I recently tried a case with her because the state wouldn’t budge one bit on the plea. My client faces the exact same thing right now having lost at trial that he would’ve gotten had he accepted the state’s offer. After three motions, a long evidentiary hearing, various oral arguments, a bunch of interviews, and a hard-fought jury trial, he may arguably be better off having been convicted by a jury than he would’ve been rolling over near the beginning. The case is set for a hearing during which the state must prove my client’s alleged prior conviction in order to enhance his sentence.

The prosecutor informed me that the prints the case agent took from my client before trial matched the prints for the prior conviction. She asked me to stipulate it was his prior. “Begged” might be the better word, actually. Small violins seemed to play sad songs in her head as she told me how the officers would have to come in and waste an afternoon. She stressed how the court is already backlogged. I didn’t care, of course.

I would be lying if I denied deriving a wonderful sense of satisfaction from her torment. In the beginning of the case, I’d worked my ass off trying to negotiate a non-trial resolution that was in my client’s best interest. She took one brief look at the case and told me she would win it. The law provided for a 120-day sentence for my client, and she told me she would get that when she won at trial. She would give my client the privilege of admitting to everything, making her life easier, and getting what she felt he deserved without having actually considered his personal circumstances and the issues with the case. She wouldn’t shave one second off the jail sentence. She was an inflexible bully.

I told her we would be going forward with the hearing on the prior. I informed her there will also be an appeal after that, at the very least, and very likely post-conviction proceedings. My client is a fighter. Because of her office’s shortsightedness, she put him in a situation where he had nothing to lose going down swinging. He’ll be swinging for years. My client has a right to a priors trial during which the state bears the burden of proof. He elected to exercise his rights because her office elected to play stupid political games with people’s lives.

It felt good to see the tables turned, but it was disappointing that she didn’t exhibit the least bit of understanding. The problem was that she believed she was in the right. She is the good guy. Anyone unlucky enough to find his name in a police report is the bad guy. Asking her to give my client a minor concession was an unreasonable request. Denying her demand for him to waive his life away to make her easy life a tiny bit easier was unforgivable.

Like she told me in the beginning, she isn’t the one who drank too much before hopping on a motor scooter. She’s the one who’s stealing a huge chunk of that guy’s money, stripping him of his driver’s license and therefore his ability to earn a living, forcing him to go through classes and counseling he probably doesn’t need, and sticking him in a cage for four months. See? She’s the good guy, obviously. She’s righteous. He’s an icky defendant. Why won’t he just accept what she thinks he should get?

Give nothing, expect everything. That’s how the game works to them.

The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.

In Phoenix City Court, you usually spend the pretrial stages in front of a single judge. After you decide to fight it, though, they shuffle you elsewhere. The order says you’ll be going to trial in thirty days, but the court struggles to get you in front of a judge in sixty. You won’t know which judge you’ll get for fifty-nine.

When everyone assumed you’d plead, they rushed you to a decision. After they realized you were going to fight, they stretched it out as long as possible. It’s even a battle to get a judge to hold a motion hearing prior to trial.

Imagine you have one heck of a suppression issue. The cops obviously needed a warrant and didn’t get one, or they got one but it didn’t authorize what they did. It’s the awesome kind of issue defense attorneys crave, the kind of issue that makes motion drafting a true pleasure. I’d call it a slam dunk if it weren’t for the fact courts will do almost anything to avoid letting you “get away” with whatever some cop mistakenly thought you might have done.

No motion hearing for you! Not in Phoenix, at least. The motion hearing happens on the morning of trial while the jury waits below. There’s no pressure to deny the motion and give the jurors something to do, of course.

The court doesn’t care that you will have to pay thousands of dollars to retain an expert witness for trial in a case that should be dismissed based on well-settled law and undisputed facts. That’s your fault for putting yourself in a situation where you got yourself accused. The court doesn’t care that the state wouldn’t offer you a plea that conveyed some sort of discernible benefit. The blame again falls on you, the potentially innocent defendant who was unwilling to accept responsibility against your own self interest. The court doesn’t even care that this is a twenty-witness trial and there’s no time to hold an evidentiary hearing prior to trial. The judge will just yell at your defense lawyer when he asks for trial to continue into a second day.

You’re a beast of burden being pushed to your cruel fate. That’s the way the system works, and the idea is familiar…

Move ‘em on, head ‘em up
Head ‘em up, move ‘em out,
Move ‘em on, head ‘em out Rawhide!
Set ‘em out, ride ‘em in
Ride ‘em in, let ‘em out,
Cut ‘em out, ride ‘em in Rawhide.

The researchers made three primary findings:
Judges tend to convict more than juries in cases of “middle” evidentiary strength.
Judges acquit more than juries in cases in which judges regard the evidence favoring the prosecution as weak.
Judges convict more than juries in cases in which judges regard the evidence favoring the prosecution as strong.

Here’s the conclusion:

In sum, criminal defendants are benefited by opting for a bench trial when the evidence is weak, and a jury trial otherwise.

It seems to me that the studies confirm what’s probably somewhat obvious to most lawyers who’ve tried any appreciable number of cases to verdict before judges and juries.

Juries are unpredictable. I’ve had juries convict clients when I felt the state utterly failed to meet its burden. I’ve had juries acquit clients when I started preparing for the aggravation phase the moment they left to deliberate; I never thought for one second they’d come back with a two-word verdict. In those cases where the evidence is close, juries don’t always consider the burden of proof. It’s my failing if they don’t understand the presumption of innocence, but it’s tough to know how much emphasis on that point is enough and how much is too much. That rare jury full of cynical, government-fearing patriots is tough to select even when the ones you’d want are on the panel.

Judges can be unpredictable too, though they’re usually more experienced and therefore more likely to identify an especially good or bad case when they see it. Perhaps more importantly, you know a lot more about the judge than you could about prospective jurors. You’ve seen them before. You’ve argued in front of them before. Your colleagues can tell you if they’re good or bad, and a lot of the time, you can strike them if you’re on the case early enough. When you have the option, the decision to try a case before the judge instead of a jury is an informed one. No good defense attorney is going to sit by and do nothing to avoid a bench trial in front of a judge who wouldn’t find for the defendant if the evidence against him or her is weak.

It comes down to professional judgment. Knowing as much as possible about the judge and understanding juries is part of the package when it comes to hiring a defense lawyer. The most interesting part of the study is probably the fact it suggests lawyers probably aren’t as good as we think we are at deciding whether to strike a judge and reminding the one who ultimately presides over the case about the burden of proof in cases of “middle” evidentiary strength.

H/T Mark Bennett via Twitter

People tend to be judgmental. They’re also easily confused. Those are usually characteristics that the prosecution can readily use to its advantage. People want to love or hate someone, and if the person on the stand doesn’t make sense to them, hate tends to be the default reaction.

I can’t count how many times I’ve seen a prosecutor confuse a defense witness, and subsequently the jury, with idiotic questions. More often, the prosecution preys on the ignorance of the jurors writ large and convinces them that, because they do not act like the defendant or share his life experiences, he must be guilty.

Luckily, we can fight fire with fire. Prosecutors, you see, do not have a monopoly on questions and lines of reasoning that harness the inner moron in all of us. Hurling a profoundly idiotic series of questions at a witness can occasionally succeed for the defense too.

One of the most effective cross-examinations I’ve ever seen was in what seemed like a dead-bang loser of a case. An eye-witness claimed she saw the defendant walk in with a gun, point it at the victim, shoot him, and leave. In cross-examining the eye-witness, the defense lawyer was brilliant. Brilliantly stupid.

He asked the witness if she saw the bullet come out of the gun. He asked he if she saw the bullet enter the victim. He went on and on about how she saw the defendant with the gun and saw the victim go down, but that she didn’t really know that he shot the victim. She eventually conceded that, because he could have died of natural causes and because she only saw a muzzle flash and heard a bang, which would have happened even with a blank, she had no idea if the defendant shot the victim or not.

I was astonished. How could anyone be so dumb? What jury would buy that? As I thought about the state’s case, however, the big picture came into focus.

The defendant had a collection of prior felony convictions and a gang affiliation, which made him seem guilty from the start. The state was relying on an eye-witness along with what lawyers call “other acts” evidence to prove its case. There was a use-common-sense, of-course-he-did-it theme that permeated the prosecution. It was subtle stupidity and not-so-subtle stupidity combined to create the avalanche of stupidity the state called its case, and the jury might’ve eaten it up. If it weren’t for the defense’s own brand of dumb, that is.

The witness arguably had motive to lie. As bad as the defense lawyer’s questions may have seemed, they were probably not that dumb at all. Maybe the witness was lying. Maybe the witness was confused by the asinine questions not because they were ridiculous, but because she was lying. Maybe they threw her off her game. A juror may have picked up on that. I hear they hung.

A lawyer hoping to impress everyone with his brilliance would’ve left the really stupid questions unasked, and the state would’ve won based on its own stupidity. I think there was a lesson to be learned, and an important one at that.

Sometimes, we have to fight stupid with stupid.

I once asked him in chambers why he does it that way, and he said it was because he thought the parties should be bright enough to know what they can and can’t ask. His position seemed to be that it should be like asking questions of witnesses during trial; lawyers don’t have to submit every single question they intend to ask each witness in advance. They should know what is and isn’t okay.

My first thought was that he’d failed to realize that, although the parties don’t submit every question they intend to ask the witnesses, occasionally, a motion in limine is a good idea. I’d love to submit this proposed voir dire question and see if he let me ask it rather than rule in advance:

How many of you would be more inclined to find my client not guilty if you knew he was facing a life sentence and that you’d have to endure a really irritating Blakely trial if you convicted him?

Maybe that’s an ethics violation. Hmm. Gotta think about that one. Might be worth it for the look on his face (and the mistrial). Kidding, of course.

Anyway, his reasoning about why his method didn’t cause problems was that a lawyer who asked improper questions would draw a lot of objections that would be sustained and end up “looking foolish.” Aside from presuming that prosecutors are competent and know when to object, honestly a pretty good presumption in his jurisdiction given the overall quality of county attorney there, I think the bigger problem is that he assumes a jury would hold sustained objections against the party asking the question.

Prosecutors aren’t always very likable. Judges aren’t always so likable either. I sometimes do a pretty good job of convincing jurors that my client and I are the two people in the room with whom they have the most in common. It’s almost always true. I don’t see empanelled a lot of people who are among the lucky 1% I keep hearing about. They’re usually good, hard-working, ordinary citizens who got summonses. They distrust the government but vote to let it control either the bedroom or the boardroom because they think they have to choose Bud or Miller. They never think about how a glass of ice water might be a little healthier, but in the microcosm of the courtroom, things are different.

If I’m trying to talk to them, a prosecutor keeps standing up and arguing with me, and a judge keeps telling me to shut up, I’m not so sure I’m the one who’s going to end up looking foolish. It may end up looking a lot like a cover-up of some kind.

I’m not asking them for their opinions, not their social security numbers. I want to know them, and I care about their thoughts and feelings. They try to talk. They’re shut up and told to listen, listen, listen. They hear lawyers and an ex-lawyer carry on for days. I want them the share, share, share. Putting myself on their side and getting shot down over and over again could be the best thing that ever happened to my client.

It’s an interesting situation. If I were more adventurous, I might submit a novel’s worth of proposed voir dire questions. I might include some clearly objectionable ones. I might start to ask them and draw objections that’ll be sustained. Maybe they’ll start with things like, “the judge and the prosecutor don’t want you to know that…” Good idea? Oh well, probably not.

On a lesser scale, though, in a case where my theme melds well with the state covering up what really happened, getting a series of sustained objections when I’m clearly just trying to start a conversation might trump any evidence I end up presenting after the jury’s sworn. I haven’t had a chance to try it, but it’s certainly something worth exploring. Within reason and the rules of ethics, of course.

The funny thing is that the judge’s policy, as strange as it might seem, has the effect of enabling me to know a jury far better than I would otherwise know. I get to talk, but more importantly, I get to listen. I’m okay risking looking foolish if it means I’m at least given an opportunity to ask questions I wouldn’t otherwise be able to ask. Sadly, that’s more than I have in most courts.

The judge’s demeanor tells me he might relish the idea of making me look foolish, but given his experience and the outcomes I’ve seen in his courtroom, I almost wonder if he’s doing it to help me, not embarrass me.

Most of us in the legal profession got here not by living in the moment, but through significant forethought and strong will.  Those aren’t bad qualities, but they’re only helpful in certain aspects of the practice of law.

Drafting a motion is one such aspect.  The motion doesn’t really exist in time, as the reader reviews it at his own pace.  It’s more like painting a portrait than performing a concert.  The reader is going to stroll through the gallery and control his own time when he gets to what you’ve created. He doesn’t have to sit down and watch the show on your time.

With legal writing, you are also typically dealing with facts that already exist.  There may be variables, but you must aver a certain set of facts on which you base your analysis.  You should know those facts may change at a motion hearing, but for the pleading itself, they are usually static.  Being present and experiencing non-judgmental awareness in real time is, for the purposes of writing a motion, more or less pointless.

In the courtroom, however, the moment matters. The skills that got you through law school and helped you write that killer motion aren’t alone going to be sufficient when the officer begins to testify. You should have planned and prepared, of course, but a strong ability to perceive on the spot and under pressure is what I’ve noticed seems to separate the best from everybody else.

Being present optimizes awareness. Indeed, when you’re simply being present, awareness is all you really have. By living in the moment and applying non-judgmental awareness, you’ll notice more than you ever thought possible. This is because your judgments don’t actually enhance what you’re perceiving. If anything, they cloud your thinking.

I recall the first time I noticed a prosecution witness make a blatant factual misstatement on the stand. I spent the rest of the direct examination so excited thinking about impeaching him on cross that I may have missed even better evidence. I would have lost nothing had I simply noted what I heard and continued listening with detached awareness. My excitement, a product of my judgment, in no way enhanced my performance.

Preconceived notions about a witness or exhibit also tend to detract from your ability to most effectively use it to your benefit. You will see every step more clearly and present every step more effectively if you’re able to perceive the evidence as it truly is. You don’t want to taint the evidence with a perspective your audience may not share.

How many times have you heard people who share the same ideology talking about some controversial position they share? How persuasive was that for you? If you’re like me, hearing tax-and-spend Democrats talk in perfect agreement about how we need to jump-start the economy with a bunch of new government spending just isn’t very persuasive. Hearing social conservatives agree about the disastrous effects of gay marriage on society is even less persuasive. The language and approach don’t work for me because I’m not starting out with the same set of judgments and beliefs. We all give a different sermon when we’re preaching to the choir. Too much judgment, and we start treating everyone like a chorister.

Too much judgment also leads to sloppy work. You know the witness’s prior statements, and you know how the story has changed over time. You have concluded that the witness is a liar. To really persuade someone that you’re right, though, you need a demonstration instead of a conclusion. I can call a witness a liar all day long, but in the end, the jury may not care. They probably won’t believe it without evidence, and they may end up feeling bad for the witness. If I catch that witness in a lie, however, it’s a different story. Telling someone your conclusion is no substitute for walking them through the steps you took to reach it. Show, don’t tell. Your personal judgment is largely irrelevant to the former.

When you judge evidence as it’s presented, you’re seeing things through a filter. You’re relying on your preexisting opinions, and those are often opinions the judge and jurors do not share. You can’t read minds, so the best way to convince your audience is to build your position from nothing. When every person experiences the birth and growth of the point you’re trying to make, that’s when you have your best chance of getting them to agree. Inserting your judgments only dilutes your effectiveness.

In the moment, what you notice may be better than what you were seeking. Even if it isn’t, at least you noticed it. You certainly aren’t missing anything. Your perspective is likely closer to that of the people you’re trying to convince, and your presentation isn’t going to come off sounding like biased ramblings from a nut job. When judgment is necessary, like when you hear something objectionable, you’ll be quicker to realize it and voice your position. There’s no drawback.

Determination is a great thing. Planning, judging, and trying to bend the world to conform to your will certainly have a place in the law. Although they may help prepare you for the courtroom, they won’t guarantee your success after you’re inside. The opposite set of skills, being present and carefully observing, will take you a lot farther after the witness takes the stand.

Voir dire is a time when client input seems most important to me. I certainly don’t believe jury selection is just voodoo magic, but I also don’t believe any amount of experience can enable a lawyer to pick the perfect jury every time. There’s a good chance my client’s instincts are as good if not better than my own, and involving the client in the process of choosing the people who choose his fate only seems fair. I treat clients like a second-chair when it comes to voir dire, and I give significant weight to their decisions about whom we should strike. Often, I’ve left some strikes completely up to the client.

Like all of my best plans, that strategy doesn’t always work. When it doesn’t work, it fails spectacularly and often humorously. I’ve had a few clients arbitrarily write “fair” and “unfair” next to each juror’s number before anyone asked a single question. The Louis Vuitton bag or the long beard apparently directly correlate to fairness, I guess. I’ve also had clients request that we strike all minorities, women, and/or old people. Leave the former sex crimes detective or the uncompensated victim of the same type of crime on the jury, the clients say. They just don’t want a [insert prejudice here]. It can make for some difficult situations.

I’m writing about this because my favorite client voir dire contribution to date came up in a conversation this weekend. I laughed so hard thinking back that I almost cried. Sometimes, people do things with my own special voir dire charts that I’d never have expected in a million years.

Several trials ago, after an intense voir dire in a case with serious consequences, I asked my client what he thought about the people remaining on the panel. I had given him a chart designed for him to easily keep track of each prospective juror, and he clearly appreciated my desire to get his input as well as the chart I had created for him to neatly track each juror’s answers. Sadly, he didn’t appreciate the chart in quite the way I intended for it to be used. My client didn’t really keep notes at all. Instead, he chose to draw a badass picture of a dragon.

That’s right. His life hung in the balance. I explained the process, and I tried to involve him as best I could. He drew something that looked a lot like Trogdor. I was discouraged, and I can’t say I’ve ever been more acutely aware of the fact that not everybody cares as much about things as I do, even the people who should probably care more. It was a real eye-opener, and it was also fairly disheartening.

In all fairness, though, it was a really awesome-looking dragon.

I just had a trial where my client was adamant that he heard the officers’ guns make a clicking noise. He thought it was the hammer on their handguns being pulled back, though he never saw them do whatever it was that caused that sound. To discredit my client’s version of events, the officer testified his gun had no hammer and that no other parts on the weapon were capable of making such a sound. In a stroke of dumb luck, the officer ended up moving the release latch on his holster while he was on the stand. I probably looked like a kid on Christmas morning when it made a sound just like what I (and the jury, apparently) thought the hammer on a gun would make being clicked back into place. I asked him to do it one more time and promptly ceased questioning.

It’s hard to refrain from commenting on great evidence, and I felt a strong desire to ask the officer if that could’ve been the clicking noise. What if the jury didn’t come to that conclusion on its own? I’ve made a mess of more than one fairly effective cross-examination by fretting about that kind of thing. Doubting the jury’s fact-finding ability is one of the fastest ways to dilute your message with a slew of one-question-too-many’s. As skeptical as I might be about people in general, collectively, juries rarely miss something I want them to notice. I still worry about not giving them the whole picture though. It’s hard to figure out how to do that without going too far because far enough always seems like almost nothing.

Clients don’t usually help matters. I had a two co-defendant trial where the other defendant’s lawyer asked a million questions. He must’ve cross-examined the victim for three hours. Even still knowing the case inside and out, I can’t recall a single good point he elicited on cross. My client was furious at me the whole time for not asking as many questions as the other lawyer. He paid for me, didn’t he? Why didn’t I ramble too? It was as if my client thought he was paying by the word and not getting his money’s worth. Up to that point, I was trying to get better at trial by doing more. After they were both convicted, we went to speak with the jury. I was surprised when they couldn’t articulate what the defense was. Everything I tried to accomplish got buried in the overwhelming weight of what the defense presented.

I’ve heard people use the phrase “less is more” in many disciplines. I heard it in Tae Kwon Do and music when I was younger. Now I hear it in high performance driving, beer brewing, and cooking. In explaining the concept, I recall an elderly music teacher saying it’s like a beautiful woman in a simple black dress and pearls. When something is perfect you don’t need anything more, even when it may not seem like a lot. Every single not guilty verdict I’ve had has been in a case where I sat down more than once worrying that I hadn’t done enough. Looking back, what I presented in most of my losses really should have been trimmed. It was too much. More turned out to be less. Less is more.

Details like that make everything feel more real, and in this particular case, those details really humanize that man for me. Knowing his last meal does more to upset me about his execution than all the mitigation in the world. It drives home that the government killed a person. It’s hard for me to think that an evil monster would have a favorite steak sauce or cut of beef. Hearing about the horrendous childhood abuse he might have received or the debilitating mental illness that’s destroyed him may seem too extraordinary to be real. It’s nothing I’ve experienced, just as the trauma to his supposed victim and the victim’s family is nothing I’ve experienced. Weighing those factors is an intellectual exercise in which no factor is in any way related to anything that occurs regularly in my reality. Knowing his favorite salad dressing makes him very real. They killed a real person. He liked blue cheese.

At an Oktoberfest a few years back, I was at a table next to the polka band when an elderly member of the ensemble collapsed. A friend of mine, the first person to respond, initially helped the old man by sitting him upright and straightening out his bent, wire-framed glasses. My friend gently positioned them on the man’s face in a way I’ll never forget. Something about that tiny detail, that one little act, will never leave my mind. My memory of the old man collapsing again, of seeing him get CPR and assistance from paramedics, and even my memory of learning later that he died en route to the hospital aren’t anywhere near as vivid as that one detail. I don’t know why.

In one of my recent trials, the victim showed up every day wearing his finest suits. They were neatly pressed. His shoes were always freshly shined. He read self-help books and manuals of inspirational bible verses when the court stood at recess. He talked about justice and faith every time he opened his mouth and sat eagerly in the front row of the gallery next to the aisle, wringing his hands in his lap. Of all the memories I have from that case, the single most striking thing was seeing him sitting there when the jury read the verdict and watching him storm out in disgust. I still recall his shiny shoes and his nice suit more than any other part of trial. Again, I don’t know why that is.

It’s nothing new for me to say that details are an essential part of persuasion, but it’s certainly worth repeating. A person’s last meal, the way someone put their glasses back on, or the appearance of a victim in court may not be important details to most people. They don’t have to be. In the context of trial or mitigation, a detail only has to be important to one person. If it lends even the slightest bit of credibility to what the defendant is saying or makes even one juror think of the defendant as a person instead of an evil beast, it’s worth it. Details are also something the other side may not have.

I read police reports every day. Most of them dryly recount events that would stand out as being extremely exciting in the context of most people’s daily life. Because of the blind faith most people have in authority, however, the just-the-facts-ma’am style of most reports seems to work. Officers appear to represent truth or justice or the American way or something like that. Just like Superman. Juries are happy to believe a boring retelling of a thrilling car chase or a dangerous assault for that very reason.

Your best weapon is probably details, and that’s probably because the officer won’t have them. I’m perpetually amazed at the things clients recall. Whether it’s the broken button on the officer’s uniform, the gum on the bottom of his shoe as he started kicking your client, or the fact he was wearing white socks, those are the details that might define the incident for a judge or juror. They may make your client and his story become just real enough to overcome the inherent bias against him and in favor of the police.

You never know which details are going to stick with which juror, if any stick at all. I can’t even predict which details are going to stick with me. Because of that, you should bring out all of the details, every single last one of them. Within reason, you should present the jury with the highest resolution picture you can. Maybe the grainy, dull, official version will seem a little less persuasive as a result.

In every trial I’ve done, the judge has given the jury some variation of Arizona’s standard “Presumption of Innocence” jury instruction. Here it is:

The law does not require a defendant to prove innocence. Every defendant is presumed by law to be innocent. You must start with the presumption that the defendant is innocent.

By “some variation,” I mean that a judge might add or subtract a word or two without changing the meaning. Paraphrasing is common, to a point. Changing an instruction isn’t, so you can imagine my surprise when a judge gave the following instruction earlier this year:

The law does not require a defendant to prove innocence. The defendant sits before you cloaked in the shroud of innocence. You must start with the presumption that the defendant is innocent.

I wasn’t pleased, and I made it known. I didn’t get exactly what I wanted, but I made my record.

I’ve wondered for months why the judge would use that language, and I can only conclude that it was intended to prejudice the jury against my client. Can anyone else think of a reason why?

People tell me I overreacted. People tell me it’s funny. One person called it “a dark instruction.” Another called it “the Harry Potter instruction.”

Good guys don’t need to be cloaked. Shrouds are for covering up things. It was carefully chosen language, and the effect was prejudicial. I don’t know where the judge got it, but that doesn’t really matter. The deck is stacked against defendants in the first place. The last thing the people judging need to hear is someone in a robe describing a defendant with words like that.