Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, August 24, 1993 TAG: 9308240050
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: LENGTH: Long
They are friends - but not in the courtroom, not when murder is involved.
There, they are friendly rivals: Jim Updike, the high-profile prosecutor, a cameras-in-the-courtroom darling known for his dramatics; and Harry Garrett, the sage former prosecutor who gave his younger adversary his first job out of law school.
Garrett ribs Updike about that now.
He says Updike tries harder against him than he does against other defense attorneys because Updike is still striving after 15 years to beat the boss. "It's only natural," he says with a sly grin.
"Harry always used to accuse me of that," Updike says.
The truth is, Updike prepares the same way for every big trial, no matter who is sitting at the defense table. "When it comes down to it, it's not personal," he says.
It has been that way since they first tangled over a murder case in 1980.
It will be that way again with Nellie Sue Whitt, who goes on trial Wednesday. The case will be the eighth in which Updike and Garrett have faced each other in a murder trial in Bedford County.
Whitt is charged with first-degree murder in the death of her boyfriend, Roy Thompson, who was killed when he was hit with his own pickup truck on an isolated road near Goode in 1991.
She has said the death was an accident, that Thompson jumped out in front of the truck in an apparent suicide attempt. But after authorities discovered that Whitt had tried to collect on his $100,000 life insurance policy - and that she had forged his name to make herself his lone beneficiary - they charged her with murder.
The trial is scheduled to last a week, during which the former partners will be in the spotlight on opposing sides, a contrast in styles and strategy.
The prosecutor who plays up moral outrage, and the defense attorney who wants a jury thinking reasonably so it may start doubting the state's case.
Both Updike and Garrett know the game well.
Updike remembers well his first real lesson. It came on his first day on the job as Garrett's assistant prosecutor in 1978. Garrett was Bedford County's commonwealth's attorney at the time.
Garrett was trying a murder case; Updike, fresh from law school at William and Mary, was observing his new boss in action. Garrett, into his final argument, offered his version of how the murder took place.
This required him to lie down across the prosecution table in his stocking feet. At the end of his story, Garrett jumped up and stood atop the table in his socks. He pointed down at the jury box, and with fire in his voice, he commanded the 12 jurors to bring back a conviction.
They did.
Garrett has never lived it down. Around Bedford, they still call the speech his "Sermon on the Mount."
Updike says he brings up the episode whenever Garrett gets on his case about courtroom dramatics. He must have learned his flair for drama somewhere.
For years, Updike also kept a transcript of another Garrett speech, during which his former boss eloquently urged a jury not to give a man one day less than 99 years in prison if they wanted to see justice done.
Garrett just rolls his eyes.
That was "before the clouds opened," as he likes to say about his move from prosecutor to defense attorney. "Before the milk of human kindness ran through my veins."
Garrett, 57, was commonwealth's attorney for 12 years until he returned to private practice in Bedford in 1980.
He says he is much happier doing defense work. "I never really got a good feeling whenever a jury came back or when a judge pronounced a sentence," he says.
Not that prosecuting was all bad.
"I felt like I wore the white hat," he says.
But the rewards have been greater for him in defense, where he has developed friendships with clients and their families that he never had as a prosecutor.
He pulls a framed scrap of yellow legal paper off his office wall.
On it, written in pencil, is a quotation from "A Tale of Two Cities" by Charles Dickens that Howard Grubb once gave him. Grubb's was one of the murder cases that Garrett defended against Updike.
An alcoholic, Grubb killed his wife as she fixed him a pot of coffee in 1987. But when Grubb was sober, Garrett says, he was one of his most interesting clients. He wrote the "Tale of Two Cities" passage from jail, and purely from memory.
"He's the only guy I've represented who quoted Dickens."
Socially, there is camaraderie between Garrett and Updike.
In recent years, though, they haven't been as close. Updike says he was consumed by several high-profile cases and by his bid for attorney general. He says he has not seen much of any of his friends.
In Bedford, they call Updike the king of preparation.
Almost to a fault.
During a trial, he is so relentless with the amount of evidence he uses and the number of witnesses he calls, he borders on becoming boring at times. He readily admits this.
Often, he will even warn the jury to anticipate a point where their eyes start glazing over, promising it will all come together in the end.
He likes to quote Machiavelli. "What is it? `The war is won before you ever step on the battlefield.' . . . Preparation is much more important than a lot of hollering."
Another former assistant prosecutor under Updike, Phil Baker, says that is perhaps Updike's greatest strength. "I've seen defense attorneys who are not prepared get their heads handed to them."
Garrett also comes to court well-prepared. He just isn't as outwardly intense. Both inside and outside the courtroom, Garrett is more the slow-talking Southern gentleman, more sly fox than charging rhino.
He probably wouldn't get excited even if his client took the witness stand and offered a full confession. "I think I'm a lot more low-key," he says.
Updike, on the other hand, sometimes is combative and difficult to deal with during the heat of a trial - something he readily acknowledges. "For me, it's a very emotionally draining experience. . . . The strain wears on you," he says.
He tries not to show that strain to the jury.
In front of a jury, Updike wants to come across self-assured and relaxed. And he is not always deadly serious.
His sarcasm is well-documented. In one case against Garrett, during which Garrett kept trying to guide the testimony of one of his witnesses, Updike suggested that Garrett take the stand instead.
In a drug case, in which the defendant claimed he was growing marijuana only for personal use, Updike wheeled a blackboard into the courtroom and calculated just how much "personal use" was involved.
It came to something like 162 joints per day.
Updike can be a terror when he catches someone in a lie. One of his assistant prosecutors, Joe Kuster, says, "He is like a shark who just got raw meat thrown in the tank."
Garrett says it's a trait good trial attorneys are born with.
He sensed it when he hired Updike, and he says his former understudy has gotten tougher in the years since. In the seven previous murder trials between them, Updike has walked away with convictions six times.
"I think that speaks for itself," Garrett says.
However, only one of those convictions upheld the original charge, when David Lee Fisher was found guilty of capital murder in 1987. All the other verdicts were reduced from first-degree murder to something less.
Updike says that speaks, in turn, of Garrett's abilities.
Either way, neither of them claims the upper hand.
Not that they don't want it. Updike points to an unofficial ritual he shares with his old boss.
It comes after a trial, when they get to talking about the case and going through each other's strategies. Lawyer-shop talk between friends.
"You're talking," Updike says, "but you're also conscious that there's going to be a next time."
by CNB