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Recent Blog Posts
My Voir Dire Fetish
Anne Reed has posted a list of my recent posts on jury selection. Five posts on jury selection in four days is almost embarrassing (especially since I posted nine other times in those four days - is that writing or typing?).
I really love jury selection, though; it's my second-favorite part of a trial. (My favorite part of a trial is taking a two-word verdict, (a) about which there's not much to say; and (b) which, sadly, doesn't happen in every trial. My third-favorite part of trial is cross-examination; dead last is the time between the end of the my closing argument and the reading of the verdict).
Trials are won and lost in jury selection. The best voir dire won't overcome the worst set of facts... but neither will anything else. Voir dire sets the tone for the trial and gives one side or the other the edge; that edge is the jury's view of the theme of the case. Is the case about "getting drugs off the street" or "making the government follow the law?" "Protecting children" or "preventing false convictions?" "Sending a message" or "being fair?" The jury is going to come out of jury selection with either the government's or the defendant's theory in mind.
The Bar Poll
The results of the Houston Bar Association's annual Judicial Evaluation Questionnaire are out. Here are the results for Houston's federal judges and Harris County's Criminal District Court and County Criminal Court Judges (they're excerpted from the results for all judges touching Harris County cases, including appellate judges, here).
The numbers include number and percentage of "outstanding," "acceptable," and "poor" votes in several different categories. For an overall picture of lawyers' perception of the Houston bench, here's how I crunched the numbers: I took the percentage of "outstanding" votes in the "overall rating" category and subtracted the number of "poor votes" (I ignored the "acceptable" votes because "acceptable" is the very least we should require from our judiciary to come up with a "Judicial Competency Index" for each judge.
The federal judiciary have JCIs between -33.8 and +77.6, with a mean of 15.97. Three out of 9 federal judges received negative JCIs.
Getting the Jurors' True Feelings
In commenting on my post, A Prosecutor's Voir Dire: Lessons, Gideon wrote:
I'm just afraid of jurors not answering questions like: "Do you have any preconceived notions of what a sex offender looks like" truthfully in front of others.
That's a valid fear whether the others are their fellow venirepeople or two lawyers, a judge, and a court reporter. The problem, no matter the size of the audience, is that such preconceived notions, upon reflection, might seem silly or ignorant to the juror who holds the opinion.
Whether in front of 60 people or 4, how do you get a truthful answer to that question?First, why do you want to get a truthful answer to the question? Because you suspect that your client looks like a sex offender (if you were certain that your client was nobody's idea of a sex offender, you would want that fact to do its work subliminally). Why do you suspect that your client looks like a sex offender? Maybe because, to you, he looks a bit like a sex offender.
Prior Inconsistent Statements
Anne Reed of Deliberations blogs about Prior Inconsistent Statements. It's good to know what jurors think of such statements, both for the sake of our cross-examinations of government witnesses, and for the sake of our clients who probably haven't always told the whole truth about the incidents that brought them to criminal court.
A Prosecutor's Voir Dire: Lessons
As promised, the lessons I learned from the prosecutrix's voir dire today:
1. If you're prosecuting a child sex case, you can do a bad voir dire with impunity. The prosecutrix did three of the four bad things to do in voir dire (See Bad Voir Dire / Good Voir Dire): she lectured the panel extensively; when she asked questions they were almost all yes-or-no; and she asked for a show of hands, then said, "for the record, I see no hands raised." She didn't react badly to "bad" answers because she didn't get any "bad" answers. She could have hurled abuse at the panel for an hour, taken the first 12 jurors, and still had a jury that wanted to kill the accused. A prosecutor can't lose such a case in voir dire but she might, if she performs a competent voir dire, win it there. (Illustrative of two maxims: 1) being a prosecutor doesn't necessarily prepare you to be a defender; and 2) a prosecutor can win all his cases and think he's brilliant; a defender wins some and knows he is.)
Why I Do It
A law student reader wrote: "I definitely do enjoy reading your blog and will say it has me rethinking my relegation of a criminal law career." (I had never seen "relegate" used without a destination; thanks to my correspondent for this elegant locution.)
I went into law school thinking that I wanted to be a criminal-defense lawyer. I'm not quite sure how I reached that conclusion, except that for as long as I can remember I have sympathized with the underdog and spoken up for the apparent transgressor. Borrowing the words of the late great Stuart Kinard, I have always "protected the Lord's children who have fallen short of perfection from the wrath of those who believe they have attained it."
For my first-semester criminal law class I had Professor Irene Rosenberg (whom I would call one of the worst teachers ever if she didn't have competition like this). Irene's class was so stultifyingly boring that I decided that criminal law was not for me any more, and that I would go chasing after the money working for some corporate firm. Looking back after 12 years of practice, I don't see how anyone could possibly make criminal law appear so uninteresting except with a deliberate effort. If I can counter Irene's efforts and turn one law student back on to the defense of the friendless, the broken, and the lost, then I will have accomplished something major.
In Trial Again... Almost
This morning I went to court in Richmond (Fort Bend County, one of those abutting Harris County, and an area from which many people commute to Houston), geared up to try an indecency with a child case. When I got to court, I learned that another indecency case was up before mine, and that it would probably go to trial. So after an hour or so of sitting in court, my client left with a new court date in October. So in October I'll have to get warmed up again to try this case. (Is this something that happens to defenders in other jurisdictions, or is it unique to Texas?)
I could have left with my client, but instead I volunteered to help the defender pick a jury on the case that did go to trial. So as I write this, we're on our lunch break. I'm in the county law library (free Wifi) and I'm about to head back to the courtroom.
The judge, who is new to the criminal courts, questioned the panel briefly before lunch, we met with a few of the jurors about matters sensitive to them at the beginning of the break, and we'll return in 15 minutes for the prosecutrix, formerly of the Bronx DA's office (she claims not to have read David Feige's book, "Indefensible") to talk to the jury. I'll report back later on any lessons I discover in her voir dire.
Three Rules for Dealing with the Media (When You Can't Talk to Them)
From Houston trial lawyer Rusty Hardin, who spoke at the TCDLA/HCCLA Dealing With the Media seminar last week, three rules for dealing with the media when talking to them won't help your client:
1. Return their calls.2. Tell them the truth.3. Tell them why you can't talk to them.
Five Questions
One of our speakers at the Dealing with the Media and Fighting Like You Mean It seminar last Friday gave us this tip for dealing with the media the next time they catch you coming out of the courtroom. Answer five questions for them:
Who are you? (What is your name? Spell it.)What happened in court?What does that mean?How is your client doing?What happens next?
Then thank them and end the interview. This gives the reporters and cameramen something to take back to their boss so they don't have to hound you, but doesn't add any fuel to the publicity fire.
The Presumption of Innocence
I heard something good last week:
"The presumption of innocence means ‘he didn't do it until they prove he did.'"
(I doubt that the speaker, Houston trial lawyer Rusty Hardin, had quantum mechanics in mind when he said that [see Schrödinger's Jury], but I think his is a quantum view of the Golden Thread.)
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