Despite a long line of high-profile trials, Gary Gittus’ most memorable courtroom moment was twenty years ago, in a case nobody knows.
In his 22 years of prosecuting and defending 500 or maybe 600 cases—everything from a divorce case that involved visitation rights of decorative rocks to arguing in front of Alan Page and the Minnesota Supreme Court—one of Gary Gittus’ most memorable courtroom moments is one that almost no one else would remember, and one that he’d probably rather forget.
A simple domestic assault charge, a one-liner in the cops and courts agate. A case that didn’t make the textbooks, that isn’t cited as precedent.
A case he didn’t even win.
It was summer, twenty years ago, and Gittus, an assistant city attorney in Rochester, was undefeated—ten-and-oh—in jury trials.
"I won ten in a row and hadn’t tasted defeat at all," recalls Gittus, sitting in one of those chairs (a leather, high-back executive chair) in one of those offices (solid oak desk, Impressionist paintings hanging on dark walls) that look like the same chair in the same office of every decent attorney in the nation. The mandatory framed diplomas and calligraphied certifications—Gustavus Adolphus College (1982), Hamline University School of Law (1986), Minnesota Bar Association (1986)—hang on one wall.
"The pressure of winning just keeps building and you start thinking it’s only up to you to screw it up somehow," he says.
The winning streak started in 1987 with a longshot. A 1-in-2,333 longshot.
"I had my first case at Paige Donnelly [the longtime Twin Cities law firm] after I was sworn in as a lawyer," says Gittus, citing dates and case names from memory. "It was a paternity case and the blood test showed that there was a 99.957 percent chance that my guy was the father. So, one person in 2,333 would match my client’s profile. He swore up and down he wasn’t the father, and the woman had been sleeping around with other people. Even her mother kept track of when she lied about where she was."
"I told the judge right up front that it was my first trial," he says. "You get so lost in the experience that you get tunnel vision. That first trial is the most stressful and the most focused feeling you ever have. You live and breathe it. You go to sleep at night and you think about it. You dream about it." Gittus made his case that the 1-in-2,333 number was small enough to cast doubt, considering the circumstances. "The judge called me at my house when the verdict came in and told me that I had won. I couldn’t believe it."
The streak continued through misdemeanor DUIs and disorderly conducts. It went with him when the 1978 Mayo grad moved from defending for the Twin Cities’ firm to prosecuting for the city of Rochester as an assistant city attorney ("My first wife and I had two kids and we wanted to get back here for the schools.")
The streak ended with a run-of-the-mill domestic violence case.
Of course, calling any domestic violence case "run-of-the-mill" is lawyer talk, cop talk. It’s the desensitized talk of 911 operators and paramedics and emergency room nurses. It’s the necessary defense mechanism of people that deal with these types of incidents on an all-too-regular basis. Because even those one-liners in the court dispositions section of the newspaper—"Domestic assault, sentenced to pay $182 and serve 24 days in jail"—are the kinds of things that tear families apart.
"Sure, they’re all important cases," Gittus says. "This was a simple domestic violence case, a possible harassment case. I was prosecuting the guy and Terry Walters [the former Rochester attorney-turned-Wabasha County judge] was defending. I was going on the premise that the victim was the ex-girlfriend. That she had nothing to do with him, that she hated him and tried to get him to leave."
Walters, though, played his trump card—literally, a Valentine’s Day card that the alleged victim had sent to the accused attacker weeks after the alleged assault. The type of Perry Mason moment that you just don’t see in city court misdemeanors.
"That completely impeached the victim’s credibility at that point," Gittus says. "It caught me by surprise. And then I realized that ‘Wow, we hadn’t asked for discovery’ [in which the opposing attorney is forced to disclose all evidence], because we usually just asked for reports in those cases."
"So Walters drops that on me and surprises me at the trial and the jury buys it. Which probably was true, the jury did the right thing. So I got caught by surprise, and it cost us."
"I was devastated," he says. "The pressure had already been so high because I had won so many in a row, but it was a pressure I had foisted on myself. I learned a valuable lesson from that loss. It made me a much better lawyer in the long run. I learned how to deal with losing, and I learned to make sure to find out everything that could ever go against me."
It was, it turned out, the last case Gittus would try as an assistant city attorney.
"I was burning out on the four Ds—domestic violence, DUIs, disorderly conduct, driving after revocation—which are the four main cases that the city prosecutes," Gittus says. "They’re nothing more than gross misdemeanors, and I wanted to do felonies and all the more serious crimes."
In late 1988, Gittus accepted a job with the Olmsted County attorney’s office and, over the next eight years, he tried—and often won—his share of high-profile cases. He won a highly-publicized attempted murder case, in which the accused had beaten a gas station clerk with a wrench. He won convictions in the 1989 robbery/kidnapping at the former Truong Plaza. He argued his first case in front of the Minnesota Supreme Court. The kinds of cases that catch the eye of private practices looking for associates.
"In 1995, George Restovich [of George F. Restovich and Associates] himself talked to me one night at a Bar Association meeting and asked me if I would consider going into private practice," Gittus says. "Restovich and I were always butting heads over the years, but I think he recognized that I had a knowledge of the law and yet I was fair-minded. I got on board with Restovich a year later. I wanted to get on that lucrative end for a change. I wanted that upward mobility and you just don’t have that as a prosecutor. Being a prosecutor is a thankless, underpaid job in my opinion."
After nine years with Restovich, Gittus opened his own firm, Gittus Law Offices, in 2005. "It was a scary jump," Gittus says. "I couldn’t sleep for a few weeks there. I thought I’d have to take out a small business loan, but I never had to. Business started rolling in early and quickly."
"Restovich showed me the way and I am forever grateful to him," Gittus says. "George treated me right. I just don’t think the partnership potential was there. But I did the vast majority of their criminal defense when I was there, and I got to argue some great cases."
Gittus then lists a few of his classic cases, including State v. Henning, the Minnesota Supreme Court case in which he successfully challenged—in front of Minnesota Viking great-turned Supreme Court justice Alan Page—the "Whiskey Plate" law that allowed police officers to stop cars with special series registration for no reason.
"That was a big one," he says. "They’re all big ones. Still, when I think back on it, I probably learned the most from that one that didn’t even make the paper, that domestic dispute case, that first loss. To get better, you have to remember the traps and learn to avoid them. I lost that case, but I learned something there that I’ve carried with me for 20 years."