Jury Trials: Lessons Learned

I have tried three cases in the past month.  Two of my juries returned a guilty verdict in spite of what I thought was enough to create reasonable doubt in the state’s case. 

I talked to the juries afterward.  It was pretty clear to me from what they said and their body language that they were left with some residual doubt about my client’s guilt – not “unreasonable doubt” like the state says in their closing arguments or a “possible doubt” but a real doubt. 

It was also pretty clear to me that they had expected my client and I to not only introduce doubt into the equation but “prove” our case somehow, despite the court’s instruction that that was not our job.

I say all this to point out two things:

If you are called to jury duty and you are selected to be a juror on a criminal case,  you need to commit yourself to returning a not guilty verdict, IN SPITE OF YOUR EMOTIONS, if the state does not prove its case BEYOND ALL REASONABLE DOUBT.  If you are left at the end of the case “not sure what happened” or “could see that he (the Defendant) may not be guilty” (actual words of my jurors this past month – who convicted) you HAVE to acquit the Defendant.  It doesn’t matter if you feel like what happened was wrong, upsetting, or immoral.  Unless the state has proved it to you, you have to put those emotions aside and cannot make the Defendant pay for what happened. 

If you are a Defendant, you need to be aware of the risk you are taking by having a jury trial.  Sometimes there really is no downside (there wasn’t in any of my cases this month), but sometimes there is.  You may be risking decades more in prison.  You may be turning down a deferred adjudication.  These are real risks.  And your jury may not be convinced. Your jury may doubt your guilt.  AND THEY MAY CONVICT ANYWAY.  You can never be sure what a jury is going to do.

Lastly, this may be controversial but I cannot help but notice, that both of my “guilty” clients were people of color and my not guilty one was white.  It is not out of the question that this played into the jurors decisions. 

Just some things to think about.  Please, if you are called for jury duty and feel like you cannot be fair – and cannot acquit if the evidence does not prove the case beyond all reasonable doubt – tell the attorneys who question you.  If you can be fair, if you can hold the state to its burden, and can acquit if the case calls for it – don’t think up an excuse to get off.  We need you to make this system work and stop bad prosecutions.

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Indigent Defense: Using Experts

Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It

If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office).  Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one.  I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.

If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee.  We sometimes call this a “low-bono” case.  I do this for some clients.

Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney.  You may have nothing left to fund other aspects of your defense.

In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense.  You may need to use an “expert”.  This can be a psychiatrist/psychologist, a scientist, or an investigator.  These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.

If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert.  Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert. 

If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion.  If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said. 

What do you do with an expert?  Choosing the right one is a different matter.  You might want to find one that another attorney can vouch for as effective and qualified.  You can ask them to write a report that you can use in cross-examination.  You can also ask them to testify (this usually costs additional money). 

The point is this:  a good attorney is going to know when and how to utilize an expert.  S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty.  I’d like to think I’m describing myself.