that when Lesh was still a prosecutor, one of the female judges and her
law clerks saw him leaving the building wearing shorts. The judge
jokingly commented that the DAs were letting their dress standards
lapse a bit. Lesh's response? 'I don't mind telling you, judge, that
these legs are under a court order from the National Organization for
Women. I cover these beauties, and those fanatical broads at NOW will
have me arrested.' The clerks held their breath, sure that their judge
was about to unleash. Instead, the story goes, she laughed and said,
'Well, in that case, counselor, you should at least get out in the sun
periodically. You could blind someone with those things.' My guess
was that Lesh had so much going for him on the stuff that mattered that
people were almost reassured by his irreverence.
Proving once again that he was a complete professional where it
counted, Lesh went back on the record and made what I believed to be
the right ruling. The jury should be allowed to consider Derrick's
previous lie for the limited purpose of judging his credibility as an
alibi witness in this trial. The problem was that if the jury knew the
whole story, including the nature of Derringer's previous conviction,
the unfair prejudice to the defendant would be overwhelming. So Lesh
carved out a fair compromise.
'Here's what we're going to do, folks. First of all, the State can't
get into any of this until after the defendant's brother has taken the
stand and offered testimony to exonerate the defendant. Until he does
that, Ms. Kincaid, the evidence you want to use is irrelevant.
'Even after the evidence becomes relevant, I am concerned about the
potential for unfair prejudice. Ms. Kincaid, the only facts you
really need to get to the jury are that Derringer Derrick Derringer, I
mean provided an alibi for the defendant in the past and that the
defendant, contrary to the proffered alibi evidence, eventually
admitted that he was, in fact, at the scene. I assume you can find a
way to put those facts into evidence without revealing the underlying
charge to the jury or whether the defendant was ever actually
convicted.'
I nodded in agreement, but then said yes aloud so the court reporter
could transcribe my answer.
'Alright, then, that's the plan. And, Ms. Kincaid, I cannot emphasize
this enough. The facts that I just mentioned are all I want to hear
from your witnesses on this matter: Brother supplied alibi for
defendant, but then defendant later admitted he was there.' He counted
off the points on his fingers. 'If I hear one other word one mention
of sodomy, or kidnapping, or a teenage girl victim, or the fact that a
jury found the defendant guilty of something I will declare a mistrial.
And I may even declare a mistrial with prejudice. So I warn you to
proceed with caution and make sure your witnesses understand the rules
we're playing by. Do we understand each other?'
I assured him that we did, and he moved to the rest of Lisa's
motions.
Lisa had filed a motion to suppress the evidence regarding Derringer's
pubic hair. She tried to argue that the pethismo-graphic examination
and the jail booking process consti
U4
tuted unlawful searches in violation of Derringer's Fourth Amendment
rights. But once she agreed that both processes were part of the
normal corrections process and not intended to produce evidence of a
crime, Lesh quickly denied the motions.
In the alternative, Lisa asked the court to prohibit Derringer's parole
officer from testifying that he had seen Derringer without his pants at
the pethismographic examination. She argued that the evidence was
overly prejudicial because it revealed the fact that Derringer was on
parole for a sex offense.
In the end, Lesh decided to permit Renshaw to testify that he was
Derringer's parole officer and had occasion to see him without his
clothes. The jury would not hear about the setting or circumstances. I
didn't like it, because I thought the jurors might come up with their
own oddball explanations as to why a parole officer would see a client
naked. But I decided there was no other way to get Renshaw's
observations in without letting the jury know about the prior sex
offense, which surely would lead to a reversal on appeal.
'Alright,' Lesh said. 'Now, before I call a jury panel up here, let's
see if my rulings on these motions change anything about whether we
need to have a trial. I assume from the fact that we're here that the
two of you have had plea negotiations on this case by now.'
Lisa and I sat silently.
'Nothing?' the judge asked. He told the court reporter to go off the
record. 'What the hell are you two doing? Now, before I say what I'm
about to say, Mr. Derringer, I want you to understand that my comments
have nothing to do with my opinion about your guilt. I haven't heard
the evidence, so I don't have an opinion at this point. And, in any
event,
U5
that's going to be a decision for the jury, not me. But I've been
involved in a lot of trials, both as a lawyer and a judge. And I've
read the papers filed in this case, and I have some idea of what's
