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Rules
Jury consultant Dennis Elias (@JuryVox) twitted:
At opening statement you have no standing with the jury. Don't tell them what the evidence will show; story them the evidence.
Break that down into a rule (tell the jury the story of the evidence) and a reason (because you have no standing with the jury).
The reason is not necessarily true. If you're lucky, in any particular case it'll be dead wrong; by the time of opening statement, you will have standing with the jury because you will have formed a group with them.
But the rule (if you disregard the disturbing verbing of the noun "story") is still a good one.
The test of a good rule is not whether it is always right (rules seldom are) but whether it is right more often than the alternative-which could be another rule or no rule at all. I hope you'll read my Simple Rules for Better Jury Selection in that spirit.
Jury Selection: Simple Rule 2: The Blind Date Rule
You may not have noticed this, but people don't like lawyers very much. Or rather, they don't like people acting like lawyers very much. Once they get to know them, they like the human beings behind the label just fine, but it's not the jurors' job to go behind the label, and if you define yourself as "Big Important Attorney Man" they're not going to. I bet a young lawyer $50 that he would get laid more if his business cards said "Self-Important Asshat, Esq." instead of "Attorney at Law". Not the easiest $50 I've ever earned, but it was easier than stringing barbed wire.
(Not unrelated: screw up and stay happy.)
So Rule 2 of the Simple Rules for Better Jury Selection was to be The First Date Rule:
Treat jury selection like a first date with everybody on the jury panel.
"Blind date" is a better metaphor, since the parties to a non-blind date have presumably each chosen the other, or at least formed first impressions. In jury selection, neither the lawyer nor the jurors have exercised any selection before arriving in a room together.
Treatment For People Who... Don't Need It?
Harris County Assistant District Attorney Roger Bridgwater has said of the DWI DIVERT ("Direct Intervention using Voluntary Education Restitution and Treatment", I am reliably informed, and not "maybe this will make the voters love us", as I suggested before) program:
In this 1980 Rand study, 54% of alcoholics were problem drinkers four years after seeking (not being coerced into) treatment. According to the earlier 18-month study of the same cohort, ten percent reported abstention for the first six months and the 12th through 18th months. The other 90%, if their treatment had included Roger's zero-tolerance policy, would have wound up doing 30 days in jail.
Jury Selection: Simple Rule 1: The Nike Rule
Rule 1 of my Simple Rules for Better Jury Selection is the Nike Rule: Just do it.
It's not a very sexy rule, so I won't lead off with it when I'm speaking in Waco in September (I'll probably put it at the end for the few faithful who stick around); I'll give you Rule 2 (The First Date Rule) soon, so don't feel too ripped off.
Just do it. A rule on three levels.
First, the view from 30,000 feet: without picking juries, you will never learn how to pick a jury. Reading about jury selection is better than asking other people for their scripts, and watching jury selection (good, bad, or ugly) is better than reading about it, but there's no substitute for getting up in front of 24 or 60 people and trying to get them talking about what they feel and believe. Better you should do all three-study, watch, and do-but if you have to choose one, do it.
Reasonable Doubt Tonight, 7/30
Prosecutors, do you want to learn about the new DIVERT program that your office adopted without consulting with you?
Defense lawyers, do you want to learn about the ethics of ex parte agreements with judges about minimum sentences in DWI cases?
Incumbent judges,* do you want to find out who is going to support your reelection campaigns when the criminal defense bar refuses because of your backroom collaboration with the DA's Office?
MADD mothers, do you want to learn when a deferred adjudication is not a deferred adjudication?
People of Harris County, do you want to learn what is being done to save you from Demon Rum?
Tune in to Reasonable Doubt at 8pm tonight on Access Houston (streamed on HMSTV.org). Hosts Neal Davis and Todd Dupont will welcome Roger Bridgwater, and all of your questions will be answered....
Or avoided....
Who am I kidding? Most likely avoided.
* Except for Bill Harmon and Larry Standley, who didn't play ball with the DA's Office.
Surgin' Diversion Coercion
It's against my nature to continue letting Houston DWI lawyer Paul Kennedy pick the low-lying fruit of the Harris County DA's new DIVERT (the acronym, as I understand it, stands for "maybe this will make the voters love us") DWI diversion program.
This program is prosecutor Roger Bridgwater's baby. I believe Roger's heart is in the right place. He is trying to help people, but despite the best of intentions, the program is an excrescence. As Paul points out, it's "justified" by a bunch of contextless statistics. Its planned implementation is highly coercive: first offenders who decline to participate in the program or take probation will be offered 30 days in jail. And its effectiveness is purely speculative.
Pat Lykos announced the plan before it was fully formed. Roger Bridgwater and Pat Lykos had no idea what they were doing when they met with the press about the program, and it was clear from Roger Bridgwater's "informational" meeting with the criminal defense bar today that the Harris County DA's Office still doesn't know what it's doing, any more than it did when it was decided that misdemeanor prosecutors would try whale cases.
Boucher Revisited
If I read The Volokh Conspiracy, I would've seen and (again) blogged about this back in February:
U.S. District Judge William K. Sessions III in Burlington handed down an opinion sort-of-reversing Magistrate Judge Jerome J. Niedermeier's order quashing a grand jury subpoena for:
all documents, whether in electronic or paper form, reflecting any passwords used or associated with the Alienware Notebook Computer.... seized from Sebastien Boucher at the Port of Entry at Derby Line, Vermont on December 17, 2006.
I say "sort-of-reversing" because between Judge Niedermeier's order and Judge Sessions's opinion, the Government decided that it wanted Boucher "to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury", rather than produce any document reflecting a password (Sessions Opinion p. 1).
Simple Rules for Better Jury Selection [Updated]
An evolving list:
Accessibility
I've made a small change to improve accessibility for the vision-impaired. Notice the pulldown menu labeled "Theme Switcher". The default theme is Wasteland; you can pick one of the other themes, some of which (WhitePress [though there's a comment display bug at the moment], possibly WordPress Classic) are more accessible.
Enjoy.
A Man Among Prosecutorial Bloggers
Anonymous Harris County prosecutor / blogger "Arthur Seaton" at Saturday Night and Monday Morning? Wuss.
The anonymous Harris County prosecutor / blogger at Life After Esq.? Wuss.
Harris County prosecutor Jeremy Gordon, blogging under his own name at The Minority Report? Definitely not a wuss.
The first two cratered their blogs in the last week-because of blowback from Life After Esq.'s overshare about baby prosecutor school in Austin, I guess.
I'd like to think that in Life After Esq.'s shoes I'd've taken down the post with too much information, and gone on blogging, albeit a little more cautiously; I read Arthur Seaton's blog regularly and don't think it should have affected his work at all.
I'm sorry to see both go, but in their circumstances, I don't know what I would have done. Which is why I'm so pleased to see that while he is taking a break to regroup, Jeremy, who has not needed the cover of anonymity in three years of blogging, is not retreating from what he has said in the past.
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