Robert C. Bonsib: 300+ Jury Trials & What They Don’t Teach You in Law School

ROBERT BONSIB: I always thought that if I were not practicing law, I would love to go to law school and teach a class called What They Don't Teach You in Law School, because there are so many things that I think would be helpful for younger practitioners to know and to hear about.

ALEX POWELL: Bob, you walked into the Prince George's County State's Attorney's Office in 1974. Bud Marshall had been running that office for over a decade by then. He started with six part-time assistants and built it into a real office. What was it like when you showed up?

ROBERT BONSIB: Well, I showed up initially as a law clerk, so I had the opportunity for about six months before I was sworn in as an assistant state's attorney to work with Bud Marshall. I was not sort of hand in glove because I was only a law clerk, but he allowed me to participate in a couple of very serious major cases in terms of putting case files together, being present in the courtroom during the trial of the case.

I got the opportunity to see how a jury trial works, not from the perspective of what they teach you in law school, but seeing how the nuts and bolts sort of build together to get a jury. And so that six months was invaluable when I became an assistant, was sworn in as an assistant in the summer of '74.

I didn't have to worry about what the next steps are when you're in a courtroom, particularly how things worked in Prince George's County because I had had the benefit of seeing them upfront. So that was a really important opportunity I was given and I think gave me a real headstart in terms of being able to jump in pretty quickly in terms of understanding not what the rules are, but sometimes more importantly, what the unwritten rules are in a courtroom, how judges operate and how the things occur that are not written down in any book anywhere.

ALEX POWELL: What are some of the most important unwritten rules that a young prosecutor, defense attorney, and public defender should know?

ROBERT BONSIB: Well, I don't think there's any standard set of unwritten rules. I think what is important is to understand how the judge you're in front of works, how the system works. I travel around to a lot of different counties and procedural things, scheduling, continuances, pretrial conferences, they all seem to be doing their own thing. Some of the judges are a lot easier to work with. You go in front of an administrative judge for a continuance in some counties, and you and the state are in agreement on what needs to be done, and the judge is very cooperative in going along with what the lawyers have agreed to.

And in other places it can be more of a struggle when judges seem to be more statistics driven. They don't want to continue a case or they don't want to continue it for as long as you want to have it continued. Those are the things you don't find written down and they change over time, but you need to know what the lay of the land is.

The value of being a prosecutor or a public defender is that you're in the same courthouse all the time, and you can learn that stuff relatively quickly. But when you're popping around from one county to another, unless you're in those other counties regularly, you never know what the changes in the rules may be. A new administrative judge gets appointed and they have their own way of doing things. So that's always an important thing to know and to understand, that you won't find in books.

ALEX POWELL: Is there one case or one memory from those Bud Marshall years that sticks out to you?

ROBERT BONSIB: I was fortunate enough to be assigned early on in what they called the criminal appeals unit. So the cases that were jury-prayed from the district court or appealed from the district court into the circuit court would end up in my lap, and that was back in the day when there was only one person generally doing that. It really gave me the opportunity to have a lot of experience. I guess one thing I always will remember was in front of Judge Ralph Powers, who was a really great judge, but he was a guy who moved his docket along.

And I had some jury prayer cases that day in front of him, and we managed to try three jury trials and one court trial in one day in front of him. Now, these were not heavy duty cases. They were basically like one witness, maybe one police officer or two police officers. And maybe the defendant testifies or maybe he doesn't, but we would be giving a closing argument in one case and there would be the first three rows of the courtroom filled with the jurors for the next case.

We moved them quickly and you can't get a jury trial done in most places in one day anymore. But that was quick. And back in those days, juries were kept out. There were times when they had jury deliberations in cases all through the night. The judge had kept them all night long in a death penalty case, and they eventually, I think, deadlocked. But now most of the time, for reasons of finances, they don't keep juries beyond five or six o'clock.

ALEX POWELL: Bob, in 1983, you made a move that a lot of state prosecutors think about but most don't make. You became an Assistant United States Attorney. What caused that decision for you?

ROBERT BONSIB: Well, after nine years in the State's Attorney's Office, I'd handled all the kinds of different cases you could handle. And the prospect of going and becoming a federal prosecutor was challenging and exciting. And I was fortunate enough to have somebody in that office who sort of vouched for me and helped me get that position under the U.S. Attorney.

And it turned out to be just a wonderful experience. Frankly, I think compared to what federal prosecutors have had to deal with, and I'm not just talking about in the last year, but since probably around 1987 when the federal sentencing guidelines came into play, and now prosecutors have to get approval up the chain of command for whatever they do.

I had an office in the far corner of the U.S. Attorney's Office. I handled my own cases. As long as I didn't screw up, I could do what I wanted. I gave people no-prosecution agreements to cooperate. And there were not layer upon layer of approval or policies that restricted my judgment. They basically trusted you to make good decisions and not create a mess.

ALEX POWELL: You come back to Prince George's County in 1987 as the Deputy State's Attorney under the Honorable Alexander Williams. He had just pulled off a historic upset, defeating Bud Marshall after 24 years in office. Judge Williams was the first Black person elected to countywide office in Prince George's County. What was it like for you stepping into that transition?

ROBERT BONSIB: Well, it was actually not difficult at all. I mean, I was in some respects coming back home to the place where I had grown up as a lawyer. And I knew, still knew a lot of the people. So when I came back I didn't have to learn the office. I didn't have to get introduced to most of the people. The difficult part of the transition is learning to be a personnel manager as well as a lawyer. And that was not something I had experienced.

ALEX POWELL: You had been a line prosecutor, a federal prosecutor, how did you go from being the one who puts people in prison to being the one who fights to get them out?

ROBERT BONSIB: I found the transition very easy, and I've talked to a lot of my colleagues over the course of the years that have made that transition. And some have made the transition easily and for some it hasn't been quite so easy. But if you look at yourself as a lawyer who has a client, whether it's the state and its citizens or it's an individual, and you enjoy practicing law, trial law, it was very easy.

You have to learn to lose a lot more when you're a defense lawyer than when you're a prosecutor. Victory is defined in different ways. Keeping the jury out longer than expected is a moral victory. Getting a lesser count of conviction or a reduced sentence, you define victory in different ways.

ALEX POWELL: You went into business with Bruce Marcus, who had been in the Public Defender's Office against you in cases, I'm sure. How was that transition to going into business with someone who had been on the other side of the courtroom for years?

ROBERT BONSIB: Well, it happened because when I had decided that I was going to go into private practice, I made it known maybe six months before I was planning to leave. And I talked to a number of lawyers on the other side, if you will, that I respected. Bruce was one of them, asking how things work and just trying to get advice and guidance.

And in the course of those conversations, we came to a point where we both thought it would be a good thing for me to join with him. And it was very fortunate for me because I didn't have to learn the ropes of private practice on my own. I had a person who really knew it. And back in those days, Bruce, when he was with the Public Defender's Office, they were allowed to have a part-time private practice as well.

So he had been in a firm, he had been doing a variety of types of cases. Unlike my practice, which is almost exclusively criminal, he did business law, he did personal injury work, he did criminal work, and he also had an office that was already set up and running. So it was easy to move in.

ALEX POWELL: Bob, you've done 300-plus jury trials. The vast majority of lawyers throughout their whole careers won't do five. What are your thoughts on the adoption of the expanded voir dire process in Maryland?

ROBERT BONSIB: I was fortunate enough to be able to participate last year in front of one of the judges that was participating in the expanded voir dire project. And so that was a very interesting experience, because as you know, in Maryland our voir dire is much more limited in terms of lawyer involvement.

We get to propose questions for the judge to ask, and we might get the opportunity to have some follow-ups when jurors are questioned, but we don't do the kind of extensive sort of person-to-person voir dire that exists in other states. So in the voir dire project in the case that I had, and this was down in Charles County, the judge allowed us to prepare a written questionnaire with our voir dire questions. And so the state and I put together a questionnaire, probably 40, 50 questions. And when the jury was brought in in the morning, they were all given the questionnaire, asked to fill it out.

And then the judge collected all of the questionnaires. The jury was excused for a couple of hours so the lawyers could look through the questionnaires and the answers. And then the jurors were brought back up and questioned individually by the judge. And we had the benefit of the questionnaires, so we knew, you would know right off the bat certain people that are not going to be qualified and others who in their answers clearly need to have further questions asked. And so we went through that process and I found that to be really, really helpful because you really got to know the jurors for the most part and get good information about them.

ALEX POWELL: The case law on compound questions and strong feelings, Collins I and Collins II, I believe, are the cases in Maryland. What are your predictions on how stare decisis will evolve with the expanded voir dire process now in Maryland?

ROBERT BONSIB: The strong feelings question has been a really important question to be able to ask. And I still have to remind myself when I'm putting voir dire questions together to be aware of the compound question thing, because going back to the old days, it's almost automatic to think in a compound way.

And you can't do that. But with the strong feelings question and the fact you can't do a compound question, you really do get a lot, and particularly I found in child abuse, sexual abuse kinds of cases. The strong feelings question when it's not done in a compound way can generate an awful lot of responses.

In a drug case, you might pick a jury in a couple of hours if you get strong feelings. In a child abuse case, most of the time we're spending all day and the number of people who respond to both having strong feelings or either personal or family or friends who have been victims of sexual abuse, it's a lot. And it takes a while to talk to those folks.

ALEX POWELL: I'm thinking of course about my time as a prosecutor as well. You hear people's most tragic stories during voir dire. But it also does cause a sense of hope in the justice system that the citizens are willing to come forward and let the judge know, let the parties know, I have reservations about deciding this case because of this awful thing that happened to them or their family member years ago.

ALEX POWELL: Bob, as far as cross-examination, there's a school of thought that says to only lead and never ask an open question on cross. And of course, the first commandment of cross is: don't ask a question that you don't know the answer to. Do you always follow those rules, or is there a time where you've broken one of those rules and it worked in your favor?

ROBERT BONSIB: Well, many times I've broken that rule. Unlike in civil practice where you can depose witnesses on the other side and know what the answer is, in a criminal case most of the time we don't get the chance to have any personal interaction with the victim or the major witnesses on the other side.

And so you have to be careful. If you have extensive discovery, maybe you know or think you know what the answer is going to be. Sometimes you have to take a chance. And so you go into cross-examination with a plan. The rule that I think is most important is be very well prepared.

You can scope out your line of questions, but when you start your cross-examination, feel the courtroom. Don't simply look at your list of questions. You've got to be prepared to adjust and to be flexible because in a good cross-examination with a major witness, there are going to be things you have to listen to.

And if you hear something that needs to be pursued, it may give you a whole different way to go. And so on direct examination of a witness that I'm going to cross, I'm looking for things I can work into my examination. Something that needs to be followed up, you're just not going to know the answers all the time.

Sometimes the best cross-examination is no cross-examination. I was in a federal case many years ago in D.C. that went on for 13 weeks. Three defendants. Mine was the least involved, and we stayed out of sight for six weeks. I did not ask a single witness any questions on cross-examination. There were basically three witnesses in the case that had anything to do with my client, and one of them was a major one, and that one I spent a lot of time on.

But basically I sat in the corner and we tried to disappear from most of the case.

And I think one of the things prosecutors, when they go into private practice, really have to learn, they've spent their lives building a case, but they haven't really had the opportunity and the experience in most instances to learn how to do an effective cross-examination. Going into private practice, that is one thing that you really have to work on. If you've spent your life as a prosecutor, you've got to learn to attack and destroy rather than to build.

ALEX POWELL: I spoke to a prosecutor for this show recently and we talked about starting with the end in mind and having your closing argument as your north star, and you begin there and then work backwards because it shows you what you will need to prove. Of course, as defense counsel, generally you don't need to prove anything.

So it's a different situation. I remember a story from a former public defender talking about sitting down to start a trial with his client, and the client leans over and whispers in the public defender's ear and says, "What's our strategy? What are we going to do?" And the public defender said, "We're going to find out," because chances are there is something throughout the course of that trial that will lead to perhaps an effective defense. And you wouldn't have been able to even prepare for that.

Sometimes the best cross is no cross. I know that a lot of younger attorneys, there's what I call the illusion of action, where it's like, oh, if I do more, the case will be better. And as a defense attorney, like you said, that's not the case. But it's understandable that younger attorneys would feel that way, when the most savvy decision to help their client would be to say, "Judge, we have no questions."

ALEX POWELL: Let's talk about the Beckwitt case. So for listeners who don't know, there was a millionaire stock trader who allegedly hired a young man to dig secret tunnels underneath his house in Montgomery County, Maryland. The defendant was alleged to have made the young man wear blackout glasses so that he wouldn't know the address. Long story short, there was a fire and the young man passed away. You defended Mr. Beckwitt. How do you take on a case when the facts are that strange?

ROBERT BONSIB: That was probably in my top five cases of all time. We call it the tunnel man case in the office. Mr. Beckwitt, who was in his mid to late twenties, had been a stock day trader and had amassed a good amount of money. But he was also, and is, an extraordinarily intelligent young man.

And he was totally involved in his case. The state charged him with second-degree depraved heart murder alleging that he had hired the young man who died, and some others before him, to dig these tunnels under his home so that he would have a safe place to go in the event of war or whatever might happen.

He was also raised by parents who were hoarders. So the home in which he lived might have six feet deep of just trash and things collected over the course of years and there were almost basically just pathways through various parts of the house. Both of his parents had died by the time of this fire, so he was living there alone.

And when you went down to the basement, there was a place in the basement that he had dug a hole in, and you went down a ladder and then he had a series of tunnels there. The young man who died was in one of those tunnels when there was an electrical fire in the basement, and the fire blocked this person's ability to exit. So he ended up being overcome by smoke and then dying of smoke and burns.

And so he was charged with depraved heart murder. We never thought it was a depraved heart murder, we thought the playing ground was more the level of involuntary manslaughter, but the facts were very difficult. The young man suffered a horrible death. And he was convicted of second-degree depraved heart murder. And then that was affirmed by the Appellate Court of Maryland. But then we took it to the Supreme Court of Maryland, which granted cert. My partner Megan Coleman, who is an extraordinary appellate advocate, took it and argued it there. The Supreme Court reversed the second-degree conviction, affirming the involuntary manslaughter conviction. And so he had had a nine-year sentence. It was reduced when he was re-sentenced to five years.

But that was an extraordinary case. It got media attention all over the world. The young man, we would sit down and we would have strategy sessions and he would be quoting from memory cases from California. He would give us the case cite and say, "You need to be looking at this case." And he prepared extraordinary legal memos of his own that were used. It was a fascinating case.

ALEX POWELL: Megan is an excellent advocate, and that was the long haul through the jury trial, through the direct appeal, cert was granted in the Supreme Court of Maryland, which said there was insufficient evidence for depraved heart second-degree murder. So what are your thoughts on that sense of seeing the long term when it comes to deciding what is the best strategy moving forward for your clients who have their liberty at stake?

ROBERT BONSIB: There is no standard answer, and a lot of it depends on the client and what the client's perspective is. You get some clients who are very deferential to the recommendations you make, and you get other clients who are very invested in the decision making and have their own ideas. And sometimes it's difficult to see the case the same way.

ALEX POWELL: Bob, now less than 3% of federal cases go to trial. When you were an A.U.S.A., that was not the case.

ROBERT BONSIB: In federal court, with the federal sentencing guidelines and the mandatory minimums, prosecutors can leverage defendants much more into getting them to plead guilty, but there are still a number of federal trials. I've had three or four of them in the last year. And they're tough cases because sometimes you have a client who says, "Look, they want me to go to jail for 30 years. It doesn't really make any difference what the state of the evidence is. I can't do any worse by going to trial and losing than by taking this plea. So let's roll the dice."

But for other cases where they may put a tough offer on the table, but it isn't nearly as tough as what you're going to face if you go to trial and lose, they say there's not a trial penalty, but there's a huge trial penalty in federal court if you take a case to trial and you lose.

There are times when there's an exception to the rule, and sometimes I've found that in the right case, trying a case, even if you lose, educates a judge more about who your client is and gets the judge to see mitigation that just wouldn't have been present in a guilty plea. And so I've had trials where we've lost the trial, but won at the sentencing hearing, coming back and a judge understanding the client better and why the client did whatever was done, and getting a sentence much better than that which was offered by the prosecutor before trial.

ROBERT BONSIB: I always thought that if I were not practicing law, I would love to go to law school and teach a class called What They Don't Teach You in Law School, because there are so many things that I think would be helpful for younger practitioners to know and to hear about.

ALEX POWELL: What would you teach in that class?

ROBERT BONSIB: How to deal with a client who wants to testify falsely. How to deal with the mom of the defendant who's in jail and can't accept the fact that her child did something wrong and is going to go to jail. You hear people say, "Well, you've got to get your fee up front in a criminal case." Well, that's a great thing in practice, but if you want to survive, you've got to work with people and recognize that they don't have all the funds. How do you bring a client to the point of accepting the reality of their situation?

One of the things that I think is really important is when you get a client, you're talking to the client and you know what the client is telling you is a bunch of hooey. You don't have to confront them in that first meeting or that series of meetings. You let them have their say. You listen to them, you go through the discovery. At some point when they say, "Well, I want to get up and I can say this", listen to them. They think about what they're going to say. What they don't think about is what questions they're going to be asked on cross-examination. And sometimes the most telling thing is when you start doing a practice cross on them and they start to realize, "Well, I don't really know how to answer that question."

And so you have to bring them along without trying to be confrontational. There are other times when you have clients, and I've had this happen on more than one occasion, and it's particularly so in sex cases where clients don't want to have to admit to family members or significant others that they engaged in sexual misconduct. And so getting them to acknowledge that the evidence is compelling, and if they go to trial they're going to get crushed, versus telling them, "Look, this is a tough deal, but it only gets worse." And bringing them to the point where they have to accept the fact that they're going to have to acknowledge what they did.

Now, ultimately, sometimes they don't, and you still go to trial and whatever happens, happens. But trying to be both understanding of their position but also realistic and making an analysis for them about what they're facing, they might think that you're a Debbie Downer because you're just giving them bad news. Well, the bad news is the product of the evidence that was created by their conduct. And so you really have to learn how to be both sensitive, but we've got a job to tell it to them straight as well. And then whatever they decide to do, you've got to go with it.

ALEX POWELL: I've heard another criminal defense practitioner state that with some clients, the truth can be a journey. And I think that goes to what you said about being confrontational upfront with your clients, it's not going to get you anywhere. And oftentimes they have stories in their minds that they believe, even if it doesn't align with reality. So having a practice cross-examination can be a really pivotal moment.

ALEX POWELL: Bob, you've sat on the Prince George's County Judicial Nominating Commission for 20 years, and you've helped select judges that you then appear in front of. After evaluating that many judicial candidates, what makes a great judge to Bob Bonsib?

ROBERT BONSIB: What makes a great judge is somebody who treats everybody in the courtroom with respect. I've said this to folks, judicial candidates and others, if a judge rules for you or rules against you, that's what's going to happen. But just treat me gently. If my client is the biggest piece of work that you've ever seen, remember that's my client. That's not me. I've got a job to do and don't make it more difficult for me just because of whatever's going on in your mind. Call the balls, call the strikes. I can live with that. And most of the judges, I think, do that.

But we've had a few slip through the cracks in my 20 years on the commission that I've had great regrets about, because when you're interviewing those candidates, you only have maybe 20, 30 minutes give or take, and people can put on a really good show for 20 or 30 minutes that may not be reflective of who they really are. And some have fooled us, but not too many.

I think that the process of having lawyers in the community evaluate and screen judicial candidates for the governor eventually to pick from has produced good quality judges. I think the biggest problem we're having right now is we don't, in the circuit court, have a lot of applicants applying for positions because nobody wants to go through a contested election. And so that's really limited the number of candidates. We might get, sometimes they've had to re-advertise because only a couple of people have applied. And that's a shame. You look in counties that don't have a history of contested elections and they might have 15, 20 people applying for a circuit court position. So that's been a real unfortunate development.

ROBERT BONSIB: How did I decide to become a criminal trial lawyer? When I was in college, I thought I wanted to be a politician and I was a history major. If I had pursued that career, I don't know where I'd be right now. But I thought law school was a good place to go if you're interested in politics. Well, I disabused myself of that notion early in my law school career, but I also started to read some really great books about famous trial lawyers, ones in the early parts of the century and some of the people who were well known, but also some who were only well known within the legal communities in which they operated.

And some of those books were just fascinating. And it got me very interested in the idea of criminal law. And that's what I would suggest, if you really want to get the juices flowing, read some of those books. They not only are entertaining, but they will teach you things that you will find to be invaluable as you go through your legal career.

ALEX POWELL: I read The Man to See about Edward Bennett Williams over the holiday break and really enjoyed it. White-collar criminal defense was not prestigious when he first charted that path, and of course he started his firm and now it is. What are some of the other books that you'd recommend?

ROBERT BONSIB: Well, Louis Nizer was a famous trial lawyer. Earl Rogers has a fascinating biography, I think it was Adela Rogers St. Johns. There's some great books written about Clarence Darrow out there. And then before he went off the rails, F. Lee Bailey used to be a really well-known, high-profile lawyer who'd written, I don't know if he wrote the book or someone wrote it about him, but then he eventually got himself disbarred because he was doing some crazy stuff. But those kinds of things really brought it home. When you're reading cases and doing all the dry stuff in law school, but then you can read about lawyers who are in the pits doing these kinds of things, it was really a motivating factor, I think, in my mid law school years.

ALEX POWELL: And my hope is that this interview will provide that same sense of realism for younger attorneys as they look to you, Bob, and to your career. Thank you very much for your time.

ROBERT BONSIB: Well, I've enjoyed it as well. Thank you for letting me participate.