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» Trial

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 »

Filed under: DUI, Trial

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

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