Month: November 2021

#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.