Wednesday, April 29, 2009

Team court & prosecutrix v. me - last in the series

First, if you want to read my blog posts about this trial from the beginning, you have to go back to March. There are 10 posts about this trial, and none are that long. : ) (I had someone comment on yesterday's who did not realize there were more. In fact, she helped me in jury deselection - which is really what it is - choosing those we DON'T want v. choosing those we do want.)

Anyway, rarely do we sequester a jury. Sequester means make them stay together until verdict. That is more court t.v.ish - jurors get angry & sometimes rush to a verdict which is not often good for the defense because it is the little things we often rely upon; the judge makes your life hell, etc. But, it is available to us if we think it proper.

It was odd that the judge asked me before this trial if I was going to want the jury sequestered. I said probably not, as I have never done it before & had no expectation of doing it now - this was supposed to be about a week long trial (including starting after daily docket & all). It stretched & stretched & stretched. The judge said we had 7 days of testimony. When I've orally told the story in the past, my memory told me it lasted over the course of 3 weeks. (It actually felt longer.) It was definitely the longest state (non-federal) trial I had ever been involved in!

So, here we are the Tuesday before Thanksgiving. The judge had already said she was taking Wednesday off. It was early afternoon. We finally finished the jury instructions (which took forever - the reason being that limiting instruction I previously talked about. Now that she was trying to put it in writing, she could see the folly in her oral instruction, as could P who called her quote appellate section to be told she was WRONG. The case I provided was not enough - no. Anyway, I digress.)

I express concern about arguing & then letting the jury go FOR SIX DAYS!!! (The timing was so bad, but I just cannot believe that she is going to make us argue & then let them go home. They wouldn't remember anything!)

Remember, my client's freedom is at stake - he could get life in prison for this bunch of hogwash! I have fought, & fought hard against The Team, but the timing I just could not help. (I was trying to think of other witnesses I could call - but I had exhausted all & P who deserves no number had chickened out of calling additional witnesses after I got ahold of her extraneous complainant.)

The Court: ...And I just don't think it's fair to the jurors not to get as far as we can today. (Believe me - she is not kidding. She is thinking voters, not potential conviction & life imprisonment. She doesn't hesitate to send people away on a daily basis.)

Me: I am going to request to sequester the jury if we turn the case over to them.

The Court: (read with utter disbelief & complete disdain for me) You're going to sequester the jury over the Thanksgiving holidays?

Of course, I'm not the one doing it - she will. Now she is M A D, mad! Me: Yes, Judge. Over a six-day-period where all kinds of discussions can take place, yes, ma'am.

Now before you think badly of me - remember - all that I asked was to let the jury go (it was about 2 or 3 in the afternoon) and have them return on the following Monday for argument. SHE wanted us to argue, and then if they did not reach a verdict in about 30 minutes, have them return on Monday. Not much of a difference really but a HUGE one for the client. But, The Court was trying to find some way to make me pay for protecting my client.

So, she brings in the jury. (I'm sure that I reminded her that the jury was not to know who asked for them to be sequestered but that is not in the record for some reason. You, having read the prior posts, know why I would have to ask the Court to follow the law & not snitch me out . . .)

The Court: Members of the jury, the charge is almost ready. We have two minor typographical errors to fix, that won't take too long. However, the jury has been sequestered. (Just a little white lie, I guess.) That means the jury will not be allowed to go home while you're in deliberations. You'll be put up in a hotel. Sequestration is mandatory if either the State or the Defense requests it. So if either the State or the Defense requests, it's not discretionary with the court. (She's trying to put it on somebody but herself when in reality it is her - she is the only one pushing to have argument that day.)

We're willing to work late today; that is, until you reach a verdict. We'll get dinner, one way or the other, and we'll send you to a hotel so you'll have to call somebody down to bring your suitcase and so forth. Potentially, I guess we could work late tonight, all day tomorrow, late the next night and then we'd end up on Thanksgiving day. So I guess potentially we would be down here on Thanksgiving day. (Boy - she is really making this a big deal. HHHHmmmm - and whose fault would that be? All I asked was to wait until Monday to argue. Jurors are eyeing P & me to see if they can figure out who the culprit is. I'm waiting for the client's ex to shout out - it is the fault of that stupid ex husband of mine. All faults in life are his! HA! I had told my client not to make ANY faces whatsoever. I didn't want to give our side away - and you can bet that I was carefully watching The Team to make sure they weren't making googoo eyes or something.)

The Court continues: The staff and I are willing to do that. (Well, another stretch of the truth. SHE is the only one who wanted Wednesday off. None of the jurors had expressed concern about Wednesday.) You've been here so long (I didn't see it but I wouldn't be surprised if I didn't get a look shot my way), we'll be willing to do that if finishing is in the realm of possibility. (You see - I think it really is within the realm of probability IF we don't take off Wednesday - for The Court's cooking convenience. I felt at that time that at a minimum, I had a hung jury. I felt a couple of the jurors weren't buying into the BS, & would make it known pretty quickly.)

The Court continues: The other possibility is to send you home now and then to have final arguments Monday morning. So it's your choice -- would you all like to step into the jury room for just a moment ... (and she tells them only to talk about when they want to hear argument with the constraints she has just listed. But, she looks good now - she is protecting their Thanksgiving holiday from one of us mean lawyers - like she figured out how to get around our little game . . .)

I then get my hiney chewed out because I didn't mention sequestration earlier. Mid-chew, bailiff comes in and says they want to come back Monday. I can't blame her but she asks if I will want the jury sequestered then, and I tell her no - ME: My concern was with the six-day lapse in time. The Court: Are you likely to change you mind on Monday. Me: I am not likely to change my mind on Monday.

I have to tell you that the bailiff and the process server loved this trial. They thought it was funny that I did not let The Team just run right over me like so many lawyers do, and they especially liked the sequestration threat I made. But they told me what a great lawyer I was & how much they respected my work, blah blah. (They still swear I am the most hated lawyer in that court by The Court even though this trial was several years ago.)

I know I have written this in a smartie panties way - for entertainment, really - but I was NEVER disrespectful. I never played outside the rules. I tried my best to be cooperative. But, first and foremost, my client's freedom was at stake and truth and justice just could not be found in that courtroom. And while The Court didn't think I had some special knowledge to know my client was innocent (remember - I had the greater self-righteous attitude as discussed in an earlier post), I had spent MANY, many, many . . . hours with this client, with the family, and I knew - I know - he did not do this.

I also knew that The Court was not letting in ANY of my defense - NONE. All I had was cross - which wasn't bad, I must admit. But, I would have had a not guilty if I got my stuff in, and because the c/w & c/w2 told so many lies, I figured that if there was a retrial after a hung jury, I would just completely kill them.

The moral of my hours of effort in writing up this trial experience was not only for entertainment, but to encourage especially the less experienced lawyers not to let the trial crap get you down; to fight the good fight & keep fighting. Think outside the box.

And, for everyone - be a great juror. Listen closely, and use all your common sense. So many times after a trial, prosecutors run in & tell jurors all the bad stuff that didn't get in - like priors, etc. (which frequently are unrelated & do not mean that the person is necessarily guilty), but it happens to the defense, too, just like it did in this case.

Don't guess about what you are not hearing - but do take a stand, while listening to the discussions among the jurors, and stand for what you believe. If you believe the State has proven every element beyond a reasonable doubt, so be it - it is a guilty verdict. But if something just isn't right - ask yourself if you have a reasonable doubt because of that. Reasonable doubt has no definition but what you apply to it.

Finally - when you get that jury summons - GO. We need good jurors. We need good listeners. We need people with common sense.

HHHhhhhmmmmmm - what shall I blog post next? Suggestions? : )

Thanks for reading.


  1. These were very good posts. I enjoyed the view from the other table. I didn't know there was that much drama behind the scenes. I believe in truth and justice not win and lose, I thought that is how a court was suppost to operate.

    I like your blog keep it up.....

  2. Thank you, Texas Ghostrider. I appreciate your position about truth & justice. We all come from different walks & views of life - which is why the jury should be made of a good mix of people.

    I've got a couple more cases that I may blog about. I've had some BAD trials - in that I was treated like crap & justice couldn't be found even in the hallway, but I have also had some fair trials in which the Court worked very hard to ensure justice - whether a finding of guilty or not guilty - was served. : )

    I appreciate your comments, too. Comments remind me that my efforts are not for naught.


  3. Ok Now my stupid questions.....

    I understand you will defend someone even though they did the crime and that is fair, checks and balances. If the defendant did a really really horrible crime and the way it was carried out, Have you ever passed on a case because of that?

    Have defendents ever confess all their crimes to you? Crimes that have not been solved? If so, Because you are their attorney now you must carry the burden of knowing and not telling?

    What is your average defendent? What type of case you do you work the most? What type of case will you take to trail the most?

    I don't blame you if you don't respond, they are really kinda stupid but I was just wondering......

  4. Excellent series, Cynthia. I loved the back and forth on the jury sequestration.

    It's so true that most of these judges aren't used to someone standing up to them. Most attorneys are afraid of pissing off the judge -- like the judge isn't already pissed off at you because you're actually defending your client.

    Keep up the good work.

  5. Sorry for the delay in responding, Ghostwriter. There are no dumb questions, really - unless someone is being an ass.

    I am lucky in that most of my clients are hired clients. In general what that means is that there tend to be less of the truly bad, bad things happen with people who are financially more fortunate. (I'm sure I'll get dogged for that. I'm actually saying that those without don't always have guidance & love . . . I'll stop there.)

    I remember only one client that made me feel rather sickened by his behavior. He never admitted the offense to me but he was accused of molesting his own son. (A former boss had a similar case.) It bothered me because of concern for the kid, but it all worked out because he chose to work a deal rather than go to trial. I guess the bottom line answer is that I have never turned down a case - and really one can't know what the actual facts are until you investigate them. I find that the allegations are many times way exaggerated.

    I have not had a client confess an unsolved crime. I did have a guy come in once who wanted to meet with the DEA because he had been dealing & everyone around him was falling so he figured his number was coming up. He cooperated, even though he had not been charged, made a couple of cases and to my knowledge has never been charged (and never will be.) That was a really weird situation but at the time, I had an agent I felt extremely comfortable with (weird, huh) & trusted. Turns out, at least so far, I was correct in my feelings about the agent (who has since transferred away.)

    I have handled many, many dope cases. As a rookie lawyer, I tried many DWI cases. I get hired on a variety of cases including murder and assault, dope, & DWIs, but what I find that I get a lot of - that go to trial most times - is allegations involving sexual abuse of a child or children. I am good at these, and there are MANY false allegations out there on these types of cases.

    And, as far as going to trial - that is a bit misleading. Going to trial a lot does not mean one is a good lawyer. In fact, most of the good lawyers don't go to trial a lot. They go to trial a few times, do a great job, and get dismissals or offers they can't refuse. I have a lot of success outside of trial. (Some lawyer who go to trial a lot do so because they are not good; they don't prepare; and they spend less time on a 2 day trial than I spend working on a case that gets dismissed.)

    I don't mind questions at all, but these are my opinions and I'm sure there are many who disagree. I'm not naming anyone specific in this response, nor am I meaning anyone specific. There are some lawyers who would say I'm not a good lawyer because I leave the possibility out there that I might refuse a case - I think I might refuse a case if for some personal reason, I did not think I could do my best on it. I can't think of any right now, but there could be one.

    Anyway, thanks for reading, Ghostwriter. I hope to start up again soon. (I can't figure out how these great writers can do all this writing & still get their work done!)


  6. Paul,

    Thanks for the comments! I agree with you that many lawyers are afraid of judges. I'm more afraid of messing up to the detriment of my client - in the view of a jury.

    I don't really like adversity, especially with a judge. But, I'm not going to back down or whimp out. I will not be disrespectful (in my opinion) but I'm not going to let a judge who likes to intimidate lawyers into not doing their best get me to be quiet. (My only concern is that I get angry which is not always best. I can cover it from the jury, but I may not be thinking as clearly.)

    I appreciate you reading & I hope you got some meaning out of the work.

    See ya around the courthouse!

  7. Hey Missy! I really like your blog. Now write something already!

  8. Okay, Duke, I'll come up with some material for you. But, I don't understand how these lawyers can do so much blogging when they have lots of cases to work on. : ) I've got a few trials I can blog about & one coming up soon.

    Thank you for your comments!

  9. This would make a fantastic book. Well done and good work in that trial!

  10. Thank you, Jerri. I appreciate the comments. I'm set for trial on Monday so I'll be gone from the blog a while but we shall see if this trial produces any interesting material for a blogspot.


I appreciate comments but you must include your name to be posted. If you want to e-mail just me, do so - don't comment here. Any posting or comments made here are not intended to be legal advice. If you have a situation that does or may involve criminal law, seek the advice of an attorney via telephone or in-person meeting. I am not responsible for the contents of comments.