Articles Posted in jury trials

I am a criminal defense attorney in Atlanta, and readers know I also handle state cases throughout Georgia and in federal criminal cases all over the country.  One of today’s tasks is to work on Jury Instructions for an upcoming case in another part of Georgia.  My client, a businesswoman, is accused of some serious crimes that arose out of an event that ended very badly.  She says she did not engage in the crimes she is accused of, and because the District Attorney is not being reasonable, we pretty much have no other choice than to go to trial and put her case in front of a jury.

Many clients are not always aware of the various tasks and prep work that are required when a criminal defense lawyer is preparing for a trial.  Obviously, the lawyer needs to do his or her homework on the facts, find out what the witnesses will say, and develop methods for attacking the witnesses for the prosecution.  The lawyer sometimes also needs to prepare his or her own witnesses.  One of the biggest tasks is counseling the accused person on whether he or she should, or should not, testify in their own defense.  The final decision on whether the Defendant should testify is completely up to the client, the lawyer can merely provide advice.  However, this often is the biggest single decision in a case, and good defense counsel always put a lot of work and thought into providing this advice to their clients.

Today, I am also working on a less well-known aspect of trial preparation: proposed jury instructions.   Some of you may know that when the evidence is finished in a criminal case, the Judge has to tell the jury his or her “instructions” or what is sometimes called the “jury charge.”  These are basically the rules that the jury has to follow when deciding if the prosecutor has met the burden of proving that the Defendant is guilty of the charges beyond a reasonable doubt.

The Internet is agog over the allegations in an indictment issued in Boston that parents and others were part of a far-flung ring to game the college admissions system so that wealthy families could get their kids into elite universities. From my office down here in gorgeous Atlanta (where Spring is just beginning) I urge everybody to calm down, take a deep breath, and let the system work before we start stringing the parents up by their thumbs.

For starters, in this and every other criminal defense case I have handled for the past 36 years, THE DEFENDANT IS PRESUMED TO BE INNOCENT!!!!!!!!!!!!! Please people, remember how it would feel if someone made accusations against you or your family.  There are merely allegations by prosecutors who have not had to have their theories tested by experienced criminal defense lawyers.  I cannot tell you how many times in my career a prosecutor or investigator told me or a Judge early on that the government had a “strong case” and had to eat those words later when the Judge and/or jury agreed with our defense and found the Defendant “Not Guilty.”

Second, the press, once again, is miserably failing in its obligation to realize that this is merely one side of the story.  One can look far and wide to try and find a story where some journalist casts a critical eye on all of the prosecution’s claims, which it bears repeating, have not been tested in court.

I posted recently about how as lawyers we feel good if we win a criminal case.  My client from this recent case recently posted his feelings on the same subject, and some attorneys might find it valuable to see how the matter looked like from his perspective.  Here is what he wrote.

I hope whoever is reading this finds my words with sincerity. I had been accused of a crime that I was 100% innocent of but the circumstances made me appear to be implicated in some way. My name and image were published in the newspaper and plastered on the internet. Myself and Paul were up against a task force who in court gave their expert testimony against me. They did an excellent job vilifying me in court. But Paul did a much better job conveying my innocence. His speech was delivered with a surgeon’s precision. He was passionate about my innocence. I couldn’t believe it when Paul cross examined one of the expert witnesses who was also the arresting officer. Paul got him to admit on the stand that their entire case against me was speculation and that based on their evidence and approach I could have easily been as innocent as I was guilty. Paul got the truth to come out of this officer’s mouth on the stand in front of the jury! There are so many good things I can say about Paul Kish. I am now able to move on with my life with a clean record because of this man. I couldn’t believe how hard Paul fought for me in court. Right before the Foreperson read the verdict I turned to Paul and let him know that no matter how the verdict came back I was truly grateful for the effort he put in. He was worth every penny. Thank you again Paul! (Not Guilty!)

(Before Trial)

I won a criminal trial when the jury last evening returned the lovely two-word verdict of “not guilty” for my client in a case in a court just north of Atlanta.  As a criminal defense lawyer, hearing these two words is too rare and always comes after a lot of hard work and pressure.

Winning a criminal case is always an uphill battle, and puts a lot of stress on the attorney.  A federal judge who has presided over criminal trials for many years posted his own observations about these stresses: https://blog.simplejustice.us/2017/03/29/kopfs-top-ten-observations-about-criminal-defense-lawyers/.  This judge noted that, “When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.”  However, today I want to briefly talk about the impact on clients who have the guts to take their cases to trial.

Yesterday’s case was a perfect example of the extraordinary stress that a client faces when he or she decides to take their case to trial.  My client had no prior criminal record, is 31, and an extremely hard-working man.  He has big plans for his future, and consistently denied that he committed the crime he was accused of doing. The prosecutor had a not-very-strong case, and continued to make “offers” to get the client to plead guilty.  In the final offer, the prosecutor agreed that if the client pled guilty he would get no jail time, a minimal fine, and that after a short period of probation the conviction would be “restricted” from his record. However, many people know that these “record restriction” rules still allow for the conviction to remain on a person’s record, but only law enforcement officials can see the case.

Like me here in Atlanta, criminal defense lawyers around the country are probably reading about the federal criminal trial involving Paul Manafort (guy with a great first name), the former Campaign Chairman in the last Presidential election.  And like me, lawyers and laypersons alike are wondering about the impact of the evidence and witnesses on the jury.  This made me reflect on what I have learned after trying around 100 criminal jury trials in both federal and state courts during my career.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.