#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.

#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.

#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.