Jury selection starts Monday in Detroit porch-shooting trial

July 18, 2014

Friday, July 18, 2014

Good morning:

The Theodore Wafer trial is scheduled to begin Monday morning with jury selection. Unfortunately for both sides, the judge is going to conduct voir dire. The lawyers will be limited to recommending questions for the judge to ask. This is consistent with the practice in federal courts.

Although I tried lots of federal criminal cases before judges I respected, I was never satisfied with the way the way they conducted voir dire.

Can you think of a reason why you can’t be fair to both sides, is a useless question because with rare exceptions everybody believes they can be fair, regardless of their biases or prejudices. In fact, most people are not aware of their biases and prejudices.

In Washington State courts where I also tried many criminal cases, the lawyers are permitted to conduct voir dire. I would start with a general question, such as, “Do you believe you have any biases or prejudices?” Regardless of the response, I would ask them, “Why?”

My purpose in asking that question was to start a discussion that inevitably led to an increased awareness of the role played by biases and prejudices on perception.

For example, a detective’s wife denied having any biases or prejudices until I asked her if she could imagine a situation where she would not believe a police officer’s testimony that conflicted with a civilian witness’s testimony.

She shook her head and said, “No.”

Have you and your husband ever had a disagreement about an event that both of you witnessed, where your memory differed from his and you were sure you were right and he was wrong?

This question elicited laughter followed by an embarrassed and knowing smile.

“I see what you mean,” she said.

This is our 1142nd post.

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Thanks,

Fred


Zimmerman: I Love the Smell of Napalm in the Morning

July 16, 2012

The you-know-what hit the proverbial fan today in the George Zimmerman case.

The prosecution released W9’s damning account of being raped and molested by George Zimmerman over a 10 year period that began when she was 6 years old. W9 is his cousin. She is two years younger than him. The rapes she endured involved digital penetration of her vagina and the molestations involved fondling.

She submitted out of fear. She feared him physically and she feared her family would not believe her because he was so good at charming everyone. She finally mustered up the courage to terminate the abuse by running away from him and leaving the house. She told her parents, who told his parents, but nothing happened except he stopped attending joint family get-togethers. Her parents discouraged her from reporting the crimes to the police and she did not do so until he was in custody after he shot and killed Trayvon Martin. When asked by police investigators why she waited until then to report the crimes, she said she finally felt safe to do so.

I listened to her account and I thought it was very credible. Don’t kid yourselves, child victims of sex abuse rarely report the abuse because they are afraid they will not be believed and afraid of reprisals. This lady has a lot of guts and courage to come forward with these allegations knowing as she must have known that the information might become public.

Question: What impact will this have on selecting a jury in the murder case?

Answer: It will definitely complicate seating a fair and impartial jury, but the State of Florida was able to do that in the Casey Anthony case and I have no doubt they will be able to do so in the Zimmerman case.

We are immersed in this case, but many people are barely following it, if at all. The court will deal with the pretrial publicity issue by moving the trial to another county or importing a jury from another county, which is what happened in the Casey Anthony case. By questioning prospective jurors individually (i.e., out of the presence of other prospective jurors), the judge and the lawyers will be able to find out how much each juror knows about the case and whether a juror has formed an opinion about GZ’s guilt or innocence.

This precaution has worked in the past and it will work again.

Question: Is the evidence admissible at trial?

Answer: Not unless the defense opens the door by introducing evidence that GZ is a person of good character. If the defense opens the door, you will be able to hear a garbage truck backing up to the courtroom door with a load of bad character evidence to be provided in damning detail by W9 and anyone else they can find between now and the trial. According to W9, btw, there is another victim, but she is reluctant to come forward. Who knows, she might change her mind. For example, think of the recently concluded Sandusky case.

The rule in question is Rule 404(b) which prohibits the admissibility of uncharged misconduct unless it is probative of the defendant’s intent, knowledge, motive or opportunity, common scheme or plan, consciousness of guilt or absence of mistake or accident.

The evidence is inadmissible since it does not fall into any of these exceptions, unless the defense opens the door by introducing evidence of good character.

Like I said, Katie bar the door, if that happens.

While we are on the subject of uncharged misconduct evidence, let us not forget Shellie Zimmerman’s perjury and GZ’s role in putting her up to it and assisting her to conceal the Peter Pan account and lie about it in court (i.e., the internet donation account).

As Judge Lester said in his recent order setting bail, it would not have been unreasonable for the Court to have concluded that, but for the GPS bracelet, the defendant would have used his second passport to flee the country with $130,000 of other people’s money after he bailed out the first time.

If that was his intent, evidence of his role would be admissible under rule 404(b) as consciousness of guilt, for the same reason that evidence of flight to avoid prosecution is admissible to show consciousness of guilt.

I have written about this possibility before and, as I stated then, the prosecution probably will need Shellie Zimmerman’s cooperation and testimony against GZ to make that case.

Will W9’s statement be the straw that breaks Shellie Zimmerman’s back and sends her knock knock knockin’ on the door to the prosecutor’s office?

Who knows, she might even throw in an admission that GZ did not kill TM in self-defense.

Stay tuned.

Question:What about W9’s statements about racism in the Zimmerman family. Are they admissible?

Answer: No. W9’s testimony about family racism is not admissible because it’s not specific to GZ. She did not mention any specific instances where he expressed racist beliefs or epithets. and even if he had done so, it still would likely be inadmissible. Otherwise, it might be admissible under rule 404(b) to show evidence of motive.

Question: Are there any other foreseeable consequences?

Answer: Yes. The most immediate and probable consequence of this revelation today, other than a dramatic world-wide increase in disgust for George Zimmerman, should be a dramatic collapse of financial support via internet contributions to his defense fund.

Should be interesting to see what his supporters come up with to defend him. Are they vile enough to mount a full-fledged attack against W9 the way Rush Limbaugh attacked Sandra Fluke?

Will Fox News reach a new low in entertainment reportage?

Question: What’s up with his lawyers?

Answer: The not-ready-for-prime-time defense team still isn’t ready. They should have filed an appeal on Friday or first thing this morning in the Court of Appeals along with a request for an emergency stay ordering the prosecution to not release the information pending the outcome of the appeal.

This inexplicable failure coming on the heels of the reckless and legally groundless motion to disqualify Judge Lester looks really bad.

Apparently, O’Mara has asked for reciprocal discovery on W9 and that is not a good move at this time because it looks so thuggish.

Why posture like that when she is unlikely to testify?

Question: Did Judge Lester really have to release W9’s statement to the media under the Sunshine Law?

Answer: I do not know, but if so, this is a perfect case to get before the State Supreme Court to carve out a privacy exception to protect victims of uncharged crimes, especially sexual crimes, from having their stories published for all the world to see when it is not likely that they will ever testify.

I am appalled by their failure to file a timely appeal.


Saturday Art: Jury Selection And The Art Of Voir Dire

January 21, 2012

Justice at work

Justice at Work
From Creative Commons at Flickr

Jury Selection And The Art Of Voir Dire

Voir dire means to speak the truth. We use the term to describe two legal processes, the process by which prospective jurors are questioned to select a jury and the process by which certain witnesses are questioned to determine if they are qualified to testify as experts and express opinions. This post will be about jury selection, a subject near and dear to my heart.

Which do you think is most important to win a jury trial?

(a) Jury selection,

(b) Opening statement,

(c) Direct examination,

(d) Cross examination, or

(e) Closing argument?

The correct answer is: (a) jury selection.

Why?

Because, if you do not select the right jury, you will have little chance to win, no matter how strong your case and how proficient you are with the other four skills.

How do you select a jury?

Let us begin with a clarification. Jury selection is a misnomer because each side actually selects the jurors whom they do not want on the jury.

How do you select the jurors whom you do not want on your case?

Hopefully, the panel of prospective jurors has filled out a juror questionnaire that you have had an opportunity to review before you begin to question them. I always prepared questionnaires tailored to the issues in my case. For example, if there had been extensive negative pretrial publicity, which was pretty common given the types of cases that I handled, I would include a short description of the case in the questionnaire and ask the prospective juror to write down what they had read or heard about the case and whether they had formed an opinion about my client’s guilt or innocence. Another example involves rape cases where you want to know whether the prospective juror, or a family member, or close friend has ever been raped.

You question prospective jurors individually using their answers on the questionnaire as a guide and, depending on their answers, you pass or challenge them for cause, or later use a peremptory challenge to get rid of them.

Challenges for cause are unlimited, but you must reasonably articulate a reason why you believe a prospective juror cannot be fair, impartial, and follow the jury instructions that are the law of the case. If your opponent objects to your challenge for cause, your challenge will turn into mini trial with you attempting to discredit the prospective juror whom you have challenged and your opponent attempting to rehabilitate him or her. Ultimately, the judge will decide whether to grant or to deny the challenge.

Warning: Keep in mind that, if you lose the challenge, you are going to have to use one of your limited number of peremptory challenges to get rid of the prospective juror whom you have just insulted in front of all the rest of the panel of prospective jurors by challenging his ability to be fair, impartial, and follow the court’s instructions. If you think you are going to lose the challenge for cause and possibly irritate the other members of the panel in the process, you should seriously consider passing the prospective juror for cause and later use one of your peremptory challenges to get rid of him.

Peremptory challenges are exercised silently by opposing counsel passing a sheet of paper back and forth and striking a prospective juror each time. Finally, delay striking someone whom you think your opponent may strike. If she does, you will have saved a peremptory that could mean the difference between winning or losing the case.

You do not have to explain why you challenged a prospective juror, unless the challenge appears to be systematically based exclusively on race, sex, or religious affiliation. If that appears to be the case and your selection is challenged, you will have to satisfy the judge that you had another reason.

In misdemeanor cases, each side gets 3 peremptory challenges. In felony cases, each side gets 6 peremptory challenges. In death penalty cases, each side gets 24 peremptory challenges.

I used to tell my clients to think of our peremptory challenges as bullets in a gun. We have to use them strategically so that we do not need one after we run out.

So, here is the strategy in a nutshell.

(1) Go through the questionnaire and identify the prospective jurors who appear to have strong personalities who, by reason of education, experience, or occupation appear to be capable of leading the jury. You must get rid of any of them who appear biased in favor your opponent or prejudiced against you or your client. No matter how good you are, you will lose, if you fail to do this.

(2) Identify any other prospective jurors who for any reason appear to be, or might be biased in favor of your opponent or prejudiced against you or your client. You can probably still win your case, if you leave them on the jury, so long as they do not influence other jurors to vote for your opponent’s case. Prioritize getting rid of them according to how likely you believe they will influence others.

(2) Focus on both categories of prospective jurors during voir dire and, if you confirm your initial opinion, try to set them up for a challenge for cause.

(3) Pass or challenge the prospective juror for cause. Occasionally, you will desperately want to get rid of a prospective juror who stubbornly refuses to admit they are prejudiced against you or your client, even though the prejudice is apparent. You will need to use a peremptory challenge to get rid of them, if that happens.

(4) Exercise peremptory challenges after a sufficient number of prospective jurors has been passed for cause, such that there will be enough of them to form a jury, plus alternates, if both sides exercise all of their peremptory challenges.

Selecting a jury is an art form that is not taught in law schools. Very few judges and lawyers appreciate how important it is and only a few of them know how to do it well. I worked very hard on developing this skill and I believe that is why I won approximately 80-90% of my trials.

You have to know your case thoroughly. You have to identify all of the potentially outcome-determinative factual issues before jury selection. Most of them will relate to witness credibility. You do not want jurors who will not believe you and your witnesses. If you are not planning on calling any witnesses — as might happen in a criminal case, if your client decides not to testify — you want jurors who will follow the jury instructions and not hold your client’s silence against him.

Here is an example regarding the presumption of innocence.

Defense counsel: Good morning, Mr. Jones.

Q: I am going to ask you a hypothetical question, sir. Let us suppose that you have to decide whether my client, Sandra Wade, is guilty or not guilty, and you have to make that decision right now, before you have heard any evidence. What would your decision be?

A: Uhm, I don’t know. I can’t make a decision without any evidence.

Q: I understand. I suppose like most folks, you want to be fair and hear both sides before you make a decision, right?

A: Yes, I want to be fair.

Q: Fair to both sides?

A: Yes, of course.

Q: Do you believe it is important to follow the court’s instructions?

A: Yes.

Q: Even if you disagree with them?

A: Yes, the judge told us they are the law of the case and I intend to follow the law.

Q: Even if you disagree with them?

A: Yes.

Q: Since this is a criminal case, the judge has instructed you that my client, Sandra Wade, is presumed innocent, right?

A: Right.

Q: What is your verdict right now, before you hear any evidence?

A: Uhm, Okay. I see what you mean. I guess I’d have to vote not guilty.

Q: Sounds like you aren’t sure. Are you certain you could do that? Because, if you can’t, you probably should not be a juror in this case. Do you understand why I say that?

A: Yes, you’re representing Ms. Wade and protecting her legal rights.

Q: Right. This isn’t personal. I just want to know if you can honestly — and I emphasize the word ‘honestly’ — presume Sandra Wade is innocent, even though she is charged with killing her husband while he was asleep. Lots of folks for one reason or another might not be able to do that and that doesn’t mean they are a bad person. It just means they shouldn’t be a juror in this case. How about you, sir?

Can you look her in the eye and honestly tell her that you presume she is innocent?

A: Yes.

Thank you, sir. Your Honor, I pass Mr. Cameron for cause.

Warning: Eye contact and body language are vitally important indicators that often are more important than the answers people give. For example, if Mr. Cameron had suddenly shifted his body position or been unable to look at my client when I asked him to look her in the eye, I would have known that I had to get rid of him, unless I was satisfied that he would not lead the jury.

INSIDER TIP: When in doubt while questioning prospective jurors during voir dire, ask why they said or did something. This gets them talking and you will find out a lot more about them, if you are listening, rather than trying to impress everyone with how smart and well spoken you are.

Namaste.


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