June 2011

 In an odd combination of Justices, the United States Supreme Court has ruled that the 6th Amendment right to cross-examine and confront witnesses against you includes the right to question the lab analyst who tested your breath for alcohol in a DUI case. Justices Ginsberg, Scalia, Sotomayor, Thomas and Kagan joined in the majority opinion in Bullcoming v. New Mexico, handed down yesterday.  Opting for efficiency over exercise of the right to cross-examine, Justices Kennedy, Breyer, Alito and Chief Justice Roberts thought a certified written report could be introduced by a technician familiar with the laboratory procedures. The result may turn the DUI business on it’s head.

The Court has now specifically ruled that merely calling that report "scientific" is not enough. This should signal the end of "the machine says he’s guilty, its on the print-put." Prosecutors will have to actually call THE lab analyst so he or she can be cross-examined. Isn’t that the way it should be if the State is trying to convict you of a crime that will leave you unable to drive and serving time?

Gotta go to the dentist so no more time to write about this, but you can read all about it at the examiner.com here.

 

Continue Reading BAC Report Not Admissible Without Live Lab Analyst – This Changes Everything For DUI Cases

 I just finished two trials and am headed toward a third, next month. I am also working on this racketeering case in which my client is alleged to have engaged in racketeering activity as part of his membership in a local gang. With motions filing deadline approaching, I spent some time looking at recent cases in the area and this one, US v. Scott, seems spot on, but not so much for the motions issue, rather as judicial involvement in the trial. It is interesting because it illustrates just how much control a federal district judge may exercise over a trial and NOT violate a Defendant’s right to a fair trial. First – my disclaimer – I have never seen any judicial conduct that comes close to this stuff, nor would I expect to. The case is interesting for us as lawyers because it reminds us that there is a long, long journey from what we think is unfair conduct by the judge at trial to a reversal of the case. So read the case – and consider the following from Scott: 

The judge did not allow the jurors to take notes. No problem says the 9th Circuit. A judge has a lot of discretion with respect to the question of whether jurors can take notes. 

The judge made disparaging comments about the defense lawyer.  No problem says the 9th Circuit, even though it concedes that some of the comments went too far and may have been inconsistent with the standards of judicial decorum. Still, the court says that there was no real prejudice to the defense in view of the evidence. Let me translate: the evidence showed that the defendant was really guilty so no harm, no foul.

The judge gave the defense lawyer nine minutes to review and then object to the proposed instructions. Again, no problem. The proof that there was no prejudice to the defendant was the closing argument itself, which apparently went well. 

The judge did not give a mutual combat or self-defense instruction. No problem here either as the evidence did not raise the issue. Could be – but the only defense available to the defendant (who was charged with stabbing another inmate) was self-defense or mutual combat, so the failure to get enough evidence before the judge and jury really rests with the lawyer. 

The judge apparently asked a lot of questions of the witnesses. No problem here either says the 9th Circuit. Judges have an inherent power to supervise the evidence and even draw attention to important evidence. Still, this almost never happens in courts here.

I was thinking about what this really means in the context of our cases in state and federal court in Idaho.  First, it is a good reminder that we need to be fully prepared to tell our story to the jury with sufficient evidence to raise whatever claim or defense we are asserting. If our defense is self-defense, we need to get the evidence in so that the judge cannot refuse the instruction. Second, we need to be fully prepared to present our case in a way that highlights the evidence so it is remembered. With each witness there must be one key point we want to present. That point must be so memorable that even without notes, the jurors will recall the point. And finally, we are really a lot better off than we sometimes imagine when it comes to the judges we encounter. I can’t even imagine a judge in Ada County or the US District Court refusing to permit notes or trying to take over the case from counsel. 

Want to help your case and your client? A friend of mine says the nicest lawyer in the courtroom usually wins. I think he is right. I’m willing to have the fight with the judge if needed, but it us usually better to not need the fight. 

OK – back to preparation mode. And the same for you and your case.

 

Continue Reading Getting Ready For Trial? Take A Quick Look At This Recent 9th Circuit Decision

In the past six weeks, Courtney and I have tried two criminal cases in Ada County.  The first case charged vehicular manslaughter – two felony counts. Last week we tried a case that charged aggravated assault with a deadly weapon and injury to jails (both felonies), as well as misdemeanor counts of false imprisonment, battery and destruction of a communication device (a cell phone). We picked juries in each case, and had the benefit of a jury consultant on the manslaughter case. As we have earlier reported in this blog, the jury in the manslaughter found our client not guilty of the felonies. Last week the jury in the aggravated assault case said not guilty as to the disputed charges (but guilty of the battery in the face of a self-defense claim), but guilty of the two misdemeanors our client had admitted committing.

So what did we learn?

In each case we approached the process of jury selection as one of inclusion, not exclusion. This is a Trial Lawyers College ("TLC") thing. Getting rid of folks from the panel is always tricky, even with a jury consultant, because lawyers are usually looking to "craft" a panel of jurors who are more likely to go their way than the way of their opponent. The problem with that approach is that we are not as "crafty" as we believe. So the TLC approach is different – start instead with your biggest fear in the case and work your way through this with the potential jurors. So we start by admitting we have potential problem areas in the case, and ask the jurors if they are going to be able to remain open to the balance of the case even knowing about the problems. We try to include folks by talking about the warts, and then getting the juror to open up about his or her feelings. Sounds all "touchy-feely" doesn’t it? I think it works.  

Let’s consider the problem posed by a recent client’s admissions that he had hit his girlfriend. Guy hitting girl equals problem. Growing up as men in society, we hear repeatedly a universal truths: "men don’t hit girls." Period. Ever. So when we have a client who has done that – struck a woman – you need to talk about it early and often with potential jurors because it goes against this deep seated belief we have as men. We talk it out and see if the jurors can get past it and get to the issue that they must decide.

Of course all this talk about inclusion is in some ways just talk. At the end of the day the lawyer has to decide which jurors represent the biggest obstacle to a fair trial based on their answers and their experience.  With thousands of dollars paid to jury consultants, I have never forgotten the words of the Hat – "experience trumps everything else." He is right about that. Any juror who has had an experience with domestic violence cannot help but have a predisposition one way or the other in a domestic violence case. If you can get them talking they will tell you whether they can serve fairly. 

But back to the question – what did we learn?

First, we learned that the TLC process works to identify the potential trouble spots with jurors. Spence says that if you are willing to show the jurors your weakness (area of concern) they will talk about their own fears. I think that is exactly what happened in both cases. In the manslaughter case I talked about my fear that people might immediately conclude a person with poor vision has no place driving on the road. The jurors opened up about that weakness and talked through their perceptions. From that we made some inroads into building a relationship with the jurors. They understood that they could look to us for the answers in the case, and they could trust us to be honest about the evidence.

The second thing we learned was that having the jury consultant is a huge help but you can get past the benefit of that expertise by taking more preparation time for voir dire.  Given my choices, I would always enlist the aid of a consultant, but even the best consultant cannot pick your jury. The lawyer is ultimately going to have to make the tough call about who should stay and who should go. The consultant I use always asks me what ONE question I would ask if I could only ask one. From that one question we need to be able to expose our concern to the jury and get them talking about how they feel.

Getting ready for trial? Worried about picking that jury? Get a copy of Gerry Spence’s book "Win Your Case" and read the chapter on jury selection. That is a great starting point for the TLC method that consistently works for us.

 

Continue Reading Jury Selection – Try To Include Potential Jurors But Get Them Talking

 With just a few minutes to "share" today I wanted to pass on this advice from a Boise District Court Judge to one of my clients recently. Following the entry of the plea, it takes 4 – 6 weeks for the preparation of the pre-sentence investigator’s report.  That is a 4 – 6 week window to make your appearance to the court more relevant at the time of the sentencing.  Judge’s advice to my client:  "Get a job!"

Jobs open up possibilities like work release and community service. Jobs make you appear more like "us." You see, here is that key again to any good case – you need to look like one of "us," not one of "them." Us? Them? What do you mean?

You know -"us" – the squares that pay their taxes, follow the law, work for a living and take care of persons and things beyond themselves. We generally believe the world spins beyond us and includes others. That’s us!

Them? Well, think crooks and hoods and dealers and grifters. Think folks that you would not trust to spend the night in the home of the person you love the most (someone other than yourself). Think folks who scare the hell out of you when you see them and cause you to cross to the other side of the street. Them!

Maybe life is more complex than this, but I don’t think so. After nearly thirty years of selling reasonable doubt for a reasonable price, I believe this is what matters. Perception is reality.

So get a job. Look like you are one of us. Care about someone other than yourself. You might not just avoid hard time, you might get a new life.

 

Continue Reading Getting Ready for a Sentencing Proceeding? Judge Says “Get A Job!”