Tuesday, March 27, 2018


Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.

Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like "Jury Selection Handbook" back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.

"Jury Selection Handbook" is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.

One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.

The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:

Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.


A: No, I can’t be fair in this case. [A rape case].

Q: And why is that? A: Because the defendant raped my daughter.

I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:

Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?

I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”

One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.

For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?

Other than the foregoing quibbles, I found "Jury Selection Handbook" to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I’d put this book on my required reading list.

Sunday, March 25, 2018


I started this essay off with one point in mind, but as I wrote and researched it, another point made itself evident to me. I have found what I believe to be a previously-undiscovered method of deterring school shootings. I’ll first talk about the methods which have been bandied about in the press recently, and then I’ll disclose the new method of deterring school shootings which I have discovered.

What measures will best deter mass mayhem at schools? If by some form of magic, you could make all the guns in America disappear overnight, those determined to wreak havoc on schools would be deterred, but they would quickly turn to other means—like home made bombs, for instance. As Timothy McVeigh and the Austin bomber demonstrated, bombs are easily made from common ingredients. The worst mass killing at a school in American history was a bombing, not a shooting.
Someone determined to kill can inflict a lot of damage with something as low tech as a knife, as was done in the Franklin Regional school stabbing in 2014 which injured 27. The nightmare low-tech weapon for such a mass attack would probably be a katana, a saber, or even a machete. Killing sprees using swords were at one time common in some cultures, which gave us the term “running amok,” or “running amuck.” The DSM‑5 actually classifies “amok” as a form of dissociative disorder. The SAGE Encyclopedia of Abnormal and Clinical Psychology, 1:161.

Banning certain types of firearms will probably do as little to deter school shootings as Prohibition did to deter drunkenness. Under Prohibition, those who could live without drinking didn’t get drunk; but those who couldn’t live without drinking found a way. Banning the sale of AR-15’s and AK-47’s would do little to nothing about those guns already in circulation. Outlawing those guns in circulation will simply drive them underground, and a determined criminal will get access to such a gun anyhow. Assuming you could successfully ban all modern firearms, one who was intent on mass murder could simply gun up with half a dozen cap-and-ball revolvers as did William Quantrill and Bloody Bill Anderson. A half-way competent machinist can build a firearm. I actually prosecuted a murder case where a man killed his wife with a gun he made from cast iron pipe. It shot a finishing nail punch which was ½” in diameter, and he thought it would be untraceable. As things turned out, it was easily traceable to his workshop, where we found all the ingredients.

I have suggested in previous posts that enhanced mental health screening would be the best method of identifying and neutralizing the threat from potential mass-shooters, and Florida’s recently-passed Marjory Stoneman Douglas High School Public Safety Act makes a valiant effort in that direction. The part of the act of which I was most skeptical was the provision for “arming teachers.” No offense to anyone, but as I recall my high school days, I wouldn’t trust most of my high school teachers with loaded firearms. (Especially the one who used to talk about lining his students up in front of a brick wall and machine gunning them). I was afraid that the act would simply provide for passing out guns to teachers as though they were passing out party favors. Reading the act has calmed my fears. The vetting, training, and retraining process that the act requires before allowing a non-law-enforcement school employee to go armed is rigorous. I think they ought to require all school resource officers to go through the same process as outlined in the act.

As was shown only recently in Maryland, an armed school security officer who is willing to confront a school shooter rather than stand outside the school counting his change while the shooting is in progress is the surest way to stop a school shooting. This was by no means an isolated incident, but when such incidents occur, they get downplayed. When an Arapaho County school shooter became aware that a deputy sheriff was coming to confront him, he committed suicide rather than face the deputy. Snopes.com questioned whether the imminent arrival of the deputy saved lives, saying that it was a “speculative notion” that imminent arrival of an armed officer hand anything to do with the shooter’s suicide. Other incidents where armed personnel successfully engaged school shooters include but are certainly not limited to: the Umpqua Community College shooting in 2015, the FSU library shooting in 2014, The Reynolds High School Shooting in 2014 (interestingly, although some media neglected to report that the shooter had committed suicide after being engaged by police, this fact was included in Gordon A. Crews, Critical Examinations of School Violence and Disturbance in K-12 Education, 216), the Seattle Pacific University shooting in 2014 (the building monitor used pepper spray and a flying tackle to subdue the shooter while he was reloading), and the Santa Monica College shooting in 2013 where John Zawahri started a killing spree with his parents and then went to a college campus to shoot at passing cars. He was killed by responding officers.
It cannot be denied that armed security personnel in schools can stop school shootings. How about deterring the shootings? They're not going to deter a school shooting if their presence and effectiveness are little-known facts. If they were well-known facts, I think that would serve as a deterrent.

A common theme I found in researching the shootings listed above was the reticence of the articles I read to say anything about the shooter being neutralized by the police. Perhaps one thing that can be done in order to deter future school shootings would be for the media to give wall-to-wall coverage of school shooters getting shot by security personnel similar to the wall-to-wall coverage they give to mass shootings. Would-be shooters who see massive coverage of the grief following a shooting are encouraged to go out and cause more grief. Would-be shooters who saw enough footage of school-shooters being stopped by armed officers might decide to go somewhere other than a school to do their mass shootings.

My previously undiscovered method of deterring school shootings, therefore, is this: Find some way to persuade the media to give massive publicity to the officers who neutralize school shooters, thereby demonstrating to potential school shooters that there is little to be gained beyond a shortened life-expectancy by running amok in a school.

Sunday, March 18, 2018


Here are two more Amazon reviews of Prairie Defender:


Shatters the myth that Lincoln was only a lawyer for the Illinois Central. The author, an experienced criminal law practitioner, provides a clear exposition of the practice of criminal law in general for laymen and explains well how criminal practitioners think about and try their cases. I practiced criminal law for 41+ years and came away impressed by both Lincoln and Mr.Dekle's analysis and insights.


I've read 7 or 8 books on Lincoln's legal career in the past couple of years and I would put this right up there with my two favorites: Dirck's "Lincoln the Lawyer" and Steiner's "An Honest Calling." Except for a few instances, the details of each of the capital cases are fairly dry - especially considering what we see on the news every day n modern times - but the book is made exceptional for several reasons: a) colorful details of life on the Eighth Circuit that I had not seen before; b) exceptional expert insights from the author on trial strategies, cross-examination, criminal law procedure (period and modern) that I have not seen in any other book on Lincoln; c) rebuttals/corrections of received wisdom (actually, mostly myth) on Lincoln's part in some trials and d) an assessment of Lincoln's abilities as a criminal attorney. I borrowed this from the library but I am definitely adding to my own collection. HIGHLY RECOMMENDED.