Chapter 1 There Is Such a Thing as a Stupid Question What Color Was the Blue Bag? Murder cases are somber events. One life has already been lost. Another person is on trial facing the real prospect of life in prison without the possibility of parole--­or even more solemn--­the possibility of receiving the death penalty. So, as you can imagine, there is no place for humor in any criminal trial. And yet, in my first death penalty trial I had the whole room in tears of laughter. Whoever said, "There is no such thing as a stupid question," was not sitting in the Spartanburg County Courthouse in the fall of 2001. In this case, a convenience store clerk was robbed and killed over a meaninglessly small amount of money. The clerk was a hardworking, good, and decent man who overcame a lot in life and who would have given the suspect the money had he just asked for it.

In most of these cases, there are but two witnesses and one (the victim) is dead, so you are reliant on the defendant''s affirmative statements, confessions, or false exculpatory statements in addition to forensics or whatever physical evidence you may have. But in this case, there was another witness. He was sitting off to the side playing a video poker game when the robbery and shooting took place. Whenever you have an additional witness, you want to meet with them ahead of time to get a sense of what they are going to say and how to prepare for it. In this case, I met with this witness many times. He was vitally important--­singularly important in fact--­and while he was likely to be nervous testifying in a death penalty trial, he was earnest and credible. The time came for him to take the stand. It''s important to set the scene for the jury: the dimensions of the store, where this witness was sitting relative to the cash register and the clerk, his opportunity to observe, the absence of drugs or alcohol impacting his ability to perceive, and every other question you can anticipate the jury might have.

"Was anything between you and the front door of the store?" "No, sir." "Was anything obstructing your view?" "No, sir." "Were the lights on?" "Yes, sir." "Was the room smoky or cloudy?" "No, sir." "Were you under the influence of alcohol? "No, sir." "Pardon the personal nature of the question, but were you under the influence of any drugs prescribed or otherwise?" "No, sir." "Did you notice the suspect when he walked through the front door?" "Yes, sir." "Was anyone else present in the store when the suspect walked in?" "Just me and the clerk.

" "Did you take your eyes off the suspect when he walked in?" "No, sir." "Did you have a clear view of the suspect?" "Yes, sir." "What happened next?" "Well, the man walked to the clerk at the counter and pulled out a gun." "Could you see the gun?" "Yes, sir." "Can you describe the gun for the jury?" "Yes, sir. It was black and looked like a pistol, not a revolver." This witness was doing great. He was under control.

Clear. Precise. But, apparently, I could not stand prosperity because I had to keep going. "Sir, I notice you are not wearing glasses. Were you wearing glasses that night?" "No, sir." "Is your vision good?" "Yes, sir. I have perfect vision in my right eye." What did he just say? Umm, Mr.

Witness, you are not a Cyclops! You have two eyes, I thought to myself. What have I gotten myself into? How do I extricate myself from this? What in the world do I ask or say next? Do I let it go and hope the jury didn''t hear him? Or hope the jury doesn''t recall that all humans have two eyes? You have to do something, idiot Trey, you can''t just leave it hanging like that. "Of course you do, Mr. Witness, of course you do," was all I could come up with. "And your left eye . is . ?" (Painful silence.) "It''s fake, sir.

" "Well, of course it is, Mr. Witness. It''s prosthetic." "No, sir . it''s fake," he said. I have one eyewitness and am just now learning--­along with everyone else--­that he is a one-­eyed witness. I was rattled. I was wishing I was literally anywhere else in the world.

Ch'teau d''if? Sign me up. Anywhere else other than in that courtroom having not asked this witness about his eye(s) before we got to court. It can''t get any worse than this, right? Except it always can, and in this case, it did. "What happened next?" I asked. "Well, the suspect had a blue bag in his hand." "Okay, what color was the blue bag?" Laughter exploded throughout the courtroom and that one eye was looking at me like I had lost my mind. Maybe he didn''t hear me so I repeated the question again. "Sir, what color was the blue bag?" More laughter.

What is going on? Why are people laughing in a death penalty trial? Before I could ask the dumbest question in the history of the English-­speaking world a third time, the judge took mercy and said, "Mr. District Attorney, I think the jury knows what color the blue bag was now! You can move on." Questions can be affirmative. Questions can be a genuine desire for more information. Questions can be corroborative. You already know the answer, but someone else in your "jury" does not, so you use questions to impart information to others, rather than yourself. Questions can be impeaching or undercutting. Questions can be defensive.

They can allow you to regroup, deflect, redirect someone''s attention so you can live to fight another moment or another day. And then there are just plain stupid questions. There are good questions and bad questions and sometimes the same question can be either depending on the circumstances in which it is asked. Asking my eyewitness about his vision was a fantastic question to ask . in my office weeks before trial. There is a picture my staff at the Solicitor''s Office gave me from this trial. It was taken by a local newspaper photographer snapped at precisely the moment this witness said, "I have perfect vision in my right eye." My staff gave me the picture from that trial because there was absolutely no discernible reaction on my face when the witness referenced his one eye.

Inside I was dying. Outside the jury saw nothing--­that is, until I compounded that error by asking what color the blue bag was. I survived the first bad question only to squander the moment by asking the second.