I hesitated to comment on this lest you think I am crowing about a courtroom victory I had as a criminal defense attorney involving Hobby Lobby as the complainant, but I finally gave in, so here it is. For an outfit that claims "religious freedom" when it objects to women's issues (and, I must suppose, those involving lgbtq issues as well), the closely held corporation sure does exhibit a complete lack of Christian compassion when it comes to shoplifting. My client, a woman in her 20s -- let's call her Marie -- has twice been tried by the local D.A. for removing a little over $50 from one of two local Hobby Lobby stores, the first prosecution having ended in a mistrial. I assumed that Hobby Lobby and/or the D.A. would have dismissed the case (after all, it costs thousands of dollars to keep a county court running for a day, and that is the length of both the original trial and one concluded about a month ago), but no, the store refused to turn the other cheek, and when a local business is involved in a criminal prosecution, our D.A. do their duty despite the obvious. Of course, they confer with the business before proceeding.
What, you might ask, is "the obvious"? Well, first of all, no one at the HL store actually saw my client put the airplane model kit, paint, and paint brushes into the tote bag, which she kept in a shopping cart the whole time she was in the store. Second, the store knew that she was accompanied by an uncharged male who ran out of the store and disappeared, never caugh, never arrested. (Both at the first trial and the second, about nine months later, I based our case on the theme of the old "Snipe Hunt," a childhood joke played by Boy Scout campers whereby a gullible new camper is given a gunny sack and told to sit under a tree with a flashlight, using the latter to lure the snipes into the sack. An hour or two later, realizing he's been had, the camper returns to the tents and whoops of laughter. I suspect it is the origin of the expression, "left holding the bag.")
Third, the checker who followed the shoppers out the front door when an alarm went off, demanding to see what was in the tote bag, followed up the arrest with the filing of a HL loss prevention report that said the merchandise had been recovered, but also left out an important detail no responsible employee would forget to write down: "The suspect told me she did the shoplifting and that the man she was with had nothing to do with it." At the first trial, the jury was hung 5 to 1, and when I inquired of them (with the court's permission) why they voted as they did, it turned out that the lone acquittal vote was by a young Vietnamese scientist who told me there was no way that sort of detail would be left out of a loss prevention report. The other five had voted him as presiding juror, but he could not convince them of the illogicality of their vote to convict. I assumed they must be very religious people.
In preparation for the second trial, I decided to turn up the heat and issued a subpoena for not only the manager of that store but the head employee of the other local store as well (who had been manager of our store at the time of the incident). These subpoenas contained duces tecum requests -- including the complete personnel file of the checker who accosted my client just outside the front door. (I should add that the manager of the second store had signed off on the loss report, and although he could not recall the specific incident, I suspected I would refrain from calling him to the stand because these good Christian people have a way of remembering things once they testify.) The only excuse the checker gave for not putting the "confession" in her report was this: "We were about to close and were in a hurry." Yeah, sure. The request for all video surveillance went unanswered, as the store, at the time of the offense, had none!
I did a criminal background check on the checker who followed Marie out of the store and learned she had been charged a few years back with making a false report to the police. Now, a lay person might think, ah, just ask her about that when she takes the stand. However, generally speaking, the rules of evidence do not permit such an inquiry. So I went ahead and did it anyway. Practicing law sometimes boils down to doing anything you have to do if there is any chance of getting away with it. So I "threw a skunk into the jury box" and waited for the prosecutor to request an instruction from the bench to ignore the stench. Surprisingly, the judge allowed me to pursue the matter on a short leash.
If you are thinking that I had a personal stake in the outcome due to my non-belief and exasperation with the horrible recent SCOTUS decision that HL was within its rights, as a family corporation, to reject payment for employee health insurance containing contraception provisions, you would be only half correct. While I dislike HL, I only wanted my innocent client, who rejected a slap-on-the-wrist plea bargain offer (which had to have been run by the HL people), to be acquitted. In the first trial, I was afraid of putting Marie on the stand, mostly because she would have to admit that her companion, her then-husband, had engaged in shoplifting before. Like any good attorney doing a cross, prosecutors are trained to eek out a lie from a defendant that spoils their credibility as a witness. For the second trial, I changed my mind. She was an attractive, honest person who told the jury a few things the first one were not given, such as the fact that she would, during the shopping trip, leave the tote bag and cart with the husband, since divorced, while she shopped in other parts of the store.
I made the checker look evasive. For some reason, she did not repeat the story of why she had omitted the "confession" from the loss prevention report when the issue was discussed, perhaps because she had worked out something with the two managers, who I decided not to call to the stand. (They sat through the day-long trial on cold hard benches outside the courtroom.) The checker did a lot of squirming on the stand when I asked, "Have you ever had any run-in's with the law involving accusations someone stole something?" First, she said no. With more probing, and over the objections of the state, she finally admitted she had accused a man of lying in an automobile loan transaction, but she "couldn't recall" being arrested and charged with it. I asked, "Didn't you hire a lawyer to get it it thrown out of court?" She relented.
Marie did a superior job of countering potentially damaging cross-examination questions ("why would you leave your purse on the shopping cart?" &c.) and finished her testimony unscathed. We rested. We argued the snipe hunt theory and I told the jury that the real shoplifter got off scot-free. I also pointed out the completely ridiculous omission of the "confession" from the loss report.
The jury of six was out five minutes. I wanted to prepare Marie for the worse, repeating as we prepared for the bailiff to bring the jury in the old defense adage that "quick verdicts almost always favor the state." We held our breath as the judge asked the presiding juror (who just happened to be a civil volunteer employee of the sheriff's office!) to bring the jury in. They filed in with poker faces. I sighed.
The judge asked, "Have you reached a verdict?" The presiding juror said they had and handed the form to the bailiff for relay to the bench. The judge read aloud: "We the jury find the defendant Not Guilty." Marie started crying, as did I, and we hugged each other in joy. (I guess I am just sentimental that way. I always cry with my clients when we win, not often enough.)
Maybe next time HL will think twice about pursuing a loser case like this. Maybe they will think of Jesus' command that they who are innocent should cast the first stone. The corporate offices will surely recall that I kept the managers of both local stores out of the emporia for an entire day, which had to have been a hardship. Christian fundamentalists tend to be tightwads. This had to have hurt. They deserve it. They are nothing but a bunch of thoroughgoing hypocrites.