#11 The Jury Trial Involving Justice for Murphy (the dog)

The biggest takeaway from jury trial #11 was that people in our neck of the woods care about animals, a lot. Animal cruelty was the only charge the defendant in this trial faced and it involved a pit bull puppy named Murphy who sustained multiple injuries to his face and body, as well as a broken leg and dislocated femur. This was discovered when a neighbor contacted animal control because she could hear her neighbor, the defendant, yelling at his puppy, which was followed by thumping noises and yelps.

Animal contol arrived and found the dog with a bloody nose, walking on three legs, with a swollen face, and cuts and scrapes all over his body. Murphy was taken immediately to a Veterinarian. At the time the defendant gave numerous excuses to animal control about how Murphy was injured: (1) Murphy had his foot stepped on by a 3rd party; (2) Murphy had his foot stepped on by defendant; (3) Defendant accidentially ran Murphy over with his bicycle; (4) Murphy got his foot stuck in a fence. The excuses went on and on.

These excuses continued on at jury trial when the defendant took the stand to testify on his own behalf. On the stand we also learned that (5) Murphy had been in a fight with other dogs, (6) had accidentially been dragged behind the bicycle and (7) had gotten his foot stuck in a fence. However, the Veterinian who had treated Murphy was able to sustinctly state that none of the injuries observed on Murphy were consistent with the many unlucky accidents the defendant attempted to portray. In fact, the Veterinarian noted in her report, and on the stand, that the injuries on the dog were in various states of healing which was inconsistent with defendant’s statements. This along with circumstantial evidence (aka the noises heard by the neighbor) was enough to obtain a guilty verdict.

After the verdict was rendered the jury stuck around, not to provide feedback regarding the trial, but rather to find out what happened to the dog. The jury wanted to make sure the dog had been adopted out and was in the hands of a caring individual or family to ensure that the abuse did not continue.

It was a happy ending for Murphy. He ended up working as a partner with the Animal Control Officer’s who rescued him. Over the years I received several photos of Murphy on duty; and not to worry, he took his job as an officer seriously. He was even spotlighted in the local paper for his role with animal control.

In California an individual convicted of animal cruelty is required to taken animal cruelty prevention courses (much like a batterer’s treatment program in Domestic Violence Cases) if they are given a grant of probation. This is to try and curb animal abuse in the future. Defendant’s are also required to repay the cost of care associated with the animal’s injuries as part of ther sentence. Both were ordered in this case.

A picture of Murphy still hangs on my bulletin board in my office as a reminder that justice involves many types of victims, including puppy’s named Murphy.

#10 The Jury Trial where I Learned (the hard way) that My Instincts Matter

#10 was my first jury trial with significant media exposure. It involved a victim who went onto property that defendant was squatting at in Chico. He and his dog were attacked by the defendant with a knife and eventually chased off the property. The victim screamed for help as he ran away. One witness opened her door to see what was going on and the defendant threatened her with the knife; prompting the witness to call 911. Another neighbor came outside and the victim hid behind him. This neighbor was threatened with a knife by the defendant too.

The defendant represented himself, in pro per, and claimed that he was acting in self-defense. He took the stand and said his knife was used for “urban and wilderness survival” against an agressive dog being used as a weapon by the victim. However, all the witnesses were in agreement that the dog was not acting agressively even after the dog had been stabbed in the mouth by defendant.

The combination of animal cruelty and the issue of crime as it related to the unhoused in Chico were, and still are, hot-button issues for local media which meant that a reporter covered the entirety of the jury trial. This added an additional layer of pressure to the jury trial as it progressed. It was also my first felony jury trial. To complicate matters further, the defendant was also self-represented.

Pro per defendants are particularly tricky in the realm of criminal prosecution. Prosecutors want to make sure that justice is served, which means balancing the rights of the defendants, the victims, and the public within the parameters of the law. When someone represents themself it falls on the prosecutor to make sure their rights aren’t violated as a jury trial progresses. These cases often get appealed and the pitfalls of self-representation can set up an appealable issue if caution is not used.

Jury selection in this case went longer than I anticipated and I felt that the jury we had were getting impatient with the process. Against my instinct I did not use a peremptory challenge on one of the jurors and that ultimately was a costly mistake. A peremptory challenge, at the time, allowed either side to kick a certain number of jurors off the panel without giving any specific reason why. The particular juror I was concerned about reminded me a lot of my good friend’s grandmother. A woman I had grown up around and loved, but knew was unable to make any hard decisions about wrong doing-she was just too nice.

However, the evidence in this case was strong, so against my instinct she remained on the jury. We conducted closing arguments the evening before and the jury was released to go home before starting deliberations the next morning. This juror showed up the next day with an ice chest full of food for her fellow jury members. A wonderfully kind gesture, but a gesture that solidified the fact that she was going to be problematic for me.

She was. The jury ended up hanging with 11 jurors on the side of guilt and 1 for innocent. My instinct had been right and I had ignored it. This kind woman reminds me to trust my gut at the beginning of every trial I have started since this date and likely into the future. While she hung up the jury on #10, she has reminded me to take the time I need in many trials that have followed. When it comes to jury selection, instincts matter.

#9 The Jury Trial Where Criminal Law met Water Law at a Crossroads

There have been multiple times in my experiences as a prosecutor where I have had to dig deep into some very non-criminal law areas in order to both and proceed with prosecution. Crimes that happen in California that impact our natural resources is one of those areas.

In California we have complicated regulatory schemes involving farming and use of our natural resources. Enforcement of the regulations is also given to multiple agencies throughout the State, and every once in a while, the District Attorney’s office is called upon to enforce criminal violations of these regulations, when appropriate.

It should also come as no surprise that water rights have been discussed, fought over, regulated, and litigated for hundreds of years. It is a complex area of the law. You take courses on it in law school and attorneys specialize in water law in California-choosing only to represent clients in this very particularized area.

California also has several regulatory and enforcement agencies that all work within their government roles to enforce regulatory rights. The Department of Fish and Wildlife for example is tasked with giving permission to divert, obstruct, or alter streambeds. This is typically done by a landowner who asks for permission, and after consultation with scientists, permission is either granted or denied. Completing work in a streambed that constitutes alteration, diversion or obstruction wihtout permission is a crime.

Jury trial #9 involved the diversion and obstruction of a streambed in the foothills of Butte County in order to bring water up a hill to use in a marijuana grow on the property. The incident started in 2009: Marijuana was still illegal to possess or grow, there were no regulatory schemes around cultivating it, and it tended to be highly destructive to the land surrounding it. In general, highly toxic pesticides and other chemicals would be allowed to seep into the ground, our public forests would be stripped of wood of foilage to make way for the grows, and streams would be altered, diverted, and sometimes destroyed entirely to provide nutriuents for the plants.

In this case the defendant had installed a 2,500 gallon water tank in the middle of a stream located on the south portion of property adjacent to his own (the property was owned by Union Pacific Railroad). The tank was outfitted with a pump to allow the water to travel up a hill and onto defendant’s land to irrigate a large marijuana grow. Later, the defendant cut trees down on his neighbors property, without permission, in order to cut a road into his own land to allow a well driller access.

Both sides utilized environmental scientists as experts as well as land surveyors. Both the effects on the stream and the location of the road were at issue in the case. The case became so technical that the experts were literally fighting over when a stream becomes a stream and subject to regulation by the State.

During this time, prosecutors both in Butte County, and around the State were attempting to find creative ways to hold illegal marijuana growers accountable for the environmental harm they were causing with their grows. This statement is still true today. While regulations on cultivation of marijuana are present, the illegal grows are still doing an environmental number in our forests and streams.

In this case we came up with the novel idea of charging the defendant with actual theft of the water-2,500 gallons of it on the day he was arrested based on the full water tank. The argument was the People of the State of California are the owners of our natural resources (aka water) but we have granted regulatory authority to the Department of Fish and Wildlife to help protect it’s use. Defendant, by capturing the 2,500 gallons from the stream without permission, had stolen that water from the People. That water had been destined to travel through tributaries to eventually reach the Oroville Lake Reservoir where it would benefit wildlife and plants along the way and ultimately be used by the People as regulated by the Department of Water Resources.

A jury found the defendant guilty of diversion of the stream and theft of water as well as trespass to land by injuring timber. The case had been tried in 2014, during a period of drought in California. Water was on everyone’s mind and the importance of illegal diversion was, and still is, an important area of enforcement.

No one had been found guilty of theft of water before in California! This case went up on appeal and ultimately, in a published opinion, we received clarity that Theft of Water is not a crime in California, unless the water had previously been captured for use by someone else and then it is subsequently stolen (as an example think about someone who fills a water truck up and then a third party takes the water truck and uses the water inside of it to fill his own tank).

Read the opinion here: People v. Davis (You may even find a direct quote from my closing argument in the opinion)

Even though clarity has been provided regarding the specific charge, the ability of prosecutors to be able to work with the law to protect both specific victims and the People as a whole is something I am very proud of doing both personally and whenever I see fellow prosecutors doing it. As the society changes, as the law evolves, and as the needs of our community change, this type of flexibility and courage is needed. It takes courage to try something new. It takes courage to stand up to the wrongs of the world and fight them in novel ways. Having courage to take a chance at a jury trial is what I learned here, at the crossroads between criminal and water law.

P.S. Water becomes a stream for purposes of regulation the moment it “daylights” or emerges from the ground. The stream in this case was sourced from water that “daylighted” less than a half mile away. It was a stream in infancy, but we could trace it’s path all the way from daylighting to the Lake Oroville Reservoir.

#8 The Jury Trial Where the Verdict Was Reached Outside the Courtroom

A lot of effort is involved in keeping our jurors insulated from any outside influences that could affect their opinion of the case. The Court gives them instructions that jurors cannot do any independent investigation, cannot look up or research the people involed on the internet, or do any research on legal concepts. Lawyers and investigators and ordered not to speak directly to jurors at all. Not even a “good morning” or a “hello.” We have to avoid even the appearance of inpropriety.

A jury trial is supposed to take place inside a bubble. The lawyers guide the facts as allowed by the judge and the Court instructs the jurors on the law. It’s the jury’s job to apply the law to the facts in that little bubble to see if a crime was committed-proving that is a prosecutor’s job beyond a reasonable doubt.

#8 was a battery case between two women who were involved in a road rage incident. The defendant got mad because she thought the victim’s vehicle cut her off and then refused to let the defendant pass as both vehicles traveled own Forbestown Road in rural Butte County. The defendant followed the victim into the parking lot of a grocery store and confronted the driver about it. The victim, got out of the car and between defendant and the driver, telling defendant to leave. Defendant then grabbed the victim by the hair and punched her in the face numerous times, leaving a bruise over the left eye and a clump of hair pulled out.

At trial the defendant claimed self-defense saying the victim struck first by chest bumping the defendant numerous times forcing the defendant to stand her ground.

In assaultive crimes the prosecution has to prove that it was not self-defense, which can be a tricky thing to prove. How do you prove a negative? We usually rely on the facts and circumstances of the incident-who threw the first punch, who intiated the negative conduct, the severity of injuries or their location, past history between the two parties etc. We use circumstantial evidence to show that the only reasonable conclusion was that this was not self-defense.

Defense can bring in character evidence of the victim showing they have a tendency to be violent and only then can we rebut that with character evidence of the defendant doing the same.

Self-defense is tricky. And in this case, the only witness we had who was not directly involved in the road rage incident did not see the beginning of the fight. To further complicate matters every witness in this case, including the defendant, provided slightly different versions of events; the case was three years old by the time it got to trial and while everyone tried their best to remember what happened, details fade as time passes on.

Our victim in this case testified and was put through a rather brutal cross-examination regarding her tendency towards violence. She got a little heated with defense counsel on the stand but overall handled the pressure well. What happened outside the courtroom after she was done testifying ultimately swayed this jury to a not-guilty verdict. The jury had been released for lunch and was walking out to their cars. As they did they saw our victim yelling at someone on her cell phone while standing in the hallway of the courthouse. The jury later told me they beleived that the victim was quick to anger based on how she conducted herself in their presence.

In a perfect world the jury would not have seen victim out in the hallway yelling on her cell phone. It was not part of the trial, it was not evidence, and it should not have been considered. But we don’t try cases in a perfect world and the fact of the matter is that everything that happens in a jury’s presence can and will effect the outcome. This one was outside of my control and while the inability to control this behavior was frustrating, it also taught me to be aware of what everyone involved in the trial is doing at any point in the jury trial, because we want to preserve the bubble as best we can.

#7 The Jury Trial Where I Try to be Mean

When you are first learning how to be a trial lawyer you often get encouraged to try different techniques. It can be as simple as using a different method to introduce photos, or maybe using your body language and positioning to suggest important details as a witness testifies. Techniques also include your own tone as a lawyer while questioning a witness or presenting closing argument. There is a lot you can do with your volume, your cadence, or your body language to be persuasive.

I like to try out new techniques to see what works and what doesn’t. One of the benefits of working in criminal prosecution is that I am in the courtroom a lot so I get to see other attorneys practicing law on a regular basis. I’m exposed to different ways to approach our job all the time and the only way to figure out what works for you, and more importantly, what doesn’t work for you, it to try it out and see what happens.

Trial #7 was a domestic violence case involving a boyfriend and girlfriend who had gotten into an argument over the defendant taking the victim’s ATM card. Victim tried to get her card back and defendant grabbed her arm, putting her into a control hold. Both fell into the couch and as defendant got up he kicked the victim.

Victim and a witness, who was in the apartment at the time, both took the stand and both changed their story. They were inconsistent with each other, with the prior statements they made to law enforcement, and with the 911 call that was placed. To put it plainly, this case fell apart on the witness stand.

Because I had nowhere left to go with my evidence, I decided to take a different approach in my direct examinaiton of the victim. I thought perhaps if I was more assertive with my questions through aggressive behavior perhaps the victim would respond in a way showing her unwillingness to testify in court, which would highlight the lies she was telling the jury.

My overly assertive behavior was viewed as just being mean. The jury, the defense attorney, and the judge all commented about the stark difference in my questioning. The defense attorney even said, “man, I didn’t think you could be so mean.” To be clear, I wasn’t being mean. I was being direct. The line of questioning was crafted to call a witness out on her lies without skirting around the issue. In reality, it sounded like a personal attack on the victim by an overly aggressive prosecutor.

One of the most invaluable tools I have learned is that for me, as a female, it does not play well to a jury if I am overly assertive. I want this to be different. I routinely watch my male prosecutor counterparts get away with direct examination exactly like the one I had crafted in this case. It is where I got the idea to try it in the first place. But, when I tried it the attention turned away from the evidence and landed right on me and my “attitude.”

I’ve talked to other female prosecutors in this area and they report similar feedback with overly assertive behavior. Some of my counterparts make it work, others adjust. I have learned to adjust. At certain times with certain witnesses, I can get away with a question or two that cross the line into assertive+, but this trial, and others, have taught me that in my own personal trial practice, an entire line of questioning in this style will not work for me.

Ultimately, my job is to guide the jury through the evidence in a way where they can understand both what it is and why it is important. Then my job is to provide the jury with the tools and arguments they need at the time of deliberation to determine guilt. If I dissappear into the backdrop at the end of the case then I have done my job. Trial #7 ended with the focus on me, which does not serve justice in any way; it is a lesson I carry with me in the preparation of every case that I’ve taken to trial since.

#6 The Court Trial Involving Puppies

Sometimes a defendant will waive their Constitutional Right to a jury trial and agree to have the case decided by a Judge. This happens for a variety of reasons. Sometimes it is a complicated legal argument, or the case could involve some highly inflamatory facts and a defendant may be concerned about a jury’s reaction. Puppies and crime fall into that second category.

#6 was a court trial mainly because the case had grown so old. It had happened in 2009 and involved 30 counts of misdemeanors for animal neglect as well as 3 infractions for Butte County kennel violations. As the case trudged along the co-defendants changed attorneys and an investigating officer moved to a different State. We started the Court Trial 3 years after the incident date, and, due to Court and counsel availability, the case was heard in 3 one-half day increments.

The defendant’s were on probation from a different county in relation to a puppy mill they had run and this case was a result of a compliance check of their probation terms. When probation arrived they found 6 dogs inside the residence in violation of Butte County kennel law. A large storage container was on the property and 17 dogs were found inside without adequate heat (it was February), ventilation, water, or bedding. 13 dogs were also found in a pump house in the same condition. All the dogs were seized and it was determined that they were unkept, had feces on them, and matted hair. Several had tapeworms and giardia. Defendants’ admitted they were collecting the dogs in order to start a breeding program after they finished their existing probationary term.

In this case separate counts were filed for each puppy using the citation issued as the compliant. As a practical matter at trial it made the case a bit difficult. None of the puppies had names and we had to specifically identify where each animal was on the property and their physical condition as reported by the veterinarian. Ultimately, we used a large poster board and the puppy number assigned by the Vet. After sufficiently identifying each animal, we played video of the sad state of the animals in all three locations.

17 pairs of eyes peering out of a storage container on a cold February morning is a powerful peice of evidence. The same went for the 13 puppies piled in crates in the pump house. Defendants’ were found guilty by the Court on all counts.

When it comes to animal neglect and cruelty cases, the law requires that the defendants take a class to learn awareness on how to care for animals and requires resitutiton to the agency who provided care to the animals after they were seized. In this case over $12,000 was spent by Butte County Animal Control to get the animals in a healthy and adoptable condition. The defendants were order to repay that amount. Defendants were also required to be animal free, with the exception of a service animal for one of the defendants.

This case was a perfect example to me of the type of case a defendant may want a Judge to hear, given the inflammatory nature of unkept puppies. It helped me learn the value of organization at the outset when a case involves a lots of charges with many victims. I also learned that some evidence can be damming all on its own; puppies in peril on video is a prime example.

#5 The Jury Trial Involving Math

Jury Trial 5 went right back into the arena of DUI.  At 12:56am the defendant ran a stop sign at the entrance kiosk to Loafer Creek campground in Oroville.  A State Parks officer attempted to pull him over but defendant did not yield, instead he continued to drive outside of the campground and onto Hwy 162; going about 300 feet before eventually stopping.  Defendant had bloodshot and watery eyes and an odor of alcohol about him.  Defendant admitted to drinking three Sierra Nevada beers between 11:00pm and 12:30am.  Field Sobriety Tests were performed including a PAS (Preliminary Alcohol Screening) 28 minutes after driving which indicated the presence of alcohol at a .09%/.08%.  Defendant was arrested and a breath test was administered 49 minutes after driving indicating a Blood Alcohol Content of .08%/.07%.

Defendant was charged with two separate counts of DUI.  We call them the “a count” and the “b count” referring to the subsection of Vehicle 23152 that applies.  One is based on intoxication above a legal limit of .08% and the other is based on the presence of an intoxicant and impairment shown by the circumstances.  Usually that includes, bad driving, poor performance during the field sobriety tests, admission of drinking etc.  A defendant can be convicted of both, but only punished for one. 

Math was an issue here guys.  According to the regulations governing DUI investigations there is built into the testing a .02% margin of error.  With a .08/.07% and the margin of error the breath test technically could come in under the legal limit of .08% where intoxication is presumed.  In this case we had a way to get around that, the PAS test.  28 minutes after driving the defendant took a PAS that showed a .09%/.08% meaning the defendant’s blood alcohol level was on the decline at the time of the chemical test.  A half hour before the PAS at that level would have meant, based on a dropping BAC, the defendant was actually a .10%/.09% at the time of driving.  We just had to get the PAS results in.

Our Judge wasn’t having it.  Repeatedly, the issue of admitting the PAS results was brought up: first orally, then in writing, then in again in writing.  Every time the Judge declined to allow the actual results in; limiting testimony on the PAS merely to a confirmation of the presence of alcohol.  The judge asked for case law, which was provided.  It was distinguished by the court on the facts.  An argument was made that the results of the PAS and their reliability went to the weight of the evidence and not to admissibility.  The Court ruled that the Legislature had intended there to be a distinction with the PAS and the chemical test and because of that the prior ruling would stand.

Without the PAS results I could not prove that the BAC was declining at the time of driving and without that reference point our expert could only give the opinion that it was either at .10% at time of driving or a .06% at time of driving depending on whether the BAC was rising or declining.

We had to pivot to a reliance on the bad driving and the performance of poor FST’s in order to convince the jury beyond a reasonable doubt that the defendant was guilty.  As my expert said, “of course he was intoxicated, look at the bad driving.”  Defendant was convicted of one count of DUI, the one involving impairment shown with bad driving.  Math had worked us out of a conviction based on the .08% presumption.  The jury in this case took a logical and well-reasoned approach in their verdict—Defendant was impaired by alcohol when he was driving regardless of his BAC at the time.

This trial taught me that, sometimes a judge will disagree with your legal analysis. To this day I stand behind my position that the results of the PAS should have been admitted into evidence; it was supported by case law. However, a judge ulitmately decides these issues, not the prosecutor, and I learned that as a prosecutor I have to be able to adjust to rulings I was otherwise anticipating to go in my favor. Fortunately, the alternative charging in this case saved it from an aquital in a jury trial where the defendant had been driving impaired. Regardless of the math, we were able to prevail based on the dual basis of liability we had set up at the time of charging.

#4 The Jury Trial Without a Victim

My fourth jury trial introduced me to the world of domestic violence. To say that as a prosecutor we never really know how a domestic violence case is going to pan out in front of a jury is an absolute understatement. These are the cases where prosecutors have to be prepared for absolutely every possibility. There are a couple of reasons why I believe this happens:

  1. Victims don’t show up to court. In domestic violence cases everyone has a heightened emotional state at the time of the event. When the dust settles and the real life consequences on a family relationship put in the criminal arena begins; often it just becomes too much for a victim to handle.
  2. Victims change their story. Victims of domestic violence are usually under an immense amount of pressure: they have lost the ability to co-parent, they usually lose an income, they don’t want someone they love to go to jail. The reasons for stories to change goes on and on. Often prosecutors don’t know what a victim is going to say on the stand until the testimony starts.
  3. Witnesses are often family members. This includes the children of the parties. Family members are reluctant to be involved.
  4. Victims become overly cooperative. This can also be a red flag. Sometimes and unfortunately law enforcment contact is used to influence family law cases. As a prosecutor we always have to look at the family law case to see what is being said by the parties in their corresponding family law cases to get a better understanding of the bigger picture.

Domestic violence often happens behind closed doors and so every scrap of cooberating evidence supporting the victim’s statement becomes key. We use small bits and pieces of those observations and evidence law enforcement finds to get to the truth between what he-said and what she-said. Always the best practice it to be able to rely on something other than the statements made by either party to prove the crime that occurred.

Trial #4 involved a female defendant and a male victim who had been in a relationship for approximately 22 years. They had recently broken up but the victim continued to live on the same property as the defendant, just in his own mobilehome. On this occassion victim and defendant got into an argument because the defendant beleived the victim was not sympathetic enough to his adult son’s situation and she went to victim’s mobilehome to confront him about it. She was told to leave; however defendant did not. Instead she got upset and grabbed victim by the jacket. The victim then punched her in the face causing a laceration to the defendant’s chin.

This was a misdemeanor level domestic violence battery. Minor, but documented injuries to the victim and a corroberating injury to the defendant. There were some pretty complex legal issues to convey to a jury in regards to self-defense that came up. Namely that the defendant shouldn’t be able to claim self-defense in a situation she created and the fact that the victim had a right to reasonable self-defense in response to her conduct. We relied on defendant’s own admissions of guilt made to law enforcement and photos taken of injuries in our case-in-chief.

Our victim also relocated out of the State prior to the jury trial and that opened the door to allow defendant to take the stand on her behalf to tell the jury about what happened INSIDE her house before defendant confronted the victim at his own. Information our office was not privy to at the time of the arrest. Information we could not discuss the accuracy of with our victim. Information we could not overcome at trial.

This rocky road of a trial taught me so much.

Evaluate self-defense prior to filing and make sure we can prove beyond a resaonable doubt that the defendant’s actions were not in reasonable self-defense. As a prosecutor that is always my burden to carry and it should never be overlooked.

Non-verbal communication can have an affect on the outcome of a trial. We had a non-traditional DV here. One were the female was charged. She took the stand using a cane and used assisted listening devices in the courtroom. Defendant also testified as to medical issues that she was having at the time of this incident and through the trial, lending her as a sympathetic soul to the jury.

A jury will always wonder where your victim is, even if they are told not to speculate.

Our Judge in this case was a long-term retired judge who had been filling a vacancy in our County for so long he was a permanent fixture. He had seen and heard it all. As soon as the jury left the courtroom, he turned to me and defense counsel and said, “Well this isn’t going to take long.” He was right, 10 minutes of deliberation to a not guilty verdict.

#3 The Jury Trial Where I Learn About Constructive Criticism

Remember when I told that DUI’s are where new criminal prosecutors often cut their teeth on jury trials?

Jury trial #3 involved a DUI where the defendant had been pulled over for speeding, he exhibited routine objective signs of intoxication, admitted to having 1 beer with dinner, and had marginal success on the field sobriety tests administered to him. His BAC (Blood Alcohol Content) was .12% approximately 15 minutes after driving.

Pretty basic fact pattern right? Well, the lesson here isn’t in the guilty verdict. In fact, it never really is. The mistrials and not guity verdicts are where I’ve learned the most. However, this particular case was an eye opener for me despite the successful outcome.

Sometimes when you see the same thing over and over again, like in an assignment like DUI’s you forget that while some of the facts are similar, every single case is different. This is because fundamentally the purpose of a jury trial is to provide the defendant with their constitutional right to have the issue of guilt decided by a jury of their peers. It’s unique because it affects them on an individual and personal level.

Victims also have a constitutional right to be present at all court hearings and have their opinions, their suffering, and their loss taken into account at sentencing. It’s the human factor that makes each trial separately important, because while it may be similar in nature to other criminal events, its important and life altering for the victims of the crime and the defendant who stands accused.

The investigating officer in this case loved DUI’s because of the formulaic structure, just like I love jury trials involving DUI because of the relatively straight forward presentation of evidence. The pattern provides guidance, but sometimes that structure can become commonplace.

After the verdict the majority of the jury held back so that they could meet with meet with me and the defense attorney. They wanted to provide specific feedback on this very issue. While it was directed at the officer who investigated the DUI, I felt that it rang true in DUI trials as well. The members of the jury felt that the words used to describe the objective signs and symptoms had simply become routine descriptors in our officer’s investigations and counseled that they would like him to pay attention to his word choice in the future. For example, the officer in this case testified to seeing “slow, thick, and slurred speech” when in reality, the body camera footage showed “slight slurring” of speech. They specifically said that the officer in this case sounded like he was talking about ANY DUI rather than this SPECIFIC DUI.

The officer and I worked together after receiving the feedback to figure out ways to present future DUI’s without sounding generic. We decided that more focus on the word choice for both defendant’s physical manifestations of impairment, as well as a slower breakdown of the field sobriety tests (i.e. why they were used and what specifically the defendant did during them that caused him to pass/fail). Body cameras were relatively new in this area around the time and so we discussed using that tool to review the investigation completed when drafting the final report.

The constructive criticism the jury provided in this case has stuck with me. It is a reminder of the importance of criminal prosecution. We must balance the rights of the accused, the rights of the victim, as well as the safety of the public in every single case. And while the facts may be routine, this duty is far from it; which is why every jury trial is unique and important, no matter what the crime may be.

#2 The Jury Trial Involving The No Drive Defense

Driving under the influence is one of the most common jury trials to cut your teeth on as a new prosecutor. I got my chance my second trial in. The case essentially revolved around the discovery of an abandoned vehicle in the roadway which was had major damage to the driver’s side of the vehicle, it was missing a tire, and had been driven quite a distance on three wheels. The defendant was located approximatley 30 feet away lying down behind a hill. Defendant admitted to drinking (he was a .20% BAC) but not to driving. Gouge marks in the road showed that the vehicle had crossed double yellow lines and hit a guard rail on the opposite side of traffic; the vehicle had been driven until it no longer functioned. Witnesses put the defendant, and his vehicle, at King’s Tavern hours prior to the collision. Oh and defendant was on probation for a DUI at the time of this offense with terms that included no drinking and no driving with any amount of alcohol in the system. Sound’s solid right?

Not so much.

Defendant took the stand and claimed “his friend” was the one driving the vehicle and that “his friend” had taken off after the vehicle was disabled. Names will not be used here, but the very experienced defense attorney I was up against provided a name, and conveniently, a death certificate, showing that the friend had died approximately 2 months after the collision. Additionally, while we had witnesses from the bar telling us defendant had arrived in the vehicle alone and had been drinking, no one actually saw the defendant leave.

It was a “no drive defense” and a good one. We ended up with a hung jury in this case, and not a good split. 11 jurors for not guilty and 1 for guilt. The issue being that we just could not show beyond a reasonable doubt that defendant’s story of a friend driver was not a reasonable explanation of the facts as they were. No one observed the collision. The vehicle was discovered by law enforcement during routine patrol. And while the vehicle was associated with the defendant, no one could tell the jury he was the one driving it away from the bar that night. And let’s not forget, the claimed was dead. Lastly, the height and weight of the friend and our defendant were such that we couldn’t use the positioning of the driver’s side seat to make any kind of factual argument as to who the driver was.

One of the most frustrating things about this particular case for me is that in criminal law we have a reciprocal rule of discovery. Both sides are required to give over evidence they intend to use at trial. Prosecutors have an additional burden to turn over all exculpatory evidence. I’m certain that had the defense attorney provided information about the “friend,” driver in advance this case would have been reevaluated prior to trial to determine whether or not we should proceed. Instead, we did it after the court declared a mistrial. We determined that a second jury trial would not acheive a different result, after recontacting the bar and the patron witnesses just to make sure they didn’t have any additionaly information about the “friend” and his whereabouts that night.

One of the things we do as prosecutors when a case ends in a mistrial or a not guilty is to attempt to reach out to the jurors to find out what evidence they were looking for, to see if there were credibility issues with our witnesses, and to see which elements of a particular crime was difficult for them with our presentation of the evidence. This part of my job has helped me learn what jurors are looking for in cases such as this, where the defendant claims he wasn’t driving and in others. I have modified my presentation in future cases, as well as my charging decisions based on these difficult conversations.

Justice is sometimes served by not proceeding on a case when the outcome isn’t going to change. A significant amount of public resources go into every single jury trial, no matter the charge. We ask the public to take time out of their lives to perform one of the most basic, and important civic duties we have. Prosecutors are always balancing this public interest in every decision they make and jury trial #2 taught me that this consideration never goes away, even if you have already completed a jury trial in the matter.