It Goes Both Ways
I was in trial this past week, so I didn’t have a lot of free time. I found myself working into the night to deal with things I couldn’t address during the day. I only had enough time during breaks to respond to the things that seemed the most urgent. One of those things was a frantic message from a prosecutor. She wanted me to call her back as soon as possible. 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 … Read entire article »
Justice v. Efficiency
The criminal justice system is broken. Many judges are little more than prosecutors in robes. 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 … Read entire article »
Judge or Jury?
Apparently, a recent study has confirmed the findings of an older study: 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 … Read entire article »
Filed under: Trial
Bad Reporting
Someone forwarded me this story recently. They thought I would be interested in the topic because I’m involved in related litigation. I was interested. Unfortunately, what I got from it wasn’t just information about what happened in the case, but also concerns about the abysmal quality of the reporting. “After 6-hour trial, Snowbowl protester still guilty,” the title reads. It’s amazing the words “still guilty” made it through editing. I assume that the author intended to somehow emphasize that, despite what she perceives to be a lengthy trial, the defendant did not prevail. “Snowbowl protester found guilty after 6-hour trial” probably would’ve conveyed that just fine. It also would’ve avoided the frustrating misconceptions that abound from the title she actually chose. Her title suggests the poor guy … Read entire article »
Filed under: Arizona Cases, News
Looking Foolish
There’s an experienced judge in a nearby jurisdiction who won’t rule in advance on whether he will allow the parties to ask their proposed voir dire questions. His position, which he makes very clear, is that he will rule on the questions when they’re actually asked. He isn’t kidding. If the state objects after you ask it, he rules. The opposite is also true. Otherwise, you can ask whatever you want. No ruling. It makes submitting your questions pointless, though every other judge in the jurisdiction orders you to do it in advance. 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 … Read entire article »
Being Present
In yoga, the focus is often on being present. It’s about understanding what’s going on but not judging. You should feel what your body is doing as you stay in the moment. 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 … Read entire article »
Filed under: Trial
Trogdor!
Figuring out when and to what extent to involve a client in the inner workings of a trial can be tricky. It’s his life and they’re his objectives, so you obviously can’t ignore him. He should know what’s happening and at times even have a say in what you do, but you also shouldn’t spend all of your time leaning over explaining why you can’t use your peremptory strike on the prosecutor or why the prosecutor’s “prejudice against gang-bangers” doesn’t bring up equal protection issues. Like pretty much everything in the world of criminal defense, it’s all about balance and exercising well-reasoned, independent, professional judgment in the midst of the institutional chaos of trial. Voir dire is a time when client input seems most important to me. … Read entire article »
Details
Jeff Gamso put up a post today that included, among other things, a portion of a detailed log about what one death row inmate did prior to his execution. For example, at 10:50:23, he asked for grape soda. At 10:55:36, he requested a “special meal” of a T-bone steak with A-1 steak sauce and a “Chief” salad with blue cheese dressing. 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 … Read entire article »
Filed under: Trial
Loose Ends
A good friend of mine makes his living managing musicians and musical groups. Driving back to reality after a weekend of fishing and grilling out with his friends last summer, the two of us discussed our respective careers at length. He pieces together very different types of work to make ends meet, and it works very well for him. It keeps things interesting, and he can make his own schedule. Things can get hectic, but things can also be very calm. His work life has obvious goal posts. The next booking or the next concert signifies a clear stop to a given task. He can tie up loose ends before beginning a new project. Although I have one very clearly delineated job, to some extent, I … Read entire article »
Filed under: Practice in General
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