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Too clever by half

Some lawyers like to talk to jurors after a trial.  I'm one of them; I figure there's always something I can learn.  Sometimes it's not something I necessarily wanted to find out...

A few years back, for example, I had a client charged with felony telephone harassment.  I'd gotten the appeal after he'd been convicted, got it reversed, then handled the retrial and won that.  Felt pretty good about that, so I stuck around to talk to the jurors, figuing I'd bask in their adulation, maybe sign a few autographs.

Not so much.  I started by asking them, as usual, if there was anything I did during the trial that they didn't care for.  Well... they related a number of things I did that ranged from the mildly irksome to the gratingly annoying, then told me they felt my witness was a liar and my client should really get some psychological help.  I found out later that the jury had nicknames for all the trial participants, including the judge and even the bailiff.  Mine was "Einstein," and I don't think they meant it in a good way; my guess is that "Asshole" was a close runner-up.  God only knows what they would have told me if they'd convicted my guy.

So, flash forward a few years, and I'm in pretty much the same situation.  I'm representing a defendant charged with felonious assault with a gun spec who was convicted the last time he was tried.  I was assigned the appeal, got the case reversed, and here we are for the retrial.

The case was Chapter 23 of "Saturday Night in the 'Hood."  A bunch of people at a party, some liquor mixed in, and then all of a sudden everybody's outside yelling at each other.  According to the victim and his fiancée, my guy shoots the victim in the head.  The major problem with that version is that the hospital found his only injuries consisted of superficial facial lacerations.  My theory was that they occurred when my client knocked him down, and he was claiming the gunshot story to save face. 

He also had a little baggage of his own, with two prior convictions for drug trafficking.  You don't often get the chance to impeach a state's witness on that,  so when you do, the simple "have you ever been convicted of a felony" seems a bit too sterile for my tastes.  Instead,  I opened the cross-examination with, "So, all this happened, what, a year after you got out of prison for dealing drugs?"  My all-time favorite along that line, though, was another lawyer's introduction of a witness' conviction for manslaughter:  "Can you tell the jury how you felt when you killed John Doe back in 1986?" 

The victim's cross went well, but I couldn't touch the fiancée.  The last State's witness, though, was the detective, and she pretty much buried the case.  Besides making a poor physical appearance -- she honestly looked like a homeless person -- she was more than willing to admit, in a thoroughly passionless way, that neither she nor the police had done squat in investigating the case.  I had her explain the GSR -- gunshot residue -- test, how it can determine whether a person has fired a gun, and how the police hadn't done that, and she helpfully tossed in that now the police have the ability to do it that on scene, rather than taking the defendant down to a lab.  She hadn't interviewed any of the other people at the party, the cops hadn't talked to any neighbors to determine whether anyone had heard any gunshots...

After I put on my case -- a couple of other people from the party to say there hadn't been a gun -- it was decision time.  I'd mentioned last week that courts routinely reject ineffective assistance of counsel claims based on failure to request a charge on a lesser offense, on the grounds that those decisions fall under the rubric of trial strategy.  They do:  there are times when even if a lesser offense is available, you don't want a charge on it because you think the jury might use it as a compromise verdict.  In those cases, you figure that you're going to get the full loaf, and don't want to take a chance on getting half of one.

This wasn't one of those cases.  My client's conduct had been somewhat less than exemplary, and I figured the jury might want to hold him responsible for something, so I asked for a charge-down to simple assault.  The judge gave it to me, and sure enough, a couple hours later, the jury came back with a verdict of not guilty on the felonious assault, but guilty of the assault.

I went back to talk to the jury, again expecting them to sing my praises, and instead was told that I was an idiot:  had the assault charge not been in there, they would have easily acquitted my client.

Still, I'd do it again in a heartbeat.  The maximum sentence for simple assault is six months, and my client had already done eighteen.  As for the stigma of a criminal conviction, well, I figure that given my client's eleven prior felony convictions -- three of them for felonious assault -- a conviction for a misdemeanor isn't going to be what keeps him out of med school.

But I think I'm going to stop talking to jurors, while I have a few shreds of my ego left intact.

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