Category: Defense Council

Picking a Jury can be Risky

There are a number of gripes about being a DA in a tiny Alaskan town. One is that picking a jury is very different than in a city. In Valdez, we did not get the list of prospective jurors far in advance of a trial. We frequently did not even know which cases would be going to trial until after the trail setting hearing when the defense would announce their intentions.

You are also picking from a pool of people who know their community, and each other, very well. This also can apply to the hometown defense attorney because he’s represented almost everyone for a divorce, or a small suit, or DUI or something. And sure enough, if the prospective juror loves your defense opponent or defendant, you’re stuck with them. On the other hand, if they hate the defense attorney, or your defendant, they get excused by the Court and the defense doesn’t have to waive a juror preempt on them. No judge wants an appeal where he left someone on a jury after they expressed a biased opinion as to the defense, because an appeal will come.

So, I’d take my prospective jury list over to the police department and let them pass it around. This was often distinctly helpful but could be a frustrating exercise when the officers would make contradicting notes about people.

“He’s a great guy! He helped me out when the kids’ snow machine got stuck!”

Followed by…

“Maybe, but he hates cops! Conk pulled him over, and he cussed him out and we ended up tasing him and charging him with  a disorderly conduct!”

No matter who is on the jury when you come back to the station during your first break, you invariably get – “What?! How could you leave X on the jury? He was on that jury on the guy, you know the sex offender back in 98-99 and they acquitted! He said he’d never vote guilty without a taped confession!”

You then spend the rest of the trial trying to convince yourself that he answered your questions well and this is a different case, and that you’re not wasting your entire herculean effort to convict this guy when you have a defense ringer on the jury.

Sometimes the defense attorneys (IF they’re particularly nasty) will plant these little thoughts in your head – “Boy, I sure was surprised when you left X on the jury! He’s a well-known pastor that doesn’t believe that man can punish but ought to forgive every crime. He’s famous down here for that…you didn’t know?”

The jury selection went perfectly for one gentleman, we’ll call him WW, on trial for driving on a suspended license. An officer saw WW drive a truck and trailer by him and began to follow. The defendant stopped, got out of the driver’s side, and walked into a business. The officer could see WW through the storefront window obviously waiting until the officer left. He even crouched behind the counter inside. Finally, the officer went in and got him. WW stated he hadn’t driven. Wife at trial said that he’d only driven in the parking lot to maneuver the trailer because she couldn’t do it, but that she’d been driving on the roadway.

I took the jury list over to the police department and they made some notes for me. So I was prepared when the defense attorney sauntered over and said, “Boy, I sure was surprised to see you left the defendant’s brother in law on the jury!”

I replied, “Yeah, I wasn’t sure about him until I saw that he’s called in the defendant three times previously for driving on a suspended license. Apparently he thinks his sister could have done better.”

The defense attorney’s response was a quick and descriptive expletive.

The jury convicted in 10 minutes.

Best Assist

Sometimes, just sometimes, I feel like I’d like to teach a class to defense attorneys on how to do their job better. This may seem counter-intuitive. But since a prosecutor is a “minister of justice” it can be very frustrating when you have an incompetent defense counsel and you feel honor bound to do both your job and theirs. Sometimes, though, it is hilarious and I feel like giving some attorneys an award for best assist.

One such a case happened to me in the small town of _______. This is basically a town that developed around a truck stop at the junction where the highway Ts and you either head south or north. It is fairly ugly and bitterly cold in the winter. This little burg is one of three other “bush” communities that my office was responsible for. I have been the DA in both of the other little towns. I volunteered for anything that would keep me out of _______. So when my buddy, who had ________, and was tired of me raving about how great my assignment was, decided we should have to do a trial in each others’ town, I volunteered for a summer trial.

In the grand tradition, he left me a stinker. A DUI case with a sloppy investigation where no one actually saw the defendant behind the wheel.

The defendant had been stuck in a snowbank when the village public safety officers arrived and found him drunk. He did at least admit that he’d not been drinking since the car got stuck, but he swore that his friend had been driving and had gone up the road to another house for help. Easy enough to check in such a small town, but no officer went down the street to check the only other house. Instead they knew they had their man and processed, arrested, and charged him.

So the case stunk, but not nearly so much as the defense attorney. One of my nemeses. This was a man to fit all the worst stereotypes of his profession. Trial was all about the game rather than the client. All about what trick or argument he could pull to defeat the odds.

I realized right away the problems with this case, and I went about trying anything to deal this case away. I offered a better deal with less jail time on the DUI.

Nope.

How about a reduced charge of reckless driving?

Nope.

A no jail time reckless? Another reduction to negligent driving? Nope.

C’mon, that just a ticket level offence!

Nope.

Fine.

My boss didn’t want us just dismissing important cases to the community like DUIs without getting his approval first, and he was out of the office. I figured I may as well go to trial and lose rather than have my boss mad at me for breaking policy. I mentally prepared for the failure to come.

Now my officers didn’t understand my dread. I wasn’t their usual DA and they didn’t trust me coming in and griping about their investigation. I tried to explain to them I was quite certain that he was drunk when they found him, but I was doubtful I could prove him the driver/operator of the car since they didn’t check his alibi. So the trial began. Jury selection and trial in such a tiny town is interesting in and of itself but those will be the subjects of other stories.

So I put on my case. Strong evidence of impairment, not so strong evidence of operating although he was standing outside the car, and it appeared there was only one set of footprints in the snow around the door. But that was all I had. At the time I rested my case the officer whispered to me, “we’re gonna lose aren’t we?”

It is pretty typical at the end of the State’s case that the defense asks the Court for the charges to be dismissed because the State failed to prove its case. This is kind of obnoxious since it is a pretty low burden for the State to meet to get the case to a jury. Basically if any reasonable person could find the person guilty then the Court is supposed to let the case proceed. But it is pretty much the norm for most attorneys to do this for no reason I can discern except they may hope they have a bad judge. And this defense attorney always did it, no matter how overwhelming the evidence had been. So I was concerned about it when the end of my case came and no request for a ruling from the Court ensued. Instead the attorney signaled he was ready to put on his case.

I figured he’d put on his client to say he wasn’t the driver, although he hadn’t said that at the time and it was on the officer’s recording. What could be gained by subjecting his client to my (surely withering and amazing) cross examination?

Not the defendant, but his friend was called to testify. Ah. Now I knew the plan. The friend, who was never interviewed, would come in now and say that he was the actual driver and got the car stuck and went to go get help. (Everybody has at least one drinking buddy who’ll come in for these situations.)

I was again surprised when the questioning got quickly around to who was driving the car and the witness pled the fifth! (He wanted to remain silent and not testify) NOW I could see the plan was for the defense to argue to the jury that the friend had been drunk driving and that was why he’d pled the fifth, and since it was so long ago he couldn’t be prosecuted for it, and there was no blatant admission anyway! Both defendant and his friend would get off having created a reasonable doubt as to who the driver ever was.

Except -! You are not allowed to manufacture a reasonable doubt in this manner. I asked the jury to be excused so we could argue in front of the judge. The defense attorney under questioning from the judge, admitted that he knew the witness was going to plead the fifth. This is a no-no. I’d been right about his plan.

The Judge informed the witness that he could not plead the fifth unless he thought he would incriminate himself. Or in other words, you cannot remain silent just because you don’t want to testify or you have to testify about someone else. The witness said he understood and seemed a little down when we called the jury back in.

The Judge asked if the defense attorney had any more questions for his witness. He indicated he did not. Of course he didn’t, his whole plan was for the guy to remain silent and give the jury a reason to wonder if this witness was the actual driver.

“Any questions for cross?” the judge asked me.

“Sure. You understand now sir that you cannot plead the fifth on behalf of your friend the defendant?” I asked. (Affirative answer) “Then just one question. Who was driving the car when it went into the snowbank?”

At this point, looking broken and apologetically at the defendant, his friend slowly raised his arm and pointed at the defendant!

A topic for another story may be ‘knowing when to sit down and not ask that one more question’. This was one of those times. I had just gotten what my case had lacked – an eyewitness to the drunken driving episode. And it was provided not through investigation but the defense attorney trying to play a game and break the rules to force a win.

I heard a great quote and I try to live by it –

“Don’t waste time learning the tricks of the trade, instead learn the trade.” -Unknown