Monday, December 23, 2013

Why I Don't Speak to Jurors after Verdicts

How do you get to a verdict?

Start with weeks of preparation, copying discovery, finding evidence stored all over the city, and speaking with witnesses. Mix in a string of days with little sleep as the trial moves into gear and a dash of evenings spent at the office analyzing paperwork and testimony. Increase blood pressure and knock years off your life due to the stress. Tie it all together in a ten second event when the foreperson of the jury announces a verdict to make either relief or frustration.
The cases I indict are carefully investigated before I even present them to the grand jury, with the majority of the investigation completed by then (There are always witnesses and paperwork that pop up as a case moves closer to trial). A quarter of the files I handle are dismissed prior to indictment because there is not enough evidence to prove the defendant committed the crime and another 50% are resolved through pre-indictment plea bargaining. Only a small percentage of cases progress to trial. I don't indict a case unless I am confident beyond a reasonable doubt the defendant committed the crime.
By the time trial rolls around, all the heavy lifting is done. The rest of the work is detail related, but it is the most time consuming. All the work, stress, worry, aggravation, and fear must be put aside in an effort to make the facts and case seem effortless in front of the jury. Crimes are, by their nature, messy and sordid affairs, which rarely follow a straightforward factual pattern. Look at many homicides, which are usually based on circumstantial evidence (because the only witness is deceased) and the motivation might be as simple as a misdirected insult. The job of a trial attorney is to make the convoluted facts move forward in a logical and understandable stream so the jury understands the importance and relevance of each witness and piece of evidence as they hear the testimony.
After closing arguments, the work is over and my mind begins to unwind. I feel myself losing the sharp edge that I had honed in the previous weeks and my thoughts begin to scatter, unable to focus on any task while I wait for the phone call announcing the verdict. Because I have investigated the case so thoroughly and put so much time into it, I am convinced of the defendant's guilt. It is difficult not to become emotionally invested after so much. The thought of an acquittal seems like the jury is personally insulting me.
I never speak to the jurors after a verdict. They are human, which means they are at times rational and irrational, stubborn and easily persuaded. They latch onto extraneous details that had no significance in the case. They declare one attorney better dressed or more likable. A person will drive himself crazy listening to twelve strangers critique and explain their decision.
The moment the closing arguments end, the attorney loses control over the case, which is a difficult moment for any lawyer. You spend so much time working and shaping a case to display its best features to a jury and then you have to leave it all and hope they make the decision you want. Speaking to the jurors after the verdict can only negatively affect me, whatever the verdict. There explanations for an acquittal usually center on saying there wasn’t enough evidence or some form of speculation that was completely irrelevant to the case.  Why talk to them after a guilty verdict? I don’t need the positive reinforcement and all they can say is something like they searched on Google, visited the crime scene, or some other inappropriate conduct I’d have to report to the court that has the possibility to impair the conviction.
Deliberations are a secret process and I will respect that for as long as I am a trial attorney, mainly for my own sanity.

Friday, December 13, 2013

Affluenza - Saying the Same Thing a Different Way

Ethan Couch mowed down four people while driving a vehicle with a blood alcohol level of three times the legal limit. It is a terrible enough case before we add in the fact that he was only 16 years old at the time he killed the victims.

During the case proceedings, Couch's defense team called Psychologist G. Dick Miller. Dr. Miller provided his opinion that Couch suffered from affluenza, which is a lifestyle where wealth brings privilege without consequences for poor behavior. We called this type of person a spoiled brat growing up before naming every type of behavior became vogue.

The point at sentencing that Dr. Miller made was that Couch needed structure and guidance because he did not receive it at home and the only way to obtain this was through a rehabilitative sentence that avoided incarceration. The judge decided the appropriate punishment was probation for ten years, including a stint in a rehab facility where his parents would pay the $450,000 a year bill. He avoided any prison for the offense, but the court may revisit the issue if Couch violates probation.

Victims' families are crying out for justice. Dr. Miller took a term that means children of wealth tend to overspend, be irresponsible, and do not believe in consequences for their actions and stretched it to explain the need for rehabilitation, not punishment or deterrence.

I see this defense every day in the courtroom. Only, it is usually from an African-American male standing at the defense table with their assigned attorney. The defense attorney explains to the court that the defendant grew up with a drug-addicted mother and an imprisoned father, thereby left to the streets to teach him about life. The defendant is in need of structure, discipline, and should not be punished because he truly did not know any better. He argues that incarceration will only create another person dependent on social services for the rest of their life and asks for a sentence fashioned to help the defendant become a productive member of society. The story is so frequent that one has to wonder whether a judge becomes immune to it.

Couch's defense transformed a life of privilege, wealth, and parents into a disadvantage, creating the same circumstances as minority growing up without parents in the gang and drug-infested portions of an inner city.

There are only distinctions between Couch and the defendants just described without any differences. I wonder if Couch would have received the same sentence if the defense was forced to argue that he grew up without a father to instill obedience in him because his father was in prison and thus needed to learn consequences to his actions.

Would the judge have had the same sympathy if a public defender was making the argument? An inner city youth?

Where you fall on the appropriateness of the sentence probably depends on your view of crime. Should a person be punished for a crime and a message sent to deter future actors from doing the same thing? Or should a sentence be rehabilitative, with the goal of transforming the defendant into a productive member of society? This question has been argued for generations and will continue to be. (See a discussion of that here).

The sad truth is that four people are dead who were just at the side of the road trying to help a woman change a tire because of the intentional choices of a 16 year old kid that led to his recklessness. No matter your view on punishment, could you ever imagine watching the person responsible for four deaths, including your loved one, walk out the door into fresh air to catch a flight to Southern California to start rehab?

Thursday, December 5, 2013

Not the Typical End of the Year

It's December which means holiday party season. As a lawyer in law enforcement here's a glimpse of some invitations I receive annually to celebrate the season:

Bar association, women's bar association, minority bar association, Italian-Americans in law enforcement, my formal office party, my in-house office party, Polish-Americans in law enforcement, police department general party, separate police precinct parties, narcotics party (not the kind of party you are thinking), homicide party, judicial district party, and New York State court officers' party.

Exhausted yet? Try attending even a fraction of them. It's not only a drain on time, but also on the bank account. I truly limit my attendance to just a few and then only stop by to show my face and have a drink with some friends.

What makes it possible to attend even some of these parties is that the court system usually slows in December, which means the overflowing river of work becomes a more manageable stream.

This year I have the biggest trial of my career beginning January 6th. My witness list stands at over 100 witnesses right now and I have not even put the exhibit list together yet. The trial covers a group of men and their violent criminal enterprise over the course of four months. This is the busiest and most stressful month I've ever experienced. Judges love to begin cases right after holidays because they are fresh and that means they do not have to start them before the holiday and possibly affect the days off. That leaves me spending less time with my family this holiday season and not taking any time off.

On the bright side, it provides a great excuse not to attend some functions and save some money.