This is my 300th post, and unfortunately a sad one.
I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop. I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly. The article says something to the effect that it couldn’t keep up with modern technology. Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage. They did have to bring the devices from Charleston for the trial – which was not a big deal.
One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone. So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences. It worked amazingly well – in fact probably much better than a mute button. And everyone got a kick out of it.
The last day is this Friday. R.I.P. Parkersburg Federal Courthouse.
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.. . .
During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor. One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury. You would think this would bore them to death. But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out. Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.
We left off at Improv Rule I, which refers to improvisational theater. The rule is, “no scripts.” If you follow your outline of questions, you are going to get outlined answers. Voir dire should have the flow of a conversation – a real one.
And then there is Improv Rule II, which also derives it’s name from improvisational theater. He’s says that the rule is to “not block,” which means that if your partner at the improv, i.e., a prospective juror, brings up a topic to discuss, don’t ignore that topic or switch to another which is more comfortable for you. This is how a conversation, and also voir dire, should work.
Rule 8 is the Shrink Rule. Rather than just confirming by silence that the prospective jurors agree with the points of view, legalities, or issues as you/the court see them, ask the jurors openly, how they feel about any particular issue or idea, and let them answer.
Rule 9 is the Beer Pong Rule. ”The ball is always in play. If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.” Comments, issues and questions, should be forwarded from one prospective juror to another, i.e., “who disagrees with Mr. Jones.
Rule 10 is the Marathon Rule: save something for the end. This is something that should be utilized also in cross examinations. In cross examinations, you always want to have one final question – one completely unobjectionable (you never want to end a cross by sitting down on a sustained objection), hard-hitting, no-way-out, glance-at-the-jury -as-you-are-sitting-down-triumphantly-question. That way, no matter how the cross examination goes, you end on a high note, and it is never awkward. The cross may have been a disaster, but if you end with your ace-in-the-hole question, you leave off on a high-note. It’s a great idea to also have one of those for voir dire. Bennett suggests something like, “raise your hand if you promise to give [client] a fair shake,” or “can we all agree to wait till all the evidence is in before deciding this case?”
Rule 11 is the Playing Doctor Rule: I’ll show you mine if you show me yours. If you want the jury to discuss something deep, such as prejudices (which he rightly states that we all have – including lawyers and jurors) we have to be willing to discuss our own, such as our first thoughts when we saw our client’s tattoos – or something of that nature.
Rule 12 is the Field Trip Rule. This is about paying attention to the group dynamics that develop between these strangers who are forced together, such as on a field trip. And also it is about becoming a part of the group, and allowing these dynamics to steer the conversation of voir dire.
Rule 13 is the Undertow Rule. It’s not possible for one person to keep up with all of the prospective jurors, whether there are 30 of them or 60 of them. You have to have an assistant, or another lawyer, to help you keep track of what is going on. It literally is impossible to do this yourself, and is foolish. Of course, as Bennett notes, your client can help you, and indeed should have a say in the process, but that is questionable help given the circumstances. Once the process starts, it goes quickly in my experience. And it takes at least one person full-time to mark down names and particular answers which need to be followed up on during individual voir dire – if the jurisdiction allows. It also helps to know the exact layout in which jurors will be seated, in order to develop some type of diagram to aid your assistant, and yourself when it comes time to make the tough decisions. It can be different from judge to judge.
Rule 14 is the Atticus Finch Rule: be the lawyer they want to stand up for. This refers to the scene in To Kill a Mockingbird where the African Americans stand up for lawyer Atticus Finch as he walks out of the courtroom – not because he won, but because he was a good man. I have said this before. There are a lot of jerk lawyers out there. Jurors pick up on these things, and they naturally, I believe, will lean towards those who they respect. And they don’t respect the jerks.
Rule 15 is the Bat Rule: ping, then listen, or fail. I other words, ask questions and then listen to the answers. Obviously this is the foundation of being a trial lawyer. But it can be easy to rattle off questions without really listening to what is being said. It takes conscious effort at listening and absorbing the answers to lead the conversation, rather than just your questions.
And lastly, the Herd Rule. A jury pool is like a herd of animals. This can always be taken into account when asking questions. People don’t want to separate from the rest of the group. They are more likely to raise their hand or speak up if you ask “how many of you agree with [prospective juror] about [issue]?” and are less likely to respond to “do any of you believe [issue].” Always remember the Herd.
Thanks again to Mark Bennett for coming up with these great rules. He reminds me of the bar exam instructors, who teach things in terms of little stories and songs so that you can remember them during the test. It certainly is helpful to be able to quickly review these before voir dire.
- John H. Bryan, West Virginia Attorney.
When Mark Bennett announced a week or so ago that he had 16 simple rules for jury selection, the first of which began with “The Nike Rule,” I anxiously awaited the specifics which were to arrive subsequently. Well, he did post the details on “The Nike Rule,” which essentially is this:
You have to “just do it,” rather than planning out your questions or taking an overly logistical or tactical approach to it.
Don’t worry, don’t think about it, don’t plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.
I have found that I perform best in a criminal jury trial when I do this throughout the trial. Rather than be overly logistical, I like to listen, and then when it is my turn to question a witness, or to give a closing argument, I just get up and let the words flow. I think it is the most sincere and passionate way to advocate. And sincerity and passion breeds results – at least in my opinion. But of course, you can only do this when you are intimately knowledgeable about the facts of the case.
Certainly I agree that this approach is the best way to conduct the voir dire process. When trying a jury trial, credibility is king, and if from the beginning you have to get the jurors to, not necessarily like you, but to respect what you say. You have to build and maintain your credibility with them. The best way to do that is to start the trial off by talking to them for just about as long as the judge will let you, and educating them about the process and the ultimate importance of their immediate responsibilities. And if you can make them laugh a couple of times it doesn’t hurt. This is especially effective in those situations where the prosecutor stands up and says, “no questions, judge,” and let’s the defense do all the talking, which for some reason I have encountered several times. This has always baffled me. Why wouldn’t you want to at least build a rapport with the jury?
Hopefully the outcome is that you get to know them better, and they get to know you. Then you have something to go off of when it comes down to the choice between juror no. 5 and juror no. 9, which may seem arbitrary, but which also may mean the difference between liberty and imprisonment for your client.
I look forward to hearing what Mark’s second rule, “The Blind Date Rule,” is.
UPDATE: “The Blind Date Rule” has now been posted.
Essentially the advice is to treat jury selection like a blind date with 60 people (or unfortunately, in West Virginia, more like 38 to 40 people). Bennett explains his thinking:
Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.
It’s always extremely interesting to get advice from another criminal defense attorney who actually tries cases and wins – at least some of the time (no real criminal defense lawyer wins all the time). There is a right way (or rather many different right ways) and a wrong way to try a criminal case. Many would argue that jury selection is the most important part of the case. It’s also the most unpredictable part, and the most likely part to absolutely blow up in your face. But it works the other way as well, and you can really achieve a lot for your client.
It seems to me that the trick always is creating some sort of connection between yourself and the jury, and actually getting the point where you can have a conversation with them. During most of the trial, the conversation is mostly indirect and one-way. But during jury selection, you can have a two-way conversation, and it makes sense that it is just like any conversation you have outside the courtroom.
I like the way of looking at it like a blind date. Not that I have ever been on a blind date, but I assume that you walk a fine line between cutting the tension and breeding contempt. I also suppose that some lawyers, like many in the blind-dating world, no matter how hard they try, are just always going to be awful at this…. Again, I love it when people share advice on how they have won criminal jury trials in the past.
UPDATE – 8/24/09:
The Shrek rule for jury selection, now explained, makes sense. Though it befuddles me to imagine how he thought of this, other than if it was on his mind as he was watching Shrek… I think that one of the by-products of being a trial lawyer, is that your mind never stops analyzing issues related to pending cases – for better or worse – usually worse. I know that I would pay any amount of money for a switch that turned off lawyer-related thoughts from passing through my brain the moment I stepped out of my office for the day But it will never happen. Nevertheless, the gist of the rule comes from this scene in Shrek:
[They are walking through the forest and Shrek belches....]
What? It’s a compliment. Better out than in, I always say. (laughs)
Well, It’s now way to behave in front of a princess.
[Then, Fiona belches.]
Bennett notes that:
The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.
How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.
It’s always an odd moment in jury selection when one prospective juror says, “yeah I know the defendant, and he’s a no good piece of garbage like the rest of his family, and I fear for my children unless he’s locked away for good.” You could probably write a book on the proper reaction to that happening. But better during voir dire than in the jury room. I have experienced a case where almost that exact phrase was said for the first time during jury deliberations, and only after the verdict did the defense lawyers find out about it. Of course, when this particular juror was asked by the judge whether he knew the defendant, he never spoke up. But that is another issue itself. At least when you get that out of him during jury selection, you have the opportunity to (1) get the guy excused for cause; and (2) rehabilitate your client by exposing the source of the guy’s animosity as incredible and irrelevant. And, as a bonus, you may get others to agree with him and get them off as well.
The 4th Rule is the 90/10 Rule, which basically means listen 90% of the time and talk only 10%. This is probably the easiest rule to remember, yet the most difficult to accomplish. In my experience, it can get surprisingly difficult to get people talking – especially when things turn personal.
Bennett has now also posted his 5th Rule, the MacCarthy Rule, named after a Chicago public defender who said “talk in a courtroom like you would talk in a bar room.” In short, don’t use “lawyerly” words and don’t condescend to the jury panel. Or else, they get to burn you in the end. This seems to be a corollary to the “be a nice person” rule, which I would add to the list. We all know people who are nice people, and we all know jerks – whether they realize we know or not. I believe that being a sincerely nice and friendly person will help the jurors like and trust you, while, like the rest of us, they will see through a facade of friendliness put before them by a world class jerk. And we usually like to help those we like, and we generally don’t mind sticking it to those we think are jerks.
- John H. Bryan, West Virginia Attorney.
The job of being a criminal defense attorney is a difficult one, and more so because you are constantly contradicting and questioning the testimony of police officers. Oftentimes it’s a losing battle, because most jurors are reluctant to believe that a cop would lie – or even exaggerate. But the tables turn in the rare instances when cops are charged with civil rights violations.
Bobby Frederick at the South Carolina Criminal Defense Blog had been covering the criminal trial of SC Trooper Steve Garren, who was basically caught red handed by his dash cam of swerving to hit a fleeing pedestrian suspect, all-the-while claiming “yeah, I hit him. I was trying to hit him.”
Despite this video evidence, replete with an audio admission, the jury found him not guilty. Now I have no idea what happened at the trial or in the jury deliberations, but the fact that this guy was a state trooper was the 800 pound gorilla in the courtroom. Certainly this would have been evidence beyond a reasonable doubt to a jury if we were talking about a civilian defendant. But jurors will give police officers a huge benefit of the doubt – whether it be with respect to weighing credibility against the defendant, or with respect to the rare instances where law enforcement officers are actually held to task for committing a crime.
These are one of the rare, rare situations where a jury will ever give a criminal defendant the benefit of doubt – including possibly acquitting him despite their belief that he was guilty. The jurors may have thought, yeah he did it, but the guy he hit deserved it, he shouldn’t have been fleeing.
– John H. Bryan, West Virginia Attorney
After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.
There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.
There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.
– John H. Bryan, West Virginia Attorney.
Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors – not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Charleston Gazette:
A jury found a Braxton County magistrate who is up for re-election next week guilty of attempted retaliation against a state witness Wednesday.
Prosecutors charged Carolyn Cruickshanks with conspiring to retaliate against Philip Dailey, who testified against her son, Jordan Grubb, in a drug case.
Cruickshanks reportedly delivered a copy of Philip Dailey’s plea agreement and a transcript of his plea hearing to the jail, where Grubb hoped other inmates would punish Dailey for being a snitch.
It always amazes me that these small-town political conspiracies involving corrupt public officials actually take place in West Virginia. Then, the corrupt official still runs for office as they are on trial…. Unbelievable.
Read the full two-page article here.
– John H. Bryan, West Virginia Attorney.
From the Charleston Daily Mail:
A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.
State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.
Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.
Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.
Tincher says the teacher has been suspended from her job.
What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.
Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.
Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
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