No, I didn’t make my own list of Jury Blogs, I’m just cutting and pasting from Deliberations:

  • The Science of Small Talk, Prof. Sam Sommers writing for Psychology Today.  It’s not always directly about juries (although the current series is), but juries are a large part of his scholarly focus, so it’s relevant even when the word “jury” isn’t used.
  • Thaddeus Hoffmeister’s Juries, steadily strong.
  • Jury consultant Dennis Elias’s JuryVox “micro-blog” on Twitter.  You have to join Twitter to “follow” Dennis there, and there’s no better reason to sign up; nobody delivers more value in 140 characters.
  • The news feed at Jury Experiences, which collects news and blog posts about juries better than anyone else and includes an amazing archive of jurors’ own blog entries.
  • The American Society of Trial ConsultantsThe Jury Expert (bimonthly magazine) and announcements feed (occasional stories of interest).  I praised TJE here yesterday, but should give full disclosure:  I’m on ASTC’s Communications Committee, and will shortly join the board.  So don’t take my word for it, take Mark Bennett’s; TJE is very good.
  • The National Center for State Courts’ Jur-E-Bulletin, an indispensable resource in your E-mail every Friday morning.
  • Edward Schwartz’s The Jury Box blog, where posts are occasional but insightful.
  • Things That Make You Go Hmmm . . . . , Jury Impact Consulting
  • Chris Dominic’s blog at Tsongas Litigation Consulting, one post a month for quite awhile now.
  • Harry Plotkin’s Jury Tip Of The Month newsletter.  There’s no RSS feed for these, and I can’t even find an E-mail subscription form, but if you write to Harry Plotkin (his address is on his site), I’m sure he’ll put you on the list.  The newsletters are excellent.
  • Clay Conrad’s jurygeek, Robert Kelley’s Florida Jury Selection Blog, and Rich Matthews’ Juryology, all quiet in recent months but I stay subscribed just in case.

Thanks Anne. You’ve done the work for me, and my RSS reader is duly updated.

Anne Reed of Deliberations writes about the Fully Informed Jury Association and their core belief that:

The highest and best function of the jury is not, as many think, to dispense punishment to fellow citizens guilty of breaking the law, but rather to protect fellow citizens from tyrannical prosecutions and bad laws imposed by a power-hungry government.

Absolutely it is. In 1735 the Governor of New York jailed John Peter Zenger for daring to publicly criticize him. Seditious Libel was a crime, not a civil tort, and truth was not yet an available defense. 

The defendant was slam-dunk guilty. He had printed his complaints against the Governor. And all that had to be proven for a conviction was that he had criticized the government; not even that his argument lacked merit. So the original Philadelphia lawyer Andrew Hamilton argued – in essence – jury nullification:

 

Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions…

 

The question before the court, and you, gentlemen of the jury, is not of small nor private concern; it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may, in its consequence, affect every free man that lives under a British government on the main continent of America.

 

It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizen, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and, by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right … the liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

 

Not Guilty.

OK, for those of you that noticed that I just posted while serving on a jury, let me defend myself. I wasn’t picked; in fact, there was no trial at all. We all sat around for about 45 minutes until the bailiff came in to let us know that all the cases had “worked out” and we were to be excused.

On a side note, pro se defendants and lawyers may have picked an especially unfortunate day not to have tried their case to this particular panel. Imagine my surprise when I found out that fellow Austin criminal defense lawyer David Gonzalez, recently featured in Texas Lawyer and named Austin Bar Association 2008 lawyer of the year, was also a potential juror. (Can anyone say **cough cough **“preemptory challenge” **cough cough?)

 

Small world.

So I was excited when I get the jury summons in the mail, and almost immediately went to my computer to fill out the new I-Jury online impaneling that Travis County now uses. Right before I clicked the last item to send my information out into the ether that is the internet I chanted, silently, “No civil, no civil, no civil”.

I wanted to be randomly assigned to a criminal case. Here’s the email I received:

 

You have completed online impaneling. Your status is

Assigned to MUNICIPAL COURT 1 (MU1) on 10/21/2008 at 8:30 AM.

Please be available to serve as a juror between 10/21/2008 and 10/21/2008. Normal hours of court operation are 8AM to 5PM Monday through Friday; however, circumstances may sometimes cause the court to remain in session after 5PM. Please be sure to make alternative arrangements for time-sensitive errands.

Please check your email regularly until you are dismissed or complete your assignment. You must follow through on your court assignment and call or report to the courthouse when scheduled. This assignment is subject to change should the court date need to be rescheduled or other circumstances change.

Thank you for using I-Jury!

For additional information or assistance, please contact the jury office at 512-854-9669

 

Ouch! Municipal court. I forgot to chant “No civil, no Class C cases, no civil, no Class C cases…”

At some point in any trial the prosecutor is going to ask a witness to identify the defendant as the person who is accused in the complaint or indictment. A fair amount of the time this witness doesn’t know the defendant personally – may never have met him – especially if it’s a police officer making an on the spot arrest for a crime alleged to have been committed within his presence or view.

Juries probably suspect the rule I’m about to annunciate. Judges, prosecutors and defense lawyers certainly know it:

Sometimes when the police officer says he remembers the defendant, he doesn’t really remember the defendant.

Not really really remember.

Of course there may be a few clues for the officer.

It’s probably the person sitting next to the lawyer. No, not the one next to the prosecutor who is asking the question. Most likely that’s another prosecutor.

The other lawyer at the other table. The guy next to him. Yeah, that’s the defendant.

Which is what makes this next story so interesting. Missouri DWI lawyer Will Worsham advised a client that he may as well try his DWI case instead of taking a plea bargain agreement, because he had nothing to lose.

And then – and for my non-lawyer readers I hate to do it, but I’m going to use the technical legal term for it – a miracle occured:

I advised my client to proceed with trial.  Even though we would likely lose, he really had nothing to lose because pleading guilty provided no benefit.  He agreed. 

Shortly after the trial began the prosecutor asked the Officer if he saw the driver in the courtroom.  Mind you, my client is sitting next to me at counsel table. 

After looking around for about 30 seconds at the 6 or so people in the courtroom.  The officer replies, "Honestly, I can’t say that I do." 

I’m surprised, the prosecutor is shocked and the case is shortly thereafter dismissed.

Nice. I guess he didn’t know that whole “sitting next to the defense lawyer” trick that so many officers rely on…

…said every professor in every first year class on the first day of law school. (It’s been a while, but somehow that’s how I remember the entire first week of UT Law.)

That and a heavy dose of the Socratic Method may or may not be the best way to teach students how to be lawyers, but for some real time practical advice see jury consultant Patricia Steele of Varinsky Associates and her article "To Deal Better With Juries, Stop Thinking Like A Lawyer!" 

I didn’t feel like emailing the Association of Defense Counsel of Northern California and Nevada for permission to reprint any of it here, so you’ll just have to read the article yourself.

[HatTip: Deliberations – who asked for and received permission to reprint a few snippets.]

I see that my buddy and noted Texas defense lawyer Mark Bennett is speaking at Center for American and International Law CLE called “The Mind and Criminal Defense”. It’s a one day course on Capital Mitigation and it sure looks interesting, but unfortunately it conflicts with my schedule.

Other defense lawyers – especially those that do death penalty litigation, which I do not – should seriously consider attending if at all possible.

Bennett is giving a talk on “Free Will: What It Is and What We Can Do With It”. I wonder how he feels about being billed as Mark Bennett, Esq.

Doug Weathers asks criminal defense lawyers, “Would you rather have Good Facts or Good Law?”:

Every time I am preparing for a trial I deal with the question of do I have good facts or good law. Rarely do you have both because those cases are usually dismissed or never go to trial. Sometimes you have neither good facts or good law and those cases usually plead. In most of the trial cases you will have either good facts or good law.

In my experience as a criminal defense attorney in Texas, there is precious little good law for the defendant.

On Law & Order and other TV shows judges are routinely throwing out cases for undotted i’s and uncrossed t’s, but it ain’t exactly so in real courtrooms. The overwhelming government interest (according to appellate courts) in convicting anyone and everyone when it comes to the War on Drugs has darn near killed the Fourth Amendment.

And then there’s that DWI exception to the Constitution:

In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that [stopping drivers without reasonable suspicion or probable cause**] is consistent with the Fourth Amendment.

[**original wording is “it”. Read the case. My substitution for the word “it” is 100% accurate.]

Good law? Only been practicing a little over ten years. I’ve heard rumors that such a thing existed in the 70’s. And I’ve read plenty of caselaw overturning those well reasoned precedents. 

I’ll go with Good Facts. Medium Facts. Any Facts.

OK. Enough dreaming. Gotta get back to work on some of those “Not So Good Facts/Not So Good Law” cases…