"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, October 05, 2006

More Jury Lessons

Can I get back to the law for a minute? Here is Part 4 of Windypundit's interesting story about his recent jury duty. Here are my earlier comments on his experience with links to Parts 2 and 3. It's great reading, especially for trial dogs.

In Part 4, Windy recounts the difficulty he and other jurors had grappling with the idea that someone was lying. Either the defendant lied in his testimony or the police officer did, because both accounts contained diametrically opposite facts.

This, I think, is a very common feeling for jurors, that they do not like to have to conclude that someone is a liar, and by their verdict, basically tag the person for it. Of course, as a prosecutor, I hope to convince them that if they believe the defendant's story, they have to conclude that the officer is lying; that is, I lay it out starkly. Then at least they are thinking about what acquittal might mean to the officer sitting in the gallery. (Of course, hopefully I have plenty of facts to point to to bolster my claim that the officer is truthful).

I had to chuckle when Windy relates that the jury "assumed" the defendant had a clean record because the officer ran the tags on his vehicle and approached him casually, not as if he were a hardened criminal. Of course, the jury is not "supposed to" concern itself with the defendant's prior record or lack of one. But in fact, on most traffic stops the officer has no idea who is actually driving or what their prior record is. Likewise, Windy's jury had a whole backdrop of knowledge about corruption in the officer's jurisdiction that filtered into their considerations. Again, litigators need to remember that jurors bring all kinds of suppositions with them, and these must be at least considered when presenting a case.

Windy also expresses some lingering doubts about whether they correctly decided the case, since the defendant seemed like a nice guy. This is perfectly natural, it seems to me, since the jury is not asked to decide beyond any shadow of a doubt, but only beyond a reasonable doubt. To have lingering concerns is therefore totally understandable.

Lastly, Windy had some interesting ideas such as giving the jury instructions on the elements at the beginning of trial so they could "check off" the elements as they're met. I would love to be able to do that, but suspect most defense attorneys would not like that since it would clarify things too much, and decrease their ability to play on jurors' faulty recollections of the evidence. I also like his idea that lawyers should be able to summarize what they think the witness testimony just established (or failed to establish) although it would be a nightmare for a judge to ride herd over many little arguments compared to one lengthy summation at the end.

The system in many ways does make it difficult for jurors to digest lots of information and then make them apply it to often arcane-sounding legal instructions.

One last note: Windy wonders why anyone would want to be a prosecutor, given that we have to try so many seemingly insignifcant cases, like the one he was a juror for. Simply put, few cases are meaningless to the people involved, and in Windy's case, no doubt the officer who had to get stiches felt the case was an important one. We can make sure a minor case is resolved without excessive punishment or reduce an over-charged case; then we do have important cases to try, like the murder sentencing I finished today, an emotionally exhausting ordeal of shepherding the victim's family through the process of seeing punishment meted out (42 years for 1st degree murder).

We prosecutors have the discretion (at least in my 11 years of experience) to make the right thing happen in a case; to satisfy a victim's need for justice; and to enhance our community's safety. Not a bad way to make a meager living.

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