Saturday, May 1, 2010

Peaks & Valleys

This time last week I was suffering from the sting of a guilty verdict in a murder trial. My first one. No, not my first guilty. My first murder trial. I wanted to win so badly and I still think I put on a good trial.

But as some have pointed out, you never can figure out or understand jurors. The problem is that we lawyers think like lawyers. And while most of the time it's probably an asset, I think it can also be a liability.

In the limited amount of time I have spent in front of a jury, I have tried to keep things simple. I use words they can understand. I avoid legalese. And I don't use cop jargon. I try to see the case through their eyes. But I can never know what they're thinking. Are they even listening?

Just because they are looking me in the eyes doesn't mean I am being listened to. When I was a kid I used to be able to look my dad right in the eyes while being lectured, and not hear one word. If I can do it, so can everyone else.

There are juror specialists that study the psychology of jurors. They can be hired (for big money) as consultants. They claim they can put 12 in the box that will go your way. I don't have big money. Neither do my clients. If they did, they wouldn't be my clients. But I digress.

They don't teach you how to pick juries in trial advocacy in law school. I try to read as much body language as I can. In my jurisdiction, we get to speak to the prospective jurors. We can ask them limited questions, but cannot get into issues surrounding the case.

I was told by a very successful trial attorney to just get up there and talk to them about anything. And so I do. "What books do you read?" or "How do you get your news?" I ask these types of questions. I am more interested in how they answer versus what they say. Basically I am trying to see if the person likes me enough to have a conversation in front of a bunch of strangers.

I did that for last week's trial. And I was pretty happy with the jury going in. But the trick of voir dire is not so much picking the jurors I want, it's getting rid of those I don't want. Both sides do this. Whenever I have had a really nice chat with someone during voir dire due to a common interest (say running for example), the State has used a peremptory challenge.

Last Friday morning when I was giving my closing argument, I thought I had at least half of the jury. I had heads nodding with me and it appeared they liked what I said.

So much for appearances, body language, voir dire, and all of that. 45 minutes of deliberation was all it took to come back guilty on all counts. It would seem that all I think I know about jurors is incorrect. But I don't think so. I think my instincts about that jury were wrong.

I know at first vote there had to have been a few on my side. But I think they gave in and joined the guilty folks. And that was that.

A couple hours after the verdict when I was able to see again, I remembered I had another murder trial set for this past Tuesday, April 27. Initially I was afraid last week's guilty would linger and cause me an extreme amount of anxiety. I was afraid that I would be afraid.

Surprisingly any reservations I had passed. By Saturday afternoon I was finishing preparing for the next trial. I didn't brood about jury selection or worry that it (bad jury) would happen again. In my mind, it's counter-productive to worry about the past. Learning from the past is one thing. But being stuck in the past is another thing entirely.

If you have been reading, you know Tuesday's murder case was dismissed. Everyone was happy. My client is home. Onward I move. A not guilty would have been so nice. It would have evened up last week's loss. But I can't think like that. This business is not about trial statistics. It's about getting good results for the client.

My client is home. He doesn't care how or why. His case took on a life of its own inside me. At some point early on, it was clear he was innocent. The police put this case together. And I put it on me to free an innocent man. I said to myself: "this is the case you were born to try."

I may be biased, but I like that level of motivation. It kept me up at nights knowing he was in the county jail as innocent as myself. But I would eventually sleep and dream of the trial.

Though his case was dismissed, I still take credit for getting him out. I know how I did it. The prosecutor knows how I did it. The client doesn't care how I did it. And it doesn't matter how I did it. I did my job. I protected my client's interests. I held the State to their burden of proof. When I showed them they could not meet that burden, they folded.

And so while last week ended in a huge down, this week took off on a much higher note. Through the rest of the week, I got a couple of really good plea deals. Today, however, I had a 4 month old motion to exclude evidence denied.

Being a criminal defense lawyer in my jurisdiction and handling the cases I do, is a dirty business. It's raw. It's gritty. It's real. And it's unforgiving. I get beat up daily. If you're not thick skinned, this isn't the business for you. If you can't make major decisions on the fly, stay behind a desk.

I am starting to realize that most of the criminal lawyers in Chicago are not trial lawyers per se. It seems like everyone involved, including the State, go out of their way to avoid trials. Because of the enormous size of the local system, 26th & California operates more like the game show "Let's Make A Deal". But Monty Hall is curiously missing.

I see the same attorneys week after week, but I see so very few of them ever litigating motions let alone trying cases. I see attorney after attorney show up in court when either a motion or trial is set and come up with some excuse why they need to continue the case. "Well judge, I am in Federal court today...."

I know for a fact that some attorneys just drag the case out long enough in the hope the State gets tired and finally makes an acceptable offer. I am not sure I could ever operate this way. It's usually me chasing the State down because I am ready to fight it out. Showing up in a suit to repeatedly continue a case for no reason is not lawyering in my book. It feels like a waste of time.

But I also hear of lawyers that get paid every time they go to court. Hmmm. Now it makes sense.

Why there are not more trials around here, I can only speculate. Laziness comes to mind. And jury trials are scary as all hell. Plus there will usually be one loser. No one likes to lose. In my limited experience, I find jury trials to be both frightening and liberating at the same time. If you want to be a trial attorney, you have to love a stage.

Whenever I address the jury or question a witness, something in me changes. I can be nervous to the point of being nauseous. But as soon as I get off my butt, everything is different. I wish I could describe it. Somehow I am suddenly relaxed. The volume of my voice elevates to an appropriate level and my rate of speech slows. I still forget things though and probably always will.

The timing of my cross is getting better. I am becoming more attuned to the stress level of a witness. And I am learning how to keep them there to exploit it. When someone is testifying in court and they are lying, subtle (or even obvious) clues are there.

During last week's trial, a witness for the State, wearing jailhouse clothes, kept looking down and away during my cross. Why? Because he was lying and he knew I knew it. I can't remember how many times I caught him lying and impeached him with his testimony from that day.

It didn't matter though. The jury obviously didn't care. The most brilliant cross-examination won't overcome a jury that isn't interested. And that sucks.

The best that I can do is maintain myself in a lukewarm state. The wins or good outcomes feel great. But the loses are terrible. It's impossible to stay on a high all of the time. And the higher you get, the more you fall when you come down. And we call come down.

My celebrations tend to be short. But so does the pouting after a loss. Wins and loses are in the past. Tomorrow morning, there is always another case, for another client, in another court room. And no one there cares about what happened yesterday or last year.



  1. Marcus,

    Another great blog...I wish that could write like you. Juries are very, very interesting. You could not have said it better...if they are not interested, they are not intersted. I observed a trial this past week and a half. The defendant was being charged with aiding and abetting first degree murder--premeditation. I missed the first half of the prosecution's case, but did see the second half, all of the defense case, closing arguments, and the reading of the verdict. Throughout the entire trial I could never gage where the jury was at. It was a pretty gruesome members killing another family member by shooting him with a crossbow, beating with a mallet, running his body over, and finally burning it in a fire. The defendant did testify, which seems to be rare in MN in murder trials. As I was analyzing the case throughout the trial (especially after the defendant testified), I realized if I was on the jury I would not have been able to find any premeditation. I spent two days at the courthouse waiting for the verdict. The jury was given three charges: 1) aiding and abetting first degree premeditated murder; 2) aiding and abetting second degree murder; and 3)obstructing investigation/accomplice after the fact. His sister has already been convicted of aiding and abetting first degree murder and is serving life without parole. His girlfriend goes to trial in June. The jury finally had a verdict yesterday afternoon. They found him guilty of aiding and abetting first degree murder, and obstructing investigation/accomplice after the fact. I was stunned! Juries are unpredictable.

  2. @Jasmine Jonell=that sounds terrible, I think the shock value outweighs anything that the defense has to bring to the my my..

    Marcus, thank you for sharing a wonderful blog, you paint a good picture into the mind of a criminal defense attorney, one who is diligent and cares for the best interest of his/her client. It's hard to conceive of the notion that one is fighting for their life without any control over it. Its a tug of war between David and Goliath and the defendant is the rope. Thanks for sharing

  3. Sorry to hear about this outcome, although the dismissal of the other case was terrific work on your part. Your comparison of 26th & Cali to "Let's Make A Deal" is pretty much how Steve Bogira describes the place in Courtroom 302, which, if you haven't read, you would probably really enjoy. Anyway, I loved these last posts. Thanks.


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