Most Dangerous Cities in the Country

Despite the loss this week, New York State must be doing something right. This is one list we are proud not to have made.

A few thoughts:
1) Alaska? Seriously? Look at the picture of Anchorage at night. Who could commit a crime in such a beautiful place? But then again, isn't it night for months at a time? People must need something to keep themselves busy.
2) Check out the picture from Springfield. Maybe if the cameraman called the police to report crime instead of snapping a picture of camouflaged men building bombs near the capitol crime would drop.
3) There's not a city in New York State in the top 10. In the words of my brother, a detective, "You're welcome New York."

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Wins and Losses

Four hours of deliberation. Five jury notes requesting testimony read back. Three lawyers (defense attorney, second chair, and me) attempting the impossible task of deciphering whether the jury was leaning with me or with the defendant. Phone calls back and forth between the court and my cell phone requesting my presence for another note. Finally, the final phone call.

Clerk: We've got a note.
Me: Is it a verdict?
Clerk: Yes.
Me: Inaudible gasp and stomach grumble.

Despite all the trials I've done, I cannot shake the stomach grumble when I get that phone call.

The defense attorney is already in the courtroom. I walk to the prosecution's table with my co-counsel and take our seats next to the jury. The defendant is brought in and the judge emerges from chambers moments later. My thoughts drift to before the week-long trial. Before the witnesses and evidence and schedules that need to be coordinated. Before the last minute witness was found in Virginia and flown in. Before the sleepless nights and feigned composure in front of the jury. I think of one of the first lessons I learned as a trial attorney.

Don't react to the verdict, whether it's in my favor or not. This is the jury's decision. We did our best in representing the People, but it is in the hands of four men and eight women and their decision deserves respect.

Guilty means there was a measure of justice for the victim, but the defendant will now be going to state prison for a significant portion of her life for her first offense. I don't celebrate the victories because a crime just means that one person chose to act and now that choice has affected so many more lives in a negative way that it seems imprudent to revel in it.

Not guilty means the defendant leaves and avoids punishment. Even though I'm confident in her guilt, the jury may not be and that is why these people took time from their lives to serve. We asked this jury to hold us to our burden and, when they did, we failed.

The jurors amble in, six in each row. I avoid eye contact with any of them. All secrets will be revealed in moments and I have to focus on squashing that queasiness in my stomach.

Judge: Has the jury reached a verdict?
Foreperson: We have.
Judge: Will the defendant please rise. (Said like a statement, not a question). Is the verdict unanimous?
Foreperson: It is.
Clerk: In this action, the People of the State of New York vs. (omitted), on the charge of Assault in the First Degree, how do you find?

My vision is focused on a small spot on the mahogany table in front of me. There's a glass top covering it and underneath the glass it looks like something's trapped. I'm confident in the next word but can't look away from the spot.

Foreperson: Not guilty.

Three days later - Despite the consolations from co-workers and family, this will hurt for a while even though I try to detach from the emotions of these cases. I don't agree with the verdict, but if I didn't respect the choice made by the jury, a right guaranteed in the Bill of Rights, why did I swear to uphold the constitution?

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Why Proper Trial Prep Doesn't Matter

It's Wednesday at 1:45 p.m. I'm due back in court at 2:00 p.m. We are smack in the middle of my trial and on a lunch break. The current witness on the stand had finished her direct examination and the cross examination would continue after lunch.

However, that witness jumped off the witness stand as soon as she was excused for lunch. She jumped off without waiting for my instructions on what time to return and where to meet. 1:45 p.m. and all my phone calls to her are going to voicemail. If she doesn't show, the judge will tell the jury to disregard her entire testimony.

The doctor was supposed to come in at 1:00 to prepare his testimony for the afternoon. His office told me he left at 1:15. It's a ten minute ride with traffic. Still not here.

The stabbing victim and another witness were supposed to be in the office at 1:00 as well. They would testify after the doctor. Nowhere to be found.

Fifteen minutes until I'm supposed to continue the trial and I don't have any witnesses. Is it time to panic?

2:00 p.m. and I'm waiting outside the courtroom. The current witness on the stand saunters in and resumes testimony. At 2:45 the doctor appears and testifies. Shortly after, the next two witness show up and testify. Despite my arrangements and meticulous preparation everyone showed up late. As it happened their tardiness didn't affect the flow of the trial or the testimony.

Welcome to trial. No matter the preparation and arrangements, you can rarely control the situation. You can only control your stress level. Check back this weekend to see the result.

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Trial this Week

Six jurors selected and ready to go. Six more needed and two alternates. While I continue our trial this week, I thought I'd share a story I loved from the weekend.

A warden's wife helps an inmate escape and takes up residence with him? I thought this only happened in short stories and novels. Turns out fiction and reality merged in the Oklahoma prison system in 1994.

On a trial note - this case lasted for four months! 80 witnesses and 800 pieces of evidence! And I thought my week-long, twelve witness trial was taking a lot out of me.

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So You Want to Avoid Jury Duty?

I'm sticking with my jury selection theme this week.

Whenever I meet someone and they ask what I do for a living, one of two things inevitably happens. They either ask my legal opinion on an issue plaguing their life or they ask how to get out of jury duty.

As a trial lawyer, my conscience won't allow me to give out the top secret hints to avoid jury duty and as a prosecutor most times I lack the expertise in civil law to answer the legal question. I know what you're thinking - I'm a riot at cocktail parties. Before you judge, let me explain. In my experience, the people who are actively seeking to avoid jury duty would make the best jurors.

If you were accused of a crime and had decided to take it to trial, would you want rational and reasonable people thinking up excuses to avoid hearing the evidence against you? The system functions most effectively when twelve of our best citizens sit in a room and debate the evidence presented to determine if the defendant committed a crime beyond a reasonable doubt. Often the prospective jurors seeking to avoid service are those in a position of great responsibility at a job or at home who are required to evaluate credibility on a daily basis. What better jurors are there?

Those people who are creative enough to think of reasons to avoid the supposed inconvenience could instead use their abilities on a jury. It is frustrating as an attorney to watch juror after potential juror seek the court's permission to avoid serving. In every trial, I watch the judge agree to make tremendous scheduling accommodations which would address a juror's concern (be it work, childcare, doctor's appointments) only to watch as other reasons are then proffered until the judge relents and lets the person out of serving.

Before you consider trying to avoid jury duty because it's inconvenient, please think about whether you would want someone like you as a juror if you were on trial. If not, just raise your hand and we'll get you out of there.

One judge I know says this to jurors: There are only four times you are called to serve your country - 1) voting, 2) military duty, 3) pay taxes, and 4) jury service. Jury service is the best forum for a person to actually participate in the government system as a citizen. He says it is a privilege as well as a right of all citizens. I couldn't agree more.

There are many reasons that one cannot serve on a jury - family responsibilities, already paid-for trips, health reasons, and financial hardships. Speaking as a trial lawyer, please just consider whether your reason is really a hardship or simply an excuse to avoid an inconvenience. A right to a jury trial that is guaranteed to all under the Constitution cannot function without willing jurors.

By the way, are you wondering the best excuse I've heard yet? It was during an attempted murder trial and we were questioning jurors who have issues with serving individually in the jury room before doing group questioning of a panel.

Judge: Do you have an issue with serving on the jury?
Prospective Juror: Yes. I've got health problems.
Judge: Sorry to hear that. We just need to put them on the record. Can you tell us what they are
Prospective Juror: I can't hear out of one ear.
Judge: Which one?
Prospective Juror: I don't know.
She was excused for other reasons aside from health problems.

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Jury Selection

As I prepare for trial next week, it seems a good time to reflect on the process of jury selection. It is the first part of the trial and is probably the most confusing to the general public. Every courtroom drama shows the opening statements, direct and cross examination of witnesses, and closing arguments. You rarely see jury selection.

Most lawyers will tell you that your case is won or lost in jury selection. Then again, most lawyers tell you the same thing about an opening statement. And again about proper preparation. There's plenty of advice out there. While I don't think a case is won in any one phase, I do agree it can be lost in any of them.

This is about a criminal case. Jury selection is much different and more informal in a civil case.

First, about 75 prospective jurors are brought into the courtroom. The judge then goes through some preliminary questions with all of them that will allow the judge to screen out a number of people after the jurors tell the judge about their pending vacations, family illnesses, work problems, or any other reason they do not want to serve.

Once those jurors are whittled down to about 40, the court clerk puts the remaining jurors in a bingo ball system. The metal ball is spun (seriously) and the first jurors picked are placed in the jury box. The number of jurors chosen for questioning depends on the courtroom and how many chairs there are.

The judge then goes through her general background questions with each individual juror called into the jury box in front of the attorneys and the defendant. Once that is done, the prosecutor (me) is allowed to ask questions to the jurors. The questions are usually based on the law of the case or whether a juror has some preconceived prejudice towards a certain subject that will come up in the case (gun control, the harshness of drug laws, DWI laws, etc.).

The defense attorney then will question the panel about whether they will hold the prosecution to their burden and view their client as innocent until proven guilty. The judge generally puts a time limit on the questioning for each side. I agree with the limits in most cases as some lawyers, including me, can be a little long-winded.

Then the attorneys, the judge, the clerk, and the defendant congregate and discuss the potential jurors. The prosecutor goes first and puts forth their challenges for cause. This means the prosecutor is asking to dismiss a particular juror because the law says they are not qualified for this case under the law based on their responses. The defense then argues their challenges for cause. These types of challenges are unlimited.

The prosecutor then uses peremptory challenges. This is where the prosecutor can get rid of a juror for any non-discriminatory related reason. The defense attorney then uses theirs. There are only a certain number of these challenges which varies depending on the type of case (there are 20 for each side in a murder case for example).

The jurors left are selected as the jurors for the case. The clerk then picks more names out of the bingo ball for the next panel from the jurors left in the audience. The process repeats until there are 12 jurors and at least 1 alternate chosen. If they need more, they call up another panel and start over.

Jury selection is my favorite part of the trial because it is the only time you get to interact with the jurors. After they are selected, there is no more talking to them. A lot of attorneys are terrified of it because you have no idea what the juror's responses will be. While it can be scary when faced with a question or comment you were not expecting, it's also fun because you really get to see how good you are thinking on your feet and interacting with the general public.

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