Drug dealers often use nicknames.  Nicknames are used so often that dealers often do not know the actual names of their many regular recognizable buyers.  

Jay Quart’s nickname was “Mark,” according to the government.  Jay Quart was one out of 23 defendants listed on a federal drug conspiracy indictment.  All other defendants entered into plea agreements whereby they pled guilty.  That left Jay Quart (and me, his defense attorney) alone at the defense table for trial.  

The government’s star witness for trial was Andy Pain, the head of the indictment as the main dealer who agreed to testify that he sold drugs to the other defendants.

While testifying for the government, and during unimportant preliminary questions about the overall conspiracy, Andy Pain mentioned the nickname "Mark" of a “co-conspirator” whose real name Pain said was "Ovis March," and when Andy said “Ovis March,” Andy gestured slightly with his head toward the defendant Jay Quart in a way that suggested that Andy Pain mistook Jay Quart for Ovis March.  It seemed that Andy Pain believed that the defendant Jay Quart was Ovis March.

The prosecutor also recognized Andy Pain’s problematic gesture and the dilemma it presented.   Thereafter, all remaining  questions from the prosecutor to Andy Pain were carefully worded to avoid causing Andy Pain to repeat or worsen the apparent confusion.  

The prosecution had wiretap recordings of Andy Pain talking on the phone with a drug buyer who used the name “Mark” on the phone (the nickname that the government believed belonged to Jay Quart).  With careful questioning, the prosecutor was able to elicit from Andy Pain that “Mark” was “the person in court wearing the white shirt” (the defendant Jay Quart). Thus, the government did not have Andy Pain actually say the defendant's name, due to the previously mentioned problem. The prosecutor then asked that the record reflect that the witness had identified the defendant, and the judge agreed.  At that point the government believed that it had established (through Andy Pain’s clothing description) that "the defendant" was the person who had committed the crimes discussed in the audio recordings.  The prosecutor had tip-toed around the problem without using the names "Jay Quart" or “Ovis March” while questioning Andy Pain.

Then, it was time for cross-examination of Andy Pain by defense counsel.

I sat briefly thinking to myself that I needed to be very careful not to make matters worse by asking a question that would cause the prosecution witness Andy Pain to decide that my client was "Jay Quart."  I though that there must be one cross-examination question that I could ask Andy Pain and end the case entirely, if I could just think of that question.  My epiphany came and I walked to the lectern asked the question.   

What do you think was the single question that I asked Andy Pain? 

What would you have asked Andy Pain if you were the defense attorney?

I only asked one question, and when Andy Pain gave the answer that I suspected he would give, I then announced that I had no further questions, I tendedered the witness, and I sat down.  

A few moments later, the government made a motion to dismiss the indictment.

Here is what happened: I stood at the lectern and with a sweeping gesture I pointed at my client the defendant (Jay Quart) and I said to Andy Pain “That is Ovis March, correct?”  Andy Pain said “Yes.”
































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