Bread and Circuses.   In my very first trial, sitting second chair in a personal injury case, I learned a valuable lesson.  During our client’s cross-examination, it came out that he had a prior injury he’d neglected to tell us about.  I shot a quick, “what-do-we-do-now” look at lead counsel.  Rookie mistake:  never react to testimony, because the jury will pick up on it, he told me later.  Ever since, I’ve made sure to impart that advice to my clients before trial.

So you can imagine my thoughts when one of the jurors in the Yazeed Essa case, in their press conference following their verdict finding him guilty of poisoning his wife, mentioned that one of the deciding factors was Essa’s lack of reaction to various testimony at trial. 

To be sure, there’s a difference to not reacting to a some particular bit of testimony, and not reacting when a picture of your dead wife and the two kids you haven’t seen in five years is flashed on a screen.  And let’s agree that the jury went about its task quite responsibly, deliberating for four days before reaching a verdict that many courthouse observers felt would have come much quicker. 

Still, the idea of a “jury press conference” strikes me as a bit unseemly, especially in the setting of a courtroom in which the victim’s family is gathered, with the family congratulating and thanking the jurors, and the jurors expressing sympathy for the family’s pain.  Besides, you never know what somebody’s going to say with the cameras rolling.  Imagine what might have ensued if one of the jurors had opined, “Maybe if he’d told us his side of the story, things would have been different” or “Hey, as far as I was concerned, this thing was over after his brother testified against him on the third day of trial.”  The spectacle served mainly to vouchsafe Warhol’s prediction of everbody’s being famous for fifteen minutes, and I’d hope that a bit more discretion on this sort of thing will be exercised in the future.

Perry Mason in the jury box.  Speaking of juries, one of the recent developments in trial practice which has displeased defense attorneys is allowing jurors to ask questions.  The trial judge in the 5th District’s decision last week in State v. Nicholson might be having some second thoughts about it, too.

Nicholson, an inmate at Richland Correctional, was charged with one count of assaulting a corrections officer.  The incident began with a confrontation between Nicholson and his case manager, who wrote up Nicholson for “disrespecting a staff member,” the particulars of which were that Nicholson called the case manager “a lazy mother-fucker.”  Apparently, understatement is a habit among the correctional staff at Richland; the sergeant conducting the hearing on the violation testified that when he imposed a 30-day commissary restriction on Nicholson, the latter became “pretty belligerent,” as evidenced by Nicholson shouting “fuck you, fuck both of you,” and “I don’t give a shit about this commissary restriction.”  Things spiraled downward from there, with Nicholson eventually punching the sergeant.

At trial, the jury asked five questions of the sergeant, and then five more of the next witness, another corrections officer.  The appellate court noted that “some of the questions appeared to slant toward the defense,” such as whether the sergeant had used profanity toward Nicholson, or whether the officers were allowed to sit together while filling out their incident reports.

After that, the gloves came off:  eight questions for the next witness and thirteen for the one after that, prompting an admonition from the trial judge:

I will just say one other thing to you, folks, when I give you the opportunity to ask questions, I don’t expect you to be an attorney who does a lengthy examination of witnesses. You can ask one question, but not a whole series of questions. So if you have one question, fine, but don’t give me three or four questions.

Hint taken.  No questions for the next witness, one for the next, and none for the defendant when he took the stand.

Nicholson argued on appeal that “the trial court committed ‘structural error’ by admonishing the jury for posing multiple questions to the witnesses.”  Since this was reviewed under a plain error standard — there’d been no objection at trial — it met the fate that you’ve probably guessed.  Sadly, the jury did not give a press conference afterwards, or we might have learned which of them planned on going to law school.

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As I mentioned earlier, no Briefcase next week.  I’m off to Phoenix to soak up some sun, do some hiking, watch a ballgame or two.   Or more; seems that Arizona’s Supreme Court just passed a rule granting reciprocity to lawyers, meaning you can practice there without having to pass the Arizona bar exam.  (Although you do have a take a test on Arizona law.)  Food for thought.

By the way, the picture at right isn’t of Arizona, it’s Death Valley.  As you can see, I stood in the middle of the road to take the picture, and had to depend on my wife to warn me of approaching traffic from the rear.   That’s true love.

See you in ten days.