Archive for January 4, 2008
Re-direct? Re-cross? Jury?
Jan 4th
You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?
If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.
According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?
It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.
After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.
This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.
Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.
“Actually, the juries come up with some pretty good questions,” he said.
Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?
There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.
Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?
Terrible, terrible idea. Why must we tinker so?
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Decision of the day, Texas edition
Jan 4th
A very faithful reader sent along this humorous decision from the Court of Appeals of Texas, Seventh District. It’s not from today, or yesterday, but a day almost 4 years ago. Yet, it is funny enough for me to pass along.
Here’s the excerpt from Lexis:
Assistance of court-appointed counsel was not rendered ineffective by the fact that counsel was on the indicting grand jury. Apart from bald assertion of conflict, defendant failed to show how attorney could have represented him more effectively.
As they say, only in Texas. At least it wasn’t a death case.
The right to a jury trial: Can you afford it?
Jan 4th
The right to trial by jury is a Constitutionally guaranteed right in this country. Every person accused of a crime should have the option of having his guilt decided by a jury of his peers (whatever that means anymore). It’s a grand concept and one that we must try to uphold with all its good intentions.
But can you afford one? I don’t mean that philosophically or metaphysically. Rather, I’m asking if you have the cash for it. The intersection of the right to a jury trial and the need to earn a living is an interesting one.
Consider this scenario: The attorney can charge a flat fee for pre-trial work and stipulate in the fee agreement that the trial fee will be additional. The client has some idea of what he will end up paying if he decides to go to trial. Assuming that most cases settle prior to trial, he doesn’t worry about it too much, hoping instead for a favorable resolution pre-trial. That resolution never happens. It is now the eve of trial. The client is faced with a hefty $3000 a day fee for a trial that may last one or two weeks. That could be up to $30,000.
That stiff plea offer looks more palatable now. Some, if not most, buckle and take the plea, simply because they cannot afford to go to trial. Is this an acceptable part of the criminal justice system? Is this something we shrug off and call the cost of doing business.
Whose decision is it here? Whose responsibility is this? Who can do something to avoid this? Should clients always assume they will go to trial and hire only attorneys they can afford? Should attorneys not charge a subsequent trial fee, but merely a one-time flat fee? Should lawyers charge hourly rates instead?
Clients must make the decision of whether to plead or go to trial independent of whether they can afford the attorney who represents them. How do we ensure that is so?
Thank God I’m a public defender.
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