Posted in grit and glitter, Prosecutor's Corner, Uncategorized

#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.

Posted in grit and glitter, Prosecutor's Corner, Uncategorized

#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.

Posted in grit and glitter, Lifestyle, Prosecutor's Corner, Uncategorized

#1 The One in Which I Had my First Jury Trial

The year was 2012. I had been a lawyer for about 6 years in the civil sector with nary a jury trial to my name. You see, what they don’t tell you in law school, that jury trials in the civil sector are expensive, which means working for a small boutique law firm in rural Northern California gives you zero opportunites to have a trial go out.

After Maizy was born I set out on my own, opened my own practice and worked next to my family and their shirt shop they had owned my entire life…but that it a story for another day. Let’s just say that it got to a point where I had to decide whether to hire a legal secretary and work full time or pursue my dream of working in criminal prosecution. Criminal prosecution won that battle and my first jury trial came about 8 months later.

As a new prosecutor I was assigned to work in the misdemeanor division. This is a fast paced part of the DA’s office. So many cases come through any misdemeanor prosecutor’s door on any given day and this is where you are expected to cut your teeth on jury trials. On this particular ocassion the Court had become disillussioned with the number of cases pending trials and set multiple defendants with multiple cases for the same jury trial dates. Something was bound to get out.

I spent the weekend (the cases were confirmed Friday morning for a Monday jury trial) prepping ALL of my cases. And there was a stack of them. 3 defendants in total. 2 each had 1 case a piece and the final defendant had 3 cases. At the very bottom of the stack was a relatively simple case of driving on a suspended license. It was the very last in terms of priority and unlikely to confirm, or so we thought.

Monday morning came around and I watched as the cases were called widdling down to the very last one. One defendant failed to show up. One pled. One case had a necessary witness that was unavailable. And so we had it. My first jury trial was going to be Driving Under a Suspended License.

It was relatively straight forward. The case boiled down to an officer observing the defendant driving. Based on prior contacts the officer knew the defendant’s license was suspended. The defendant was contacted in the parking lot where he had parked and admitted his conduct. Proof of the suspension came from certified DMV documents that showed proof of notification of the suspension was received. To add to the mix, defendant opted to testify on his own behalf in the trial and TOLD THE JURY HE HAD BEEN DRIVING. A guilty verdict was received.

When the defendant tells you he did something, you beleive it.

One of the most poignant traditions we have at the DA’s office is a tie-cutting ceremony which occurs the first time you receive a guilty verdict on a trial. My scarf (no ties were worn by me) was off of the burgandy blouse I had worn in trial. It hangs in a case with my DDA counterparts as evidence of a job well done.