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I, The Jury, Part IV: The Attorneys

That was a pretty long run of items about the legal system, which is a nice lead-up to another entry in the series based on readers' jury experiences. Recall that we just asked for people to share their stories, and then imposed a post hoc organization upon them. So, the lines are not as clean as they would have been if we assigned specific questions to specific respondents.

With that caveat, today we'd like to share several accounts that all speak, in various ways, about the impact that the attorneys, and their approach, can have on a jury:

M.M. in San Diego, CA, writes: I debated whether or not to submit my jury experience for several reasons: It was traumatic—so much so, that I had to be replaced and didn't finish the trial, and I am not certain of its relevance regarding Trump's jury/juries.

It was a criminal trial, a gang-related drive by shooting with fatalities. An assault weapon with ARMOR-PIERCING ROUNDS was used. (To this day, I believe we as a society are enablers for allowing anyone to possess military grade ammunition for any reason whatsoever.)

As the prosecution began to build its case against the defendant, I swear I had Erle Stanley Gardner whispering in my ear, countering every piece of trivial, circumstantial "evidence" presented, all of which struck me as intentionally prejudicial. I became incensed at what was allowed as admissible evidence, particularly police reports that detailed stops of young men who were thought to be gang members, noting who they were and where they were going even though all they were doing was walking along the sidewalk in broad daylight. Seems if you're young, Black and live in a poor neighborhood, your right to freedom of association is automatically suspended at the discretion of the local PD.

By the end of the first week, I was feeling intense hostility towards the prosecution and the criminal justice system in general. Not only that, I happened to overhear a phone conversation of a relative of the defendant, which was heart-wrenching. Over the weekend I bottomed out emotionally and asked to be excused.

So, per my incomplete experience, my advice to prosecutors is to lead with rock-solid direct evidence if you have any and dispense with the prejudicial rubbish—otherwise, it really pisses off critical thinking/analytical jurors.

D.C. in South Elgin, IL, writes: I sat on the jury, in October 2002, for the trial in federal court in Chicago/Cook County of William Jarding. At that time, our family residence was in unincorporated Cook County, hence my being tapped randomly for service.

He was a Cook County sheriff's officer, and a firearms instructor at a Cook Co. shooting range. He was also a protégé of Joseph Miedzianowski, Chicago's "most corrupt cop."

Jarding was charged with theft/conspiracy to possess stolen ammunition; it was boosted from the county firing range, during lunch breaks, and made its way to Miedzianowski, who was under FBI investigation at that time, and had been wiretapped.

My recollection is trial was 3 days—2 for opening arguments, presentation of evidence, and closings. Day 3 was jury instruction, deliberation, and verdict. The lawyer-speak has long since faded from memory, but a taped phone call between Jarding and his mentor are still audible inside my noggin. To the tune of High-Ho, from Snow White and 7 Little People, they sang in turns: "It's time for lunch, high-ho" and "High-ho, high-ho, and there the ammo go."

A guilty verdict took approximately 3 hours. And we were home for supper at our own tables.

I submit this info as relevant to DJT from two angles: First, the case as indicted appears extremely tight/narrow/focused; a jury's mind is unlikely to wander. Second, the witness impossible to impeach is the guy on tape(s). In my 2002 jury service, it was a singing sheriff's officer. In Counsel Smith's case, it's DJT himself.

D.A. in Brooklyn, NY, writes: I served on a federal jury in the New York Eastern District in one of the trials related to the case of Abner Louima. In my case, the defendants were charged with conspiracy to cover-up the crime (obstruct justice). One of the defense attorneys in that case was Joseph Tacopina, who is one of the Worm Thing's attorneys—though not, I think, in the documents case.

Some observations that might be relevant here. First, you thought that a 44-page double-spaced document was unlikely to take a month to present in court. Lucky you! You've clearly never sat on a federal jury. The process is excruciatingly slow, with sidebars, jurors being marched out of the courtroom, and then back in, and then back out. Objections, and then the attorneys, on both sides, try to belabor every point ("did you see the defendant walk past the desk?"/"yes;" "did you see the defendant continue walking past the photocopier?"/"yes;" "did you see the defendant pass the water cooler?"/"he stopped at the water cooler;" "ok, but after he stopped, did you see him continue...?"/"yes" and on and on). There may well be more evidence beyond the 44-page document, but trust me, lawyers can turn a 10 minute exposition into a day of testimony—even those working for the government who are not, presumably, into billable hours.

Second, as you have written many times, the Feds don't charge without an overwhelming amount of evidence. So the strategy of the defense in the trial I experienced, and I presume the one in the documents case (if it gets that far) is two-fold:

PLAN A: Make a sympathy play for even just one juror.

PLAN B: Pile up a lot of objections that can serve as the basis for an appeal; throw in everything; no penalties for BS, you just have to have one that will "stick" later on.

In the case I was on, PLAN A failed, but PLAN B succeeded. We found the defendants guilty (they were guilty as heck), but the appeal succeeded on the basis of a spurious and rather insulting claim that the judge didn't explain the charge of conspiracy clearly enough to the jury. (Remark: Jesus. We understood the charges perfectly well. Basically, in my view it was a case of judicial nullification of the jury, and as a result, should I ever be on a jury where I don't like the law or like the defendant, I will have no compunction about executing "jury nullification.")

The prosecution retried the case after our jury's verdict was nullified, but in the retrial PLAN A succeeded: They ended up with a lot of tears, and a hung jury based on one hold-out. The defendants went scot-free on these charges.

In terms of the Trump case, expect both PLAN A (after all, it will be a Florida jury) and PLAN B (the appeals could go to the Trump-friendly SCOTUS).

Despite the unsatisfactory outcome, the tedium, the disruption in my life (5 weeks of 14-hour days), I left with a tremendous respect for the federal attorneys, the judge, the judicial system and process, and even a grudging respect for the FBI.

And I learned one really important lesson: do NOT ever lie to the Feds. You can shut up (that's usually a very good idea), but do not lie. They really hate that, and they will make your life miserable if you do.

J.L. in Vancouver, WA, writes: Almost five years ago, I was called in on my first day of my 2-week eligibility period and was selected as one of 13 jurors (12, plus an alternate who never knew she was the alternate until the moment we were sent into the deliberation room) for an assault with a deadly weapon case. While superior court and federal court probably have different rules and procedures, I was struck by three things as the process unfolded over those three days:

  1. The prosecuting attorney was almost robotic in his presentation; there was never a moment throughout his entire case that I felt like he wasn't reading from a memorized script... one which he knew both his own lines AND those of the witnesses he called. The old lawyer adage of "never ask a question you don't already know the answer to" was very much on display and while his personal smugness very much showed through, it was obvious that everything I was seeing and hearing had been meticulously constructed to tell a story that was both easy to understand and didn't leave much room for alternate interpretations. Keep in mind that this was a county level deputy DA and he was that good at his job; now imagine the level of skill you'd be exposed to for a federal prosecutor tasked with presenting a case to potentially imprison a former head-of-state of the most powerful country on earth.

  2. The defense attorney had, in my view, an incredibly weak hand to play (more on why in a bit). His presentation consisted of a PI, the defendant himself and a character witness; none of whom really disputed any of the core assertions made by the prosecution. But what I found myself most concerned with at toward the end of the arguments wasn't "what really happened here?" but rather "Does what I've been told happened rise to the definition of 'assault with a deadly weapon'?" This is where, in my non-lawyer opinion, the role of Judge Aileen Cannon (or whomever ultimately is presiding) is really going to matter. The judge in my trial laid out for us the exact wording of the statute, the elements that were necessary to find for a conviction, and in my case, the possibility of a potential lesser charge (brandishing a firearm) that we could consider as a possible contingency. If a MAGA-sympathetic judge is going to ratf**k, this would be where to do it—I consider myself well educated, but those definitions/instructions were crucial to me in determining my vote to find the defendant guilty because I did not possess the knowledge of what an assault with a deadly weapon actually is. Spoiler alert: What I would have guessed on my own wasn't it.

  3. After we returned with the verdict and the defendant was taken into custody and court adjourned, the judge addressed us off the bench to let us know that we were free to talk about our experience, thank us for our service, etc. But in what I consider to this day to be one of the—I don't even know the right word for this: weird? unsettling? inappropriate?—admissions afterward, he told us that there was an entire line of defense that he had ruled against being allowed to present. If a judge can shape what a jury is even allowed to hear as a defense (or prosecution), then how much discretion is a jury really exercising? I've thought about that a lot over the last 5 years. Would I have voted differently if allowed to hear a different line of defense? I'd never have known about it if the judge hadn't told us so after the fact. I'm confident in the decision I made based on what I heard and saw, but what didn't I see or get a chance to consider?

Thanks, all! We'll have another couple of entries in this general vein next week before moving on to accounts of the dynamics within the jury room. (Z)

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