Thursday, January 08, 2009

Thoughts After A Trial

I had the privilege to co-counsel a federal trial this week and now that the split verdict is in, just had some thoughts on what the first trial of 2009 looked like.

There are not enough cases tried.

None of us try enough cases. I certainly don't. My clients are scared like everyone else's. They may want to go to trial, but the economy of scale tells them otherwise.

With sentencing guidelines causing clients to believe that the 3 level acceptance of responsibility reduction is as good as it gets, or maybe some cooperation resulting in a 1/3 reduction, most clients decide to plead guilty and play nice with the judge, or the government, or both.

As criminal defense lawyers we can lament this all we want, but it is not us in the hot seat.

After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.

We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different.

Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.

We need to try more cases.

We need to use more demonstrative evidence.

People like to look at things. We all hear this. Courtrooms today provide technology that places pieces of evidence on screens and allows juries to see first hand more than ever before. We need to take advantage of this in defending our clients.

Granted, many times there is no evidence beyond our ability to cross examine witnesses, but I'm not talking about cases where the only defense is reasonable doubt (80%)

We need to ignore the petty crap.

The deck is stacked against us. The law is against us. The prosecutor is against us. The agents are against us. The judge, tasked as an arbiter of justice, is usually not interested in a week long trial where the government can't prove the case. They consider that a waste of time in my opinion. Sometimes even court staff, security, and other people not on the defense team just have an air about you and what you do.

Those that practice in court on a regular basis know what I'm talking about.

Sometimes everything you do is a "problem." Where you sit, where you stand, what you want to do. All this, while the prosecutor is being brought water and huddling with security.

Ignore it all, and always be the professional. You are there to represent a client, no matter how difficult others may make it for you.

Remember that you have a client next to you.

Talk to him. Explain things to him. Let him know what happened at sidebar. Ask him what he thinks. He may be dumber than a bag of rocks, but it's his case. He knows he's in trouble, and his family in the gallery (if he has any) knows it too.

When it's over, it's over.

There's always the question you didn't ask, the thing you didn't say, the reason you think the jury convicted. You can kill yourself mentally going through all of this, so forget about it.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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