Grandma, Should I Plea? (A Largely True Story)

“I have an idea – humor me on this.”

I would never have imagined saying these words to a client on the eve of trial. We were in court for a last-minute settlement conference. The jury panel would show up the next day. My client was about to make the most important decision of his life.

I showed my client a quarter that I had pulled from my pocket: “Heads you go to trial, tails you take the deal and go home today.”

My client’s grandmother sat in the first row of the courtroom. She clearly wanted to see what I was going to do next and she did not look at all alarmed at the proposition I had just made her grandson. Meanwhile, the district attorney paced in the back of the courtroom with his cell phone against his ear, trying to postpone a fundraiser for his upcoming political campaign.

Before we had come back into the courtroom, while we were in the courtroom’s attached holding cell, my client had asked me if he could ask his grandma her opinion on whether he should take the district attorney’s plea bargain or go to trial. I told him that he could, and I offered to tell the DA to do his campaigning outside the courtroom. “Fuck it, I ain’t got anything to hide. I didn’t do this and he can hear me say it.” I considered that a knowing and intelligent waiver of attorney client privilege.

My client’s resolve liquified – more than a little – after discussing his options with his grandma across the courtroom guard rail.

My client expressly asked me to share my impressions of his case with his grandma, so I gave them to her. She understood that my client was so drunk on the night of the incident that he had no idea that his friend was going to pull a knife, or that he was going to stick it in the chest of his sister’s ex-boyfriend who happened to be at that same party. She knew that he fled the scene only because he was afraid that the other people at the party were going to come after him for what his friend had done, and besides, the stabber was also my client’s ride to the party. She understood that her grandson had not heard his friend call out the name of his gang before sticking his knife between the victim’s ribs.

She also knew what the DA was going to argue: the red belt my client had worn in high school, the picture of him beneath a flag depicting a gang-related symbol that he used for his Tinder profile, and the red shoelaces on his Nike Cortez shoes proved that he and his friend were members of the same semi-organized criminal gang, and that they orchestrated this stabbing specifically to spread fear of their gang. She didn’t need me to tell her the tilted ratio of frightened white people swimming in our local jury pool, or that these same white people might believe the DA’s outlandish theory. If the gang enhancement were to be found true on top of the assault charges, my client would spend the next 24 years in prison. The only bright side would be that at his age, my client would be released by the time he was 42, with not an insignificant amount of life left to live.

I explained to the grandma that my client had one key that would let him go home; if he pled to just one of the several violent felonies he was accused of and admitted that he did it “for the benefit of a criminal street gang,” he would be released that day. The catch was that my client would be on gang probation for 5 years, and that gang P.O.s carried side arms and pat-searched the probationer and anyone in the home whenever they came for their unannounced visits. If they found any reason to violate his probation, he could wind up serving those 24 years anyway.

He was hopelessly torn, so I suggested the coin flip.

I tossed the coin into the air. It spun. I caught it as it fell. I slapped it against the top of my left hand. I failed to notice that the DA had hung up the phone and was no longer talking. I began to lift my fingers, as though I was about to pull away my hand and show the coin face underneath, but I did not pull my hand away.

“Now admit it – there is one side that you want to see more than the other.”

My client pulled in his lower lip, and nodded. “I want a trial,” he said. I kept eye contact with him while putting the quarter back in my pocket.

“You’re not going to show me what it was?” My client asked.

“No. Why does it matter? We were never going to decide this with a coin flip.”

My client sighed, straightened his back, and nodded his head again. His grandmother beamed with pride while her hands still clutched the guard rail in fear. Both thanked me for helping with his decision.

I had gotten the coin flip idea from an old episode of Frasier – I doubt that they would have wanted to know that.

Now, if you readers are wondering what happened in this case, whether he won or lost, I ask you whether that matters, and whether a decision that important should be determined by win or loss.

Respectfully Submitted,

Norm

Let Me Tell You About my Morning…

When you ride as a passenger in someone’s car, does the driver then get access, dominion, or control over your anus? I thought the obvious answer was “no, are you kidding me?” This week, I tried — and failed — to convince a judge to share this point of view.

My client stood accused of possessing a controlled substance with intent to sell. This whole thing started 9 years ago when my client injured his back on a construction site at the age of 16. When the prescription opiates ran out–which was right around the same time my client’s various doctors realized that each had been writing him separate prescriptions–he turned to buying them from other people. Codefendant was one of these folks. Eventually, both of them realized that heroin provides the same high and was much, much cheaper and easier to get than the prescription pills.

Client and Codefendant drove from their homes in Santa Asphalt to Stucco Valley to visit their dealer. My client left with 2 grams of heroin, which he stowed in his sunglasses case. Codefendant left with 20 individually-wrapped one gram servings of heroin stuffed into his rectum.

Unfortunately for these two, the Stucco Valley Police Department had been watching the comings and goings from their dealer’s house. They watched my client pull away from the curb and waited for him to (inevitably) roll slowly through the stop sign at the nearby intersection. A routine traffic stop turned into an arrest and search. Client and Codefendant were handcuffed, and placed in the back of the patrol car. Once inside, Codefendant tried to discreetly remove his contraband by planting his feet against the cage that separated him from the front of the police car, arching his back until his face pressed against the rear window, and grunting as he tried to slip two hands in handcuffs into the rear of his pants.

The cops noticed, became curious, and conducted a more thorough search.

This client became my client after his probable cause hearing, during which a narcotics investigator testified that the codefendant had too much dope to be consistent with personal use and that it was more likely for sale or resale. After the hearing, the District Attorney charged both Codefendant and my client with possessing the heroin with intent to sell. My client was accused of possessing all of the dope, including the codefendant’s.

I didn’t have much of a defense for my client regarding the amount found in the sunglasses case. However, I thought I had a pretty decent argument that my client did not possess the amount found inside the codefendant.

I hoped to save my client from having to go to jury trial by filing a motion to dismiss (aka a “nine-nine-five”). In this type of motion, the judge assumes that all the information that came out during the probable cause hearing is true. The defense lawyer then argues that even accepting the truth of the evidence, it does not provide probable cause for the charges.

My “opposing counsel” was actually a 3rd year law student; her supervising attorney had obviously believed that this argument was an easy enough “win” to hand to someone who had neither studied for nor passed the bar examination. I really hoped they weren’t correct–not on this case.

“Opposing counsel claims that this court must draw all reasonable inferences in favor of the charges,” I said during oral argument on the motion to dismiss. “Let’s start by reminding ourselves of what the word ‘inference’ means. An inference is a statement that has not been expressly proven, but whose truth is guaranteed based on other truths. We must also remind ourselves of the legal definition of ‘possession.’ According to case law, a person can possess something without it being on his person. However, the defendant must have more than ‘mere access’ to the location where drugs are found; the prosecution must also prove that he had the right of dominion and control over the area where they were found.”

“Now, the prosecution has conclusively proven that the codefendant received a ride from my client, and that at the time of this ride, Codefendant had 20 individually wrapped bindles of heroin stowed away in his body. However the District Attorney asks this court to infer – from his role as the driver – that my client not only had access to the codefendant’s anus, but the right to dominion or control over it. These ‘inferences’ cannot be guaranteed from these facts; I submit that the District Attorney’s theory is wholly unmoored from the facts and we respectfully request that the court dismiss the charges.”

The court denied my motion.

I can only imagine what the jurors will make of this case when it goes to trial.

Respectfully submitted,

Norm

Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.

-Norm

Cry Havoc II: Cry Harder

In Part I of this tale, the County of Santa Asphalt entrusted me to defend a man who robbed a store of its beer at knife-point. After a series of clumsy, ham-fisted questions by the judge and prosecuting attorney, all 18 of my potential jurors had taken the hint that “yes, I can be fair” was the “right” answer. I knew full well that my client had no chance;  my only hope for saving my client from this jury was by making it more likely that they would turn on each other. So now it is my turn to question this 18-pack:

“Mr. DeGuerre, you may begin,” the judge intoned.

I stood and walked to the front of the jury box. This particular judge was known for letting the attorneys take as much time as they wanted (within reason) to spare himself the trouble of asking detailed questions. The real limiting factor was the attention span of the upstanding citizens before me whose regular lives were being interrupted.

Unfortunately, I started with almost no useful information about them. I had so little time to find it.

I looked at the file folder that held my notes. Every district attorney and public defender learns to keep their jury selection notes in the same manner. We start with a blank file folder and arrange 18 post-it notes inside of it in a 3×6 array. Each post-it represents one seat; the top two rows are for the 12 seats in the  jury box and the bottom row is for the six who will replace jurors in the box as they are excused. On each post-it, I write notes about the person currently occupying that seat so I don’t unnecessarily repeat the same questions as the DA. One-by-one, the six seated in the front will replace those in the back 12 as they are dismissed.

Here goes nothing…….

 

When I walked toward the jury box to begin my questioning, I carried this folder with me. I glanced at it one last time before opening my mouth, and wondered for a split-second why I had brought it at all for all of the good it did me.

I clapped my folder closed and looked up at the 18 pairs of eyes, all of them wondering why real court was so much duller than court on TV, why none of the lawyers were even remotely attractive, and what on Earth I was possibly going to say to defend my client.

What on Earth was I going to say?

I then heard a whisper inside my head, a whisper replete with learned over-enunciation. John Adams’ ghost had returned, and reminded me that there was one sure way to lose a case through poor jury selection:

“The most frightful jury is a herd of sheep lead by a wolf.”

Jurors can be divided into two basic types: leaders and followers. Followers will outnumber the leaders. Many of the leaders will harbor biases against my client or my defense; I cannot hope to remove them all. My best option is to ensure that one or two bad leaders are not left with a flock of followers. When in doubt, followers will side with authority–or whomever is the most vocal–and convict my client.

John Adams’ ghost then warned:

“Don’t allow bad jurors to poison the well. Don’t allow good jurors to hang themselves.”

Every so often, a juror will land in the jury box who might single-handedly turn the tide in favor of your client. Perhaps they believe in the wholly Constitutional doctrine of jury nullification. Perhaps they take issue with the state prosecuting “victimless crimes” (these jurors are easy to spot, given their love of wearing sunglasses indoors). Perhaps they have heard or experienced too many colorful stories of police harassment. Unfortunately for my client, these jurors disqualify themselves through their pathological honesty; the judge will ask them if they can be fair, and they will answer honestly that they cannot give the state or its agents a fair shake.

In contrast, the retired police officer, the concerned mother who worries that acquitting your client will endanger her children, and the victim of a crime committed by a guy who looks alot like my client, will all assure themselves and the court that they can nevertheless be fair and impartial jurors in my client’s case. These magic words will keep them in the jury pool until I dismiss them myself.

No matter which group a juror falls into, he or she will talk for as long as I let them. I only need to hear a handful of words before I sort these jurors into one of the two categories. The favorable jurors will blurt out their inability to be fair if given enough opportunity, and the biased jurors will spout endless unfounded prejudice into the jury pool in the same amount of time. For the sake of everyone’s patience, I need to identify who goes in which box as soon as possible. If I tarry, the few good jurors will disqualify themselves. In that same amount of time, the bad jurors will spew their sewage into the rest of my jury pool.

And then, the long con:

“Delay the inevitable; sew discord.”

A jury cannot render a verdict of guilty unless all 12 agree. But to save my client, I need not convince all 12 of my client’s innocence. I simply need to keep them from agreeing with each other. A jury that cannot reach a unanimous verdict is called a hung jury; prosecutors often react to hung juries with a drastically reduced plea bargain. In a handful of cases that result in a hung jury, charges are dismissed outright. A hang is often a more attainable outcome than an acquittal and as good as a win for my client.

With this in mind, I began to question my jurors. I did my best to hear at least one original thought – not in the form of “yes” or “no” – from everyone in the jury box. I did not have time to actually know these people. I did, however, have just enough time to stereotype that person. I asked about their work lives to see if they had ever found themselves standing up to a group of their peers. I imagined potential arguments among the prospective jurors in my head, and I decided which jurors would create the most plausible stew for dischord.

I returned to my seat with 18 hunches.

His Honor dismissed the jurors who had made it clear, during my questioning, that they could not be fair. Once this was done, the DA and I began the “shoot-out.” In most felony trials, each attorney may dismiss any ten potential jurors for almost any reason she pleases. Each attorney alternates, and on each turn the attorney may strike a juror or pass and save their challenge for later.

“The first challenge is with the defense,” His Honor said while appearing to count the number of plaster tiles on the ceiling. I remembered that jury selection is interesting only to the lawyers doing it. As I and the prosecutor had been asking our questions, the judge had nodded off, the bailiff had thumbed through a gun magazine, and half of everyone else had been texting. My client, meanwhile, had been doodling his next tattoo on the notepad I had given him. No one other than the DA and myself saw this process as the thrilling cat-and-mouse game that it felt like for me.

“Your honor, the defense passes.”

The DA raised an eyebrow. Surely I was not going to leave the retired cop, and I was certainly going to kick the guy whose anxiety about life is so vast that he can’t stand to read the newspaper. But if those two were to end up on the same jury as the opinionated grad student and the movie theater employee who gets pulled over by the cops three times per week as he rides his bicycle to work, I just might hang that jury. I might still win.

Meanwhile the DA absolutely could not allow this jury mix. After four rounds, I had passed five times, giving me a 5 challenge advantage over the DA. I now had twice as much power to alter the mix of jurors to my liking. Jury selection continued like this for the remainder of the day, and ended when both the prosecutor and I passed. These 12 jurors and 2 alternates would be the ones to witness the trial.

Ten days later, His Honor declared a mistrial after the jury hung; 10 jurors had voted guilty against 2 for not guilty. Despite the split in favor of guilt, the DA would later make my client an offer with a single-digit prison term on a case that carried a possible life sentence. I considered this a win.

As I mentioned in the previous chapter of this story, jury selection is war by other means. But two sides will engage in war only when at least one of them is gravely mistaken about its prospects for success. If you are ever chosen for jury duty, remember that one of the two sides that you will hear from is very, very wrong about the strength of the case, the amount of punishment it is worth, or, in my case, the liklihood of 12 strangers agreeing on it. Remembering this might help you make sense of what you see in a real courtroom.

Respectfully Submitted,

Norm DeGuerre

An Afternoon With Judge Goodhair

Seven police officers sat behind me as I questioned one of their colleagues in Judge Goodhair’s courtroom. Witnesses in a case are normally excluded from the courtroom when another witness is testifying, so I knew that these seven other cops were here to get a search warrant signed by Judge Goodhair. In the past, I have seen officers enter Judge Goodhair’s chambers with a thick stack of affidavits and then leave, warrant in hand, in far too little time for him to have read that stack of materials. Word had traveled quickly within the Santa Asphalt police department.

The officer who sat on the witness stand had been called to testify at a motion to suppress evidence for violations of my client’s Fourth Amendment rights. I did my best to piece together the officer’s story. In the early early morning–about 2:00 AM–neighbors reported a drive-by shooting, the target being my client’s home. At 10:30 AM,  the Santa Asphalt Police Department decided to respond in force to this very urgent situation. Out of grave concern for potential gunshot victims, the SAPD ordered my client and his two roommates to walk backwards out of the apartment one-at-a-time, each with their hands on top of their head. Each was then handcuffed and put in the back of separate squad cars. The SAPD’s continued search for gunshot victims took them into the back corner of my client’s sock drawer, where they found 50 pills of MDMA in need of immediate medical assistance.

My opposing counsel was maybe two years out of law school. Every important decision about the case thus far had been made not by him, but by his supervisor in the narcotics unit of the district attorney’s office. He was a nice kid, and I knew that he couldn’t just come out and say that his office needed to keep their conviction rates up in order to continue receiving grants from the United States Department of Justice, and that was why he simply couldn’t let my client do rehab instead of jail time. But he was perfectly pleasant and always memorialized the discovery that he had given me thus far in writing. I played along when he explained that he couldn’t give me what I had asked for in way of plea bargain because it was “too serious a case.”

I’m still not sure if he understood that he was being tasked to defend the SAPD’s behavior as a perfectly reasonable reaction in the context of a possible emergency medical situation.

With a premise so absurd, could the final part of my cross-examination of this officer not be? I resume my questioning:

Q: Officer, you testified that you believed that the clothing in the dresser was men’s clothing, correct?

A: Yes.

Q: And you testified that you believed this based on your “training and experience.”

A: Yes, that’s right.

He just couldn’t help himself.

“Training and experience” is one of the things that an “expert witness” can rely upon to testify to her “expert opinion” and have that opinion weigh as evidence in court. I assume this officer learned that in one of the many trainings the District Attorney’s office gives to local police agencies. From what I can infer from the testimony of 70% of the police officers in my jurisdiction, those trainings teach police to simply sprinkle the phrase “based on my training and experience” over whatever speculative bullshit they feel like spouting in order to turn their guesswork into admissible evidence.

This works most of the time, but not today.

Q: Can you describe for us the training that you had in the police academy on the defining features of men’s clothing.

Silence

A: Can you repeat the question?

Time bought for the cop to think of his answer

Q: When did you learn in the police academy how to identify men’s clothing?

Same question, different phrasing; let’s see how quick on his feet this guy is

A: Well, we had many trainings where senior officers would dress in civilian clothes and pose as suspects. They would wear men’s clothes or women’s clothes, depending on whether they were male or female. And so I got to see what clothing would be men’s clothing or women’s clothing.

Q: So these trainings were not actually ABOUT the nuances of gendered clothing items?

A: No.

Q: Was there a test you had to pass at the end of it?

A: No.

Q: Are you a member of any organizations devoted to forensic clothes typing?

A: Uh, no.

Yes, yes I did make this man answer these questions on the record before he was excused from the stand. Tee hee.

I looked up to the bench and I knew I had won–there was no way for Judge Goodhair to rule that the warrantless search of my client’s home was related to a potential medical emergency, not when the responding officer (the men’s clothing expert) responded to my client’s home 8 hours after the shooting, pausing to collect and photograph shell casings along the way to my client’s door. Judge Goodhair was going to have to throw out a whole bunch of hard-earned dope in front of a room full of cops, many of whom were there for his rubber stamp on search warrants of their own.

Judge Goodhair granted my motion and threw out the evidence. I reassured my client that yes, his case was dismissed and no, he would not have to drug test any more. My client was relieved to know it suddenly didn’t matter anymore whether the probation department’s urine tests could detect bath salts. The opposing counsel began to explain to his officer why the evidence had been thrown out. The other officers remained impressively poker-faced. A private defense lawyer sitting in back gave me a thumbs-up. I noted that it was only March, and that I might have just gotten my year’s worth of external validation in one afternoon.

And I remembered that sometimes a court of law can also be a court of justice.

Respectfully Submitted,

Norm DeGuerre 

Adversaries Need Not Apply

To:     Mr. Blaise Trettis, Public Defender

           18th Judicial Circuit Public Defender

           Brevard County, Florida

    

From:    Norm DeGuerre, Esq.

               Deputy Public Defender, County of Santa Asphalt

 

Re:        Recent Job Opening

 

Dear Mr. Trettis:

I hope this letter finds you doing well. My name is Norm DeGuerre, and when I am not exorcising my professional demons through anonymous blogging, I am a trial attorney with the public defender’s office in “Santa Asphalt,” CA. Don’t bother looking at a map, because this is not the name of a real county. Santa Asphalt is my affectionate pet name for my jurisdiction, which makes up for the lack of thriving small businesses by creating a glut of empty, sprawling retail spaces under 3 stories in height.

But I digress.

I understand that you have a position open in your office; I write you this letter to ask that you consider me for the position.

From what I have been told, a member of your local bench named John Murphy physically assaulted Andrew Weinstock, one of your former attorneys. On that fateful day, Mr. Weinstock appeared for at least two defendants and declined to waive his clients’ right to a speedy trial. His Honor then declared that “if [he] had a rock, he would throw it at [Mr. Weinstock].” In a fit of judicial dignity, His Honor then offered to “go outside” with the public defender to settle his differences. Mr. Weinstock followed His Honor into the hallway, and His Honor proceeded to hold Mr. Weinstock’s face in contempt with his fist. His Honor then retook the bench and gave the (now) unrepresented defendant advice on how to schedule his trial date.
On the off-chance that you have forgotten this unfortunate episode, I present you with this link and a reminder that the internet never, ever forgets things:

http://www.floridatoday.com/story/news/crime/2014/07/07/public-defender-in-courtroom-fight-resigns/12292987/

Yesterday, you publicly endorsed His Honor’s ignominious return to the bench, stating that your office asks the court to give “second chances” to your clients on a daily basis, and that it would be only sensible to extend the same courtesy to a judge who suffered the indignity of four-weeks of paid leave before returning to his post.
As mentioned above, I write you this letter as a first step toward applying for Mr. Weinstock’s now-vacant attorney position. Although I have no personal ties to the state of Florida, my hope is that any property I buy in the 18th Judicial District will become beachfront as the oceans continue their inexorable march to swallow man’s hubris. I want to work, live, and play in your jurisdiction, and from your public endorsement of Judge Murphy’s return, I think I have a good idea of what you’re looking for in an employee.

Like you, I too believe that the law should treat everyone equally. You so eloquently noted that your attorneys ask society to give their clients’ second chances, and that this compels you to extend the same courtesy to Judge Murphy. I assume from your sentiment that Judge Murphy was, in fact, treated in the same manner as one of your office’s clients, in that he was brought up on felony charges and held in custody among the general inmate population pending his trial. I also assume that he was given appointed counsel and that his file was placed in the enormous stack of files that one of your lawyers lugs to court every day. I assume that Judge Murphy felt pressured to plead to something in order to avoid your state’s draconian sentencing practices, and that his sentencing judge blithely ignored his long, sad history of childhood abuse and substance abuse.

Because it really wouldn’t be fair to treat him differently from any of your clients.

Like you, I too have realistic expectations of how to be treated by my fellow man, especially my fellow men in positions of authority. The Ivory Tower that gave my my law degree taught me that we have an “adversarial system,” and that such a system does not work unless the accused has a zealous advocate who pushes his client’s best interests against the weight of the state and, in some cases, the weight of public opinion. But really, the public defender is but one grinder plate in the nasty sausage machine that is our criminal justice system. Of course our clients have a right to a speedy trial, but why would I inflict that right on a judge whose calendar is inconvenienced, as though my client’s rights had “value,” and that they should not be given away unless exchanged for something else of value? Such idealistic bullshit warrants a good beat-down in the courtroom hallway for all of the defendants to see, so that they don’t get any uppity notions of inflicting their rights against the state.

Finally, I appreciate the fact that your position is an elected position. You made nice with a man who was so unsatisfied with the power and authority of his office that he had to inflict physical violence upon one of your employees in order to impose his will. Clearly you understand that an elected public defender cannot win re-election by boasting about how many defendants his lawyers walked, or about how many pounds of contraband your lawyers suppressed from evidence through skillful litigation; that would just piss off potential voters. After all, most voters in Florida stopped reading the Constitution after Amendment II, and have yet to realize that half of the Bill of Rights is devoted to rights of the criminally accused. In order to win office in such an environment, you must network with your jurisdiction’s local power brokers. Your decision to endorse the Honorable John Murphy’s return to the bench shows political savvy. In contrast, I would get hung up on how my official actions as Public Defender would benefit my clients; these hang-ups, unfortunately, tend to parallel the ABA’s “model rules” for attorney ethics. Being a stickler for rules will certainly cost me at least one election. I have much to learn from you if you will only give me the opportunity.

Don’t be thrown off by the fact that my attached resume includes a personal interest in Krav Maga, the official martial art of the Israeli Defense Forces. I would never dream of inflicting my right of self-defense against any member of the bench, no matter how much his groin deserves it.

Cordially,

Norm DeGuerre

 

Cry Havoc: Jury Selection in a World Without Civic Virtue (Part I)

 

This is not a manifesto on the virtues of jury duty. I will not wax romantic about the importance of juries in our system of justice or in any system of representative government. I hold no degrees in sociology, and so I do not pretend to be an expert on the behavior of humans in large groups. Jury consultants charge handsome fees to the attorneys who can afford their services; in exchange, these consultants provide detailed profiles on the ideal type of juror for an attorney’s case. What I provide here is information that would cause a “respectable” jury consultant to never be hired again, not because it is not true, but because no one in the legal profession wants it to be true.

But for a public defender in trial, jury selection is war by other means. Victory is rarely a plausible option; all too often, we conduct a jury trial for no other reason than our client’s have refused a plea bargain, or because the prosecution refuses to make your client an offer that is sane or humane. Sometimes my “defense” amounts to quibbling about the number of penile penetrations that the victim received (after all, each penetration that I can disprove means years off my client’s sentence). Sometimes my “defense” is saying that my client did not intend to kill his father by stabbing him in the neck, but merely to wound him grievously. Sometimes my defense will rest on solid legal grounds while repelling every other member of civilized society.

My task is to save this client’s life from that civilized society, if possible. No professional consultant would be able to create a profile of a jury that is sympathetic to my client.

Many of these thoughts came together for the first time during a recent trial, or rather, these thoughts spun wildly in my head as my panel of 75 potential jurors trudged into the courtroom where my client’s trial was being held. This particular client was accused of robbery. His robbery had begun as a simple petty theft when he walked out of the supermarket with two large cans of “malt beverage” (the smelly, affordable wasteland between beer and hard liquor). Things changed when the store security guard demanded a receipt; my client responded by brandishing a pointy weapon and saying something vaguely threatening, but definitely rude.

One by one and two by two the potential jurors filled the courtroom seats. Without fail, the first ones in would take the aisle seats, forcing others to lurch over their knees to get to other seats in that row. No one wants to sit next to each other, so everyone tries to leave 1-3 seats between themselves and the nearest seated person. Unfortunately, none of these people bothered to count the number of people in their group, or compare that number to the number of seats in the courtroom; every seat would be filled, and “personal space” was at best a temporary illusion.
Then a voice spoke to me from inside my head. Perhaps this was the ghost of John Adams, our second president and the man who defended British soldiers on trial for the Boston Massacre to a jury of Bostonians , or Jiminey Cricket, or whoever the embodiment of my conscience is supposed to be.

“You need to defend this man sitting next to you..”

 

Upon further reflection, my conscience was definitely more John Adams than Jiminy Cricket.

“You need to defend this man sitting next to you. If these people are going to put him away, then save your client from them.”

But how?! Not even my prettiest talking could save my from the overwhelming evidence against him. My only hope was that my 12 jurors would dislike and disagree with each other so much that they would not unite against my client.

As the great statesman Jiminy Cricket once said, cry havoc and let slip the dogs of war.

The judge summoned the first 18 people into the jury box. Twelve took the seats in the box, and the next 6 took seats in front of it. The front 6 would replace any jurors dismissed from the twelve in the box, and so the lawyers had a preview of who would take their places. His honor then began his questioning of the 18 potential jurors. I clicked my pen twice – a nervous gesture on my part with the accidental benefit of clearing my head before I prepare to jot down as much information as possible about these total strangers.

The judge began by asking what cities the jurors lived in: 10 out of 18 lived in “Santa Asphalt,” the largest city in my jurisdiction, 6 lived in the generic, contiguous suburbs that surround Santa Asphalt, and 2 lived in the affluent town to the south where people move to get away from Santa Asphalt.
The jurors provided their job titles with pride; unfortunately, most of their job titles gave me no idea of what their daily routines actually looked like. When a potential juror says that he or she is a teacher, nurse, dentist, contractor, or food server, I am able to get at least a vague picture of how this person spends most of his or her day. This was not going to happen with this group. To illustrate, you the reader can produce a potential juror’s job title by choosing one word from each of the collumns below.

Column A                Column B                Column C

chief                             systems                       manager

associate                     project                         vice president

deputy                         data                             engineer

assistant                      sales                           analyst

head                            marketing                  specialist

retired                        resources                    consultant

 

After the first fifteen minutes, I had almost no useful information about the people who could be deciding my client’s fate.

The judge continued by asking the following series of questions:

“Do any of you have moral, religious, or philosophical views that prevent you from sitting in judgement of another person?”

“Do any of you have problems with resolving conflicts in the evidence?”

“Can all of you hold all of the witnesses in this case to the same standard?”

“You cannot return a guilty verdict unless you are convinced beyond a reasonable doubt; does anyone have a problem with this?”

The judge took fewer than 90 seconds to ask these questions. Questions go by quickly when your targets respond with only shrugs and blank stares. If you, the reader, are wondering what some of these questions mean, then you are out of luck; the judge provided no clarification or explanation beyond the questions themselves. To top it off, the judge prefaced his final question with “does anyone have a problem with,” the one phrase guaranteed to throttle any possible response. No one wants to be seen as “having a problem” with a rule laid down by an authority figure in a black robe.

Sixteen minutes and 30 seconds have now passed, and I still had no useful information.

The judge turned questioning over to the district attorney. The DA’s awkward sputtering made the judge’s questions look like a thrilling, insightful Socratic dialogue by comparison. He asked whether the jurors would “follow the law” in as many different ways as he could think of. He made them promise they they would use “common sense” during their deliberation. He tried to illustrate circumstantial evidence by telling a story about a kid with cookie crumbs around his mouth (or something like that, I wasn’t really paying attention). After his analogy, the jurors’ quizzical stares, and his self-effacing attempt at humor, he had them promise to follow the law one last time before sitting down.

I checked my watch. I looked up, but then looked at my watch again. 45 minutes?! How does it take 45 minutes to convince a group of 12 non-felons who have driver’s licenses and current voter registration to obey authority and find my scary-looking client guilty without thinking too much about it?

“Mr. DeGuerre, you may begin,” the judge intoned.

 

To be continued…