Archive for the 'Trials' Category

Lawyer Dicusses His Jury Service

I would like to serve on a jury some day so that I can view a trial from the perspective of a juror.   Brian Pedigo, a lawyer who has a general civil law practice in Orange and Riverside counties in California, recently had the opportunity to serve on a jury in a murder trial.   I asked Brian if I could do a Q&A with him about his jury service.  He agreed and my questions and his answers are listed below.  Since I am not paying Brian for his interview, let me take this opportunity to give him a plug.  If you are in California and need a personal injury lawyer, bankruptcy lawyer, or contract lawyer, visit Brian’s website and then give him a call.

Without further ado, here are the questions I presented to Brian:

1. I understand that you recently served as a juror in a criminal case.  What type of case was it?

A murder case.

2.  What was the verdict?

Guilty of second-degree murder; a further finding of firearm use.

3.  How long did the trial last?

The jurors served 18 days, which included about a week in jury selection.

4.  Was it tough to leave your practice for that amount of time?

Yes, it was very difficult.  I did not have much time to work on my existing cases.  I had to hire a special appearance attorney twice — one for a dispositive motion to dismiss.

5.  How were you able to get your legal work done?

I did some in the morning before duty and some after duty.  I also had insomnia a few nights and worked in the middle of the night.

6.  Did you think that you were going to get picked for the jury?

I thought that I would for sure be kicked off because I told the attorneys that I had spent a year as a clerk at the district attorney’s office. I also told the defense that I wanted to become a cop and applied at several agencies.  After the trial was over the defense told me that it kept me on because it wanted someone who could explain reasonable doubt.

7.  Are you glad you served on the jury?

Yes. Even though it was a great sacrifice of my time and money, I learned a lot of valuable lessons.  I believe the experience will make me a much better trial lawyer.  I know what the jury, including myself, either did or did not like in the attorneys’ presentation of the case.

8.  Was there anything that, in your mind, the lawyers did particularly well? Particularly bad?

The prosecutor in the case was trying to conjure up emotion in the jury by being very dramatic — like pointing his finger at the defendant in a very accusatory fashion. His over-the-top prosecution style put a very bad taste in my mouth. In the future, the prosecutor needs to stick to the plain and simple facts, otherwise the attempted emotional manipulation will backfire.

The defense did not make an opening statement.  No one, including myself, had any idea what the defense’s theory of the case was.  We were all waiting for the one piece of evidence that would provide us with some reasonable doubt as to the accusations by the People.  The defense focused its entire case on trying to impeach witnesses.  This was not good enough to make the corroborated testimony of five witnesses less believable.

9.  I understand that you were elected as the foreperson of the jury.  What was that experience like?

At first I was nervous about trying to wrangle a group of twelve people, most of which were twice my age – and one was three times my age.  However, my fellow jurors elected me foreperson, and I tried to make the process democratic, but controlled.  Some of the jurors like to talk a lot, so I suggested a strict rule that we would go around the table and have five minutes to share our thoughts.  After a person’s five minutes was up, the person was cut off.  Once we went around the table once, we were all on the same page with a finding of murder — but we had to decide 1st or 2nd degree. We all went around and spent three minutes each talking about the facts that support the required elements.  This was enough time to find out that we were all unanimous on second-degree murder.

10.  Is there anything that you did as a foreperson that you think other forepersons should do?

Like I mentioned above, there needs to be some order and structure or else it becomes a group of cackling hens.  It’s not good for more than one person to be speaking simultaneously.  A good foreperson should keep everyone focused, on-track, and following the law. A foreperson should simplify the jury instructions on a whiteboard for everyone to keep in the forefront of their minds.

11.  Did you gain any insight into how jurors think?

Yes. Jurors have their minds made up before they enter the deliberation room, even though they’re not supposed to.  It takes a very persuasive juror to change the mind of another. Also, jurors use common sense almost to a fault.  Sometimes their common-sense opinions are not relevant or related to the actual law.  Attorneys need to hammer home that the jury’s job is to match believable facts/evidence up with the law.  There needs to be a focus on the law, because jurors will not focus on the law when acting on their own instincts.

12.  Did you teach the other jurors anything?

I taught the jurors what the word “and” means in a typical legal context.  Some (most) legal jargon is written in the conjunctive, which signals that all of the elements listed in the sentence are required.   I also taught the jurors what premeditation does not mean.  Most of the “teaching” was just re-directing attention to what the actual law and instructions for us were.

13.  Did you want either the prosecution or the defense to give you something you wanted to know?  If so, please explain.

YES!  The defense left so many glaring holes in this case, it caused me to lose sleep.  There was some testimony and evidence that suggested that manslaughter could have been an appropriate lesser charge.  However, we were not presented with an option for manslaughter.  Also, there was a lot of evidence of substance abuse by the witnesses and the defendant, but no experts testified about what crystal meth, alcohol, and/or marijuana does to the brain.  I waited  for the defense to offer some kind of negation of intent to kill, but that argument (and evidence) never was presented to the jury.

Even though a defendant is presumed innocent until proven guilty, and the defense theoretically could say nothing the entire trial, I still felt it was a grave error for the defense to not give an opening statement in order to prime the jury for its theory of the case.

14.  If you could give advice to the prosecution what would it be?  The defense?

Prosecution: don’t look or convey an emotion that makes you appear that you enjoy accusing people of things.  Don’t smile or smirk during witness examination — ever — unless the judge makes a joke.  When handling a firearm, do not point it at the jury — have gun manners.  Point it always at the ground, even though it’s unloaded.  Don’t ever get so close to the jury that you’re touching the bar that separates us from you.  We need our space — don’t invade it.  Don’t re-enact what happened with your body, pointing your finger in a juror’s face as though you are going to pull a trigger on an imaginary gun.  Do not overstate evidence or twist it in such a way that it’s clearly being twisted in an accusatory or negative fashion.  Clarify the law for the jury and break it down into elements.  Make it easy for a lay person to put all the pieces together.

Defense: plant seeds of reasonable doubt from the beginning.  Don’t skip an opening statement!  Do not wait until closing argument to suggest an alternative possibility of facts that were never suggested throughout the entire trial.  If you have a likable defendant, the jury wants to save him or her.  Give the jurors a valid fact to hang on to and hammer on it until it’s deeply embedded in their minds — repetition is key.   If you have a critical theme or something you want the jury to actually remember, you need to say it nine times — not once, twice, or three times.  Say the same thing in different ways throughout the trial as many times as you can.

15.  Is there anything else you wish to add?

Jurors are placed in an awkward and unnatural position when they are ordered by the Court “not to form or express any opinion on the matter until such time it is submitted to you for your deliberations.”  Jurors are given heavy, confusing, and emotionally charged facts throughout a trial, and they cannot discuss it with their spouse, loved ones, religious leaders, therapists, or with each other.  That is a lot of weight to carry around.  I hope that one day this changes and jurors could have an outlet to process what’s in their minds and emotions as they go through a lengthy trial.

It is also a very sad thing to be part of a process that convicts a person of a very serious crime.  The defendant was likable, seemed reformed and peaceful, intelligent, and now we all know (or assume) that he is going to face a severe punishment. That is a tough pill to swallow. The defendant seemed to be a person I would invite into my home — not a person I would lock away in a prison for years.  I hope that the judge in his wisdom has as much mercy as possible on this particular defendant.

Jeremy Richey

Brian Pedigo

Does the State Know Everything About a Case?

Answer: not always.

Texas criminal defense lawyer Mark Bennett recently wrote the following words in a blog post.

I suspect that some prosecutors come into the practice (from the high school – college – law school track with no intervening real-world experience) thinking that the State holds all of the cards. This is often true but, with a competent defense lawyer, probably not more than half the time. By the time we get to trial, no matter how much the case looks like a whale (to you and even to me), I guarantee that I’ve got something up my sleeve that is going to make you sweat.

These words are very true. When I was a prosecutor, defense attorneys usually presented something at trial that I did not see coming. Furthermore, in Illinois, this is particularly true in misdemeanor cases because the State does not have a right to discovery. (Discovery is where the parties in a lawsuit exchange information about the case. In a criminal case in Illinois, the “lawsuit” is between the People and the defendant.)

How does Mark get that “something up [his] sleeve?” I only know Mark from reading his blog, but my guess is that he gets it through preparation, preparation, and preparation. Some signs of a good attorney are that the person works hard, knows his cases, and is always prepared. Preparation goes a long way to make up for a lack of charisma or good looks. As Thomas Jefferson said, “I’m a great believer in luck, and I find the harder I work, the more luck I have.” How true this is.

Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.