Articles Posted in Trial Tactics

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Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

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What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won’t go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn’t succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn’t have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant’s story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don’t get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don’t reach a verdict then all of our time, the taxpayers’ money, and all of our effort has been wasted. You, the Hold Out Juror don’t want that do you?

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Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a “no nonsense” approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn’t see anything funny about her attitude and set her bail at $20,000.00. She turned and said “adios” to the judge. After turning away, she realized that her bail had been set at an amount she couldn’t make she protested and told the judge “F….You”. Now this, obviously, didn’t sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge “the finger”. This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

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The police reports pain an ugly picture. They clearly show that the Defendant is guilty. What to do? How does your attorney get the District Attorney to reduce or dismiss the charge against you? The experienced trial attorney tries to paint a picture that accurately shows the client for who he is and not just for what he did. Many times good people do something ill-advised or out of character. These “bad judgment” moments can have devastating life-long effects on people who deserve a second chance. How to get the client that second chance?

Most important is the charge against the client. Sometimes no matter who you are, or the devastating effect on your future, or the fact that even millions depend on you, the result is mandatory if you are convicted. However, very often these facts can and do make a difference to a prosecutor who is seeking to do justice and not just gain a conviction. How to reach that prosecutor is the key.

Reaching a just outcome requires the defense attorney to paint a picture. Depending on the circumstances it can be a picture of the facts of the case and establish the facts that lessen the responsibility of the defendant. It might involve proving that there were contributing factors which were not the fault of the defendant or showing the prosecutor the facts dictate the client deserves consideration. The second prong of the defense attorney’s job is to breathe humanity into the ink on the police report from the client’s perspective. The trial attorney needs to show the prosecutor the defendant is human. He is a good person, perhaps he has done community service (before or after the crime), been a role model in the community, or won awards in business and the disastrous effects a conviction will have on his individual future.

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A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn’t have a “one size fits all” formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side’s lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a “good” jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It’s not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge’s instructions; it’s about finding the juror who will listen to your side’s facts and argument and believe the “right” thing to do is vote for whatever side you, the lawyer, is advocating.

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Crimes occur with many participants. Murders, car-jacking, embezzlement, fraud, white collar crime, insurance fraud, and almost any crime you can imagine can happen with more than one defendant. Anytime there is a case involving multiple defendants there is the possibility that one of the defendants will turn “state’s evidence”. In other words, one defendant works out a deal with the District Attorney or United States Attorney for a lesser sentence, lesser charges, or even a complete dismissal in return for testifying against the remaining defendants.

What should the defense attorney do who is faced with the co-defendant who is now cooperating with the prosecutor? Of course, the first thing the prosecutor will do is require the cooperating defendant to “tell the truth, the whole truth and nothing but the truth, no matter who is asking the questions”. The “truth” is an elusive term. Ideally, it means that the testifying co-defendant will, in fact, reveal all to the jury and to anyone who asks the questions.

In reality, for the prosecutor the “truth” means testify to the same statement that the cooperating defendant gave when arrested. When looking to give a deal to one or more defendants, one of the most desirable qualities is that the statement given when arrested is the one the prosecutor wants to use as the “truth” of the case. Then when the testimony is given it is consistent with the earlier statement and makes it easy for the prosecutor to argue to the jury that testimony is the same as the earlier statement and thus is “truthful” since when the first statement was made there wasn’t anything promised in return.

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Many times a case has multiple defendants. A crime will occur and several people will get arrested. Some might be friends or they might be strangers to each other. But, like most events in our lives, we do what we do with people we know.

So what happens when several people are prosecuted in the same case? All the defendants have their own lawyers because each defendant has his own point of view, his own measure of responsibility and his own interests in how the case comes out. Because of this, the defendants are often offered a chance to cut a deal with the District Attorney and get a lesser sentence in return for testimony against the other defendants.

Why would the District Attorney agree to make a deal with a defendant in a case? First of all, there may be a lack of evidence. In other words, the District Attorney can’t prove the case without one of the defendant’s help. Second, the District Attorney might see the case as one with different measures of responsibility such that it makes sense to give one or more of the defendants a deal because the defendant is a minor “player” in the case. Finally, if a case simply has too many defendants to efficiently prosecute in a timely manner one or more of the defendants could be allowed to testify against the remaining defendants. This eliminates one more roadblock to the District Attorney’s case.

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Defendant was charged with residential burglary. The young man was Hispanic and was known to associate with gang members. He denied being a gang member himself but the police were constantly stopping him and conducting interviews in “consensual encounters”. He wasn’t consenting to being stopped by the police but unless he walked away that’s how the law looks at it.

When the burglary happened in his neighborhood, the police immediately suspected him even though they didn’t have any reasonable basis for their “hunch”. When the burglary occurred, the homeowner was home and frightened the burglar away. The police showed the homeowner two photos of the Defendant one at a time even though after each she could not say he was the one who had committed the burglary. A short time later the police returned with a photo line-up of six photos, only one of which had been shown to the homeowner before. Of course that would be the Defendant’s photo, and lo and behold, she identified him as the perpetrator.

Defendant was arrested three weeks after the burglary and questioned. He gave three different possibilities about where he was the night of the burglary changing his story each time.

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The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor’s purse and the class is asked to describe the suspect. It’s incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It’s happened to all of us.

Stress of an unexpected, even scary, situation can affect one’s perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely “wrong”. Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn’t mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn’t always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a “six pack”. The eyewitness is asked to view the subjects, admonished it’s just as important to exonerate the innocent as to find the guilty person and just because a picture is in the “six pack” it doesn’t mean the perpetrator’s photo is contained in it. When that doesn’t happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent “six pack” ? Isn’t that overly suggestive? Isn’t that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

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Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn’t commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn’t that DNA exonerated Morton, but that other evidence that was in the DA’s possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton’s innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton’s file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim’s credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim’s credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim’s home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim’s property and used the stolen credit card and it wasn’t Morton, then maybe Morton wasn’t the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.