practice?
Steve: I got sworn in, I think, by Judge Shoob, but I didn’t try a federal case until after Pete passed. I tried two cases in the early 2000s, one in Virginia and one here in Atlanta, and won the Atlanta case with a verdict and won the Virginia case on a motion for new trial. It’s a long story. The judge just wasn’t gonna…he was gonna let the jury hear all of the inadmissible evidence and then deal with it after the fact. But he was kind enough to…you know, he told me, he said, “Son, you know, get a motion for new trial and make sure you make these deadlines. You’re gonna need to get admitted to the, I think it’s the fourth circuit.” He said, “You’re gonna need to get admitted there.” And then we handled some post-trial matters in the trial court, and the trial court corrected the error it made with respect to some crucial evidence and then entered a judgment of acquittal.
Scott: So you also mentioned a second ago that you won a federal trial in Atlanta…
Scott: …which, you know, for people that don’t know that don’t regularly practice federal criminal work, you might go your whole career and never beat the U.S. Government in a jury trial. So, do you care to talk a little bit about that jury trial?
Steve: Yeah. And I agree with you, for those who have never done it, you know, it’s a daunting task. To kind of lean back on another Pete story, I remember he…I had some federal cases. I never tried one while he was alive, but I remember him asking me, you know, “When you look down at the style of the case, and you see it’s the United States of America versus you and that guy sitting next to you,” he said, “You feel a little overwhelmed.” But you really feel like you’re on the center stage.
And so I tried a case. We ended up trying it Noonan, the Noonan division of the northern district. We got a little different juror than you would have gotten in the Atlanta division. Had a little talk at one point during a break, talked with the trial judge over lunch just kind of waiting on some things, and then we talked about the case while the jury was deliberating. And he asked me, he said, you know, “A little different jury than you get up in Atlanta?” I was like, “Yeah. Yeah. Yeah.” But it was a methamphetamine conspiracy, and the other guy got to the Government first and told his side of the story, and the Government bought it hook, line, and sinker.
And it was really kind of funny, Scott, because I’m running around a Meriwether County, trying to get some people subpoenaed, and I get the sheriff. He was the sheriff of Meriwether County, I think, at the time that he was a witness as things changed, time changes, people move into different jobs or different positions. But at the time I served this gentleman with a subpoena to appear for the defense, he was the sheriff of Meriwether County. And so when we reported on that Monday morning, the judge asked me, he said, you know, “Are you ready to try the case? And I said, “Well, you know, I got some subpoenas out there, and I hadn’t heard from these folks.” And he said, “Who?” And I told him, and he looked at me, and I didn’t realize at the time that, you know, hey, the marshal handles you.
Scott: Not you.
Steve: Not you. So, I think, he was a little…you know, because he’s kind of…he asked me, you know, “You did this?” And I was like, “Yes, Sir, you know, I drove down there and put it in his hand myself.” And I’ll never forget. We’re sitting there, and, of course, it’s a Monday morning, you know, probably about 9:30, 10:00 as we’re sorting all this out. He got on the phone and found where this gentleman had largely ignored my subpoena and gone to the beach. I think within about 30, 45 minutes, the judge spoke directly with that particular witness and told him that he needed to come on back. And I’ll never forget because he left. We were in chambers, and I’m scared to death, man. I mean, you know, I’m sure that I can do this, but, you know, my stomach’s in a knot. And I’ll never forget, he leaves the room, and he comes back in the room, and he tells me….he assures me that he’s handled this and that that witness is on the way, and he kind of goes down a little checklist, and he said, “Now, aside from all of these things, son, are you telling me you’re ready to try this case?” And I said, “Yes, sir. I am.” And he said, “Okay.” You know, about five days later, the jury could cut him loose.
Scott: Which is phenomenal in federal court.
Steve: Phenomenal. You know, it was one of those things, Scott, I’m not gonna lie to you. I teared up wishing because that would have been really something i would have wanted to share with him because, you know, just as you said, the government is…you know, they’re a formidable foe. It would have been perfect if I could have been down at the King and Prince with Lee Sexton and Pete and maybe a couple other guys, and we all just told stories of that trial and others and just, you know, made it a good long night.
But, you know, that was a very interesting trial. We had a moment in there where the government’s prime witness who is a cooperating co-defendant, a DEA agent, was on the stand basically, recapping his particular position in all of this, and we got around to his proffer with the cooperating co-defendant. And I don’t remember exactly what the subject was, but it was largely to the point where the only two answers that the agent could make was is, “Yes, I’m listening to someone giving me self-serving testimony. Yes, he’s lying.” So those were the only really two answers at the point. And when we got to that point…and, of course, I’m feeling all tom cruise, you know, few good men, so I’m demanding answers, and the government objects. And we go to a sidebar, and we start trying to get to the bottom of the relevancy objection. And I couched my position in a term that all of a sudden, I thought, “Oh, I shouldn’t have said that.” And I don’t think the court was alarmed at what I said, but I think the…
Scott: Oh, way, I think you’ve told me this story before. So didn’t you say something along the lines of, “I’m not trying to screw around with the court or something”?
Steve: Exactly. Yes.
Scott: And then like it wasn’t a big deal at first and then…
Steve: Yes. And then he looked at me, and he said…over the course of about 90 seconds, he said…
Scott: If I remember it right, you caught it, and you said, “I’m so sorry, Judge.” You said something like that.
Steve: I said, “That was a poor choice of words.” And he looked at me, and he said, “Yes, it was,” and we continued to talk about the objection. And then he looked at me and said, “An extremely poor choice.” I affirmed that with a, “Yes, Sir, it was.” And then about 20 seconds later, he said, “Do you know why it was an extremely poor choice of words?” And at this point you’re like, “Man, just hit me, you know, do something, but, you know, quit dragging this out.” You’ve got to give him room to tell you why it’s such a poor choice of words. So, you know, much like a bullfighter, I wave the cape, and then he comes charging at me, and he points out to me that I can’t screw with him but that he can screw with me. And at this point, I’m thinking, you know, “If you don’t leave me alone, I’m gonna start crying,” you know, and I’ll never forget. We get to the very end of the conversation, and he’s never ruled on the objection. You know, and, of course, the DEA sitting over there on the witness stand all smug, knowing that I’ve just gotten paddled over there.
So I’ve been told to go back to the desk, and as I’m walking, I thought, “You never ruled on the objection.” Because I’m looking at the DEA agent like, “Hey, buddy, I might be, you know, a little apprehensive of him, but I’m not apprehensive of you.” And so I’m dying to get back and begin. So I realized, “Holy smokes, we’ve never ruled on the objection.” So I stop, and at this point, it’s a conversational tone of voice, and I said, “Your honor, you never ruled whether I could ask that question or not.” And he said loud enough for everybody to hear, “You can ask it from the county jail.” And, of course, at that point, the agent’s looking at me like, “Yeah, that’s right,” you know. And, of course, the jury, they know that I’ve kind of gotten paddled a little bit. They don’t really rule [inaudible 00:25:41], and so, you know, they’re still looking at me like, you know, “What are you gonna do?” You know, and one of the things I’ve noticed about jurors a lot of times is if you can handle it respectful. There’s no set of circumstances under which you can be disrespectful to the court or to the structure in which you’re trying this case, but if you still stand tall and stand the gap, you’ll get a little respect from them, even if they look around and go, “Well, I don’t know if I necessarily agree with that.”
Scott: What do you think jurors from…? Gosh, you’ve probably tried hundreds of cases by this point in time, I mean, between bench trials and jury trials because you’ve done this for…you’ve done this for maybe a few years longer than I have. What do you think jurors are thinking when you’re in a situation? I don’t wanna name names, but we could probably name names of judges that have made it a point to try to embarrass you in front of the jury. What do you think jurors think of defense counselor? What do you think they’re processing when a judge is just riding you left and right in front of them?
Steve: Well, you know, obviously, their lens is gonna be from, you know, what you’ve done up to the point that this happens, assuming that you’re still treading water, okay, and you’re in play. I think a lot of times, juries pick that up. Okay? Now, what they do with it, you know, remains to be seen. Even jurors sometimes it’ll come back…the convict your client will come back and tell you, “Hey, man, he didn’t give you a fair shot, or hey, man, I saw when, you know, you were trying to do X, Y, and Z, and he was making sure you didn’t get a chance to do that.” You know, and especially, Scott, in this day and time where a lot of people are kind of looking around and questioning a lot of things, you know, that they’ve been told all their lives, I think the sense of recognizing bullies, I think people have a keener radar for that.
Now, that doesn’t give you a license to act like a fool. Okay? And it certainly doesn’t give you under any set of circumstances a license to show disrespect to the court. But, I think, the idea of that lawyer sitting over there, and he’s doing everything he can to try to represent this person, and that person sitting up on the bench is doing everything they can to make that hard on him or her, I think jurors pick that up. And I believe in close calls that sometimes they’ll give you some credit for that. Now, you know, if you’ve been just basically sitting in the courtroom while the Government puts up a case that’s largely unrebutted or, you know, not refuted in cross-examination, there’s no competing theory, you know, coming to pass, then they’ll slap you on the back out in the hall and say, “Hey, look, you got a card. You know, I like the way you did it.” When they’re trying to make up their mind, and one of the things that’s present in their mind is that he’s not getting a fair shot at this, I think that resonates with jurors.
Scott: So you’re talking about a situation where you do have a defense, you are putting up a competing theory, you’re being respectful, but you’re being an advocate for your client, you’re asking good questions on cross-examination, you’re raising objections, you’re responding to objections, but it just seems like in spite of all of that that you’re not getting treated fairly, and the judge is coming down on you a little harder than the state or the government. You think in that situation maybe a little nod goes your way from the jury if they sense that you’re not being treated fairly or that you’re being bullied.
Steve: I think they picked that up. Yeah.
Scott: So, now that this is sort of a larger topic. I think your practice is still…I think you’ve done some domestic, but I’ve always thought of you…
Steve: Just enough not to do it again. Yeah. I’m all criminal.
Scott: Okay. I thought I had seen you at various points in time every now and then with the domestic case, but I think of you as a criminal defense lawyer. Tell me a little bit about, you know, you’ve been doing this for how many years now.
Steve: Since 1993, so 28.
Scott: When you have a case, and you know it’s going to trial, what do you do to prepare for trial these days? What’s your approach? What have you learned about getting ready for it and doing a jury trial that, you know, maybe you didn’t do when you were first starting out?
Steve: I had an epiphany one time where, you know, I thought, “Man, I’m fixing to try this case, and it’s hopeless. My client is…there’s nothing appealing about him. The circumstances are certainly suspicious. You’re gonna have a cooperating defendant.” So, to answer the question, I think, the best thing a defense lawyer can do is sit down and prosecute the case. Take the government’s discovery, take the government’s witness list, and just map out what it’s gonna look like. How will this look when they try to tell the story they wanna tell based on the evidence and the witnesses they have? I think when you sit down and start doing that, you start seeing some loose boards in the flooring. You know, you start seeing where, “Hey, look, this witness has really gotta make a leap of faith, or the prosecution, you’re gonna get to a certain point, and they’re not able to get from A to B without hearsay, or you’re gonna get, you know, to a point where the witness just can’t tell the rest of the story.” And I’ve told clients this all along, you know, “Buddy, they get to go first. All right. So, you’ve got to figure out a way to work your defense into their case. You’ve got to get this jury’s attention as early as humanly possible because the concept of just waiting around until it’s our turn to put up a witness to say something favorable, you know, a lot of times the train’s already left the station.”
Scott: Or there is no witness like that. There’s nobody that you can bring [crosstalk 00:32:04].
Steve: Correct. And so, you know, you’re gonna have to…and one of the things I’ve always looked at, you know, if you’ve got a witness that’s saying A, B, C, and D, and if this is true, then if you’ll sit down…you know, and it takes a lot of time spending time by yourself looking at this stuff, maybe having somebody to bounce dumb questions off of because you never know, what, some remote question might trigger another question that gets you where you need to be. So, you know, if you look at a witness’s story, and you think to yourself, “Okay, if this is absolutely true, then what else would be true?”
You know, a perfect example is, you know, when you’re reading the police report about how, you know, the defendant became unruly, and I had to do this, and I had to do that, talking about a police report, you know, I was in fear of my safety, blah, blah, blah, blah, blah, blah, and you look up, and you realize, “Okay, this traffic stop occurred at 11:30 at night, and my client’s six-five, 250 pounds. So if he’s acting like this, then I’m sure you got on the radio a call for backup.” You’ve just got to carry the story on out and say, “If this is true, then there’s got to be other things that are going to be either true or not true based on this story.” You know, that’s where you start trying to unearth the story. You really don’t have any Perry Mason moments where the witness just confesses from the stand that, “Oh, by the way, you know, you caught me. I’ve made all this up.”
And I’ve always thought to myself as far as cross-examination is concerned, you’ve got really two levels of questioning. You’ve got the questioning where you know you can make them adhere to your line of questioning. Assuming that that goes as well as you would hope, then you’ve got kind of another tier of questioning where you can really, you know, raise doubt, but you don’t have anything that can impeach the witness, but you’ve made enough progress and effectively cross-examining this witness and proving that they’ve not necessarily told the whole story on these other instances. And now I can raise the specter of, “Well, you don’t have anything to back this up or the story you’re now telling me, you don’t have anyone that you told in time that this happened to you,” you know. And then they’re gonna say, “Well, no, you know, I didn’t call the police when that happened, or, you know, no, I didn’t go home and tell my roommate that this had happened.” You know, a lot of things that once, you know, you’ve landed a couple of punches on the things that you know you have control over, you’re able to get the jury to really start looking at that witness’s testimony like, you know, “I don’t know how much I can believe of this.”
Scott: So, there’s two levels for you in cross-examination. There’s number one, there are the facts that you can bring out from what the witness says. So, in other words you take the witness statement, or you take the incident report, or you take the police report. And you know that there are some things in that police report that the witness says that are good for you, and you know from the statement the witness is gonna say those things.
So, it sounds like your first level is you’re just getting out of the witness’s mouth those things you know the witness will say that’s helpful to your case. And it sounds like the second level is for the things that are bad for your client or the things that are good for the state or for the government, you’re trying to elicit the fact that… well, first of all, if they come in and they say something they’d never written before that’s not in the police report, that’s impeachable stuff. It sounds like the other level you’re going to is, “Okay, you said that, you know, you were on the side of the road with a guy that was six foot five, and he tried to fight you, and yet isn’t it true you never got on the radio and called for backup? Isn’t it true that you… whatever it was?” I mean, so in other words, you’re then going to the lack of evidence to support what he’s saying.
Scott: And you do all of this under the larger umbrella of, “How would I prosecute this case if I were prosecuting it?”
Steve: Yes. If I were a prosecutor, and I had a witness that I knew I needed the jury to believe no matter what, am I gonna go out and try to find something that corroborates this witness story? So, like a good prosecutor would think, you know, “Well, okay, let’s go get his cell phone records, and it’ll show where he called somebody and said, ‘Hey, man, I’m out here alone,” you know, or something along those lines. So you have to start looking for them, you know, because the last thing you wanna do is ask about these questions, and then the guy say, “Yeah, I got it right here.” But yeah. You know, you wanna look at it from the perspective of, “Well, if what you say is true, then there are other collateral issues that would either be true or untrue based on the story you tell.”
One of the things that I’ve found in the past is it’s usually more beneficial to try and get out of the way first. I had a lawyer tell me one time, you know, “Dance with them as long as you can because you know you’re gonna have to fight them sooner or later, but dance with them as long as you can.” So, a lot of times, if you can start out your cross maybe with getting some things out of the way that both of you would agree to, it sometimes can take the edge off the witness, and, you know, then maybe they’re gonna relax, and you can get somewhere with them. Because a witness is looking at you like, you know, “I’m ready for you too. You know, I’ve heard about what an ogre you are, and blah, blah, blah, blah, blah.” I had a police report one time that was like five pages long, you know, and somebody’s like, “Man, that’s gotta be the most daunting thing in the world.” And it’s like, no, [crosstalk 00:37:37]
Scott: That’s perfect.
Steve: That’s perfect. There’s no way they’re gonna parlay every single thing that’s in this police report. The most difficult police witness I’ve ever had were those ones that just won’t talk to you at all. I had one. And I can’t remember his name, and I wouldn’t say it if I did because he was a friend, and he was a cop. And we were trying a jury trial. He was a responding officer. And he really didn’t know anything more than what he was told. You know, he shows up, and the victim says, “Hey, man, his client did A, B, C, and D to me.” And, you know, without getting into all the dynamics of the case, he just had too much pride to say, “I don’t know.” And the more he insisted that he did know, the longer I continued to cross-examine. And so we take a break, and it was in front of a local Clayton County state court judge. We’re out in the hall, and he’s gone to the end of the hall, and I’m standing there right outside the courtroom just kind of biding my time, and i’m looking at him, and he’s looking at me. And he says, “Hey, man don’t talk to me.” He might have used a couple of curse words and everything.
And I walked towards him, and I said, “Let me say one thing to you before you walk off.” I said, “You can call me anything you want after this.” I said, “But here’s the thing, buddy.” I said, “All you had to say was, ‘I don’t know.'” I said, “But you were too prideful to say that,” and I said, “And that just made this torturing experience that much longer.” You know, I tried one down in Griffin State Court one time, and it was a Georgia state trooper. It was a DUI, and there was a glaring issue with his report. And I had probably three pages of just subjects for cross-examination because I was certain he was gonna get up and just basically regurgitate his report. I get him up on cross, and when we get to that point in the report, he beats me to the punch and says, “Yeah, man, that’s wrong. I made a mistake there.” And so 45 minutes of, you know, just on the edge of your seat cross-examination just goes out poof.
Scott: Gone away because he said, “I made a mistake.”
Steve: He said, “I made a mistake.” And, you know, at that point, I kind of look around, you know, like, “Hey, look, man, I need to pick up some speed. You know, I had all these plans.” And he said, you know, “I made a mistake.”
Scott: What else do you do to prepare? You know, so first thing you’ll do is you’ll take it from the prosecutor’s perspective, but say a little bit more…and I’ve watched you do jury selection before. Tell me about what you do in jury selection, how you [inaudible 00:40:12] jury.
Steve: I’ve attended seminars on this. I’ve read books on it. It’s the most aggravating voodoo luck of the draw.
Scott: You go to those seminars, and the seminar people always tell you to do these things that you get all excited about doing, but then when it comes time to think about doing it, you know that some of that stuff is not going to work and [crosstalk 00:40:36]
Steve: Yeah. The judge is gonna shut you down.
Scott: In a hurry.
Steve: And then you’re gonna have really what’s, you know, my side of the table’s worst nightmare, and that’s getting paddled in front of the jury before we ever even get started. You have to be careful. Now, one of the things that I have…you know, you need a judge that’s gonna give you a little bit of latitude, and then, you know, at some point about two-thirds of the way through picking this thing, they’re gonna look at you and say, “Hey, look, man, you need to pick up the pace,” and then you try to do, you know…but the one thing that I’ve seen that makes jurors respond to you is if you talk to them like you’re just another human being. If you get up there and you start trying to throw around a couple of words and act like you’re something else, then they’re just not gonna come to the middle of the street for you. You know, they’re just gonna look at you. Some of them are gonna think you’re arrogant. You know, some of them are gonna think worse of you. A lot of them are gonna look at you like, “I can’t trust you.” You know, you’re sitting around here, strutting around like, you know, some sort of rooster, and, you know, you’re trying to act like you’re real important. You know, I see the trial judge rolling his eyes at some of the things you do, you know, or whatever.
But I had a jury one time, and my co-counsel took the first panel. And he came back, and he sat down, and he looked at me, and he said, “Man, I can’t get these people to do anything.” He said, “Are you willing to take the second panel?” And I said, “Yeah.” I said, “Let me do that.” So I get up there, and the first thing I tell them is I said, “You know what?” First thing I do is I tell them, “Hey, man, my name’s Steve Frey. I’m married. I’ve got two kids.” I tell them, “Hey, what’s good for the goose is good for the gander, so I’ll tell you a little something about me.” And then I look at them, and I tell them, “And you’ll usually get a little wry grin out of them when you say this.” I say, “You know what? I really think this is aggravating as hell too.” I said, “But they’re gonna make us do it. So if we work together, we can get through it a lot quicker.” And you’ll see them just kind of smile like, “Yeah, this is aggravating. I think you’re asking me stupid questions. I think you’re asking me questions of which are none of your business,” but they kind of look at you like, “Okay, you swore to me if we work together, we get through this sooner than not.”
Scott: You kind of make yourself a juror in a way because you say, “Look, I’m gonna reveal things about me to you before we get started because you’re gonna have do the same thing.” And then you say, “Listen, I realize this is awkward. It’s awkward for me to ask you these things.” And that disarms them a little bit.
Steve: It disarms them a little bit. And I’ll tell you, one time, I had a folder fall off the table, and it just…as you can imagine, they explode, and everything goes everywhere, and I just had to stop, you know. And one of the things that young lawyers and sometimes old lawyers, they don’t realize that 30 seconds of you shutting up and just handling something seems like forever while your heart’s pounding, and you’re…but it’s really not. And if you’ll just kind of look at them like, “Hey, yeah, aside from being a lawyer, I’m kind of a klutz too,” and pick it up and then kind of shrug your shoulders. They like to see you being humble back to them, and then they kind of feel you have at least 50% of the ownership in this, and you’ll get a little bit more out of them a lot of times.
You know, now, there’s no surefire of method. You know, you’ll have some of them that just look at you like, “I’m not gonna like you no matter what you do. You know, I think you’re willing to lie to me. You know, I think your client’s guilty. You know, I don’t have any idea what you think you’re gonna tell me, and I’m gonna be suspicious of you, you know, the entire time.” I think if they believe that you’re treating them with the respect that they deserve if you’re showing them that you appreciate the fact that really they’re not thinking about what’s going on here, they’re thinking about all the things that they’re falling behind on because they are here, you know, the fact that their boss is looking at them going, “I’d fire you except federal law won’t let me,” or the fact that you look at them and you go, “Hey, man, I know this is a huge pain in your neck, but I appreciate you.”
Scott: So, it sounds like to me you see the big part of jury selection. And I know that you’re looking to identify those jurors that you have to strike or those jurors that you have to get rid of for cause. It sounds like to me that you see jury selection primarily, and correct me if I’m wrong, you may not be saying this, but you see jury selection primarily as the way to build trust with your jury to have them understand who you are and where you’re coming from and to be receptive to hearing what you have to say.
Steve: Yes. Because the state gets to go first, there’s gonna come a point where you’re just gonna have to sit down and be quiet, you know, and they get to pray their witnesses back and forth. But the home run is when you convince them that “There’s gonna come a time where I’m gonna ask you to pay attention to a certain thing because I’m gonna parlay that into making you think.” And if you can get them to look at you like, “All right. You know, I’m gonna hold you to it. There’s gonna need to be some meat on the bone. But when you holler at me, I’m gonna pay attention to you.”
Scott: Is that something that you try to signal in jury selection? Is that something you try to signal in your opening?
Steve: You know, I had a case one time where that my fourth person ended up being a female. She worked at the airport, and I remember I’m getting goosebumps thinking about her because it was a case that probably, you know, there should have been a disposition other than a jury trial, but the client insisted on it. And so I knew that I was gonna have a jury that was gonna have to wade through a lot of things that, you know, was gonna cast suspicions on us, you know, and so I remember asking her. She worked at the airport. She had a managerial position. You know, she was responsible for other people. And she’s staring me into the blacks of my eyes while she’s answering my questions, and I remember asking her something along the lines of, I said, “Now, look,” I said, “if you were at work, and you had a red flashing light that that light signals that you’re to evacuate the building, you know, that you’re to turn and tell all of your…you know, these people beneath you that you are to…you know, run like hell,” and I said, “But you knew that that was wrong, that this was misinformation, you know, that you knew that this was a false alarm.” I said, “Would you have the courage to stand up in the middle of the room and tell them to stand down, don’t go anywhere I’ve got you, I’ve got this under control, you’re going to be okay, just follow me?”
And buddy, she looked at me, and she answered every single question with yes and all the way up to about hell yes, and they acquitted that guy. And she was the four person. I was telling that story to a prosecutor. She did a little private work, but she was always a prosecutor. You know, once a prosecutor, always a prosecutor. And she laughed, and she told me, she said, “Frey, all I’ve ever picked was the fourth person.” She said, “I settled on the other ones. She said, “But I wade into that group, and I find the one that will tell the rest of them follow me.
Scott: She selects for the fourth person.
Steve: Yeah. She said, “I try to find.” Now, she did mostly misdemeanors, so she’s only looking for six of them. But she said, “Yeah, of the 12 they put in the box, we’re both gonna get three strikes. I’m looking for juror for person number one, and then two, three, four, five, and six.” And she said, “As long as I cinch, the one that I believe will be the four person, the rest of them will follow.”
Scott: Do you think it’s defense counsel? You’re looking for a four person that’s open to you, or are you trying to eliminate all potential war persons?
Steve: Well, you know, Scott, the one that you like, they’re gonna be S1. So, you know, the idea of this ideal juror just sitting over there in the back left hand corner, you know, the other side sees them too. So, what I have found, my father, I used to listen to him tell stories about picking jurors, and back in the late ’80s when Eastern Air Lines was falling apart, and there used to be a lot of…you know, I can’t remember the dynamics of it. But Eastern Air Lines employees, they had that union fight that, you know, say no to Lorenzo. I can’t remember all the details. But what Pete pointed out to me is he said, “Son, this is the perfect person that’s willing to stand up and poke the bear in the eye and say, “Not on my time. I’ll die on this hill before I let you bully me.”
Scott: So you’re looking for the juror that maybe for whatever reason doesn’t…has been maybe disenchanted with authority figures, or maybe who knows what it’s like to be treated unfairly.
Scott: Do you find that you’re generally able to find those jurors during jury selection?
Steve: The difficult thing about it is, is that the person you’re describing is usually not the person you gravitate to at a cocktail party. So, they’re not going to be someone that’s just, you know, glowing with the invitation of come to me, you know. So, you do look for that person. You want somebody that would be willing to stand up and tell the rest of the room, “I’m not gonna do it.” We used to try to lump folks in more generally and say, “Well, you know, my client looks like X, Y, Z. So I’m gonna get jurors that look like X, Y, Z,” you know, and in some jurisdictions that works for you because maybe you’ve got a little more X, Y, Z in the jury pool. But I tried a case in South Georgia, and I picked a juror that looked a little more like my client, and I realized, you know, I kind of got thinking about it as, you know, we went home. And I thought, you know, “At the end of the day.” Okay. And this was down in Irwin County, I mean, Ocilla, Georgia, you know, because you think, “What happened to that person in the jury room?” You know, and you thought they stood up for you for a little bit, but at the end of the day, they gotta live in this community.
And, you know, the notion that they’re gonna just pick up your client’s calls, you know, just because maybe they have some commonality with them and take a chance. You know, it’s a lot to ask a juror, you know, “Hey, man, you need to tell these other 11 people, you know, they’re wrong. At the end of the day, you know, it’s yes, it’s that anti-establishment person that’s willing to tell 11 other people, “I don’t care what you think. I’ll tell you what, I got an interesting story.” So, I’m trying a shoplifting case in Clayton County State Court back in the ’90s, and the jury’s hung. Okay. And at one point, the judge was like, you know, “Can you give me a number? Don’t tell me what score is but just tell me, you know, what’s the number.” And they were like five to one. And I remember thinking, “It’s that old woman on the back. You know, come on, quit being hard-headed” because at this point, I think I’m winning. Okay?
Steve: And I’m thinking that the old woman’s the one holding out. Well, she was the one holding out, but she was the only one holding out for an acquittal. You just never know, you know. I tried one in Henry County from Arch McGarity, and you know what? He and I didn’t always get along on points of law, but I always enjoyed, you know, Judge McGarity’s company. He was a ton of fun to be around, you know, and we’re trying the case. And I’ll never forget, they’re home, you know, and it’s 5:30, and he’s looking at his watch, and he said, “And the state wants the Allen charge and the dynamite charge.” You know, they’re gonna give it, you know.
Scott: For those that don’t know, what’s the Allen charge?
Steve: The Allen charge…I’m kind of wading into your territory here, Scott. The Allen charge largely is where the judge tells the jury that, “This has been thoroughly tried, that both advocates have done as good a job is going to be done, the case is laid out as well as it’s gonna be laid out. You’re the best jury to determine the issues in this matter. Now, you know, I need you to go back and keep working at this.” So, here’s what Judge McGarity does. He gives the Allen charge, and, I think, he’s found out the dynamic, and it’s 11 to 1. Okay. And we all know that it’s not likely 11 to 1 to acquit.
Scott: It’s almost never 11 to 1 to acquit.
Steve: So, he looks at me with that old rhyme grant he’s gotten, and he said, you know, “Man, it might not be a bad idea. Start thinking about striking a plea.” You know, my client, rest in peace, he passed away in 2020. You know, he ain’t playing to anything, you know, so we’re hanging out. Then McGarity says…he said, “I’m gonna step in there and see if they wanna keep deliberating, or do they wanna, you know, go get dinner. You know, let’s get their pulse and see what they wanna do. You know, it’s late in the day. They wanna come back tomorrow and everything.” And so I’ll never forget. He comes back out of the jury room, and he’s got this look of astonishment on his face. He says to me…and I can’t remember it. It might have been Jim Wright. He said, “Well, I asked him if they wanted to keep deliberating or if they wanted to take a break what they wanted to do.” And he said, “And this voice popped up from the corner of the room and said, ‘Well, it’s 11 to 1 now, it’s 11 to 1 after dinner, and it’s 11 to 1 tomorrow morning.” And he said, “So we talked.”
They found him guilty of the misdemeanor but hung on the trafficking in amphetamine. So, you know, that’s… So we take a mistrial. He declares a mistrial, and then he looks at me, and he says, “I’ll bet you lunch. I’ll give you six guesses, and I’ll bet you lunch. You can’t figure out which one I’m holding out for you.” And so I gave him six incorrect guesses, and he says, “No,” and then he says, “Hey, man, do you remember the dude on the front row kind of to the left middle?” And then, you know, I was able to describe the guy. I mean, you know, the dude with the curly hair and glasses, and he’s like, “Yup, that’s him.” And I looked at him, and I said, “Judge,” I said, “if you’d come out here and told me, I’ll give you 10 more minutes to argue.” I’d never even looked at him.
Scott: So you just never know.
Steve: You never know, man. And I’ll tell you something else too that kind of intertwines with that story. A lot of lawyers, you know, will have somebody that kind of raises their hand and goes, “Yeah, I know Mr. Frey, you know, blah, blah, blah, blah, blah, blah,” and then your ego sometimes will say, “Well, let’s leave them on the jury.” And that’s not always the best move, right? It’s really not. You know, I mean, you’ve been to cocktail parties, and they’ve heard you yuck it up and tell war stories and stuff, and a lot of times, they just don’t turn out. As a matter of fact, I would be willing to say many, many more times than not they’re not the jury you think they’re gonna be.
Scott: Well, listen, I appreciate you coming on this podcast with me. I’m about to wrap up. You know, I think probably the audience is mainly lawyers. Is there anything that you wanna…that I didn’t ask you about that you really wanna say or anything that you wanna say to the folks that are listening?
Steve: Well, one quick thing, because when you told me you were gonna ask about my dad, you know, I thought, “As a 55-year-old lawyer, what would I have told Steve Frey fresh out of law school with a father that practiced law?” I would have said, “Son, this is gonna get you to some places a little quicker maybe than everybody else to the pack, but at the end of the day, what’s gonna sustain you is proof that you’re willing to roll your sleeves up and do anything and everything. Serve your own subpoenas. Go, you know, now.” I learned a little lesson about interviewing your own, you know, witnesses because you can’t become your own witness when they look at you and tell you something they didn’t tell you.
But one of the things that I learned with Pete is, is that, “Hey, man, you’re gonna run into a lot of his friends, and you’re gonna run into some people that aren’t his friends.” And so this notion that you’re just gonna make the varsity team without ever putting on pads is wrong. And if you really wanna take advantage of having that boost, that extra, “Hey, man, this is my son,” do it by working your fanny off. I remember one time, and I’ll close with this, I did try a case with Pete where, you know, he did all the lawyer, and I was just…it was in front of Bill Eisen. And we had this one particular point that we felt like we were gonna really…we were gonna make hay all day on this point. Okay?
Steve: And we got to the tree, we barked up at a bunch, you know, we got a little something, and then it kind of got shut down. And it got shut down because the other side had done a little research that, you know, we had. And I’ll never forget Bill Eisen tells me in only the way he could. You know, when I see him, you know, we’re in the hall or something, he looks at me, and he said, “One of you boys has gotta be the one that goes in the library. You all can’t be show horses. One of you all gotta be a mule.” Scott, I thoroughly appreciate this. I can’t tell you how honored I am for you to ask me to have done this. I do appreciate this. I think you’re a wonderful lawyer, and I’ll be forever in your debt for having asked me.
Scott: Well, the honor’s all mine, and I really appreciate you coming out. Thanks so much. I really, really appreciate it, Steve.
Steve: Thank you, buddy. I appreciate you.
Scott: Thanks for listening to the “Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to this show wherever you get your audio content.