Thursday, October 24, 2013

A Grinding Halt

Waiting for a jury verdict is one of the greatest anxieties on earth. Waiting on the verdict overnight is tortuous. Waiting on it overnight and knowing that it will be a mistrial if they don't get a verdict by a certain time because a juror had a prior commitment that she cannot get out of is downright hell.

I thought I'd try to post something thought provoking about how much I enjoy jury selection and speaking to people, but it turns out I am unable to focus on anything requiring brainwaves while the jury is deliberating. Since my thoughts are tangled and incoherent right now, I thought I'd just let Jerry Seinfeld explain the irrationalities of the fear of public speaking.

See More:

Wins and Losses
"We've Got a Verdict"

Sunday, October 20, 2013

You Be the Judge

It's another installment of the popular series on this blog. Below will list the publicly known facts of a particular case and available sentencing options for the judge. Give us your opinion on what the sentence should be and even better, why.


The 16 year old male defendant was a member of a neighborhood gang and entered rival gang territory. He saw a 17 year old female who is associated with the rival gang. They argued and the defendant pulled out a fully loaded revolver while surrounded by seven of his friends. He pointed the gun at the victim's head from three feet away and pulled the trigger. The gun did not go off, which caused the defendant to look at the gun and point it at her head again, pulling the trigger twice more with the same result. The defendant ran away and so did the victim who was unharmed.

The police watched the surveillance video depicting the above events and arrested the defendant 20 minutes later, still in possession of the revolver. The revolver is tested and determined that it works, but the ammo in the gun is not the correct ammo. The gun will fire with that ammo, but not every time the trigger is pulled. It all depended whether the ammo lined up properly in the cylinder when the defendant tried to fire it.

The defendant confessed to the crime, but said he blacked out when he pulled the gun out.

The defendant pleaded guilty to a class B felony and a class C felony, the highest charges he was charged with. The defendant has no prior record and a very involved family.

Possible Sentence:

The defendant is eligible for Youthful Offender adjudication (due to his age), which means the judge can seal his conviction and sentence him to as low as probation and as high as 4 years in jail if given this. The judge can also sentence him without Youthful Offender status and sentence him as an adult, without sealing the case, to anywhere between 5 and 25 years in jail.

Please comment, email, or tweet @prosdiscretion your opinion on the sentence and reason. But don't expect an answer until the sentencing date next month.

More like this:

You Get to be the Judge
The Sentencing Answer

Thursday, October 10, 2013

I'm Telling the Truth, Basically

Watch your language. It's not something you expect to say to adults getting ready to place their hand on the Bible and swear to tell the truth.

In preparing a case for trial, it is obviously important to speak with your witnesses prior to testifying. I absolutely prepare my witnesses for trial, but I do not script out what I am going to say and what they are going to say. I make bullet points of the issues I need to hit and then I let the questioning flow organically from that based on all the conversations we've had and the elements of a given case. This way I can respond to what the witness actually says, not just read the next question on my list.

But there comes a time when every attorney must instruct a witness to refrain from doing something. These are often things like pointing out an annoying nervous habit that will distract the jury. Lately, what I find is I need to speak to the witnesses about language qualifiers.

Not sure what I mean?

Q:  Were you working on April 16?
A:  Yes.
Q:  Did you respond to 184 Lasalle?
A:  I believe I did.

You believe? You either did or you didn't, especially when you proceed to discuss everything that happened at 184 Lasalle.

Q:  Did you stab him?
A:  Yes.
Q:  With what?
A:  A knife.
Q:  Was that because you were defending yourself?
A:  Basically.

Basically? This is what the entire case comes down to and the witness is using basically like it is an affirmation. Jurors take this to mean that most of what is said is true, but it's not everything.

Q:  What color was the jacket the robber was wearing?
A:  If I remember correctly, it was red.

This usually happens after the witness had told me unequivocally that the jacket was red ten minutes before testifying.

My favorite:

Q:  What was the weather like?
A:  To tell you the truth, it was rainy.

To tell you the truth? Was everything said up until that point a lie?

Most of these are verbal crutches we all have, or phrases we fall back on when we are nervous. Testifying in front of an audience, especially about events a person would rather forget about, induce many nerves. Also, once a witness is on the stand getting grilled during cross-examination, they can truly question if the jacket was red. Once you are under oath, are you really certain of anything?

I tell my witnesses to avoid these and other crutches. They were there and witnessed the events so testify with conviction. A witness is free to say "I don't know" or "I don't recall", but if they do know and recall just say what they observed or heard without the hesitation.

Every attorney needs to be a witness under oath at some point to see the process from the other side. I've done it a few times now, and while it's never a comfortable experience, I've successfully avoided using all of the above phrases.


Thursday, October 3, 2013

24 Hours as a Homicide Detective

It was a Monday morning.

Homicide detectives respond to all deaths that are not natural causes. This detective was a 19 year vet with the force with seven of those on homicide. He's gregarious and fun, never letting what he sees every day affect his humor.

The call came in as a DOA. The detective walked up the narrow stairs, careful to avoid the peeling wallpaper that seemed to reach off the wall and try to grab passersby. He walked into the upper apartment towards the man who was wailing next to his lifeless friend. The television blared, tuned to the Catholic channel. A television tray faced the television with a Bible spread open and dog-eared with most of the lines highlighted in neon yellow.

Two fentanyl patches were crumpled next to the dead man's head. The clear adhesives opened and the prescription painkiller had been stripped clean. The gooey remnants on the patches matched the substance around the dead man's mouth. It was another casualty to the fentanyl epidemic.

It was ruled an overdose after confirmation by the medical examiner. Twenty-four hours later the detective was called to a familiar location.  He walked up the narrow staircase, with less care for the wallpaper. The sounds of a televised preacher exhorting his flock to follow Christ sounded from inside the open door. The detective entered and found the distraught friend dead on arrival with now all too familiar fentanyl patches stripped bare on the ground next to the immobile body. The detective shook his head and walked out, unable to explain a man killed after watching his friend suffer the same fate, at the same place, and in the same way the day before.

The Politics of Prosecution

It has taken me a long time and many attempts to write this post and I am not certain of the reason. Possibly because this post deals with the inner workings of a district attorney's office. This does not deal with office politics or the politics that go into certain plea offers. This post is about the day-to-day life in a political office.

Every district attorney is a politician, whether they want to be or not. They face election every four years by the voters of the county. What that means is that every four years job security is an issue for certain employees of every office. If a new district attorney is elected, he has the discretion to fire everyone in the office, fire no one, or get rid of a select few. I serve at the pleasure of the district attorney. People look at government jobs and think long-term security, but that's not always the case.

I have been fortunate never to work in an office that has seen a contested district attorney election, and I hope that good fortune continues throughout my career. This is a glimpse into the office during a contested election year:

1) Employees receive constant solicitations to fundraisers from all parties running for the head office, which drain the pocketbook.
2) Employees fear political roulette. If they donate to the candidate that doesn't win, does that mean their job will be on the line?
3) Employees sometimes need to assist on campaigns, while abiding by the state rules. It's even worse when the persons running are colleagues who have developed into good friends. You feel you have to support that person, but what if they lose?
4) The rumor mill churns daily about who will stay, who will go, who will get promoted or demoted depending on which candidate wins.
5) Defendants might have better or worse plea offers depending on the elected district attorney.

The daily grind during an election year is wearing. It is generally true that the ones who worked the hardest on the campaigns or donated the most money are rewarded with higher positions in the office. It's a fact of life and not always a bad thing. A person running for office will have friends and colleagues who believe in him or her and will work the hardest for that person. When the candidate wins, they will surround themselves with those they can trust. But to lower level assistants, it will look like the position was bought no matter what happens.

Those that attain the highest positions then have the greatest interest in seeing the district attorney stay in power because they will be replaced if a rival candidate wins. The cycle becomes one of self-preservation and always has a way of trickling down to the lower assistants, who might fear losing a job if a different DA wins election.

Even in non-election years, a district attorney must always think about raising money and the next election. That means unnecessary attention on certain cases and fundraising events every year. The district attorney is not a political office in the sense that it can provide much patronage or favor special interests, but still is required to raise money like a political office. So, who donates? Not the businesses because what's in it for them? Defense attorneys who like the DA's policies and the assistants who want to keep the DA in power either because they like their position or respect the direction of the office or both. Attendance and donations are not required of an assistant, but realistically who is going to refuse when their job might depend on it?

My position is pretty high in my office, but still a few rungs below the power players. I would most likely survive if a new DA was elected, but there is no guarantee I would be doing the same job at the same salary. A new DA fires or transfers the higher-ups, but the assistants who work in the trenches and move the cases through the system are usually safe because someone is always needed to do the work. The question for me becomes do I want to risk getting to the next level and certainly tying my career prospects to the current DA or am I content to fly under the radar and toil in obscurity until retirement.

Ambition has always been a blessing and a curse for me.

So, young lawyers who send me so many emails, make sure you enter public service with your eyes open. It is a great and noble career, but politics always gets in the way as does the pressure to participate, which might not always be subtle.