Prosecuting the Absconders

In between murders, rapes, burglars, and robbers, we prosecutors sometimes get time to focus on other public menaces.  These are the ones who bilk the system for their own benefit.  The person collecting unemployment checks while getting paid under the table.  Or the wealthy man collecting food stamps. 

Or the people who lie to get out of jury duty. 

Jose Bocanegra, Jr. missed his scheduled jury duty four times, for four different reasons.  The first time he claimed he was a convicted felon (False).  The second?  He claimed he was the sole caretaker for an invalid (False).  Third?  He just didn't show up.  Fourth?  He left because the line was too long.  The Texas judge had seen enough and a warrant issued for Bocanegra.  A judge found him guilty of contempt and sentenced him to five days in jail.

His reasoning for avoiding?  It was too far away.

It's not only our friends in Texas (Mark Pryor) who are going after jury duty dodgers.  Colorado joined the cause recently too. 

Susan Cole was a little more deliberate in her attempts.  She arrived at jury duty with curlers and mismatched shoes, claiming post traumatic stress from a violent domestic incident that occurred in the military.

Like so many people before her, Ms. Cole's ploy was foiled by bragging.  The judge who dismissed her from service heard her months later on a radio show explaining how she fooled everyone to avoid jury duty.  Investigators debunked her claims and she pleaded guilty to perjury and attempt to influence a public servant. 

Instead of the community service that is jury duty, Ms. Cole has a felony to go along with forced community service. 

The funny part?  Most lawyers would have struck these jurors anyway so they would not have served. 

Check out my position on jury service here. 

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Avoiding Jury Duty?

Check out this interesting article on someone's journey to find ways to avoid jury duty. 

You can also check out my position on the issue here.

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A Jury of Your Peers

Trial starts one week from today. It’s a white collar crime case. That means someone stole money from a company.

I know what you're thinking. Who schedules a trial the week before Christmas? We won't complain though. Not much anyway.

I’ve described the jury selection process before. Let’s discuss what prosecutors actually look for and how they pick a jury.

The preparation starts weeks before. We assess our case and discover our strengths and weaknesses. What are the divisive issues? Is it a drug case? If so, do we need to ask jurors about their feelings on drug laws? Is it a gun case? Do we need to speak about gun control? Is there a cooperating witness who got a deal? A witness with a criminal background? Mistakes in the police paperwork?

Once we know our case, we can get ready for jury selection. Jury selection is the process of selecting fair and impartial jurors for your case.

The court weeds out the unqualified jurors – those with medical or family issues or those that cannot be fair to one side or the other. The prosecution uses challenges on jurors sympathetic to the defendant and the defense uses challenges on jurors sympathetic to the prosecution.

This is educated guessing at its best. We’ve heard these citizens speak for a half hour at most. We know a little about their family history, education, and work. Now,we must decide if they will fit our case.

So, how do we decide? In every case, an attorney has an idea of their ideal juror. The ideal juror has a particular background we identified during preparation. It changes in every case depending on the facts.

With this background in mind, we ask questions to jurors. These are questions based on the divisive issues. I describe the case a little. I ask jurors’ feelings on gun laws. Or drug laws. I tell them one of our witnesses got a deal to testify and watch their reaction. I describe why DNA is important or is not important in this case.

Their answers are important. So are their reactions. How a juror says something is just as important as what they say. Did one juror sigh when I asked about DNA? Is one asleep? Is one not paying attention? Do two jurors argue with each other?

Its an inexact science at best. It’s the only time in the trial, I get to speak directly to the people who decide the case. While I’m sizing them up, they’re also sizing me up. I let them know their time is important, just like this case. I relate to them using humor and letting them see my personality. Hopefully, they see how well prepared we are too.

If the jury is against you from the start, then your terrific opening and closing won’t matter. Your dynamite proof won’t matter.

We do the best we can and never know if our guesses are correct until the verdict.

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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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