In This Episode: I pull back the curtain on the difference between public defenders, appointed counsel and private lawyers. So often the injustices involved in the system are blamed on the performance of a lawyer rather than an inherent bias in our society against those we choose to marginalize. The episode explores why it is so necessary to adequately fund offices that provide defense for those defendants who cannot afford to hire their own attorney.

David and Goliath: Underdogs, Misfits, and the Art of Battling Giants

To read the article from California Magazine, click HERE.

Click HERE to hear the interview and read the post on his website jdblogger.com

In This Episode:

I pull back the curtain on the laws relating to the LAW OF MANSLAUGHTER.
There are 3 types of manslaughter: Voluntary, Involuntary and Vehicular.  Within these categories we find issues of reckless disregard for human life and acts committed during misdemeanors and non-dangerous felonies. The main distinction between a charge of murder and a charge of manslaughter is the lack of the element of malice in the killing. The distinctions within the manslaughter laws themselves have to do with the intentionality of the killing itself.

Manu cases have been in the news in the past several years involving the charges of manslaughter. Some of the more famous include the case of Dr. Conrad Murray convicted of involuntary manslaughter in the death of Michael Jackson, Josh Brent, the former Dallas Cowboy convicted of vehicular manslaughter in the death of his friend and teammate Jerry Brown and the case of George Zimmerman where some felt that if charges were going to be filed at all that murder was inappropriate and manslaughter was the appropriate charge.

The punishment for manslaughter is ofter drastically lower than the punishment for murder, especially involuntary manslaughter. The law recognizes that the circumstances surrounding the act of killing determine a person’s culpability. The role of the defense lawyer is to investigate those circumstances and present them to the trier of fact in such a way as to argue for the appropriate charge and punishment for the unlawful killing.

TRIAL LAWYER MENTOR Quick Tip:

Some ideas about making your presentation more relatable and thereby more persuasive. We talk about how you can incorporate “universal” examples, metaphors and analogies into your talk to hook the audience and get them to relate to your speech. Also, a brief tip on finding “universals” within small niches.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the laws relating to the LAW OF MURDER.
First degree murder is the unlawful killing of a human being with malice aforethought carried out in a willful, premeditated and deliberate manner. 2nd Degree murder lacks the willfulness, premeditation and deliberation but malice is implied by the conduct, the circumstances or the conscious disregard to human life.

Murder trials are often viewed by trial lawyers as the pinnacles of their career. If television shows and infotainment “news” programs are any indication, the general public is fascinated by these unique, often complicated and dramatic trials as well. In states where the death penalty is used, there are very specific circumstances (often called special circumstances) under which a murder is committed that allow the state to seek to impose the ultimate punishment. Some of these have to do with the actor himself, such as a repeat offender, others have to do with motive, as in murder for financial gain, murder that is racially motivated. Some have to do with the actions themselves being above and beyond what is necessary to kill a person, such as torture. And still others have to do with the identity of the victim, such as the killing of a police officer, an elected official, a witness, a juror or a judge.  Some states still have a catch-all circumstance that the murder was particularly heinous or horrendous.

There are also specified felonies that if a killing during the course of their commission, the murder is deemed first degree even if a killing was not the original intent of the perpetrators. In California, these include: murder by weapon of mass destruction, by an explosive device, murder with a weapon whose ammunition is designed to pierce metal or armor, poisoning, lying in wait (ambush) and torture. Other states will list different felonies but all will be crimes that in their commission evidence that violence and harm could result form their commission.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for keeping in check your perspective when dealing with situations that may be considered minor or less important than other situations and how refusing to “call it in” will make your presentation or relationship more compelling.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the laws relating to OBJECTIONS and SIDEBAR CONFERENCES.  The law allows both sides in a criminal or civil case to object to certain questions or answers that are being asked or elicited in open court. There are Rules of Evidence that govern what the jurors can and cannot hear.  When one side feel the other is violating those rules, an objection is posed. If the objection is “overruled” that means that the Court is disagreeing with the side making the objection and the judge will allow the question or the answer to stand. If the objection is “sustained” that means that the Court is agreeing with the party making the objection and the question will not be allowed or the answer (if already given) will be struck from the record. 

Sidebar conferences occur at the discretion of the court. The judge can order the parties to “approach the bench” to discuss a matter to be heard outside the presence of the jurors and the lawyers can also request a “sidebar” to argue a point of law. Many times the sidebars are for the purpose of arguing legal issues that the jurors cannot be privy to, but just as often they are for the more mundane purposes of scheduling or requesting bathroom breaks.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for giving your audience an “insider’s” secret that will help make your presentations more compelling and your message more memorable.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

I pull back the curtain on the laws relating to Domestic Violence. We explore how and why it is treated differently than other types of assault. We also discuss why these cases are difficult for all participants in the legal system. Frequently prosecutors are unwilling to negotiate a plea bargain for fear that if the perpetrator reoffends, they will be held accountable. Prosecutors are faced with recanting witnesses who through fear, love or financial need will often come to court and ask that the charges be dropped, despite serious injuries in some cases. When the allegations are falsely made, which does happen more often than many care to admit, the lives of the accused can be ruined by the fact of the allegation itself.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for finding the context, focus and perspective when you are crafting your next persuasive presentation.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the concepts of Duress and Necessity. In Duress, the law recognizes that there are times are free will may be so compromised by threat of bodily harm or death that we should not be held criminally liable for crimes we commit while under the influence of these threats. Further and even a more radical notion, Necessity shows that there are times when the system allows our individual judgement to supersede the law when the harm we create is less than the harm we are trying to prevent under exceptional circumstances. Obviously very specific circumstances must be met to benefit from these concepts, but its important to note the fact that our criminal justice system does take context and circumstances surrounding our crimes into account when deciding not only punishment, but guilt itself.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for establishing context in your presentation to make it more real and persuasive to your audience.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on Prosecutorial Misconduct.  Recently a Texas Judge was disbarred, sentenced to 10 days in jail and 500 hours of community service for criminal contempt.  He was accused of lying to a judge in 1987 while he was a prosecutor trying the murder case of Michael Morton.  Mr. Morton spent 25 years in prison for a crime he did not commit. After DNA tests exonerated him of the crime, his lawyers obtained the original files which showed that the detective and the prosecutor had in their possession witness statements which tended to show Mr. Morton’s innocence and they failed to turn those over to the defense. Beyond that breach of ethical duty, the prosecutor was accused of lying to the Judge about the existence of these statements just before the original trial.  This is just one recent example of the system being corrupted by a corrupt prosecutor. What sets this case apart is not the egregiousness of the conduct (unfortunately such conduct is not rare) but that the prosecutor was actually punished for this conduct.

We will explore the Brady Rule and the new proposals that are being set forth to try to prevent these gross and deliberate miscarriages of justice. For a look at some other examples of prosecutorial misconduct see the following: 

The Untouchables: America’s Misbehaving Prosecutors and the System that Protects Them

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Download AUDIO here (MP3)

I pull back the curtain on Who’s Who in a criminal courtroom. What are the various roles and responsibilities of all the players. Most of us know the basic functions but you might be surprised to learn lesser known duties of the various court personnel. From bailiffs, court reporters, judicial assistants, interpreters, lawyers judges and commissioners all the courtroom personnel play a myriad of roles in the system. Find out what the difference is between a commissioner and a judge and what it takes to run for or be appointed to these judicial positions

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on Entrapment. How far can a government agent go to induce an ordinary citizen to commit a crime.  Some states focus on the predisposition of the defendant, while other focus solely on the actions of the government.  The issue of whether it was outrageous police misconduct or merely legal deception by law enforcement is one for the jury to decide based on the facts and circumstances of each individual case.

Courts have stated that “a line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal.”  Here is a fascinating expose on one federal agency’s program that purports to target violent drug dealers and robbers.  View the video below of USA Today’s coverage of the ATF sting operations and read more about it here:

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for using props in your next persuasive presentation.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

I pull back the curtain on Eyewitness Identification. Often the most powerful evidence presented in a criminal trial, mistaken identification is the overwhelming cause of the majority of wrongful convictions in this country. Jurors put a great deal of weight on this type of evidence yet in many jurisdictions there are very few protocols in place to ensure that this evidence is “collected,” “preserved” and “untainted” like there are for physical evidence.

Click here to read an article by Elizabeth Loftus and Gary Wells: “Eyewitness Memory for People and Events” which makes a compelling argument for the metaphor of treating human evidence like trace evidence in terms of developing guidelines to safeguard its accuracy.

Click here to read about the wrongful convictions overturned by the Innocence Project that were based on mistaken identification.

As referenced in the episode Jennifer Thompson was a rape victim who mistakenly identified Ronald Cotton as her attacker. DNA evidence cleared him and they forged a friendship that transcends their case as they work together for eyewitness identification reform.  Their compelling story is told in the book Picking Cotton (mistakenly referred to in the podcast as a movie) See the book trailer below:

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for helping you ORGANIZE your next persuasive presentation.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on Self Defense. The concept of self defense comes from common law and has always been a part of the American justice system. Over the years, issues have arisen over whether a person has a duty to retreat before using deadly force or whether an individual is entitled to stand his ground.  While the laws vary from state to state, the issue always boils down to: What were the circumstances surrounding the use of deadly force?

TRIAL LAWYER MENTOR Quick Tip:

Tips for helping to put your audience or your jurors in the shoes of your client to get them to at least empathize with or at the very best root for the protagonist of your story.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on False Confessions. What would possibly compel an innocent person to take responsibility for a crime he did not commit?  We will explore the psychological studies that have delved into this phenomena as well as some famous cases where a suspect’s confession has been proven false.

The Innocence Project estimates that of the 300 cases where DNA testing led to the release of the wrongfully convicted, nearly 25% involved a false confession. Many people believe they would never confess to a crime they did not commit, but overturned convictions and academic studies prove this is a misconception. It’s not just the vulnerable, the young, the mentally ill and the developmentally disabled that can be coerced, but the odds are greater in those cases.

See below for a video from National Geographic showing the actual interrogation of 14 year old Michael Crowe who was suspected of killing his sister, Stephanie. He was subjected to what the courts deemed “psychological torture” leading him to confess to the crime even though he had nothing to do with her death.
:

Another famous case of a wrongful conviction occurred in Norfolk, Virginia where four men gave false confessions to a brutal murder. They have come to be known as the Norfolk Four.

Two noted academic studies dealing with false confessions: Kassin and Kiechel, The Social Psychology of False Confessions and Dervan and Edkins, The Innocent Defendant’s Dilemma.

TRIAL LAWYER MENTOR Quick Tip:

Tips for dealing with dense and often bland statistical information, academic studies or other dry data that you need to include in your persuasive presentaion.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the legal rulings that result in cases being dismissed on a technicality. When a case is dismissed on a technicality in the criminal justice system, it usually means that a court has determined that the evidence sought to be used against the defendant was obtained in violation of his constitutional rights.

The disallowance of this evidence is the product of the exclusionary rule. This is the remedy the courts have fashioned for constitutional violations. Hear the history of the rule and why it became necessary to fashion this remedy for the flagrant violations of citizens rights.

TRIAL LAWYER MENTOR Quick Tip:

A brief discussion on the power of naming and defining themes on your terms.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on  cameras in the courtroom.   What effect do cameras have on the participants and the viewing audience in a criminal trial? While the right to a speedy and public trial is guaranteed to us in the 6th Amendment of the United States Constitution, this does not necessarily lead to the conclusion that electronic media ought to be permitted in criminal jury trials.

When CourtTV first made its application to feature “gavel to gavel” coverage of jury trials, they claimed it would be an educational endeavor, offering viewers an insider’s look at the criminal justice system. Sadly, the coverage of trials now is more akin to gladiator contests where men’s lives are at risk and the media is standing in the arena, selling tickets and placing bets.  Learn where the law stands now, how it has evolved and one solution that would balance the public’s right to know with the right of the accused to receive a fair trial.

TRIAL LAWYER MENTOR Quick Tip:

Tips and strategies for finding your own “focus groups” or what I like to call “The Poor Man’s Guide to Mock Juries.”

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on  Circumstantial Evidence.  Learn the major misconceptions about circumstantial evidence and how defendants and the general public often underestimate the power of this type of evidence in a trial.  We will explore some high profiles cases over the last several years that were based mostly on circumstantial evidence such as: Casey Anthony, Robert Blake, Scott Peterson, OJ Simpson and another recently arrested professional athlete.

TRIAL LAWYER MENTOR Quick Tip:

Tips and strategies for finding several different ways to explain a complicated concept to your audience or jury.  When an important point is somewhat complicated,  the more options you give your audience to learn that concept, the more likely it is they will understand.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on defendants testifying on their own behalf. We explore the myths surrounding why a defendant would choose to testify or choose not to testify. There are a variety of factors that lawyers use to decide whether to call their client as a witness. Some have to do with the charges, some with the client himself and some even have to do with the prosecutor assigned to the case.

In high profile cases, the pundits play armchair quarterback, lauding or mocking other lawyers’ decisions to call their clients to the stand, but the reality is, it is nearly impossible to second guess the decision of the trial lawyer. He or she alone is armed with the necessary information to make that call and the facts from inside a case are often much different than the facts available to outside commentators.

TRIAL LAWYER MENTOR Quick Tip:

The process for deciding which witnesses to call to the stand can be helpful for anyone putting together a compelling argument or persuasive presentation. Learn how to use the same factors to keep your presentation focused and move your argument forward.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on Plea Bargains.  Justice Kennedy of the United States Supreme Court wrote, “Criminal justice today is for the most part a system of pleas, not a system of trials.” Justice Scalia wrote, “We accept plea bargaining because many believe that without it, our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”

Plea bargaining seems to be vilified by both sides of the political spectrum. Those who favor mass incarceration feel that criminals should be punished to the fullest extent of the law and not given lesser sentences on the basis of judicial expediency. Those who fear the number of innocent people coerced into pleading guilty feel that prosecutors should not be able to threaten life sentences in order to procure pleas in weak cases.

The Supreme Court has dealt with the issue sparingly. There are pros and cons to plea bargaining and the system is fraught with great potential for unfairness and unequal treatment, but there seems to be no viable alternative to its existence.  Hear the pros and cons in this episode and lest you believe that you would never be coerced into pleading guilty to something you did not actually do, check out a recent study published in the Journal of Criminal Law and Criminology. Authors Lucian E. Dervan and Vaness Edkins found that more than 50% of college students in the study who were falsely accused of cheating wound up admitting guilt anyway in return for a perceived benefit.

TRIAL LAWYER MENTOR Quick Tip:

I offer two strategies to consider when you are engaged in negotiations and trying to come to a meeting of the minds.

LAWYERS and LAW STUDENTS:

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on Jury Nullification. Jury nullification occurs when a jury acquits a defendant even though they believe the case was proved beyond a reasonable doubt.  This can happen when they believe the law itself is unjust or it would be unjust to apply it in this particular case.

While nullification is a powerful and awesome power, it is not codified in the law and jurors are never instructed that they have this power. In fact, lawyers are not allowed to openly ask jurors to nullify.

However, once a “Not Guilty” verdict is entered, short of a claim of jury misconduct, the court will never inquire into the WHY of that verdict.  The 5^th Amendment’s protection against double jeopardy means that this verdict is sacrosanct and it is the final judgment.  This makes nullification one of the most mysterious yet powerful principles in our criminal justice system.

Learn the historical basis for this principle as well as a potential real life recent examples of when a jury may have engaged in this practice.

TRIAL LAWYER MENTOR Quick Tip:

I offer a quick introduction to the concept of “seeding” your speech or persuasive presentation in order to compel your audience to act without coming right out and asking them to act.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the Death Penalty.  I discuss what makes a person eligible for the death penalty versus life with the possibility of parole. I also explain my multi-layered opposition to the Death Penalty and how, regardless of one’s belief in the righteousness of the penalty, one has to consider the disparate ways it is currently enforced. There is a difference between thinking a person deserves to die for the crime he has committed and believing that the Government has the right to kill them.

In the podcast I reference TWO men who most legal scholars believe have been wrongfully executed: Carlos De Luna and Cameron Todd Willingham.  To read more about Carlos De Luna, click here for an extensive review of the evidence prepared by Columbia Law School professor James Liebman and his team of law students.

To read more about Cameron Todd Willnghmam, click here for an extensive discussion of the case published in the New Yorker Magazine written by David Grann.  Also, there is a movement afoot to gain a posthumous pardon for Mr. Willingham, click here, to read more about that legal battle.

TRIAL LAWYER MENTOR Quick Tip:

I offer tips on how not to bore jurors and your audience to death when you need to cite statistics in your presentation or case.

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Download AUDIO here (MP3)

In This Episode:

I pull back the curtain on the legal standard of proof: Beyond a Reasonable Doubt. It is the highest burden of proof in the American justice system and reserved only for trials where life or liberty are at stake.

I discuss the other standards proof in the legal system: Preponderance of Evidence and Clear and Convincing Evidence as well as the origins of the burdens of proof and how their definitions continues to evolve.

TRIAL LAWYER MENTOR Quick Tip:

I offer tips on how the use of very specific examples can help you be more compelling and persuasive in your next trial, speech or presentation.

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Download AUDIO here (MP3)

In This Episode:

In This Episode:

In This Episode:

I pull back the curtain on DRUGS and DRUG LAWS. I’ll explain how the most common street drugs are sold and discuss why the war on drugs is not working. The evil in these laws is not a matter of a misguided effort to be  tough on crime, but rather an insidious attack on the basic fairness of the criminal justice system.

 TRIAL LAWYER MENTOR Quick Tip:

I offer three quick tips to keep in mind in order to make any argument or presentation more persuasive.

LAWYERS and LAW STUDENTS

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Download Audio here. (MP3)

The most common street drugs are cocaine, in either powder or crystal form, heroin, methamphetamine, prescription drugs and ecstasy. There are a myriad of other drugs out there but these are the ones we see most often in the criminal justice system. (See images below)

According to one study, the war on drugs is costing us about $500 per second. That is not a typo – per second. The way we choose to enforce these laws results in mass incarceration of certain segments of our society and does little to stem the use or sale of illicit drugs. Currently there are 2 million citizens in metal cages in the United States, of those some studies estimate that 25% of them are there for non-violent drug offenses.

THE HOUSE I LIVE IN

A film by Eugene Jarecki explores the failure of the war on drugs and the devastating consequences these laws have had on families and whole segments of society. I highly recommend this film for anyone who wants to truly understand why we have spent billions on this “war” and have nothing to show for it. Below is the trailer for this film: please note some of the images in the trailer are graphic.

PLEASE SEE THE RESOURCE PAGE TO GET YOUR OWN COPY OF THIS FILM

  POWDER COCAINE

Derived from the Cocoa leaf, powder cocaine sells for about $100 per gram. Its high lasts approximately 1 hour per hit and it became popular in the 1970’s era of dance clubs and high society parties.

CRACK

Crack is derived from powder cocaine. It sells for about $2 to $10 per rock. The high is much more intense than powder cocaine, but the effects last around 30 minutes.

METHAMPHETAMINE

Meth is a purely synthetic drug, not derived from any natural or plant based substance, it is purely chemical. It sells for approximately $25 for a 1/4 gram. (these are rough estimates as prices and quality vary throughout the country).

HEROIN

Heroin is derived from the poppy plant. A hit can cost anywhere from $10-$20. I have had clients tell me that as a daily user their habit costs them between $150-$200 per day.

These statistics and images are offered to help explain what drugs we are talking about when we speak of the war on drugs and the estimates of cost are based on interviews with clients, other attorney and reference materials.

In This Episode:

I reveal what happens to a person from the day they are arrested for a crime to the day their actual jury trial starts. If you cannot afford to post bail, you may spend up to 3 months in jail waiting for your trial to begin. Some trials take years to prepare. You will also learn about plea bargains and why they are necessary but are also how they are used to deny defendants their right to trial.

Do you ever wonder why you are sometimes called for jury duty only to spend a whole day in the waiting room and never get called into a courtroom? I’ll explain what may be the cause of that frustrating day.

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice on tag lines and stories. Whether you are trying to persuade a jury to acquit or your boss to give you a raise or your prospective client to hire you, it all comes down to the story you tell. The best way to structure your story is to boil it down to the TV GUIDE taglines of old.

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In This Episode:

I expose Bad Laws: Laws that were passed to placate us and make us believe we are “tough on crime”, but in reality  do more harm than good and often are not worth the money it costs to enforce them. Specifically addressed are the “THREE STRIKES” law and laws requiring lifetime registration for all sex offenders.

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice on how to start your jury selection when your client is accused of a crime that carries a horrific social stigma.

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I answer a listener’s question about the HEARSAY rule. What is Hearsay? Why is it so dangerous? And if it is so darn bad, why are there so many exceptions to the rule?

TRIAL LAWYER MENTOR Quick Tip:

I offer some advice for how to deal with the testimony of a law enforcement officer who claims your client “confessed” to him, but the confession isn’t written down and isn’t recorded.

LAWYERS and LAW STUDENTS

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In This Episode:

I answer the most common question I hear whenever anyone finds out I am a criminal defense attorney: “How can you defend someone if you think he is guilty?” Or “How can you defend someone who is accused of a heinous crime?”

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice for dealing with your client when your client has told you he definitely does NOT want a  trial and now he is rejecting the plea bargain offer, and there is no third option.

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Whenever someone finds out I am a criminal defense attorney they want to know, “How can you defend people who you know are guilty?” I want to ask them, “How can we not?”

Most people understand after lengthy discussion that society needs people who are willing to stand up for the accused.

Our system is an adversarial one and in order to help insure that innocent people are not punished for crimes they did not commit, then a force (hopefully equally funded and resourced) needs to be opposing the force of the government when they make efforts to deprive citizens of their liberty in order to insure that justice is done.

EQUAL UNDER THE LAW

Many people agree with the idea that people who are accused of a crime should be given a lawyer if they cannot afford one, but I have often heard people say that this right should be limited and not offered when a person is “obviously guilty.”

Of course, the issue then becomes who decides who is obviously guilty?  Is it enough that a police officer accuses you? What if you are caught on tape? Or if you confess? Lawyers protect people beyond the guilty/not guilty question.

Are there mental health issues at play? Is there some sort of mitigation? Everyone may agree my client pulled the trigger, but did he do so out of anger or in self-defense? Was it an accident or a mistake?

Take away the Aurora Colorado’s shooter’s right to have a lawyer, then be ready to forfeit that right for yourself and your loved ones as well.

If everyone does their job to the best of their ability within the confines of the law and the rules of ethics, then the system has a chance of finding justice, but only if there are people willing to stand up on both sides of the table.

HOW CAN YOU DO IT THOUGH?

The reason I personally do this is because I am able. I believe there are certain people just born with a profound sensitivity to injustice in their DNA, a recognition that we are all in the same boat and the us/them paradigm does violence to our humanity.

BEARING WITNESS

There are countless stories of innocent people caught up in the system facing charges for crimes they did not commit. In fact Texas has likely executed another innocent man. I do this for them, but make no mistake I do this for those caught up in the system facing charges for crimes they most certainly did commit.

Not only because I don’t know who is in one group and who is in the other, but because some of the most profoundly meaningful moments for me in my career have come when I sit in quiet compassion with men who are coming to terms with having committed unspeakable acts of violence and the consequences they now face as a result of those acts.

They are forever defined for all their lives by the worst moment of their life; no longer seen as someone’s brother or son or father, but as the murderer, the rapist, the child molester. My job is to see them, their dignity and their humanity and to show that humanity to those who would sit in judgment of them.

There is something profound that happens when a man comes to terms with what he has done and recognizes you there with him, in that space, by his side, regardless.  Not excusing or condoning, but being present and bearing witness. In the 20 years that I have practiced I have never represented a child molester or child abuser who was not himself a victim of those crimes.

I say that not to excuse the conduct, but to ask what if some enlightened witness had happened into his life earlier and recognized, and helped him to recognize, his own dignity and  his own worth, would he be sitting there beside me now?

(see The Atlantic article on the Exoneration Registry here)
Carlos De Luna
Cameron Todd Willingham

As lawyers gain more experience they become aware of what type of people they relate to and what type of people just don’t “get” them.

Every case is different, but we all have developed litmus test questions  that we believe helps us to weed out jurors who we think won’t be fair to our clients.

Both sides want fair jurors, but in all honesty, what we are really looking for is jurors who will favor OUR side over their side.  How we go about the selection process could and has filled hundreds of books over the years, but here are a few insights from the front lines.

STEREOTYPES AND SNAP JUDGMENTS

The law limits our ability to really get to know jurors in depth. We have time limits on how long we are allowed to question jurors and we are limited in what types of questions we are allowed to ask. So, yes, stereotypes come into play.

No stereotype is true across the board, but when all else is equal, lawyers would be lying if they told you they didn’t occasionally fall back on these stereotypes when deciding whether to keep or excuse a juror.

It’s tricky to discuss stereotypes without touching  the 3^rd rail – racial stereotypes, but that stereotype and MANY others play out in courtrooms every day.  In terms of RACE, conventional wisdom says prosecutors favor Asian American jurors because they believe that culturally Asians have more respect for authority and are more likely to believe a person who is arrested must have done something wrong.

The same thinking holds that defense lawyers favor African American jurors because they believe this group is more likely to have witnessed or experienced abuses of authority (especially law enforcement) and are more likely to believe it is possible for someone to be arrested and accused of a crime they did not commit.

In term of AGE, prosecutors tend to favor older jurors in crimes that are considered “victimless” like drug offenses, believing the younger generation has a more tolerant attitude towards those crimes.  In terms of PROFESSION, defense lawyers tend to favor those in helping professions like social workers.

I could go on and on in terms of “DRESS” and “AREA OF RESIDENCE” and “PRIOR JURY SERVICE”, but you get the idea. Obviously these are stark generalizations and do not hold true across the board.

I have no way of knowing if these beliefs are true for even the majority of the members of those groups, I am simply noting that the beliefs exist and definitely play a role when lawyers decide who stays and who goes.

If you find yourself harboring some outrage that stereotypes even come up in our selection process, I invite you to take the following challenge:

 YOU AS THE DECIDER:

Next time to you walk into a party where you do not know someone, or the waiting room at the doctor’s office, or even your local grocery store, pretend that you have 3 minutes and you need to decide who you want to invite to your next dinner party. Look around, ask yourself, “What thoughts am I forming about people in this room?”

Maybe you don’t have the luxury of talking directly to them, but you can watch them interact with others. You can see what they are wearing, how old they appear, what race they belong to, how they carry themselves. These days, you might even hear half of them talking on their cell phones.

Really pay attention. Ask yourself: “What impression do I have of them?”  Really get a good list going, pretend the event you want to bring them to is really important and your social reputation depends on it.

Now, break it down: Ask yourself “WHY do I have that impression?” “What factors went into you thinking that person would be funny? smart? well-read? a bore?”

We make snap judgments all the time, instinctually we gather clues about our environment and form subconscious responses the moment we encounter anything unknown.  So stereotypes may be automatic, but acting on those stereotypes alone without giving a person a chance to be an authentic individual is what defines discrimination.

The law prohibits the exclusion of jurors based on discriminatory grounds such as race and gender. So when I am speaking of snap judgments in jury selection, I am referring to those judgments you found yourself making at the party or the grocery store.

I personally spend more time focused on how the potential juror talks to his/her fellow jurors than I do skin color or area of residence for instance.

HOW TO BE A GOOD JUROR

Once they accept the fact that they will not be able to postpone jury duty until the 10^th of Never, my friends often ask me how to be a good juror. I think the best way to approach jury duty is to imagine if you had a loved one accused of a crime.

Picture that person sitting at counsel table with his attorney and picture the jurors who will sit in judgment of him walking into the courtroom. What qualities would you want those jurors to have?

You would want them to be fair, to be open minded, to be conscientious, to listen closely to the testimony and instructions. You would want them to be unbiased and to believe in the presumption of innocence. You would want them to hold the prosecution to their duty to prove the case beyond a reasonable doubt.

So, remember that mindset the next time you have jury duty, after all the guy at counsel table is most certainly someone’s son or someone’s brother or someone’s father.  It doesn’t mean you are biased on his behalf; it means you are giving that person the rights the law entitles him to and when you do that and the lawyers do their job, justice has a much stronger chance of prevailing in the end.

Hear how lawyers decide which jurors they want to keep on their jury and which they want to excuse. Jury selection is a lot like speed dating. You have a very limited amount of time with  strangers to decide if you want to keep them around or if you never want see them again. Also I offer tips to make Jury Duty a lot less painful.

 TRIAL LAWYER MENTOR Quick Tip:

I offer a strategy for getting better at jury selection faster and how you can use this same technique to improve all aspects of your trial practice.

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In state court, both sides are allowed to address the jurors before any testimony is offered.  Legally we are supposed to merely lay out the facts of the case, telling the jurors who they will hear from and what they will hear.

Opening “Arguments”

Though it is sometimes called Opening Argument, lawyers are not allowed to argue for their position during the statement,  only  to give a “roadmap” of what they think the evidence will show.

Because they are so worried about being accused of “argument” during this phase of the trial, many lawyers err on the side of boring and simply list who they are calling to the stand and what those people will say.

Roadmaps vs. Stories

I cringe every time I hear an attorney say, “I’m now going to give you a roadmap of what this case is all about.”  Just because a textbook in law school (and this article) define it as a roadmap, doesn’t mean we have to bore the jurors with this detail.

Can you imagine asking your friend what the latest blockbuster movie was about only to have him tell you, “Well, let me give you a roadmap of the plot. First you will meet Batman. He is not in his costume in the opening scene, but the evidence will show his costume is at the ready in his secret basement.” Boring.

For some reason, lawyers often forget they are human when they address jurors.

The Power of Story

So what is the alternative? This is our first chance to talk to jurors. We need to be dynamic and engaging.  People want to hear stories not lists.  Any fact pattern can be woven into a compelling story if the teller takes the time to form it.

And yes, in those stories we want to sneak as much argument as we can.  A colleague of mine refers to it as the Opening Indoctrination.  All lawyers are on a stealth mission to tell jurors how to view what they are about to hear from the perspective that most benefits the lawyer’s case.

A good opening statement stays with the jurors as each witness testifies. You want the jurors to be thinking, “Oh yes, I remember the attorney said we would hear that from him”

All stories have different interpretations, and who emerges as the hero has everything to do with who is doing the telling.

We know this in the real world and sometimes we even go out of our way to not be tainted by other people’s views. Have you ever anticipated going to a movie and made a point NOT to talk to your friends who have already seen it because you don’t be swayed?

There is something “sticky” about a friend’s opinion and even though you can overcome it and make up your own mind, it’s difficult to be completely free of that influence.

That is what the lawyers are trying to do in opening statement, spoil the movie. Get you to see it how we see it.  Like it if we liked it and pan it if  we gave it a thumbs down.