Brown & Little, P.L.C. » Trial
Losing at Trial
Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison. This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake up, … Read entire article »
Filed under: Clients, Practice in General, Trial
Preparing for Trial
I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted. Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly. My background is in music. In music, you do your best … Read entire article »
Filed under: Practice in General, Trial
"Looks Like I'm Out of Judges"
I haven’t been blogging because of my schedule. Too much work, not enough time. The end is in sight though. Or rather, the end was in sight. I was supposed to start a six or seven day felony trial this morning, and my schedule looked pretty bearable after that. The case is in Maricopa County Superior Court, and it’s assigned to the master calendar. I’ve complained about RCC before. The master calendar isn’t much better. Whereas RCC seems designed to make sure most lawyers appear lost at all times prior to an indictment, the master calendar seems designed to rush every case to trial after an indictment without letting the parties see the same judge twice. I haven’t figure out why anyone would … Read entire article »
Trial Reflections
I spent last week in trial. My client was charged with one count of aggravated assault. If he had been convicted and the state proved his priors and its allegation that he was on probation, he faced ten to fifteen years. The theory of the state’s case was that my client kicked his live-in girlfriend in the face five or six times, causing her “temporary but substantial disfigurement.” The jury acquitted my client after a four-day trial and an hour of deliberation. Like any trial, it was an interesting experience. A few things stood out though. I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. … Read entire article »
Filed under: Clients, lawyers, public defenders, Trial
They Were Practically Begging to Be Struck…
A lot of people have been writing about peremptory challenges lately. You can read some interesting posts here and here. In Arizona, the parties each get six peremptory challenges in felony cases not punishable by death. It’s not always easy getting a juror struck for cause, so those six “free” strikes usually feel like far too few. The problem is that most people think they can be fair even when they really can’t be. Who’s willing to admit to a room of strangers that they can’t possibly be fair and impartial? Recently, I learned that when drinking and driving might be involved, the answer is “almost everyone.” I had a trial a couple months ago where there was evidence my client drank alcohol prior to … Read entire article »
Trusting Prosecutors
In Arizona, victims can choose whether or not to be interviewed by a defendant or his attorney. In pretty much every case, I send the prosecutor a letter asking whether the victim would be willing to submit to an interview. Victims almost never want to speak with me, so I’m forced to trust that the prosecutor actually asked them about consenting to an interview. I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a … Read entire article »
Filed under: Professionalism, Prosecutors, Trial, Victim's Rights
Criminal Defense Trial Records
I’ve recently had a few clients mention to me that they had initial consultations with certain Phoenix-area attorneys who boasted jury trial records of more than twenty acquittals without a single conviction. I would have assumed they were exaggerating if they weren’t all saying the same thing. Maybe I’m wrong, but it seems to me that attorneys with jury trial records of twenty or more wins without a loss are exceedingly rare. I’m certain there are attorneys out there with records like that, but multiple attorneys within a five-mile radius? In my experience, a case that’s close to a guaranteed winner will get dismissed prior to trial more often than not, so the ones that go to trial tend to have a less than perfect defense. That’s … Read entire article »
Filed under: Practice in General, Trial
Lawyer Stage Fright
I’ve seen plenty of attorneys let their nerves get the better of them in the courtroom, but I rarely hear attorneys discuss stage fright. Why don’t we talk about it? It negatively impacts the quality of representation for many defense attorneys, and I’ve seen prosecutors spend whole trials looking like deer in headlights. I know a fair number of prosecutors and defense attorneys who desperately plead out their cases because they fear trial. I don’t remember anyone discussing ways to deal with stage fright in law school, and I don’t think most public defender or prosecutor training covers it in any real depth either. The advice seems to just be “keep doing it until you aren’t nervous anymore,” but for some people, just doing it over and … Read entire article »
Filed under: Practice in General, Trial
Should We Really Try More Cases?
I don’t completely agree that defense attorneys need to try more cases. I think a lot of defense attorneys are plea mills. Those attorneys definitely need to try more cases. However, trial is often too risky an option for many clients to seriously consider. I can’t blame them. In Arizona, mandatory minimums give the state an incredible amount of leverage. Someone accused of a dangerous offense or a dangerous crime against children is guaranteed a stiff prison sentence if they’re convicted. If you have any prior felony conviction and are accused of a felony offense not involving personal drug possession, you are not eligible for probation. You must go to prison if convicted. If you have two allegeable prior felonies and are accused … Read entire article »
Filed under: Practice in General, Trial
Gotcha!
May 27th, 2010 | 3 Comments
When I was in law school, I was fortunate to attend many hours of public defender training. I can still clearly remember the cross-examination teacher describing his technique for impeaching a witness. He recommended something called “the 3 Cs.” The 3 Cs stood for “commit,” “credit,” and “confront.” I don’t know if it’s his thing or something widely known to trial lawyers, but it’s a pretty solid, general approach to impeachment. Let’s say you have an officer who’s saying something highly incriminating, something that he didn’t put in his police report. You want to impeach him with that omission. Using the 3 Cs technique the teacher recommended, you’d first commit the officer to his current statement. Make sure the judge or jury understands exactly … Read entire article »
Filed under: lawyers, Trial