Friday, April 17, 2015


Writing about Lane’s experience as a juror in one of my cases put me to thinking about jury selection in general. Oftentimes the juror who fits the stereotype for somebody you don’t want turns out to be your best juror. For example, I was trying a first degree murder case years ago when a prospective juror came into the box and said that he was opposed to the death penalty on religious grounds.  I asked him the standard questions about being able to vote guilty and recommend the death penalty despite his religious convictions, and he said that he could. I believed him. “In other words,” I asked, “what you’re telling us is that you can render unto Caesar?” He nodded his head and said “You got that right.” I left him on the jury, and the defendant wound up going to Death Row. I don’t recall if the recommendation was unanimous, so I don’t know if he voted for the death penalty, but he voted guilty.

Another time I had a lady voice opposition to the death penalty on religious grounds. She also answered the standard questions to my liking, and I believed her. She was distraught when the jury returned with their death recommendation, but she had done exactly what she said she could do—she had voted to recommend death.

Then there was the time I had a lady voice strong opposition to the death penalty, and she hung tough on the standard questions saying she just couldn’t recommend the death penalty. The defense attorney took over questioning and tried to wheedle her into saying that there were some circumstances where she could vote to recommend death. “Can’t you think of any circumstance at all where you would vote to recommend the death penalty?” he asked. She thought a moment and said, yes, there was one situation where she could recommend death. “And what’s that?” he asked. “If the defendant was a serial killer.” Oops. In this particular case the defendant was a serial killer. Defense counsel excused her.

I once had a prospective juror who actually participated in a death row ministry and was on a first-name basis with a lot of death row inmates. This would look like the last person that a prosecutor would want on the jury in a capital murder case, but he answered the standard questions properly, and I believed him. So did the defense attorney. He challenged the man off the jury.

Then there was the capital murder case where the Public Defender’s receptionist was called into the box. (The defendant had private counsel). She answered all the questions correctly, and I wanted to believe her but I was just a little nervous about keeping her on the jury. We took a recess and I made a beeline for an assistant public defender friend of mine. I asked him whether I should keep the lady on the jury, and he answered “I wouldn’t want her on one of my juries.” The conviction with which he said those words reassured me, I kept her on the jury, and I was not disappointed with the outcome of the case.

I’ll close out this post by reminiscing about a couple of non-capital case. We had just finished up a burglary case and the jury had retired when the defense attorney came over to me and told me that I had messed up on voir dire. I naturally wanted to know what he meant. “You kept my maid on the jury.” I said that she’d committed perjury then, because I asked if anyone knew him. “No,” he replied, “you forgot to ask that question.” I sweated bullets the whole time the jury was out, but when they came back they had a unanimous guilty verdict. I breathed a sigh of relief and resolved to quit “flying by the seat of my pants” in voir dire. After that I wrote out a questions checklist for every trial.

Then there was the time that we broke for lunch and the defendant walked out into the parking lot with one of the jurors, got into the car with him, and they drove to have lunch together. After lunch we put on a few more witnesses and the jury retired to deliberate on their verdict. In short order they came back with a unanimous verdict of guilty. I knew nothing about this at the time. It wasn’t until years later that the defense attorney told me about the incident, which he had witnessed.

Wednesday, April 15, 2015


My daughter-in-law got called for jury duty last week but didn't get to serve. She said that it had something to do with the fact that I was her father-in-law. Apparently the prosecutor was perfectly content to have her serve, but the defense attorney didn't want her.

This incident reminded me of a similar incident many years ago. My wife Lane got a summons for jury duty. She told me about it as I walked in the door after a long day in court.

“I don’t want to serve on a jury,” she said.

“No problem,” I replied, “just call the judge’s office and explain your situation and they’ll let you off.”

Lane didn’t like that idea. “I don’t want to be given any special favors.”

“You won’t be. You’re pregnant, and pregnant women can be excused from jury duty if they ask”

“I’m not going to call the judge’s office.”

“Okay,” I said, “When you show up for jury duty they’ll ask you a bunch of questions, and the last one will be whether you have any reason to be excused from jury duty. Just go up to the judge’s bench and tell him you’re pregnant.”

“I don’t want to call attention to myself,” she said.

“You’re eight months pregnant. People are going to notice whether you call attention to yourself or not.” She was adamant that she wasn’t going to call attention to herself by asking to be excused. “Okay,” I said, “You probably  won’t be called into the box, and if you are the prosecutor will certainly challenge you.”

On the morning of Lane’s jury duty I was sitting as second chair counsel for the case that was set for trial. We had a newly hired assistant public defender, and I was showing him the ropes. You might ask how I, with less than a year’s experience, was showing anybody the ropes, but at that time I was the most experienced assistant public defender in my home town.

The judge asked the preliminary qualifying questions and then asked the style of the case set for trial. The prosecutor announced my client’s name, and we proceeded to jury selection. You’ll never guess whose name was the first one pulled out of the hat.
As Lane was walking to the jury box, my co-counsel asked me “What should I do about your wife?” I assured him that there was no need worrying about that issue, the prosecutor would never let her sit on the case. When the prosecutor finished his voir dire examination, he accepted the jury without exercising a challenge. My co-counsel asked me what he should do. I told him that I couldn’t advise him on that issue, he’d have to ask another public defender who was in court that day.

He walked over, conferred with the other public defender, and then announced that he was going to accept the jury without exercising any challenges. We were through with the trial by mid-afternoon, and our client was on his way to jail, having been convicted as charged of battery.  I asked the prosecutor why in heaven’s name did he allow my wife to sit on the jury. “I knew she’d never have another chance to sit as a juror, so I kept her.” I then asked the same question of the public defender who had given my co-counsel such bad advice. He said: “I knew she’d never have another chance to sit as a juror, so I told him to keep her.”
When I got home that afternoon, I sat Lane down and said “Tell me everything that went on in the jury deliberations.”
It seems that the first thing they did was try to elect her foreman because she was married to a lawyer, but she declined the honor. After electing another person foreman, they spent the next 10-15 minutes trying to figure out which lawyer was the prosecutor and which was the defense attorney. After she helped them sort out that thorny question, they were ready to deliberate. One juror announced, “When y’all get it figured out, let me know and I'll vote whichever way you want me to.” The five remaining jurors then began to discuss the case. They were just before acquitting my client because his victim hadn’t been invited to the party when Lane spoke up. “Whether he was invited to the party or not, that doesn’t give the defendant a right to beat him up.” She single-handedly talked the other four jurors into voting guilty. The non-participant said he’d vote guilty, too, and the case was over.
I’m not certain of this, but I’d be willing to bet that I have the distinction of being the only lawyer in America today who had his wife on the jury of a case he defended AND whose wife talked the jury into convicting his client.

Friday, April 3, 2015


In August of last year a very unfortunate incident occurred. A young man by the name of Michael Brown was shot and killed by Ferguson MO police officer Darren Wilson. The incident touched off a firestorm of anger throughout the nation, as garbled accounts of the incident made headline news. Everyone drew their own conclusions about the incident, and some of those conclusions became set in stone before all the facts emerged.

The general storyline trumpeted by the media seemed to say that this incident was a symptom of the endemic racism among police officers throughout the nation. People chanted “hands up, don’t shoot,” and protests against police officers swept the nation. When a local grand jury heard the case and declined to file charges against Wilson riots broke out and buildings burned. It was seen as just another example of a prosecutor who was in bed with the police manipulating a gullible grand jury. Adding to the furor, one of the grand jurors complained that he felt he had been misled by the prosecutor. This complaint got widespread publicity.

Then Attorney General Eric Holder came to the rescue. He was going to have his Department of Justice (DOJ) go in there and do what should have been done in the first place. After a lengthy investigation, the DOJ made its decision. In an 86 page report, the DOJ begrudgingly exonerated Darren Wilson. Here are a few excerpts from that report, which can be read in its entirety at this site: []

On the issue of “hands up, don’t shoot” the DOJ’s investigation came to this conclusion:

Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness's own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.

[DOJ Report, page 8].
In other words, the DOJ decided that those witnesses supportive of the “hands up, don’t shoot” scenario were unworthy of belief.

On the “he shot him in the back” scenario, the DOJ's investigation came to this conclusion:

As detailed throughout this report, the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law. The physical evidence establishes that Wilson shot Brown once in the hand, at close range, while Wilson sat in his police SUV, struggling with Brown for control of Wilson' gun. Wilson then shot Brown several more times from a distance of at least two feet after Brown ran away from Wilson and then turned and faced him. There are no witness accounts that federal prosecutors, and likewise a jury, would credit to support the conclusion that Wilson fired at Brown from behind. With the exception of the two wounds to Brown's right arm, which indicate neither bullet trajectory nor the direction in which Brown was moving when he was struck, the medical examiners' reports are in agreement that the entry wounds from the latter gunshots were to the front of Brown's body, establishing that Brown was facing Wilson when these shots were fired. This includes the fatal shot to the top of Brown's head. The physical evidence also establishes that Brown moved forward toward Wilson after he turned around to face him. The physical evidence is corroborated by multiple eyewitnesses.
[DOJ Report, page 10].
In other words, Wilson shot Brown the first time when Brown was reaching into Wilson’s patrol car and grabbing for Wilson’s gun. Wilson shot Brown again when Brown turned and resumed the attack on Wilson.
The report also found that “The Shootings Were Not Objectively Unreasonable Uses of Force Under 18 U.S.C. 242.” [DOJ Report, page 10]. As everyone who took English grammar knows “not objectively unreasonable” is a double negative which means “objectively reasonable.”

On whether or not Wilson told the truth about the encounter, the DOJ Report had this to say:

During Wilson's interview with federal authorities, prosecutors and agents focused on whether he was consistent with his previous statements, the motivation for his actions, and his training and experience relative to when the use of deadly force is appropriate. Federal prosecutors challenged Wilson with specificity about why he stopped Brown and whether he was aware that Brown and Witness 101 were suspects in the Ferguson Market robbery. Similarly, prosecutors challenged Wilson about his decision to use deadly force inside the SUV, to chase after Brown, and to again use deadly force on Brown in the roadway. Wilson responded to those challenges in a credible manner, offering reasonable explanations to the questions posed.

At the time of his interview, federal prosecutors and agents were aware of the autopsy, DNA, and ballistics results, as detailed below. Wilson's account was consistent with those results, and consistent with the accounts of other independent eyewitnesses, whose accounts were also consistent with the physical evidence. Wilson's statements were consistent with each other in all material ways, and would not be subject to effective impeachment for inconsistencies or deviation from the physical evidence.8 Therefore, in analyzing all of the evidence, federal prosecutors found Wilson's account to be credible.

[DOJ Report, page 16].
In other words, Wilson’s testimony was consistent with his previous statements, consistent with the physical evidence, consistent with the accounts of credible eyewitnesses, and reasonable. The report concluded that Wilson’s testimony was “credible.” When someone gives a statement which is consistent with previous statements, consistent with the physical evidence, consistent with other credible witnesses, reasonable, and credible, that means the person is telling the truth.

When an exonerating report comes from an agency headed by a man who has publicly declared that he is prepared to “dismantle the Ferguson Police Department,” [], it is reasonable to believe that Darren Wilson deserved to be exonerated.

I was somewhat surprised by the DOJ findings. When the first reports came out I, too, had drawn some preliminary conclusions. I thought it likely that Wilson had done something to provoke Brown. I thought it likely that, had Wilson been more diplomatic in his dealings with Brown, he might have avoided having to use deadly force. I thought that, had Wilson been a big man, his size would probably have deterred Brown from attacking him. I thought it probable that the shooting was legally justifiable but tactically avoidable. According to the DOJ report, I was wrong on all counts.

I’m writing this blog post because the DOJ finding that Wilson was fully justified in what he did has been drowned out and almost completely ignored in the furor over a second report issued by the Department of Justice simultaneously with the exoneration of Wilson. This other report accused the Ferguson Police Department of rampant racism. The best that can be said for this second report is that it is not a model of dispassionate analysis.

If I were a suspicious person, I would suspect that Holder was embarrassed that he could not prosecute Wilson and felt that he would be subjected to ridicule for failing to prosecute the man. I would further suspect that this second, vitriolic report was issued to camouflage the first, exonerating report. I would be disinclined to give weight to the conclusions of that second report due to its timing, its tone, and its reasoning. Where the first report gave detailed reasons for crediting or discrediting testimony, the second report simply relates anecdotes about purported misbehavior by Ferguson Police Officers.

The only anecdotes about misbehavior by a Ferguson police officer which were fully analyzed were the anecdotes told about Darren Wilson’s purported misbehavior. Here’s what the first report had to say about those anecdotes:

Federal prosecutors were aware of and reviewed prior complaints against Wilson, as well as media reports, alleging Wilson engaged in misconduct. Such allegations were not substantiated, and do not contain information admissible in federal court in support of a prosecution.

[DOJ Report, page 16, note 8].
Now, I’m not saying that the Ferguson Police Department is a model of modern law enforcement professionalism, and I’m not saying that the Ferguson Police Department doesn’t have its share of bad apples. What I am suggesting is that a dispassionate report on the state of the Ferguson Police Department would probably have noted that there was room for improvement and possibly outlined a plan for improving the department. I’ve done a number of grand jury investigations of various agencies which did just that—pointed out the room for improvement without dramatizing the purported villainy of the members of the agency.

The DOJ had a golden opportunity to soothe racial tension with its two reports. Instead it has intensified that tension. I hope it did so out of ineptness rather than out of a desire to save the Attorney General some embarrassment.