Brown & Little, P.L.C. » Prosecutors, Trial » Food for Thought

Food for Thought

A few Fridays ago, I spent the day in a very short jury trial. In that one short day, I was given more food for thought than I ever could have imagined. Between dawn and dusk, I strengthened a few existing beliefs, reconsidered many more, and even managed to drink a beer or two afterwards while trying to make sense of what happened. Here’s what I learned…

You are entitled to a jury trial in an Arizona reckless driving case

I initially told my client that I didn’t think he was actually eligible for a jury trial in a case involving a single count of class 2 misdemeanor reckless driving. I didn’t even believe he was actually going to get one when he showed me his hand-written pro per motion for a jury trial, the state’s hand-written response saying it was okay with that, and the court’s ruling giving him exactly what he wanted.

You don’t get a jury trial for first-time regular DUI or even simple assault or misdemeanor child abuse, after all. Why on earth would you get one for reckless driving?

Well, it turns out I was wrong. There is even a case directly on point. By the way, you also get a jury trial for bottomless dancing and herding sheep or goats on the land or water of another. Who’d have thought?

Even the judge who ended up handling the case, someone who’s been on the bench for twenty-five years, had never done one. He was skeptical about whether it was jury-eligible too, and he made jokes throughout the trial about how ridiculous that was.

What was more ridiculous to me was the fact reckless driving is a crime with serious consequences. Nobody but me (and my client) seemed bothered by that.

Blanket prosecutorial policies suck

My client was alleged to have crossed several lanes on the highway to get to the carpool lane before speeding then pulling over to the left after the officer initiated a traffic stop. Even on those relatively innocuous facts, the county attorney will not plead anyone charged with reckless driving to a non-criminal traffic violation.

The plea offer was a bunch of community service, an enormous fine, and a criminal conviction. My counter-proposal was expensive traffic school and no points on my client’s otherwise spotless driving record. I suppose I should be thankful that the state is so blindly cruel and fixated on excessive punishment because things ended up turning out for the best.

Regardless, the county attorney needs to fix its policies. Not just as a freedom-loving individual, but also as a taxpayer, I am deeply offended by policies that waste so much of everyone’s precious time and money for no reason at all. The head of any office with such a ridiculous policy should be voted out of office immediately. Why is it that people think everything needs to be a crime?

Start picking a jury before you even enter the courthouse

I don’t know how prosecutors enter many courthouses, but I do know it isn’t through the front door at the one where this trial took place. While I was outside in what we here in Arizona call cold waiting with my client and dozens of other people hoping to be let in at 8:00 a.m., the prosecutor was nowhere to be found.

I like to imagine the prosecutors pulling up to special parking lot with friendly attendants wishing them a good morning before swiping a badge to get into a green room with donuts and coffee, but that’s probably not the way it is. Regardless, they probably aren’t lined up out the door like cattle, waiting patiently to take off their belts while the guy in front of them who can’t read the sign saying no food or drink argues with security about why it’s bullshit that he can’t take in his backpack full of pastrami sandwiches.

Despite all its drawbacks, being part of the crowd is actually better. At that trial, I got to quietly study the people in the crowd, many of whom ended up in the pool of prospective jurors. I got to watch one woman cut in front of fifty other people holding the same jury summons and gripe at the person manning the metal detector about how important she was and how she was late for jury duty.

People like that are always the quickest to judge others harshly for even the slightest mistakes, and although she volunteered plenty that would make her an easy challenge for cause and did not even end up a low enough number in the pool to be considered at all, things do not always work out like that.

Had she kept her mouth shut in voir dire and been further up the list, I might not have known she would have needed to be my first peremptory challenge had I not been there to see how she behaved. There’s no rule against being attentive and trying to read people no matter how soon you start doing it. Being treated like everyone else enables you to observe everyone else. A major disadvantage when it comes to convenience might be a huge advantage when it comes to representation.

People love authority

It’s funny how happy people are to please authority. Actually, I take that back. It’s terrifying how happy people are to please authority.

After trial, I was part of what has to be one of the weirdest group discussions I’ve ever had. The jurors, the prosecutor and his supervisor (it takes two of them for each of us at trial, I’ve found), the citing officer, and my client and I all spoke afterwards.

The jurors were clearly eager to please the armed officer, the man who decided to cite my client with a criminal complaint in the first place – the charge they unanimously rejected after a remarkably short period of deliberations. They told him what a fine public servant he was. They said how they believed him, and then they scolded my client. If they could have taken my poor client’s transportation and license right then and there to show how serious they were about pleasing the guy in uniform, I have no doubt they would have.

Stick an earnest-looking authority figure in front of a group of citizens, and they’ll do anything to make him happy. A jury that knew for sure my client was not guilty when they were by themselves seemed almost ashamed of its verdict when confronted by authority. I have no doubt some of them might have confessed to something themselves had they thought it might have ingratiated themselves with him even a tiny bit.

I thought about all the clients I’ve had over the years who’ve bared their souls to officers hoping for sort of validation from someone who seems to matter. The vast majority of them found themselves behind bars, convicted in large part due to their desire to please those with authority. Jurors, it seems, are no different.

Don’t assume you won because you’re good

Although I “won” the trial, I can’t really brag about it. Not that I would anyway, but I know for a fact that I may have had very little to do with this verdict because one juror told me so. None of them disagreed. It was humbling.

My theme was the old idiom about making a mountain out of a molehill. I pointed out the crackerjack legal team at the prosecutor’s table and the officer taking a day off work, the duly-empanelled jury, and my client missing college because he crossed a few lanes of traffic. I stressed the severity of charging a young man with a criminal offense.

One juror, the guy who thanked the officer most profusely for his service as a Marine and now as an officer, told me he “didn’t buy that junk one bit.” His rationale for a not guilty verdict?

“It just wasn’t a crime.”

Part of me thinks that was my whole point, of course. In the end, he might have thought I was minimizing, but he agreed it was overcharged. It was.

What I took from the jury was that people rarely understand the origin of their ideas. I’d like to think it was my theme that convinced him and that he just wanted to the please authority by castigating me about my poor performance, but all I really know is that something about the case convinced him the charge did not fit the conduct. I have absolutely no clue what that was, even after speaking with him.

Interestingly, no one once recognized my argument that recklessness has a specific legal definition and that there was no evidence whatsoever that my client was aware of and consciously disregarded any sort of risk. That much was damn near conceded by the state. The jury instruction on that element didn’t seem to matter either.

What mattered may have been something I never said but that resonated based on the facts. It could’ve been my cross-examination too, which consumed most of trial and tied in with my theme without ever making it explicit. It also could’ve just been dumb luck.

Don’t leave anything out

In all honesty, I really don’t know what happened. However, the fact the jury told me what I thought I was doing right didn’t matter at all helped give me some perspective. As a result, I can take one big thing from the experience.

That big thing is that you should never leave anything out. Don’t ask that extra question that makes you look like a fool. Don’t ramble on forever in opening or closing.

But…

If there is a theory under which they could find your client not guilty, give the jury the evidence they need to decide accordingly. Clarify it in your statements if necessary, but don’t belabor the point, especially if it is only incidental to what you believe in your professional judgment to be your client’s best chance of success.

You probably have no clue what is or is not going to work. Present what you have, and fight for all of it when the state tries to strip your client of his defense. There’s trial strategy in brevity, but there’s also rarely a second chance.

The prosecutor is the one selling a specific story. You are most likely selling reality and the facets of it that show a jury box full of strangers that your client is not guilty.

The truth can prevail, but only if there’s enough information for the jury to find it.

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