November-December 2008

What’s the most valuable thing you’ve learned from talking to a jury post-trial?

Robert DuBoise, Assistant District Attorney in Parker County

After nine years of civil litigation in Houston, I decided I wanted to be a prosecutor. I started my new career in San Jacinto County, a small rural county in Southeast Texas. Our office at that time consisted of the elected district attorney and two assistants. As the new guy in the office, I was assigned to prosecute all misdemeanors. During that first year, I learned numerous lessons from speaking to juries after trial. One particular case from that first year still factors into every trial I handle.

The defendant shot and killed his neighbor’s two Siberian Huskies. The defendant admitted shooting the dogs but stated that in the days prior to the shooting, the dogs had killed a number of calves on his property. The fact that the dogs had previously killed the defendant’s cattle was undisputed. However, it was also undisputed that at the time the dogs were shot, they were not in the process of, nor had they recently finished, attacking the defendant’s cattle. The exact location where the defendant shot the dogs was contested, but the animals were found dead on the edge of their owner’s property. In the black-and-white mind of a new prosecutor, this shooting was a clear violation of Tex. Pen. Code §42.09 as it existed at the time.

I filed the complaint and information, and the defendant retained an attorney. After fruitless plea negotiations, a trial date was set. It was during voir dire that I realized I wasn’t in Harris County anymore. Venireperson after venireperson was excused for cause when they stated they could not follow the law and would not find someone guilty for shooting a dog that killed their cattle.

Ultimately, a jury was seated and trial began. At the end, I argued to the jury that despite their personal feelings on the matter, the law prohibited the defendant’s actions in this case. A short time later, the jury returned with a “not guilty” verdict.

As I spoke with them afterwards, the jurors told me that although I was technically correct and that they wanted to vote for me, that they could not find the defendant guilty for the very action they would have taken in the same circumstances. It struck me then that I had failed to consider one of the first things my communications professor taught in his college freshman communications class: Know your audience.

Since then, I have taken the time to consider the nature of the case versus the nature of the audience that will ultimately hear it. Every county has a distinct local personality. If you take time to study and learn it, your cases become clearer and your presentation and prosecution of them much more successful.

Robert Cole, Assistant Criminal District Attorney in Upshur County

After nearly 17 years of criminal trial practice, it has become quite clear to me that it is simply impossible to clearly know just what a jury might be thinking about during a trial. Every chance I get to speak with jurors following a verdict, I learn something new, and in every case I take a little nugget of truth back to my office to ponder what I learned and to cuss and discuss the revelation with my coworkers.

One critical thing I have learned is that jurors watch what the lawyers are doing as much as they pay attention to what the witnesses are saying. One juror told me after a trial that I needed new glasses because mine kept slipping down my nose. I learned from that comment to dress uniformly and ensure nothing about me or what I wear is a distraction. My haircut is not extreme, my glasses fit, and my shoes are polished. (Guys, please make sure your fly is zipped; I saw a poor defense lawyer turn crimson one day when he realized his error.) One well-known East Texas lawyer always wears a three-piece navy suit with a burgundy tie when in trial. He has seven suits just like it. In trial he knows that the focus during his portion of examination or argument is not on his clothing but rather on what he wants the jurors to hear.

Also, I learned that jury nullification is real, even when the defense is not trying to raise the issue. The character of the victims matters; whether injuries are actually inflicted matters; and whether a certain statute offends the public sense of order matters. During one trial of attempted kidnapping, my elected boss had a credible high-school-age victim who was chased down the highway by a suspect in a box van owned by his employer. The suspect grabbed her and pulled her into the back of the van briefly before she broke free and ran down the center stripe of a highway where several independent witnesses saw her running. She asked for help and told them what happened. These witnesses also saw the defendant turn the van around and speed off, and they alerted police to the company name on the van’s side. Officers showed up at the business and when the defendant spotted them, he hopped a fence and ran. The evidence all came in clearly without problem, but the jury acquitted. Why? Because the victim didn’t have any actual physical injuries. My boss was stunned. He had no burden to prove injury. He told the jury about the defendant’s prior criminal history after trial.

Lastly, juries really do like to see exhibits. In a recent DWI case where the defendant refused both a breath and blood test and the video was OK but not stellar, my talented investigator, Jon Warren, went to great lengths to help a fellow assistant DA put together a PowerPoint presentation. We included a video showing horizontal gaze nystagmus so the officer could explain what he was looking for when he was waving that pen around on the roadside. Jon took photos of the bar the defendant was seen leaving just before she ran someone into a ditch; that other driver followed the defendant until police joined in. Jon also took photos of where the stop occurred, mapped the area using Google Earth, and computed the mileage from the bar to the stop. He also projected the route from the bar to where the defendant said she was going (a tip he gleaned from one of TDCAA’s DWI courses). The cherry on top was the slide he made for closing argument that showed all the signs of intoxication, which came on the screen one by one. The jurors liked the visual aid and found the defendant guilty—to the astonishment of her counsel. The jury appreciated the tools Jon gave them. They liked having a reference beyond the in-car video.

I have learned to take care of all that I can before trial. Know the case, know the witnesses, and anticipate the defense just like we all learned in law school, but also be aware of distractions under our control, and be ready for a jury to focus on odd facts that should not matter—but do.

Carolyn Olson, Assistant County and District Attorney in Colorado County

Prosecuting misdemeanor DWI, marijuana possession, and family violence assault cases in a small rural county for the past 10 years, I have learned that when you decide to try a case in front of a jury, you must remember that they know nothing about the law, legal reasoning, the rules of evidence, and what it means to prove the elements of a case beyond a reasonable doubt. No matter how brilliant your voir dire, opening statement, or cross-examination of the defendant, a jury does not see a case in the legal, technical, logical way a prosecutor does. In the short time you spend with them in voir dire, you cannot educate them enough about the law, change a lifetime of personal experiences, nor overcome the effects television has on their perceptions of what law enforcement can and cannot do. I have learned that even when you get a “guilty” verdict from a jury, it is sometimes not at all because the jurors saw the case the way the prosecutor did.

Once, after a guilty verdict in a DWI refusal case, several jurors told me that they were totally undecided until they heard my co-prosecutor’s closing argument. They couldn’t say enough about how the closing saved the case. In another DWI case where the defendant exhibited strong positive clues on all SFSTs and the officer had observed him driving on the wrong side of the road, the jury told me they found him “not guilty” because he didn’t look drunk on the videotape. In fact, the foreman was so angry that the case went to trial that he asked me whose decision it was to even file the case!

Another time, we tried a routine possession case, where the defendant claimed a lack of intent because of involuntary intoxication. He was found comatose behind the wheel of his car with cocaine on his shirt and jacket, almost an entire cookie of crack in the front cup holder, and someone else’s prescription narcotics. After trial, one of the jurors said, “I knew you had him when I looked at the dates on the pill bottle.” There had been no testimony regarding the date the medication had been prescribed; it was simply irrelevant. I could not help but wonder why we didn’t “have him” when the officer testified about the cocaine on his clothes and in plain view.

It always angers me to have to decline to file a case, change a plea offer, bargain a charge down, or dismiss a charge when I know a defendant is guilty, but the reality of a jury trial and the way juries look at the facts sometimes makes that inevitable.

Richard Alpert, Assistant Criminal District Attorney in Tarrant County

I find body language, facial expressions, and the inferences we draw from their nuances fascinating. I also believe that eye contact with jurors is imperative. During every closing argument, I purposefully seek out a non-verbal connection with or a response from each juror as I try to confirm that my message is reaching them.

Nevertheless, I have learned that my perceptions and interpretations often miss the mark. One example seared into my memory involved an aggravated sexual assault of a child case I tried years ago. The stepfather defendant enjoyed his entire family’s support and, sadly, this group vilified the young victim. As is so often the case, the child’s mother and siblings adamantly denied the possibility that abuse opportunities even existed when, on the contrary, we believed that the child had endured years of suffering. My entire case rested upon the child’s credibility, and I absolutely believed her.

During my closing in the guilt-innocence phase, I hoped to convey the earnestness of my belief in this child’s credibility to the jury. Yet, as a woman on the front row of the jury box listened to my argument, she hostilely crossed her arms, shook her head repeatedly, and appeared to be downright upset with me. Floored, I felt she and I shared no positive connection during the argument. Deliberations began and continued through the remains of the day. I fearfully hoped for a hung jury, strongly believing that this unsympathetic juror had voted against convicting this child molester. Seven hours later, the jury returned a guilty verdict, and we put on our punishment evidence. Argument during this phase felt like a Groundhog Day reprise with this same juror’s unfriendly body language continuing to cause me concern. Yet the jury promptly served up a 99-year sentence, pleasantly surprising me.

Prosecutors can learn great lessons by visiting with jurors post-trial and, in this case, I was desperately curious to talk with this seemingly unapproachable woman whose demeanor had so confounded me. As I began to visit with her and told her of my concerns, she appeared shocked. She described her furor at the defendant’s reprehensible conduct and her resolve to hold him accountable. The disapproving body language had been aimed at the defendant, not me. Since that case, I still try hard to connect with my jurors, but I also work to resist the temptation to read too much into their body language. I now know that any visible ire might well be directed at the defendant—as it should be—and not my arguments. At least, I hope that’s the case!

Tracy Gaines, Assitant District Attorney in Fort Bend County

I have learned that juries can pick up on the most inconsequential, minute detail in the trial and run with it. For example, in a DWI case, on the video, the officer spent a good five minutes explaining horizontal gaze nystagmus. After the jury found the defendant guilty, one juror said those five minutes of HGN testimony clinched the verdict. The juror explained that the defendant wore glasses, so he must have been to an eye doctor, which means he would have known how to follow instructions concerning eye examinations. Therefore, on the night in question, because he could not follow the officer’s instructions, he must have been intoxicated. ✤