Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

From the end of a post by Houston Defense Lawyer Mark Bennett:

Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.

Reminds me of a story told by Austin defense lawyer Bill Allison. Bill heads the University of Texas Criminal Defense Clinic (where as his student I first heard this anecdote many years ago) and also the UT Innocence Clinic. Among his many achievements is representing Christopher Ochoa, who was finally released after a wrongful conviction.

Bill had finished up a fairly lengthy trial in federal court, at least several months, where the government is referred to as “the government”. Soon after that, he was trying a Possession of Cocaine case (or something like that) in State court, where the tradition is to refer to the prosecutor as “the State”.

Mostly out of habit, he just kept saying “the government this” and “the government that” until… the prosecutor actually objected to being called “the government”. The jury apparently looked bewildered at this; and seemed somewhat amused when Bill changed gears slightly and referred to them as “the State government” for the rest of the trial.

It’s a practical illustration of Mark’s point. “Government” is essentially a dirty word to many jurors, especially in Texas. May as well use it from voir dire to closing.

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Michael Hawkins, contributor to/author of Spontaneous Arising tells the story of his jury service in a Federal Drug case. It’s clear from the title of his post (Pure Democracy and the Moral Bankruptcy of the War On Drugs) that the federal prosecutors missed a golden opportunity to use a preemptory strike on him, but this case doesn’t turn on the juror’s individual views about decriminalization, or any other political views.

Instead, it turns out that the Government has a really weak case against the defendant. 

Sure, they trot out the usual suspects: mostly co-defendants who had plead already, discussing the various intricacies of their multiple prior inconsistent statements, and of course, the officers and investigators from the Task Force, who, according to our fearless juror, placed the defendant’s vehicle but not the defendant at the scene of some important meeting during the conspiracy.

For me, here’s where it gets really interesting.

The judge allowed the jurors to submit questions to the lawyers, and then more directly after that. The juror submitted these questions:

Officer McNiven and Sgt. Goldberger have gone into great detail around the surveillance of December 8, 2004. Was the defendant at any time positively identified as either a passenger or the driver of the blue Honda Passport?

If not, how did the authorities determine that the defendant was present on that day?

The response:

Goldberger, the lead investigator, was still on the stand, and to his credit, he tried his best to keep up the charade.

He spent two full minutes explaining how it was dark, how his men did not want to blow their cover by going into the liquor store, how the investigation was just getting started... then he wanted to read the question for himself. The judge handed it to him, and he held it for probably 30 seconds before answering the second half.

"Well," he said, "we never got a positive ID on the defendant, but we did see three men get out of the car at the trailer park -- two Hispanic, one white. The Hispanic men matched the height and build of the defendant."

At that very moment, just into day three, you could see the wind go out of the prosecution's sails. The entire jury had moved up to the edge of its chairs in anticipation of Goldberger's answer, and I watched the jury slide back into its chairs, shaking its heads and clicking its pens.

I can't be sure, but from what several of the jurors told me later, that's the precise moment when everyone made up their mind: not guilty, not guilty, not guilty, not guilty, not guilty (five charges: 1) possession of cocaine; 2) possession of methamphetamine; 3) distribution of cocaine; 4) distribution of methamphetamine; 5) conspiracy to distribute both cocaine and methamphetamine).

Obviously, I think it’s laudable that the jury reached the correct decision in this case. And Michael justifies the title of the post with some good comments about the War on Drugs in general at the end of his post.

But…there are things about this that drive me batty, namely: the jurors posing questions that get asked of the witnesses.

My feeling is that the jury should have reached the Not guilty verdict without asking the question in the first place. The fact that the question had not been adequately addressed by the State, either in direct or cross examination of witnesses means that there was already no evidence tying the presence of the defendant to the vehicle, and to whatever was going on.

That, in and of itself, means that the State has failed to prove their case.

Now, in this particular case, it took a thoughtful juror asking the question, and the rest of the jury hearing the (non)answer of the witness, to make it perfectly clear that the Government’s case was so weak.

As a side note, I see this sort of thing more often coming from judges in pretrial litigation, or for instance, in an ALR license revocation hearing arising out of a criminal DWI charge.

Judges very often will ask the witness, usually a police officer, a question, and invariably it cuts right to the heart of whatever is missing in the State’s case (whether it’s the County Attorney, District Attorney, DPS, whoever is representing the State in the hearing).

If I stretch my brain, I could probably remember some hearings where the question asked by the judge, as opposed to ones asked by the litigants involved, helped the defense. But I’d conservatively estimate that 9 out of 10 times, the answer helps the State. The most common example would be in a pretrial motion to suppress, where the Defense has established that there was no prior warrant for an arrest, and the ‘reasonable suspicion to detain’ is fuzzy at best.  Suddenly the judge asks the police officer for more detail about the stop, and then it appears.

Again, I see this is a scenario where the State has failed to meet their burden, and if the prosecutor doesn’t fix it by themselves on direct or cross, the win should go to the defense.

Can any criminal defense lawyers out there think of realistic juror questions that could be asked that aren’t some variation of: I have a doubt about (fill-in-the-blank element of the offense)…could you clear that part up for me?

Or, can anyone reasonably argue against the proposition that in the jury experience described above that the jurors should have come to Not Guilty verdict based on the lack of evidence in the first place? 

[HatTip: Drug WarRant]

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Stephanie West Allen writes a book review of Mistakes Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and Elliot Aronson appropriately titled : Wrong? Me? No way! That's not how I see it

Tavris and Aronson have written a thorough coverage of the phenomenon of cognitive dissonance. That's the feeling in your brain when you find that you are holding two inconsistent thoughts or beliefs; it's like an itch that needs to be scratched.

Aronson in the interview says resolving the dissonance is a drive like thirst or hunger. The book describes the lengths we will go to in order to achieve consonance — lengths which can be mind-boggling, laughable, or dangerous.

For example, let's say that you consider yourself a bright and savvy person and you do something, well, a bit dumb. You now have yourself some dissonance. How do you scratch it? The chances of your modifying your self-concept are low. You must do something with this incident of bungling.

Ah, hah! You can revise your opinion of it! It was not so dumb after all. In fact, of decisions you have made, this may have been one of the wisest. Don't laugh. We all resolve dissonance and our methods may be just as slippery.

I think we can all see ourselves at times going through this same justification-of-a-blunder process. We’ve all done it in one form or another. It’s human nature. [Speaking of human nature, check out Stephanie’s new blog Brains on Purpose: Neuroscience and Conflict Resolution.]

Back to cognitive dissonance…what is it about her description of that phenomenon that makes me think of some juries?  Well, let’s start with this:

Criminal defense lawyers that never gotten a guilty verdict, when they believe they should have gotten a Not Guilty… aren’t trying enough cases.

Perhaps I’ll expound on that theorem (that I just made up) in a later post, but here’s the point for this one.

When you talk with a jury after a guilty verdict in a case where you feel strongly that it should have been that magical two word not guilty verdict instead, you often leave the jury room with a somewhat bitter feeling. You hear things like:

• Something must have happened and it seemed like he was involved
• We all felt like he was probably guilty (sometimes adding “of something”)
• The police have a tough job, and we had to take his word for it

…among other things. And the criminal defense lawyer’s reaction is usually to think (to themselves) but measured beyond a reasonable doubt you are telling me the verdict should have been Not Guilty.

It sure seems at those times that while some jurors are even apologetic about their verdict, others use these same rationales to argue that they reached the correct decision.

Assuming most (some?) of my readers are in agreement that the statements listed above that jurors make do not justify a finding of guilt beyond a reasonable doubt, I’ll ask them this:

What common statements from jurors have you heard that you would put in the cognitive dissonance category?

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The currently ongoing Conrad Black trial is the jumping off point for TIME Magazine’s recent article “The Benefits of Doubt,” which discusses the meaning of “beyond a reasonable doubt”. (Hat Tip: Anne Reed at Deliberations)

The article highlights a serious issue confronting all criminal defense practitioners: what does “beyond a reasonable doubt” really mean, and how do you convey that to a jury? Unfortunately, it is very imprecise.

…in practice, reasonable doubt may make convictions too easy. At least half a dozen studies have found that when the prosecution's case isn't airtight, juries often interpret "beyond a reasonable doubt" to mean, in effect, probably guilty.

In one study, prospective jurors said they would be willing to convict on a 60% chance that the suspect had committed the crime.

Sixty percent! And possibly as low as “more than fifty percent”, if the jury uses a “probably guilty” standard. That’s frightening.

I’ll post more soon on some effective voir dire/jury selection techniques for maximizing your chances that a jury will truly hold the government to “proof beyond all reasonable doubt”.

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We will be hearing a great deal more over the coming days/weeks/months about Georgia Thompson, primarily because her case is now being investigated by Congress in the dismissal of US Attorneys controversy. 

But the recent appellate decision by the 7th US Court of Appeals that not only reversed her conviction, but actually acquitted her and ordered her release the same day is perhaps more notable for what it says about our criminal justice system, and how juries react to “evidence” than it is for the political fallout.

The jury convicted Ms. Thompson of 2 federal felony charges: causing misapplication of funds, and participating in a scheme to defraud the State of Wisconsin of the right to honest services, supposedly because she was involved in awarding a government contract to a company, not because they deserved it, but because she knew they had made a legal political donation to a sitting Democratic governor. In other words, for steering the contract to the company on the basis of essentially a kickback.

Now, without regard to the political motivation for the prosecution in the first place, was there even one tiny flaw with the Government’s case? Well…

No evidence, none, zip, zilch, nada to indicate that Ms. Thompson even knew that the company had donated to the governor’s campaign. Nothing. Literally nothing. (And again, it was a legal contribution.)

Listen here to approximately minute 12:30 of the oral arguments, where the State’s Attorney is asked, right off the bat:

Judge: Is your opponent correct that there is nothing in the record to indicate that the lady was aware of any contribution?

State’s Attorney: Of contributions specifically, that’s correct…

Shame on the prosecutors for bringing such a case in the first place. No evidence is no evidence, smoke and mirrors not withstanding.

Human beings know that where there’s smoke, there’s fire, and too often this concept is applied by juries in criminal cases. The general public is probably unaware of how rare it is for an appellate court to not only reverse a conviction (say, because some evidence was improperly introduced, necessitating a new trial) but to actually acquit a defendant.

Ordering her immediate release is possibly unprecedented. And even further proof that the State’s case wasn’t just weak, but truly unjust.

We have to be able to rely on juries, however, to correct such blatant errors of prosecutorial overreaching.

Our jury system may be the best thing going, but this is pretty firm proof that juries wrongly convict more often than we like to admit.

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In voir dire, both the prosecutor and the defense lawyer will ask various questions to the panel of potential jurors about their thoughts on punishment, if the defendant has elected to seek jury rather than judge punishment. Obviously, this can be tricky proposition for the defense, because you need to know their feelings on the subject, without making it seem like you are expecting a guilty verdict in the first place.

Not surprisingly, the defense often focuses on the potential juror’s ability to sentence his client on the low end of the punishment range. Prosecutors do their best to weed these people out.

The law now requires that a juror be able to consider the full range of punishment for any particular offense they sit in judgment on. Not that they promise to give the low end of the punishment range, simply that they could consider it an appropriate case.

According to Texas Code of Criminal Procedure Section 35.16, both the State and the Defense are allowed “challenges for cause” when a potential juror shows a bias or prejudice against any phase of the law upon which the [State or Defense] is entitled to rely for conviction or punishment”.

This means, for example, if a potential juror says he could never convict anyone of Possession of Marijuana, because he thinks the law is silly/stupid/immoral/whatever, the State is automatically allowed to boot that sane, forward thinking person off the jury. “Shows a bias against the law, your honor.” “Strike granted.”

And now, Grits for Breakfast points our attention to HB 1577 which is clearly intended to skew jury pools in the state’s favor. It would amend CCP Section 35.16 by adding this language:

(d)  The state or the defense may not make a challenge for cause against a juror solely because the juror indicates that, if the defendant is found guilty, the juror will be unable or unwilling to consider recommending to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision under Article 42.12.

Plain language translation? The defense lawyer would no longer be able to disqualify someone from the jury, “solely” for the reason that they said, “Yes, I could convict the defendant – but even though he was eligible for probation under the law, I could never give it to him.” (The amendment pretends to be fair by not allowing the State to disqualify someone for the same reason – however, it should be patently obvious that this rule would always benefit the State, and never the defense.)

As usual, Scott hits the nail on the head with some plain common sense (i.e., non-lawyer, non-legislator) thinking:

That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end.

If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander.

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There’s been quite a stir in the blogosphere over the Supreme Court decision in Cunningham v. California. Much of it has lamented the fact that the convicted defendant’s sentence was lowered as a result of the decision, without much thought about the principles involved.

Actually, it’s quite simple really. The Supreme Court invalidated that part of California’s sentencing that allowed a judge to impose a higher sentence than the jury verdict authorized.

Let’s take a look at it from the perspective of the laws in Texas on Assault. The three main categories of assault in Texas are: Class C Assault – offensive touch, Class A Assault –bodily injury, and Aggravated Assault – serious bodily injury or deadly weapon.

These three range from a traffic ticket level offense, punished by no jail but up to $500, to a second degree felony, punished by up to 20 years in prison. Obviously, that makes quite a difference.

Let’s say you were charged with assault, because someone filed a complaint against you for pinching them, and they found that offensive. That’s a Class C.

You want to dispute the charges, and you go to jury trial and lose – the jury finds you guilty, of Class C offensive touch. Now, while that’s bad enough, here’s what California’s scheme effectively did before it was struck down.

It allowed the judge then to make a finding that there was either serious bodily injury involved, or that you used or displayed a deadly weapon, even though neither of these issues was submitted to the jury. The judge, after making the finding, elevates your offense to a second degree felony and sentences you to the 20 year maximum for that charge. 

Or 5 years. Or anything within the 2-20 year and up to $10,000 range. (This isn’t the case in Texas – I’m just using this as an example.)

California v. Cunningham simply said that if there were facts to be decided that increased a defendant’s punishment (other than prior convictions), that those facts had to be admitted by the defendant, or submitted to a jury and proven by the prosecution beyond a reasonable doubt.

When you take a look at it from the proper perspective, it makes perfect sense. After all, isn’t that what trial by jury is supposed to mean in the first place?

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Ray Suarez started his questioning of Marcia Coyle about yesterday’s Supreme Court Cunningham decision with the following:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges the discretion to increase prison time for convicted criminals based on factors not considered by a jury during trial.

As a fan of the NewsHour, I’ll give credit where it’s due: this summation actually does a better job of legitimately stating the issues involved in the case than most major media outlet were able to accomplish. Yet it’s a heck of a loaded beginning for this story.

First we hear the phrase about allowing judges discretion to “increase prison time for convicted criminals”. That sure sounds like a good thing doesn’t it, why would the Supreme Court disallow that? But what’s the alternative? Increasing prison time for acquitted defendants? (We are pretty close to that already.)

And the phrase “based on factors not considered by a jury during trial” is pretty watered down. Yet this is exactly what was at issue in the case. The intro would be better phrased:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges to increase prison time above the maximum allowable punishment for some crimes, despite a jury not convicting the defendant of the aggravating factors.

I wrote that in a hurry, and perhaps it could use some copywriting help, but it properly focuses the listener on the real issue involved in the case. 

The right to a jury trial means, essentially, the jury must convict you beyond a reasonable doubt, and no judge may increase your punishment based on “factors not considered by a jury during trial”.  Thank goodness six justices of the Supreme Court are starting to enforce that right.

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