I'm home again after a trial. It was quite an extended trial, as DUI trials go. We do trials in the mornings only in Humboldt county, and this one took 9 mornings. It also took 2 or 3 more mornings to get set up before we started, and to await the verdict at the end of the trial. I think for a lawyer nothing is more engrossing than a trial. Certainly it is that way for me, and after a long period when all my cases settled (I do criminal law) suddenly I've been in trial many days during the past two months. I was five days into jury selection on one case when the prosecutor offered a new improved deal and my client took it. Then I immediately went into a 3 week trial. A couple of weeks off, and back into trial again. I lose track of everything except what is occuring in the moment in a trial - I get into such an intense focus that it resembles the meditative state. I have to have someone else write notes because I can't keep track of what's current if I'm writing down what's past. Live in the here and now. That's what we've been told to do since the '60s. Great advice. I recommend it

I was seeking the question that would distingish potential jurors biased against my client for drinking at all before driving, from those who think that the issue is not "drinking and driving" but "driving feeling the drinks". It is the later formulation which is a violation of state law in California. I'm not sure I found the question, but I was happy with the jury's verdicts.

There is so much ritual in court. Its like high church. Before the jury could leave the courtroom to delliberate the bailiffs had to swear an oath to do their duty in seeing that the jurors were not influenced by outsiders, or the bailiffs themselves. And when the jury came back with the verdict the ritual seemed to take forever. Pehaps it was only 5 to 10 minutes but waiting for the outcome it felt like an enternity. There are two counts to a typical DUI in Caiifornia. Count 1 is driving under the influence of alcohol, the other count is driving with a blood alcohol content of .08 or higher. The jury hands in separate verdicts for each count. Each count has its own verdict form. So they give the bailiff the verdict on the first count. He takes it to the judge. The judge reads it to himself and sort of frowns. Perhaps he asks the jury if they all agree on this verdict. But he doesn't say what it is. Then the jury gives the bailiff the verdict on the second charge. He hands it to the judge. The judge frowns again. He stares off into space, obviously lost in serious thought. But what is he thinking? What combination of verdicts could cause a pause at this point? The judge calls the prosecutor and me to the bench. Then we find out. The jury has hung on the first count. They could not agree. They did agree on the second count. They agreed that my client was not guilty. That's what gave the judge pause, I think. If they had convicted on the second count the judge could ask the prosecutor to drop the first count, since it makes no practical difference whether they convict on one or both counts - the sentence is the same. But now we have a mistrial on one count. The judge asks the jury if they're sure that more deliberation would not help. They are sure. Some of them look fairly upset, in fact. We don't know which way they were voting on the hung count, but it looks like they don't like the fact that the couldn't convice the other side. So, the judge declares a mistrial on that count. My client is acquitted of driving with .08 BAC or higher, but the prosecutor has the option of retrying him on the driving under the influence count. I'm very happy at this point. Another attorney in the courtroom comes up and congratulates me and shakes my hand. The prosecutor is visibly depressed. Both of us have few enough trials under our belts that a verdict for or against us has a great personal impact. A lawyer who has done hundreds of trials could say "well, you win some and you lose some." But neither of us have done hundreds of trials, and this verdict was a really big deal for us. As the prosecutor leaves the room I tell him I thought he did a good job (which I do). He perks up at that, and goes off down the hall to his office - and his fellow deputy district attorneys. They are going to ask him how it came out and he is going to have to say that that jury hung on one count and acquitted on the other. That's not going to be fun. I on the other hand am having fun now. I will be the hero of the courthouse for a day or two. Defense attorneys have a strong sense of community and in some ways a victory for one is a victory for all. We don't win them all. In fact, taken as a whole, defense attorneys probably lose quite a few more trials than they win. Ask me about that sometime and I 'll tell you why.

I manage to catch one of the jurors and speak with him about the trial and the factors that went into the verdicts. As with my last trial I learn that the jurors completely ignored my best argument. I spent a lot of time talking about one point and the jury didn't think it was worth considering at all. They had other points which interested them. The trick to successful trials is to figure out what the jury's points will be and to address them rather than spending a lot of time on your own ideas which don't interest them. I suppose that will come with time.
- posted by Eugene @ 5:19 PM

 
Everyone is biased. Use of bias and sterotype is hardwired into the genetic code, probably as a combination of our built in wish to be part of a group, and our built in ability to grasp simularities and differences (remember those high school essay assignments, "compare and contrast " whatever the topics were). We think of bias now in terms of racial or ethnic bias, but we have sports bias ("How 'bout those '9ers?"), favorite colors, and, of course, political bias most visible in what party we associate ourselves with. Very interesting thesis for a sociologist, but vital facts for a trial lawyer. I must pick a jury on Thursday morning, for a criminal trial. If I pick incorrectly, so the theory goes, I will end up with a jury who are going to convict my client before they hear my arguments, because of their biases. This idea focuses me intently on how to detect and overcome the biases that work against my client, and how to detect and support those that work for my client.

Now, I defended some tree-sitters a short while back. In those cases the basic bias in jurors is very visible, and very simple. You either think logging is a grand way to harvest renewable resources for the benefit of humanity, or you think destruction of our ancient forests is a crime rivialing the holocaust. For the trial lawyer the puzzle is this: how to come up with a question which sorts the jurors out for me, and which does not sort them out for the prosecutor? If I can find such a question, then I can pick environmentalists and drop pro-loggers in the jury pool without the prosecution knowing what I'm doing. (For those completely out of touch with the jury system, trials begin with selection of a jury of 12 from a larger pool of jurors, and the lawyers have the ability to "excuse" a certain number of jurors and they use that ability to try and get a jury receptive to their cause). In the case of the tree-sitter defenses I did find such a question. It was..... but if I tell you then perhaps the news will filter through to the prosecutors in my county and then I won't be able to use the question again. Here's a hint: the question does not in any way mention or imply anything about logging, and it does have to do with an experience common to us all.

Next I'm doing a DUI defense, and I'm looking for the question that will separate those who automatically believe the police when they testify, and those who believe the breath testing machines are without error, from those who are skeptical about both police and machine as a means of discerning truth. I'll let you know if I find it.
- posted by Eugene @ 11:30 AM