Thursday, July 29, 2010

Blast from the past: best motions ev-ah.

As promised yesterday (promised? threatened?), as I'm on vacation I'm subjecting you to reflections from the past and below lies this blog's most popular ever posting. By quite a long way, actually. It was entitled, "I say tom-ahto, you try to stop me."

So we don't file many written motions in criminal practice. Really, just a handful of the same one each time (I should post about those sometime).

This means that only important motions get put before the judge. Like this one:

And my response:

Wednesday, July 28, 2010

Navel gazing time (brief, I promise!)

I find it very interesting when bloggers that I read post information about their readers and related stats. I don't know why that is. But I've been poking around my own analysis program to check out my visitors - who they are and what they are interested in reading about.

For the month of June, for example, the top ten places my readers live are:
1. United States
2. United Kingdom
3. Sweden
4. Canada
5. Israel
6. Philippines
7. France (Hi Mum and Dad!)
8. Australia
9. India
10. Singapore

Hello, too, to Nigeria and Finland who also popped up. Welcome.

Most telling search that brought someone to my blog:
"if jump probation in texas would come and look me in another state"
Suggestion: Don't try it.

And the most popular post since I started the blog? Well that's... hey, you know what? I think I'll just go ahead and report is tomorrow. Is that okay?

Monday, July 26, 2010

Guest blog: the view from Travis County juror seats 30, 11 and 7

Yes, I'm still on vacation, but today you get a wonderful piece of insight into the jury process from regular reader and commenter "Mackie." He offered to write something after my request at the end of this post, a couple of weeks ago.

I'll intersperse my own comments within the body of his post, just to answer questions, address issues, and be generally disruptive.

So, who is this "Mackie," if that is, in fact, his real name? Which it isn't. Obviously.

I have pretty much lived in Austin since 1972 as a result of my father retiring from the United States Air Force. That places me as being here since my sophomore year in High School, and graduation from The University of Texas. As a result the first sixteen years of my life were spent in two year cycles at various military installations around the world as a dependent. I hold a middle management appointment at a major three letter Software and Services firm which I have worked for the last thirty years. I mention that as a brief piece of background yet it works it's way into what I will share as to serving as a member of two juries and not being selected for a third. I have been married slightly longer than my current employment and have three children in various fields ranging in age from 22 to 27. An initial comment is that none of my children have ever received a jury summons nor has my wife who obtained her United States citizenship after immigrating from Argentina with family social photos inclusive of people such as Peron, feel free to fill in the rest with your imagination although I mention this as her view of the United States legal system is very positive I assure you.

As I transition from the discussion to my personal background I will leave the guest blog title to DAC to expand upon. It is one of perhaps subtle impact yet feel his view might be a better one as to that particular aspect and what it means as to which potential members are asked to remain or are excused from service.

The three times I have been asked to appear seem to be a bit out of the ordinary as I hear others discuss their summons. My first (which I was selected) was criminal in nature (a contested DWI charge). My second was a dispute as to rent and responsibilities of a landlord (which no one was selected, more later). The third was a civil case regarding an individual that had contracted mesothelioma and had less than a year to live (I was selected for that jury).

In terms of what amount of time was required on my part ranged from five days for the first, a morning for the second and ten days for the third. This has significance to those selected in ways that many might not imagine. As a professional of a Fortune 50 company that bites the bullet, I served with normal pay and benefits although someone back at the office had to pick up my duties to the extent possible. On the third there were some like myself, some retired, and some hourly employees. The impact on the hourly people was significant as when they were not working they were only receiving the very very small daily stipend from the County. I believe some had to take off shifts to pay their bills while giving up free and sleep time to participate. I did not get a warm fuzzy they were happy to have been chosen. In fact during selection there were many one-on-one conversations between those asked to be excused, some of which could be overheard. I have since read that there has been some discussion in the legal profession whether a jury composed of your peers can truly be selected in today's time and setting. What I mean is, if only people who are not put in financial hardship by serving are selected, then juries take on a certain personality, perhaps one of only college graduates or along those lines. I wonder as to the impact on the seeking of truth. Perhaps another opportunity for DAC to comment from the legal profession. I agree, it is a financial hardship for many and I wish we could pay better to counteract that negative impact on jurors. I really don't know what a good solution is, frankly.

On to the details of the three trials.

I will start with the second. As I recall only six members were being sought and about thirty minutes into the voir dire (I am not sure this was the term used in this situation unlike the others, maybe, yet do not recall hearing it) one of the parties requested that the parties be allowed to confer which was granted. They both left the room and were not seen by the candidate pool again. The Justice of the Peace stated our services would no longer be required and we were free to go. A number of those that had sacrificed a morning did not appreciate not being provided any information other than thank you for showing up. The assumption was that they settled in some form after they called each others bluff by showing up. I would bet good money that's exactly what happened. I have mixed emotions on how the 'system' appeared as to this encounter. The physical location was also different, it appeared to be just a room in a retail center and had suffered some wear-and-tear, as opposed to being a 'real courtroom' downtown, as the other two were. I felt a little like a pawn in a game after this encounter. I get the impression that this is a common feeling, at least until the individual is selected for the petit jury.

Let's chat about my first trial at this point. This one went pretty much as to script almost to the point of a television show with a few added points of interest. We were asked to show up relatively early in the morning (around 9am) yet there must have been two hundred people in the room. As I recall it was pretty much like airplane boarding, with groups of about 40 created with instructions as to when and where to show up. My covey proceeded to a court room and were seated in what I would call the spectator section although I am sure there is a better name. What I mean is that there were far more of us at this point than the twelve seats that were used in the trial. The questions came from both sides with topics from A to Z. Some that seem relevant to the trial to be conducted and some I have no idea why they would be asked. I was in seat 30 (a clue for those trying to decipher my guest blog title). I was not asked a single question in the three hours.

At the conclusion of what seemed to be a time limit, what I would refer to as an OJ Simpson like 'side bar' occurred and shortly thereafter twelve names were called and to my surprise I was one of them. If there were any alternates selected it was not handled in any manner I could figure out. We were told to be back the next morning and Monday was over. Off to the car with the parking ticket attached that was 'taken care of by the court' the next morning and each of the following days (we were not allowed to feed the meters, of course, and everyone had a ticket each morning).

The trial began the next day with what I would again describe as what you would expect from television, with each side presenting their required portions, counters and such. The State had just two or three people to question which as I recall included the police officer, a lab technician and one other that slips my mind at this point. The defense on the other hand had at least ten people take the stand. These ranged from employees of the bar that had been the place of the pre-party, the friend that had the after-party, and various guests and coworkers that had attended the gathering.

The only real notable point, which turned into a Perry Mason-type of event, was a slip of the tongue by the Executive Director who employed the defendant: she mentioned that the mixed drinks were wonderful and were known to cause a 'buzz' with only a single beverage. The prosecutor took the appropriate time to create a pregnant pause and asked her to repeat the comment which came out in an interesting 'wish I had not said that' tone.

During one of the early breaks we had been asked to be thinking about a foreperson to be designated for duties later in the trial. I was asked to be that person yet another juror wanted the role. No one seemed to know what to do and a vote was taken and I was selected by a vote of all but one. I have no idea why, other than I suppose the others in the room felt if someone was seeking the role they likely had a reason and thus should not be the person. Regardless, the duties simply turned out to be a facilitator of discussions during deliberations, a recorder of the vote and the person to stand and announce the findings of the jury. Again with no idea as to real process (which was not the case in the third trial which I will discuss next) the only issue that came up was that I had made a note that there had been mention of some type of document offered to the defendant as to refusal of a breath test although we were not told what happened in the court room setting. I asked if anyone else felt that was of interest and as a result asked for that document to be brought to the deliberation room. It took some time, but eventually was provided with the point of note that the defendant had not only refused a test had also refused to even acknowledge the refusal. We found the defendant guilty and returned to the court and I was called upon to state our findings. There were some procedural items discussed, the jury was asked if they had truly come to the conclusion I had announced as the defense attorney asked for a poll.

At the end of trial each team of attorneys came to have a chat with us along the lines of DACs comment of not having a chance to do that in his most recent trial. I wondered if it was a chat or gathering of intelligence data to be smarter in the next trial, or a trolling to look for a reason to have the verdict thrown out on appeal of some type. Probably a combination of those things, actually. Minds do wonder in situations that are foreign. In hindsight I also wonder why the big fight on behalf of the defendant as this never was exposed to us. Perhaps this was not his first DWI, perhaps his employment was at risk, perhaps he just was in denial or had what I envision a lot of money to fight the case or liked the drama. No idea.

On to the civil case.

This one started much like the encounter I just described although no platooning of panels. It did however have about fifty to sixty potential candidates on day one. We were presented a high level overview of what the case would be about and how much time it would take (remember my earlier comments). We were then provided a set of documents to fill out overnight that had in excess of 150 questions. The questions ranged from education level to personal medical history and family medical history. I am not sure how this would be handled today in light of HIPAA. As to my personal responsibilities I would likely to need to consult one of my Corporate attorneys as to how to answer some of the questions in light of SOX although perhaps this is handled in another manner should this trial had been held today. We were sent home to fill these forms out, returned the next morning to turn them in and then sat for a couple of hours as I assume they were reviewed. Seems a bit arcane in the times of the Internet yet I am sure there are complexities beyond belief if these were to be filled out by those with computers and broadband and those without, the list would go on and on.

Eventually the legal teams returned to conduct voir dire. I estimate maybe 25% of the potential jurors were excused as a result of something in their written submissions. An interesting point that popped up on day two was a team of four or five people sitting in the juror box taking notes during the truth telling. We learned after the trial they were making notes of candidates as they answered questions, awaited their turn or stared out the window thinking about lunch or their dinner plans.

Another point of note, perhaps coming from my background, was the use of Powerpoint and other technology by the complainant legal team. Although initially impressed that these guys were not relics of the Stone Age it also hinted at the amount of money being thrown at winning this action. The real reason I mention this however is that there must not be much training on the use of these tools in Law School as it was near comical to the point of distraction with them not being able to navigate their own set of slides, make the audio visual equipment show us what they intended instead of their notes or email and such. Hopefully there are actions in play to address these items in the court today. The action I take to address those matters is to avoid technology as far as possible, and practice before trial when I have to!

The process eventually resulted in the panel although more than one alternate was selected. If I recall correctly we had fifteen people seated as jurors and only when we were sent to deliberate were the three alternates informed. I assume this was so that they paid attention as no one knew who was ending up voting. It was interesting to see two of the three sitting as spectators when the results were announced yet I can see how after sitting for two weeks they sought closure.

As part of the questioning it had come up that I had been a foreperson on a criminal case and the early days of the trial was approached by my peers if I would do that again, to which I said yes. I also explained that it had been a criminal trial and had no idea if the duties would be the same here. It turned out they were nearly identical, except that a finding for the complainant would require calculating financial damages, which would not have been an easy task with such a variety of backgrounds on the jury.

As you can likely infer we found against the plaintiff and thus did not get to that part. The legal teams chat were of a similar theme although questions were thrown to us as to when in the trial we took a dislike to the New Jersey accent of one of the complainants legal team which no one had said anything about! Perhaps again a place for DAC to comment here as the chat terminated almost immediately after the question. You'd be amazed about the assumptions lawyers make about jurors. We try and read faces, body language, looks. We are so desperate to know what you are thinking that we have to make stuff up, like not liking an accent. Then when we ask jurors about that, they look at us like we're mad!

As to the details of this trial it was a parade of expert witness after expert witness. Corporate executive after corporate executive along with their handlers and entourages. University researchers, doctors, other legal teams as to who knew what and when. Microbiologists, mining engineers from other countries, and we learned later that many of these people had testified in virtually the same case in various jurisdictions and the complainant had won many judgments already.

I will mention however the gentlemen was genuinely ill as his obituary was in the Statesman within a year of the Travis County case. The chat with the lawyers also revealed that Travis County had been selected with the belief that a finding for the complainant was more likely here, as opposed to other parts of the State. I have no idea how many different trials occurred, clearly a great many: it was evident that each team had a very good feel as to what was going to come up, and as to what had worked and not worked in previous trials.

As I mentioned, there was a tremendous amount of material presented and some jurors asked to keep notes and were provided notebooks. They had to be surrendered at the end of the trial and had to be left at the court house overnight. By the end of the trial I am not sure how much use they were as this was a very complex set of events and data points, some of which were clearly played for emotional appeal in my opinion as a two week dipping into this level of medical cause and effect seemed to almost become a non-issue and the jury really made the decision as to if the complainant could actually prove he was exposed to asbestos by the company being sued in excess of an event alleged thirty years previous. Obviously a high bar to hurdle.

I will conclude with what I am guessing might bring up more questions than answers, although am happy to share what I experienced and subject to counsel by DAC will take questions on anything you might want my view of as a result of the post.

In summary I found the experiences to be very rewarding. I learned many things, was exposed to many practices in real life as opposed to television or second-hand, and felt I contributed to society by doing the best I could to support the system. Not that a juror has much say whether they on a civil or criminal matter. Also, my thoughts drift to aspects of personal safety should one be selected for a high profile case, perhaps involving drugs, as opposed to more civil proceedings. I felt the people on the jury did the best they could although clearly a huge financial burden for some that needs to be addressed in my opinion, budget be damned. I would encourage anyone asked to participate to stop, take a deep breath and participate. I think it would be a positive experience with life-long benefits.

Friday, July 23, 2010

How plea negotiations feel sometimes...

Welcome to "Video Week," five days of short videos related to crime, writing, or both. I'm on vacation so figured you could have one, too, a week off from reading and a week watching vids instead. Hope you don't mind.

But be sure to check back Monday, I'll have a long post from a reader who has been a Travis County juror on several occasions, and he'll be giving his impressions (with my comments inserted).

Anyway, today I present a video showing what it feels like when negotiating with some defense lawyers (all of whom I love, of course):

Thursday, July 22, 2010

Self-indulgence . . .

Welcome to "Video Week," five days of short videos related to crime, writing, or both. I'm on vacation so figured you could have one, too, a week off from reading and a week watching vids instead. Hope you don't mind.

Today, an early version of a book trailer for what, one day, will be a best-seller. I hope. And yes, I've posted it once before but this is my blog, isn't it?

Wednesday, July 21, 2010

I don't even care if it's not real... it could be!

Welcome to "Video Week," five days of short videos related to crime, writing, or both. I'm on vacation so figured you could have one, too, a week off from reading and a week watching vids instead. Hope you don't mind.

Is this video real? Doesn't seem impossible given what happens around here just about every day...

Tuesday, July 20, 2010

Carruthers. Peregrine Carruthers. No, not that...

Welcome to "Video Week," five days of short videos related to crime, writing, or both. I'm on vacation so figured you could have one, too, a week off from reading and a week watching vids instead. Hope you don't mind.

Monday, July 19, 2010

Old Spice Guy and Libraries - oh yes, there's a connection

well, there's a connection now because certain organizations have been questioning whether libraries are obsolete. Yes Fox News, I'm looking at you. So, it takes a handsome man in a towel to set things right.

(The handsome man in a towel was going to be me but I couldn't hold the camera and keep my towel on at the same time. And this is a family-friendly blog).

Oh, by the way, Welcome to "Video Week!" Yes, this will be five days of short videos related to crime, writing, or both. I'm on vacation so figured you could have one, too, a week off from reading and a week watching vids instead. Hope you don't mind.

So, back to the Old Spice Man:

Friday, July 16, 2010

Cheerio. . . for now. Or should I say, "Adieu"?

I don't mean to gloat, boast, or rub it in. But I do like to share. . . so this is where I will be for the next couple of weeks.

First, the house itself:

Second, the view from the house:

I know, you're wondering why I'm planning on coming back right? That has more to do with my parents not letting me mooch off them than anything else.

And in case you're wondering: this is in the Pyrenees mountains, near the town of Pau. In case you are fans of the Tour, we'll get to see two stages and the rest day is nearby. We'll invite Lance over for lunch, I'm sure he'll accept.


Keeping 150 cases straight

I have mentioned in a few posts that I have roughly 150 cases at any one time, all the trial prosecutors do. My tally is nearer 200 right now because one colleague is on maternity leave. The question came in (you may have seen it):

how do you keep all of those cases straight? I'm not sure my brain could contemplate 150 cases, let alone have to negotiate and prosecute them as well.

I feel that way sometimes. But it's not as burdensome as it seems. I've posted before about the method for handling a case, here, but I didn't include a timeline and a few other details that might make the process a little clearer. Here's the handling of a typical case, with a made-up timeline:

April 1 - alleged offense is committed.
May 1 - case is indicted.
May 5 - case gets assigned to me by my chief.
May 6 - I read over case (offense report and arrest affidavit) and maybe make a recommendation as to punishment, noting it on the file.
Jun 1 - case is on the docket for court; defendant and his lawyer show up (with fifty others). I chat with the defense lawyer and he says he'll convey my offer (say, felony probation) to his client. Case is reset.
June 2 - my secretary puts the file in a big cabinet where it takes a nap for a month.
July 1 - case is set for docket again. I again talk with defense counsel who tells me his client has rejected the offer but would accept a misdemeanor. I say no. We reset the case because the defense lawyer has three other courts to go to.
July 2 - my secretary puts the file in a big cabinet where it takes a nap for another month.
July 31 - I get a call from defense lawyer who asks whether there was video of the incident. I look back through the offense report and say "There should be an in-car video." He calls the court and resets the case so my investigator can collect the video from the evidence locker.
August 31 - the case is set in court and I hand over a copy of the video to defense counsel. We reset the case so he can watch it with his client.
September 20 - back in court. I lower my offer in light of the video, which doesn't quite show the crime as I'd like. We reset the case for the defense lawyer and his client to consider it.
October 10 - Case is in court. Defense lawyer comes back with another misdemeanor offer. I reject it. Case gets put on the jury docket.

Until now, you will see that the case has stretched out over six months and I've not had to dig too deep into it. I don't have to worry about collecting the video myself (thanks, Mike the Investigator), or figuring out when the case is in court (thanks, Leah the secretary). I just have to have read the file thoroughly and been proactive enough to gather evidence to share with the defense. And usually there are a lot more resets than listed above. These can be for any reason: the defense lawyer is trying to collect his fee (if a case pleads out, the client has no incentive to pay his bill), the defense lawyer is sick, client is sick etc. Sometimes it seems like resetting a case is the default position.

Additionally, a lot of the peripheral tasks get done by others, as you can see. I've mentioned my investigator and secretary, but I have a most fabulous victim/witness coordinator who will keep in touch with victims and let me know how they feel about testifying and other case-resolution issues. And, as you might imagine, when a defense lawyer calls me on the phone and says, "Hey, I wanted to talk about my client John Smith," I usually have no clue who that is, or what the case is about. But I just grab the file and refresh my recollection.

Remember, too, that a lot of the cases are pretty straightforward: someone is arrested for possession of crack cocaine. Assuming no 4th Amendment issues, those cases are going to be factually easy to deal with. Likewise a DWI where there is blood evidence - I'm probably not going to need to talk to a bunch of witnesses, possibly not even review the video evidence of the sobriety tests because a blood result is very hard to argue with.

I don't mean to minimize my workload, I would love for you to all pay more taxes so I could get a salary increase (did I mention that I took a $45,000 pay cut when I took this job? No? Well, I did, and I don't regret it even a little bit). We all work hard and that's especially true at trial time when we go into overdrive. But with the good assistance (and assistants) I have, as long as I keep on top of things and stay organized, the case load sounds more fearsome than it is.

And talking of staying on top of things, I won't be around for the next two weeks, I'm on vacation. Going to Europe. Which means I'll be in catch-up mode when I get back.

BUT. Don't think this is a good time to burgle my house, it's not. I have two house sitters (necessary to keep my pet lion fed and exercised) and very vigilant neighbors. The heavily-armed kind. You can continue to send flowers and gift-baskets, my house sitters will enjoy them. Just don't try sneaking in through the back window because you won't even get that far: I've added piranhas to the moat.

I just hope the crocs don't eat them....