Episode Synopsis: After decades of practicing law, nationally-recognized criminal defense lawyer Doug Peters understands the heavy responsibility of advocating for those most in need. Peters shares what led him to start his own defense practice, why he used a proactive people-centered approach for preparing for trial and the best time to put your client on the stand.
Doug: I’ve always felt, I don’t…a pull to try to stand with the downtrodden, you know, with the small man against the state. There’s something that is so honorable to me in being the person that stands between the citizen and the state, and that’s what I really wanted to do.
Scott: That was Doug Peters talking about what inspired him to become a criminal defense attorney and what inspires him to this day. It was an honor and a pleasure to speak to Doug for about an hour. Doug talked about what inspired him to become a criminal defense attorney, his early years as a prosecutor, and the things that motivate him and keep him going to this day.
You’ll find Doug to be an inspiration as you listen to him. But beyond that, you’re going to find some excellent practice advice and tips for being a better, more effective trial lawyer.
You’re listening to the “The Advocate’s Key” podcast. For more podcast information and more information about my practice, or just to contact me, feel free to check us out at scottkeylaw.com or give us a call at (678) 610-6624. If you like our podcast, make sure to like or comment wherever you find your podcasts.
Doug Peters, it’s so good to have you on the podcast, it’s a real honor. How are you these days?
Doug: Well, Scott, I’m just really good and I’m very honored that you have invited me, I’m looking forward to speaking with you.
Scott: Me too. I mean I think probably when I decided to create this podcast, you were who I was thinking of, is just going to be my definitive guess. I can probably just hang it up after this.
Doug: Well, you’re very kind to say that.
Scott: So, I always ask guests who come on the podcast, because I think people do a really good job of introducing themselves, and although this comes off sounding like a theological metaphysical philosophical question, but who is Doug Peters?
Doug: Well, Doug Peters is a very fortunate, very fulfilled, and very thankful person. I have an incredible family, I have had tremendous years of doing what I love practicing law, I have been able to balance that with other things in life that I’m quite passionate about. And so I consider myself fortunate and thankful.
Scott: And what have you done for a living all these many years?
Doug: I have been a criminal defense lawyer.
Scott: And how long? I don’t want to date you hear, but how long have you been a criminal defense attorney?
Doug: I passed the bar in 1974, in June. And I sat at a counsel table and I tried my very first murder case about five weeks later. Started then, and I am continuing to do it now.
Scott: And what made you decide to go to law school? Was that something that you thought you were going to do when you were growing up or is that something maybe later in high school or college, that you decided that you would go to law school?
Doug: Yeah. I did not grow up dreaming of being any kind of lawyer. As a kid, I was more interested in sports and having fun. I was always a pretty committed student in grammar school and high school. Not that I was top of the class, but I was very committed to sports. And the thought of law school was just never anything on my plate until I was finishing my sophomore year in undergraduate school and it was time to declare a major.
And what I had enjoyed mostly during my first two years in undergraduate school was English. I love poetry, I love creative writing. That’s what I made my best grades in and I thought, “Well, I’ll stand the best chance of graduating if I major in English.” My thought process at that time was tempered by my father’s sense of common sense, he said, “Well, now, if you major in English, what will you do when you graduate?” And many people that do that go into teaching. And at that time, I could not imagine myself being a teacher or a professor. Now, I feel very differently about that now.
During that, sort of that process of trying to decide, someone said, “You know, English is a very good undergraduate major to go into law school with.” And I thought, “Well, maybe that would be the way to go.” And that’s really, Scott, what sort of lead me, ultimately, to applying to law school.
Scott: It was something that you could do with an English degree, and he went into English knowing that that was something that you enjoyed and you excelled at.
Doug: That’s correct.
Scott: And you mention sports, what…how into sports were you and what sports did you do when you were in high school and in college?
Doug: Well, I was in gymnastics. I was not recruited out of high school, but I walked on at the University of Georgia. Back in the early ’70s, the University of Georgia had a tremendous men’s gymnastics program. That has totally reversed now, their women’s team for the last number of years has been rated nationally. But I walked on as a freshman and I was able to make the team. And so I earned a scholarship, and so that paid for my undergraduate school.
And so during my four years from 1967 through ’71 I was a very, very committed gymnast. And so that was my passion.
Scott: What kind of discipline did take to be a college gymnast back in the day and what was…what would have been…I guess in the height of things, what would have been your daily routine back then?
Doug: Yeah. It took the same discipline that it takes to do your best practicing law, I believe. Which it requires structure, it requires goal-setting, and it requires a determination to try to be the best that you can be.
And so my routine then was to take all of my classes early in the morning, finish them by midday. After lunch, I would rest, and then I would go to the gym about mid-afternoon and would work out every single day until about 6:00, 6:30, then back home for homework for the next. And that was my general routine for those four years, which I actually continued that routine in law school. When I finished my classes every day, I still returned to the gym with the team, even though I was not competing because my eligibility had expired. But I’ve always enjoyed that outlet, and so that was my routine.
Scott: And then you would study in the evenings, wake up and repeat.
Doug: That’s correct.
Scott: But I know now, just from having…because you and I have worked together on several cases and we’ve talked for years and years, I know now that you are a very early riser and you tend to do your exercise early in the morning these days.
Doug: That’s correct, I do.
Scott: In addition to gymnastics, were there any other sports you played or did when you were in college?
Doug: Yes. I was also, in high school, I was a very committed swimmer and a diver, was sort of a natural, I think, evolution from gymnastics.
And so I had a very interesting year my junior year in undergraduate school. Back then on the swim team at the University of Georgia they had two swimmers. One of those, my junior year, went on academic probation. And so they came to our gymnastics team asking if anyone could fill that spot and I was the best we had.
So actually my junior year I was on the swim team, also, at the University of Georgia. I was not the best that they had, but I did compete, I did letter. And so I’ve always been quite proud of that. So that was another sport that I pursued in undergraduate school.
Scott: And then when you ended up in law school, was your thought that you were going to be a trial lawyer, did you think that you would go be in a big firm? What… Other than it was something that you could do with the English degree and it was something practical that you could make a living with, having had that as a major. Going into law school, did you envision any particular thing?
Doug: To be totally honest, my first half of law school I worked very hard, but I did not know that I had really made the right decision. I found myself surrounded by many people in my class that had business backgrounds, business law just totally bored me beyond tears. And there was very little that I saw in my beginning of law school that really made me very passionate about it. So, it never entered my mind to be a trial lawyer or anything of that nature.
For me, the turning point was midway through my second year in law school. They had a moot court competition, I had never done anything like that. They gave us a hypothetical state of facts, we were to prepare it and to argue it before upperclassman as our sitting judges.
And so the case they gave me was Sniadach Versus Family Finance. It was about a car being repossessed, I’ll never forget it. But I started preparing that, and we only had a little 20-minute argument. I only argued for 10 minutes, and then my teammate on my side argued 10 minutes. And I still remember, Scott, that night when I got through I remember calling my father, whom for the first year and a half of law school I had just been in the misery when I spoke with him, thinking that I’d made a mistake. I remembered calling him that night and said, “Dad, I think I found what I want to do.” And I found that in the oral presentation I really felt like I could hold my own with the very top people in our class. And that really created a passion in me that made me feel like, “Maybe I could actually go to court and stand up and try cases.” And that was a big, big turning point for me.
Scott: And so moot court, that would have been more of like an appellate setting.
Doug: That’s correct.
Scott: So, were you thinking that you wanted to be an appellate lawyer or it was just the proximity to “this is kind of like court”? Did it just light you up to, “Whatever it is, I want to do more things like this”?
Doug: Yeah. You know, what excited me about it, Scott, was for the first year, year and a half in law school the only time I could orally speak was when I was called on in class. Which, to be honest…
Scott: Is never fun.
Doug: For me it was terrifying. However, putting together the structure of the argument… And yes, it was an appellate argument that I made. But putting together the structure of that argument, and taking the facts and structuring how is it that I can convince someone that I can win this, I think that’s what really drove me. It was the creation of the presentation.
And so I felt…I didn’t feel that that was so different because it was an appellate argument, it seemed like that basic process would be something that I could do in court. So that was what really appealed to me.
Scott: And this happened in your second year of law school?
Doug: That’s correct, just about halfway through my second year.
Scott: And so what changed you in law school? Because I know you felt maybe you didn’t belong there. What did you start to do differently on a day-to-day basis as a result of that decision, or that experience?
Doug: Right. Well, I think the simple thing is I started to have confidence in myself. In the beginning, we had a very, very talented class and I never felt, you know, that I was out front with the courses that we were taking, you know, like contracts and torts and property law. But just about the time that the moot court began, I started a class in criminal procedure, I had another class in evidence, and I had a very fine professor. And, you know, I just felt, with that medium, that it was something that I could grasp. It was not business-related, it seemed like it was people-related. And those were things that really drew me in.
And so at that point I started speaking with people and I was told that if you wanted to go to court, then a great place to start would be as a prosecuting attorney. And I thought, “Wow, would that be something, if I could be, you know, a prosecuting attorney.”
So that was a big turning point for me, that I felt that I had a goal to work for, “If I could find a way to pass the bar exam, well, maybe I could do that.”
Scott: And so what happened? Did you work in the summers in a DA’s office or a law firm? What were you doing, other than your class and sort of the sense of confidence you had, what were you doing to sort of cultivate that?
Doug: Oh, no, Scott. I didn’t have near that amount of drive, to be honest with you. After one year in law school, I bought a motorcycle and I drove across the United States. I had been very influenced by the movie “Easy Rider.” So, I put on my first pair of bell-bottoms, I bought a Honda 450, and I rode from here to Key West, out West, I went to Mexico, went to California. And I saw the Pacific Ocean for the first time from sitting on my motorcycle, I ate my first taco and had a Coors beer. And that’s what I did one summer.
The other summer I left and I went to Europe. And I took the four months, from the time I got out until we started back in late September. I had a backpack and I had a second-class train pass, a student rail pass. And I backpacked all over Europe that summer. Now, most of my classmates were vying for jobs in big law firms and internships, but I just wasn’t ready for that, I just had too much adventure in me than. So that’s what I did.
Scott: Were your summers back as an undergrad where you spent sort of training and doing athletic things back in the summer and this was your chance to kind of be out there and see the world before you started your career?
Doug: That’s correct, that’s correct. I was in training, you know, year-round in undergraduate school, that’s correct.
Scott: Okay, so you get out of law school or, you know, you’re studying for the bar, did you have a job lined up while you were studying for the bar or were you still kind of in the process of looking?
Doug: Right. It was very interesting. The year that I graduated, 1974, for a while the Georgia bar had a rule that if you had attended the University of Georgia, Emory, or Mercer, if you were a third-year student and were scheduled to graduate in June, you could actually take the bar before you graduated. That way that downtime where you were waiting to see if you passed the bar not could be done while you were in law school. So that if you graduated, then you knew your bar results and you could start work.
So that’s what I did. I took the bar early that year in February, I passed it. And so I started looking for openings in a district attorney’s office. I found that there was one down in South Atlanta in Clayton County. And so I went and I interviewed down there to see if I could get that position.
Scott: And, of course, you got it?
Doug: I did, that’s correct.
Scott: So, talk about what it was like being a prosecutor as your first job out.
Doug: Well, Scott, I just loved it. I mean I remember being in court, coming home at night and I would just…I would lie there in bed, I would just buzz. I mean I was so excited to think that I could put on a suit, go to court, stand up as a lawyer. And I felt that I was able to use my…you know, my creativity in how I put my cases together, I felt like I could use my skills in speaking with people in the presence of the jury. And it just…I just absolutely loved it. I loved the people that I worked with, I had great mentors in the office, you know, that gave me a lot of latitude.
And, oh my goodness, during those years, two weeks out of every month were trial weeks. And I literally would have a stack of files to be ready to try, I never knew which one was going to go to trial. So, I was averaging, you know, each month I would have at least two jury trials, and sometimes I would have three. So, I absolutely loved prosecuting cases.
Scott: Was it just the trial experience or was it managing a caseload? What was your favorite part about being a prosecutor?
Doug: My favorite part was looking at the case on paper and realizing what it was that I needed to convince an individual on the jury, and then sort of constructing how I would go about doing that. I loved preparing opening statements, I loved preparing closing arguments. And I was trying to do a lot of things then just be instinct that, you know, in later years I learned I was really…you know, I was on the right track with a lot of the approaches that I took. Not that I had been trained, but it was just a way of speaking with people. And I really enjoyed that.
I enjoyed working with the defense lawyers. I just…I always admired them, I always looked up to them. So, it was a…it’s a very people-oriented process you go through every day as an assistant DA. I loved working with the judges. It was very fulfilling for me, it really was.
Scott: How long did you ultimately end up being a prosecutor?
Doug: Just a little less than two years. I realized that, as much as I thoroughly enjoyed being in the courtroom, there were two things for me that I felt were missing. Number one, I always wanted to work for myself. I did not want to work for anyone. I wouldn’t…I was never interested in working for a big firm. And I was never interested in, you know, working for the state of Georgia or anyone on a long-term basis. I always wanted to have my own business. So that was nothing related to law, that was just, you know, what I felt.
The other thing that is at the core of criminal defense is I’ve always felt, I don’t…a pull to try to stand with the downtrodden, you know, with the small man against the state. There’s something that is so honorable to me in being the person that stands between the citizen and the state, and that’s what I really wanted to do.
So, a little bit less than 24 months as a prosecutor, I left and I hung the shingle up. That would have been in 1976, in the spring. And now it’s 2021, Scott, and I’m still under that shingle.
Scott: What kind of things did you do when you first got out and you first started your business and hung out your shingle?
Doug: Well, for the first week I sat at my desk waiting on the phone to ring. It never did. I’ll never forget, it was Friday afternoon and finally our office administrator buzzed me on the intercom and said, “Doug, you have a phone call.” Well, I just about fell out of my chair answering the phone, so excited. And it was my mother and just asking how I was doing.
So, I started with nothing, Scott. And so in those first years I did a little of everything that I could just to, you know, try to pay the utility bills. I wrote wills, I did real estate closings, I handled bankruptcies, divorce cases. Of course, I was trying to develop my criminal defense practice.
And so I found out that down in Fulton County then that if you arrived at the old Fulton County Jail on Jefferson Street on Monday mornings and if you got there by 7:00 a.m., there were two things waiting. First, they would give you a free breakfast in the dining hall with the deputies. And number two, they would give you an appointed case of those people that were arrested over the weekend, they were all misdemeanor offenses.
So, for the first two or three years, every Monday morning at 7:00 I was at the Fulton County Jail to take those cases, and I started trying those cases. They paid $50 a case, and I tried a lot of those. And I ate a lot of really good breakfasts, they had wonderful biscuits down there. I just really…I just enjoyed every part of it. So that’s what I started doing.
Scott: What would you say…and you don’t have to use any names or anything, but…unless you want to or you feel like you can, but what do you think was your first big break, your first big criminal defense…and it might be a case or it might be a person you connected with, when did you think that you went from doing the appointed work, and I had my own version of that when I was starting out in Henry County, but what do you think was your first big break as a criminal defense attorney?
Doug: Right. It was a big break for me. One of the other assistant DAs down in Clayton County that had gone out into private practice had a case that he called me and asked if I would be willing to meet with the clients on the case. He was concerned about being able to handle it adequately himself. And I think he gave me that opportunity because we had worked shoulder to shoulder in the DA’s office and I felt that he knew how hard I tried and how much it meant to me. And so that gave me an opportunity.
And I met with that family. I’ll not name names, but my client was a Delta pilot. And he was accused in a child abuse case. And so I worked it very, very hard and was ready to try the case. At the very last minute, literally, we had picked the jury, the DA came in and offered to reduce the case really to a misdemeanor and with a minimal fine if my client would enter a plea to that, which I thought would have been a huge victory. And, of course, I shared that with my client and he told me he would not take that. He said he was innocent. And I said, “This judge, if you’re convicted, will sentence you to many years in prison.” He said, “I’m innocent, I want to go to trial.” And so the pressure that I felt there was enormous. And so we tried the case for a week, and thank goodness we were successful.
So that was…I think that was one of my first opportunities really to come in, and that case then started leading to others. You know, when people hear that you’ve won a difficult case, they think, well, you know, there’s probably some special talent you have on that kind of case. And which really was not the case, I just worked it hard. And, but that led to other cases coming to me. So that was a…I had many turning points and great, you know, moments, but, you know, I think that was one of the very first ones, as you’ve asked for.
Scott: Well, now, what does it mean to work a case hard? Because you say that it’s not any particular talent, but it’s just working it hard. What do you think distinguishes hard work in a case versus pretty good work or good work or…I won’t even say mediocre work? But what do you think the difference is, what do you think it is that you did or you learned to do in that case, or other cases, that maybe distinguishes your work level from maybe folks that don’t work quite as hard?
Doug: Right. I’ve always felt, Scott, that to be a criminal defense lawyer and to have a citizen come to you, they literally put their life in your hands. They literally put their life in your hands. And so I have always felt, given that fact, I never wanted to handle a case where I look back over my shoulder and said, “Wow. Well, I wish I had done that. Or maybe if I had thought of that, or if I had prepared a little better.” I never wanted to reach a point where I look back over my shoulder and thought I could have done better, honestly.
And so that philosophy means then that if you take the case, you try to do the daylights out of it. And it means that you form a team. It means that you work with your client. Not for your client, but you work with your client. It means that you listen to them. It means that you have them share the responsibility for the work and preparation, of course at your direction.
And it’s just an overall commitment. It’s like sitting down in the beginning with a legal pad and, like, making a grocery list to go to the grocery store, to sit down and list out every single thing you can think of in the case that would make a difference. From investigation, to legal research, to the type of jury you’re looking for, the storytelling that you hope to bring it all together before the jury. And then you sit with that to-do list and I treat it like the team, that I’m the coach, and I make assignments to my investigators, to my clients, to their families.
And then we have interim meetings where they bring their work to me and I check it. And then one thing leads to another and it’s a process that then you build on, always working for…hopefully to reach that point where, “You know what? We’ve really done our best. We’ve taken everything we had to work with here and we’ve done everything with it that we can.”
Scott: So, you sit down with a legal pad and a pen and you literally, from the beginning, you sort of lay out the blueprint for the case?
Doug: I do, I sure do.
Scott: And we’re not…we’re talking not a laptop, we’re talking yellow legal pad and a pen. How do you decide what goes on your to-do list?
Doug: I ask myself, “What is it that a juror would need to hear and be convinced of to return a verdict based on the truth?” And I start with my client’s account, and I work outward from there. The type of trials that I’ve had through the years I’ve always said are tried on multiple levels, Scott. There are certainly the legal issues, there’s that level. There are the expert issues that have to be addressed. And many of the cases, on another level, they’re like an old-fashioned swearing contest. The victim says, “You did this to me.” My client says, “I did not.” It’s like an old-fashioned draw your guns and fire.
So, the blanket that surrounds all of that in my preparation then is credibility, and, “How can I create bonds with people on the jury? What is there in the case that’s happened and how can I present it to them in a way that they feel the same way about certain issues in the case that I do?” And if I can get their respect and let them know how I feel about it… Now, that’s…you know, that’s not an easy thing to do, because obviously we have many restrictions. You cannot state personal opinions, you cannot invade the ultimate issue, I understand that. But I think it’s an art.
And I think that in looking at a case that way from a juror’s standpoint, applying common sense, acknowledging the fact that most people think that most people that are arrested and are indicted, most people think they’re probably guilty. You know? And to be realistic, when you start a trial and that judge reads the indictment to the jury…
Scott: It never feels good.
Doug: That’s a big mountain that you have to climb over the next number of days. So that drives the preparation.
Scott: So, when you’re preparing, when you’re sitting down and you’ve just opened the file when this is a brand-new client and you haven’t done anything yet, you might not have even gone to court for anything except for maybe a bond hearing. And you have a legal pad and you’re scoping out your vision for the case. From that moment, you are thinking about a perspective juror and what a juror would want to hear.
Doug: That’s correct.
Scott: And then you mentioned a minute ago assembling your team. And…you know, and I’ve worked with you on cases and I’ve heard you speak at events and I know that you call that team the community of innocence. Say a little bit more about that concept of the community of innocence and who gets on the team. What is your idea of the team when it comes to, you know, the early stages of preparing for a case, all the way through when the verdict comes in?
Doug: You know, the first time I started thinking that way, Scott, was the experience I had as an assistant district attorney. I tried so many cases where the defendant sat in the courtroom, there was no one in the courtroom to show their support for the person, there appeared to be very little work and preparation on the lawyer’s part to develop witnesses that would come in and show their support for the defendant. And, you know, I believe that jurors, to a certain degree, they want to do what’s right. And I think to a certain degree that a trial takes on a life in the four corners of the courtroom, a life of its own. And I think jurors want to return, in many instances, a verdict that pleases the most people.
Doug: And so then the view of a jury trial, I started believing, needs to show to the jury that this person that’s accused is a good person, this person has people that believe in them, this person has people that are willing to take time out of their jobs and their lives to come here and show they believe in this person. And that starts to build credibility.
So early on, when I meet with my client, I tell them, “Bring people with you that believe in you. Bring people with you that know about the case.” I don’t ever get hung up on the attorney-client privilege because we are talking about innocence, we are talking about things that are going to present…be presented in an open courtroom. And that group that comes in, then I try to expand that group to bring in additional character witnesses, people that will support them, with the goal of, when we go into the courtroom, that we fill that courtroom with supporters. And I think that shows a tremendous thing to the jury that is missing…was missing in case after case after case that I saw tried by other lawyers.
Scott: Well, one of the things that’s part of that, and I know that I’ve been doing this job for a long time before you and I worked together on a case, is your approach to the client’s input and opinions. I know that lots of lawyers find…I mean I hate to say this, it sounds bad to say it, but I know that lots of lawyers find the client to be a source of frustration. Find the client… You know, the client who maybe researches legal concepts on the Internet or who, you know, gets hung up on things that maybe the lawyer doesn’t think is the most important thing. I know that lots of lawyers find that part to be very frustrating.
And I know with you, you’ve always just listened and made it a point to at least say to the client, or to the client’s family… Because sometimes it’s a family member that does Internet research or, you know, maybe gets off on some things that, you know, maybe don’t appear to be the most salient issues. I know from working with you that you take all of that in. And even if ultimately you don’t agree, you know, when all the chips are down, you’ve always made it a point to make sure that you don’t say “no” immediately and that that client and that client’s family member has been heard.
How have you been able to manage the client’s expectations and sort of manage the overall case and also manage, you know, a lot of influx of ideas or thoughts that maybe sometimes can get in the way and sometimes can be distracting?
Doug: You know, Scott, the answer to that, this might not be what you would expect me to say, but a lot of people have asked me over the years if my father was a lawyer. Because I’m asked who’s been one of my most significant mentors in my law practice, and I always tell them my father. And then people say, “Really? Well, I didn’t realize your father was a lawyer.” Well, my father was not a lawyer. My father did not go to college or law school. And it’s just a rumor that maybe he really didn’t graduate from high school, I’m not sure about that. But I just remember watching my father when I was growing up and how he interacted with people and the relationships that he had with them. And he loved to help other people. And he just felt that for someone to come to him and for him to be able to step in there and try to assist them in some way was…it was just very, very important and it really fulfilled him. And I think about that so many times because I think it’s not so much about practicing law, it’s really about practicing people. It really is.
And so then when I have that client or the relative of that client that does their Internet research, that comes up with these ideas, then I think it’s important to show respect for that and to… It goes back to the other philosophy I have, and that is, you know, when you get through with a case, to not wonder, you know, “Well, should I have done this? Should I have considered that?”
And so it means then that those ideas, those suggestions, those things they wonder about, the questions they have, that you pursue them and you really consider those. Now, I would never let that interfere with my judgment about what I thought was best, but, you know, Scott, we learn in doing criminal defense work it’s not so much about the judgment call, it’s more about the work that you do. And so unless you take the time to really follow up on what they’re asking, unless you do the work, then you have nothing to decide between. And so that’s my philosophy on doing that.
You know, the other thing, Scott, many clients we represent, they may be innocent, but they’ve made some bad decisions. And, you know, people make mistakes. And I find in many cases that I have handled that the client needs the input from their family members. They need their parents, they need their brother-in-law, they need their best friend. Because many times those people are not in trouble and they’ve got good judgment. And they help, you know, they help in the case.
And so by showing them respect for what they’re trying to do, the same principle applies if someone has an attorney that they know that they want to bring in to join the team. I always welcome that. You know, the more people you bring in to help me, that’s great. That doesn’t mean that I’m going to do what they say, but I’ll consider what they say. I think that’s what people deserve, I think that’s what effective counsel is, is to come in and not to get on your high horse and not to be dismissive of people and their thoughts, but to honestly consider them.
Scott: And, of course, we’ve spoken about the team, including the lawyers were on the case, and the client and the client’s family. But as you get an investigator, sometimes as you build also into experts, how do those individuals, how do they sort of work on the team?
Doug: Well, I go back to my thoughts on creating a structure of what you present to the jury. I believe that you plan the presentation of the defense case in the same way you plan a careful cross-examination of a witness. I think that you want to start strong and I think you want to end strong.
So, I have always advocated a structure to the defense that I put up that begins with my client taking the stand. Now that’s almost unheard of among other lawyers. Many, many lawyers try to find every way they can not to even have their client testify. I don’t advocate for that. I believe that a jury, if they want to believe somebody is innocent, they want them to get on the stand and they want to hear from them. And if they don’t, no matter what they’re instructed by the judge, if they don’t, they wonder, “Well, why didn’t they get up there and say they’re innocent?” And so, of course, that comes with work and preparation to prepare them. Not to tell them what to say, but to help them express themselves with what the truth is.
And so that is the important point, counterpoint, to experts, and that is to start off the defense case with my client on the stand, then to support my client with good character witnesses if we can. If we have developed reverse character witnesses, showing that the victim has bad character. Next, follow that by fact witnesses in the case, and then end with experts. And that is the basic structure that I advocate for with experts.
I also believe this. If you can find in an assault case, a murder case, a sexual assault, if you can find a medical question and if you can develop an expert that is supportive of the defendant’s case from a medical expert, then that to me is one of the most effective ways to defend a criminal case.
And the ultimate statement to the jury is, you know, “Ladies and gentlemen, you have a difference of opinion. You know, you’ve heard the state’s expert, you’ve heard our expert. These are medical doctors. And I’ll ask you that if you are making an important decision in your life and you hear from one doctor that tells you X, Y, and Z, is it reasonable that you would seek out a second opinion before you would have that surgery, before you would, you know, have a limb amputated? Is it reasonable that you would seek a second opinion? And if you did and that second opinion said, ‘No. You know, I don’t think that is malignant, I don’t think you have to do that surgery, I don’t think you have to remove that limb,’ then does that give you pause and is it reasonable for you to have a second thought? And that’s what reasonable doubt is.”
And so that is the essence, to me, of expert opinions.
Scott: So, you’re literally having…I mean you’re using that as an analogy to say something important about reasonable doubt to your jury, but at the same time you’re literally presenting a second opinion preferably in the form of medical testimony to the jury to consider that rebuts the medical testimony that may have been put on by the state.
Doug: That’s correct.
Scott: And it’s interesting to think about the structure. So, a lot of lawyers…I mean, and you’re right, most lawyers would prefer anything to putting their client on the stand. But then a lot of lawyers, if they are going to put their client on the stand, will put the client up last for the client to have heard sort of everything before the client testifies. Or at the very least will do everything short of the expert so that there’s a foundation for the expert testimony. But your general preference in the presentation of the defense case is to put the client up first when you start your case.
Doug: That’s exactly right. I have several reasons for that, also. I think that at the moment the state rests their case, that jury has been looking at my client for a number of days, they’re wondering. And at the time that the state rests, I think their antenna is up, I think they are the most receptive, and I think to stand up right then and say, “Your Honor, I call my client, John Smith, to the stand.” And they see him come up there, he raises, or she raises, their hand, takes an oath, and says, “I am innocent,” you know, “I did not do this.” And of course it comes with great work and tenacious preparation, you know, to do this, but most prosecuting attorneys are stunned.
Scott: They’re not ready for it then.
Doug: That’s right, they’ve never seen it. But I think that many lawyers do it because it just seems safer to put your client up after they’ve heard all the testimony from the other people. I do not advocate for that. I think in your preparation they need to understand all the different, you know, facts and what everybody is going to testify to, but I like to start off that way.
Scott: And most lawyers…I mean, and here’s a fundamental difference in philosophy that I’ve seen working with you, is that most of us tend to play defense. I mean we’re defense attorneys, we represent who they call the defendant. So, we tend to want to play defense, which is we spend most of our time sort of trying to blow up the state’s case through cross-examination. When the state rests, we often, you know, I say “we” collectively as the defense bar, tend not to have anything to offer. But I know from working with you that you are…you play offense from the very beginning. And so when it comes time for the state to rest, you tend to have a case that you put up that is sometimes as lengthy, if not lengthier, than what the state has put up.
Doug: That’s exactly right, Scott. And I think the way to win a case, in my opinion, is to put on a better case than the state does. I think when the state’s case is being put on, obviously cross-examination is extremely important. And obviously those points that you can make on cross-examination that establish part of your defense, you need to do that. Those things that you can neutralize, you need to do that. But maybe this comes from some of your early questions to me when I was an assistant DA. Maybe coming from a background of putting a case together maybe way back in law school when I won the moot court competition, when I constructed something to present, maybe that’s what got ingrained in me. Maybe it’s in my DNA. But I think making a presentation, prosecuting your defense, okay? Putting it up is the way that you can be most effective.
I also…this is not your question, but I also have always advocated when the client comes to me to immediately reach out to the district attorney and ask them not to go forward, stop. Give me an opportunity then to work and prepare the case, and then give me their word that they will just let me come see them and I’ll share with them the reasons that I think the case should not go forward. And in many, many cases that stops the case there, they’re not used to that.
And it’s the same principle. It’s not rebounding to something, it is taking the offense and it is getting out in front of it. And I think that’s a better way to be.
Scott: You work on building a case of your own. I mean of course everybody, if you can sort of poke holes in theirs, you will. But I think criminal defense attorneys, and really great criminal defense attorneys do an excellent job of this, tend to make our living on just poking holes in the state’s case because of the burden of proof and because of reasonable doubt and because the way the burden works. And, I mean, I know you don’t short-shrift that, but I know that you also, and you primarily, focus on building a case of your own.
Doug: That’s exactly right.
Scott: And the other thing philosophically, and this is a little bit off-topic. I know, having done pre-trial cases with you and having sat through a really long trial with you that I ended up handling after the trial was over a little bit too, that your philosophy is you don’t like to do a lot of objections during the course of a trial. You don’t like to… I mean you’ll object to preserve a record and all of that, but you tend not to make a lot of objections. I don’t hear you object and say, “Ask and answered,” or, “Leading,” or, you know, “Compound question.” I know that a lot of times that you tend to be very focused on dealing with the big evidentiary questions in the form of pre-trial motions and such that you have a fairy…you generally will have a fairly lengthy day, or more than day, of pre-trial motions in a case that’s going to trial and you thrash out a lot of those issues in front of the judge. And you tend to leave off a lot of the objecting during the course of the trial.
And I hope that’s accurate, but that’s what I’ve always found with your…with how you approach cases. Say a little bit about why you do things that way.
Doug: I think that if your pattern during your trial is repeatedly standing up with objections, I think most jurors look at that like you’re objecting to something that’s hurting you. Okay? I think most jurors look at that where you’re trying to keep them from hearing things. I think that is a recipe for a guilty verdict. I think that if you have worked your case and you have prepared your case, then you have a response, you have a position to take on those troubling parts of the case, and it’s better to let the jury believe that this is consistent with your innocence.
I read cases decided…do you know how many cases are reversed because somebody objected to a leading question or…
Doug: Never, it never works. And so I just think…I said before how important it is to establish credibility, you know, so the jury believes that you’re a good person. And then when you start expressing an opinion about something, they feel comfortable with that. And I think it’s counterproductive to be argumentative. When I was a prosecutor, I tried cases against lawyers, they would object to the color of the curtains hanging in the courtroom. I mean they would…you know, their clients, for the most part, all went to prison. I mean it just…they just did not win their cases.
Now, but that brings me to a very important point, that you recognize early on in the case what is the legal issue, what is really pivotal in this case, what is there in this case that could determine the outcome of the case. And so I always want to deal with that to the extent that I can pre-trial in front of the judge and never to overlook and just, you know, give up on anything like that.
Now, I have reached a point in my career where I’m now in this unbelievably favorable place of being able to work with you, Scott, on that phase of the case. And we…I’m so proud of the teamwork that we’ve done where you would be part of my team, you’re part of my community of innocence. And I take my lead from you on what you have identified, what the previous law is, and then most importantly, “Well, then how do I address it in this case that fits in the way that I like to approach a case?” And so you have just been a tremendous part of that effort and it allows me to do that part of the case better than I’ve ever done it in my career before where I was just shouldering that myself.
Scott: Well, I appreciate that. And what I find is that when you present the big legal issues to the judge in the form of a well-crafted motion and you’re doing it on a day that’s set aside for motions hearings, I find that there’s one incredible thing that you get from that and one incredible byproduct you get from that. Number one is you have the judge’s attention on a day when the judge is not worried about what jurors are up to, about… Because jurors are voters. And so you’re dealing with the judge on a day when to take up your motion is not going to inconvenience or delay a jury or it’s not going to involve sending a jury back into the room to hang out back there for an hour while you deal with your motion. You get better attention from the judge if you do this on a pre-trial motions day, and you get more deliberate action and more deliberate thought from the judge.
I think the second thing that I’ve found when we have gone into court together, particularly if it’s a judge we haven’t been in front of before or if it’s a county we’ve never been to before, is if you put together good motions and you’re putting forth good arguments on a day that’s dedicated just to that, that I find that a lot of times that you will build credibility with your judge, and sometimes even with your opposing counsel. That your judge sees that you’re serious, that you’ve researched the law, that you’re thinking through the issues.
And a lot of times the judge is more predisposed to be favorable to you during the trial. Sometimes just over the course of handling motions very thoughtfully you can work a case out or you can get a dismissal just having had…you know, reserving that time to do it in a pre-trial motion setting versus to try to do all that, you know, when you have a jury picked and it’s between the jury selection and opening or, heaven forbid, even during the trial.
I’ve always found that you get a couple of benefits and side benefits from handling the way that you do.
Doug: Well, there’s no question that this, to me, is another chapter in a book that should be entitled Go on the Offense. Don’t wait, don’t respond, take the initiative. And when a judge sees that, you build credibility with that judge. Judges are human beings, too. The jury ultimately will see how that judge interacts with you in the courtroom. And if you have gained their respect, if you have gained their attention because of the quality of what you’ve done, the jurors see that and that builds your credibility, also. And if you’ve dealt straightforward and effectively with those issues pre-trial, well thought out, also as you get into the trial I find there’s not as many needs to pepper them with objections because the district attorney knows that you know what you’re doing, also, and they’re going to mind their Ps and Qs because they’re not going to run over you. So, it’s…you make a great point, that there are many benefits to doing that.
And, you know, one example of this. When we defended the Dunwoody day care murder case, the Hemy Neuman case. And you were part of our team. And so as we went through the pre-trial process, we had ongoing discussions where you helped us and guided us and prepared our pre-trial motion, and helped me know how to present it, which we did. We gained the judge’s respect, but we couldn’t change his mind.
Doug: But that point that we raised, ultimately, when Mr. Neuman was convicted of…he was found guilty but mentally ill, which was a compromise verdict which I think was a victory in itself. But as you know, then we, together, raised that point and we went to the Georgia Supreme Court where you magnificently prepared the brief and argued it and we got that reversed. So, in one of the most aggravated, sensational cases in Georgia, by doing what you’re talking about pre-trial, not argumentative in front of a judge, a jury never was even aware of this issue. But by doing it with the judge, doing it thoughtfully and thoroughly early on and preserving it properly, after years of prosecution Mr. Neuman had absolutely, still, a clean slate when we finished his case.
Scott: That’s right, that’s right. And it was so helpful to do it that way.
Well, I appreciate you joining me for a little bit. What have you been up to during this pandemic over the past year?
Doug: Well, I’ve decided that Zoom calls are maybe a good thing. You don’t have to drive to work, you don’t have to get dressed to work, even at least from the waist down you don’t.
Doug: You know? As long as you look appropriate from the waist up. And so I have just continued, we’ve continued to work and prepare cases. We’ve been working on some very interesting motions and just eager for the courts to open back up. And we have…we’re going to be going to trial, our case was just specially set the day before yesterday for September 13th. We are defending the McMichaels down in Brunswick on the Ahmaud Arbery case. We are representing the son. And so we’re looking forward to that, working with experts, and look forward to trying that case.
We also are specially set October the 18th on a case out in Madison that is a child assault case. A very, very serious case. And shaken baby syndrome issues in that case, which we’ve done a lot of that. And so that’s a case we’ve been preparing for three and a half years.
And so those are two things we’re looking forward to. And I’m hoping that we’ve done it, Scott, so that, however the case comes out, we never look over our shoulder and say, “Well, could we have done better?” You know, because we’ve really worked hard and done our best. So, we’re looking forward to that.
Scott: Yeah, you’re looking forward to getting back at it. Well, thank you so much. I know with those two things coming up and other things you have going on, an hour of your time is very previous and value. And I really appreciate you spending that hour with me, talking to me about your background and your general approach to cases. Do you have any final thoughts or things you’d want to share with the listeners?
Doug: I feel very honored, to be honest, that you would…you know, you would interview me and that people would listen to this. It means so much to me, what I have done over the years. I believe in it passionately. And, you know, to live in a country where a person’s liberty or life cannot be taken from them without them having a someone stand as their advocate, you know, there’s no more fundamental, you know, right in our country than that and I believe in it passionately. And I’ve felt very honored to be a part of that and I just am very honored that you would interview me and ask me these questions. So, I hope that for those people listening, that maybe I’ve shared something that might be meaningful to them.
Scott: You certainly have. Well, I certainly appreciate the time and I look forward to seeing you again really soon.
Doug: Sounds great. Thank you, Scott.
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 the show wherever you get your audio content.