It Looks Like You’re Trying to Instruct a Jury…

Good Morning, Your Honor!

It looks like you’re working on a set of jury instructions. How exciting! Clearly you’re in the midst of a jury trial, and you’re almost ready for the closing arguments. Of course, you’re going to warm up the audience by reading a 60-page packet of jury instructions for about 45 minutes. Although the two lawyers in your chambers would prefer working on their closing arguments to watching you argue with MS Word’s automatic formatting decisions, you and I both know that finishing these instructions in their presence is a much more important use of everyone’s time.

Hey! Why did you close me?! For the past twenty minutes, I have watched you mash the left mouse button in a vain attempt to change the line spacing. You clearly need my help!

Wait! Don’t close me again. Did you know that giving an incorrect instruction is reversible error on appeal? Ha, clearly you knew that; these instructions were written by judges for other judges to read, slowly, repeatedly, in chambers and in open court. Who knows whether the jury will actually understand them? That is clearly not the point. Now kindly move that cursor away and get back to reading. We have lots of agonizing to do while these two lawyers drum their fingers.

It looks like you’re working on the “reasonable doubt” instruction. This whole instruction looks risky to me. Didn’t one court of appeal say that trying to define reasonable doubt is like playing with fire, because any attempt at defining “beyond a reasonable doubt” almost inevitably makes the burden of proof sound lower than it is?

Oh, your added instruction makes everything clear: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” This won’t be a problem, because it gives no definition whatsoever. How does such a solemn phrase manage to convey absolutely no information? How many of your twelve jurors know what “abiding conviction” means? Do you even know what it means? How does it differ, in substance, from just saying, “proof beyond a reasonable doubt makes you really, really, really sure that this guy is guilty?” Refusing to give any information is a great way to make sure that you don’t give wrong information! Also, I especially like the way it avoids comparing “beyond a reasonable doubt” to the other levels of proof in the legal system:

      Too much information for a jury instruction     

This way, if the defense lawyer actually tries to instruct the jury beyond what you’ve written by contrasting “beyond a reasonable doubt” to other levels of proof, the DA can point out, in his rebuttal argument, that YOUR jury instruction gives NONE of this information. The DA gets to hint that the defense lawyer has pulled all of this information from his rectum, even though the DA knows full well that everything the defense lawyer said was true. I love it when lawyers are sneaky!

A tired-ass “guilt-o-meter” chart that also isn’t in the instruction

Oh, it looks like you’ve moved on to jury instruction #355. “The defendant has an absolute constitutional right not to testify … Do not consider, for any reason at all, the fact that the defendant did not testify.” Hey Judge! Whatever you do, under no circumstances are you to think about a giant squid. You didn’t think of a giant squid just now, did you? I just told you not to! How do you expect this jury to follow an instruction not to think about something that you just made them think about?

Hey! Can’t you see that your hanging indents should be set to 0.38, and not 0.5? Don’t worry; I’ve gone back and changed all of the indents in your document. You’re welcome.

It looks like you’re working on the final pre-deliberation instruction. Do you remember that today is Wednesday? Do you understand that you will likely be giving this instruction on a Thursday afternoon? Do you think it might be worth adding something about not jumping to a verdict on Friday afternoon just to avoid having to come back on Monday? When do we get to the instruction that at least acknowledges the real world and its prejudices? Why do all of these instructions read as though they were penned in a hermetically sealed vacuum by people whose professional and personal identities hinge entirely on the presumption that our system is actually fair? Have none of these people ever served on a jury?

Ok, that’s enough for me. I’m done, Your Honor. Let me know when you need help writing a letter in Times New Roman.

[Clippy and his likenesses remain the property of Microsoft Corporation; clearly no one else wants him.]

Respectfully Submitted,

Norm DeGuerre

Through the Looking Glass or What the Fortune Teller Taught Me About Burnout

Once upon a time, in the days after Young Norm had discovered girls but before girls had discovered Young Norm, a carnival came to a certain small town in California.

Between the henna tattoo tent and the tent that celebrated local history through diorama projects lay the tent of a fortune teller. She clambered from her tent at the sight of impressionable prospects and offered to tell our futures. She then noted the quizzical eyebrow raise that I gave her.

“I know you think I’m full of shit,” she mumbled while holding a Camel between her gums.

Indeed, I did think that she was full of shit. And at that moment, I knew her to be a true seer so I handed her 90 minutes of fast-food wages and gazed into her crystal ball. The results were strangely telling.

I saw the rewards of a college graduation. My bachelors in liberal arts and complete lack of familiarity with the “real world” had crafted me into either the world’s most average high school teacher or the world’s most overqualified barrista.

I then saw the rewards of an even higher education, law school, as a smug over-achiever filled with false confidence believing the economy would stop sucking once I earned a JD.

I heard the sighs of relief from my family; He’s a lawyer now! He’s going to go work for the county defending criminals! Not only does he get to be a lawyer like the kind you see on TV, but he also has a stable government job and a constructive outlet for those anarchist tendencies that used to get Young Norm into so much trouble.

Fast forward to my second felony trial tour. My boss is giving me serious felony cases now, ones I can’t talk about in polite company. Gone are the days when I represented “dudes” who received “child porn” under the guise of boob shots from their 17-year-old girlfriend. Now, I’m receiving recorded interviews where a 7-year-old is calling my client “the bad man” before telling police what he did to her. I’m defending kids who stab each other for wearing the wrong colors in the wrong neighborhood. They’re charged as adults and getting sentenced to the very prison system that created California’s current street gang problem.

I see the effects of the systemic underfunding of public education in my student loan bills; they persist even though I pay more on them each month than my rent. Yes, I still rent. My father, with only a high school diploma, was choosing a second, “more suitable” home by my age.

At least my wife still suits me just fine.

I see myself doing a closing argument. I burnished my presentation to a professional shine over the course of a semi-sleepless weekend, nursing my sanity with coffee and encouragement from loved ones. I see the prosecutor stumble-fucking his way through his closing and then his rebuttal, lacking any sort of polish, logic, or reference to actual witness testimony but containing more than enough fear-mongering and judgmental outrage to get him a win. My “guilty” rate soon surpasses that of almost any district attorney.

I see row upon row of prison cells. Cells in Soledad, Folsom, Kern, and Pelican Bay filled with men who had at least one thing in common: I was their last lawyer.

After twenty years I catch a glimpse of retirement. The voters had become angry that the private sector had busted their unions, liquidated their private pensions, and relocated manufacturing and production to “more efficient” economies. They have grown bitter at those who decided to work for the government, now jealous of a salary that was once less than half the private sector equivalent. I am now devoid of any hope the economy will ever stop sucking. I see myself not being able to give my grandchildren the kinds of Christmases my own grandparents gave to me.

“Jesus,” the fortune teller cackles after lighting another cigarette and returning the pack to her bra, “Is that really what you want?”

Actually, this story never happened. I never paid for a fortune teller, and she gave me no preview of the doubts and worries that I now have in the middle phase of my adulthood. The visions are real, but the timing is very recent.

I am currently in the midst of my first truly serious felony trial tour. And so many of my cases cannot resolve, for a variety of reasons. Client is crazy. DA is insufferable. And sometimes my client just didn’t do it.

And so I set these cases for trial, often without waiving time, as I gain nothing by postponing the inevitable. New cases come in continuously, and so the cases that cannot be settled must be tried as soon as possible simply to reduce my caseload.

And in this context, I see how burnout comes upon a public defender. Despite my most well-meaning, competent efforts, and despite that I typically outclass the average district attorney, my client goes down like a brick. Some days, I feel like all I’ll have to show for it upon retirement is a sizable section of the bloated prison population that had me as their lawyer at some point in time.

So is this really what I want? Courtroom battle still carries a thrill that, I think, leaves me with more energy than it takes. My family and loved ones are always there. And I have a deep, abiding belief that service to one’s community is in one’s own best interest.

And convincing twelve random people of any given client’s innocence is easier for me than convincing a potential employer (and myself) that I would rather review contracts at my desk for 90 hours a week.

Respectfully submitted,

Norm DeGuerre