Finally...Justice

Hello Everyone--

Yes, it has been another long gap since I have posted anything--sorry.  Suffice to say I have been busy both with work, and with family--but let's get on with more exciting news!  

Kareem Lane was finally found Not Guilty by a jury in Columbus, GA, for the tragic murder of school superintendent Jim Burns.  

• I say finally, because this was a cold case prosecution for a murder that happened in 1992.  
• I say finally because this was the second time Mr. Lane had been tried for this case.  In 2012 the jury had deadlocked 10-2 in favor of acquittal.  
• I say finally because Mr. Lane was arrested for this crime in 2009.  He was incarcerated for two and a half years, from the time of his arrest until the end of the first trial.  
• I say finally because the prosecution sat on this for another year+ before finally deciding this January to retry Mr. Lane.  
• I say finally because due to this case, Mr. Lane and his wife Carol have been unable to live anything approximating a normal life for over 5 years.  

If you have read some of my entries from 2012, you know that I played an active (albeit small, pro bono) role in Mr. Lane's defense.  Although I am not normally a criminal defense lawyer, I was uniquely situated to assist GA attorney Stacey Jackson defend Mr. Lane and fight this injustice.  In doing so, I became very familiar with the (lack of) evidence against Mr. Lane, and I was shocked that the DA's office even considered bringing this to trial.    

There's an expression that "Justice Deferred is Justice Denied."  I think that there is a lot of truth to that.  Mr. Lane, his wife, his entire family have had to live with this burden for years.  There is no doubt that this case has forever changed the course of his life.  However, I have to say that after 5 years of fighting, to finally hear the words "Not Guilty" was awfully sweet to me.  I can only imagine how it felt for the Lane family!  Justice may have been deferred for far too long, but in the end Mr. Lane was finally vindicated.  He can go home.      

Unfortunately this case will not draw much media attention outside of Columbus, GA.  This is a shame.  This is such a ridiculous example of prosecutorial overreach, perhaps even misconduct?  I know that is a strong assertion, and winning such a case is terribly difficult, but I have many reasons for saying this.  Perhaps this shall be topic of another blog entry?  Regardless of whether I ever decide to grind that ax publicly, I am happy to say that finally, after 5+ long years, an innocent man walks free.  I am so glad that I saw justice served.  Finally!  

Deadlocked

So the case is over, all of the testimony has been given. The evidence has been submitted, closing arguments are over, and the case has gone to the jury. They may deliberate for an hour, a day, even a week, but at least you will have resolution right? As Lee Corso might say, "Not so fast!"

There is always the possibility of a deadlocked jury. This is fairly uncommon, but what does it really mean in a real-world sense? There is certainly no definitive result: no conviction, no acquittal. In civil trials it is not uncommon to have less than unanimity, but with criminal trials most jurisdictions require 12-0 either to acquit or convict. Of course, even that isn't true, and there is a significant line of cases that suggests that under the right circumstances, a less than unanimous verdict can still achieve either conviction or acquittal. I won't go into all of those details now.

What is interesting is what happens when there is a deadlocked jury. Some jurisdictions allow an "Allen" charge to try and break up the deadlock. This is an admonishment from the judge for the jury to really, really try and achieve a result. The idea is that the parties have presented their best case, there is no reason to believe that retrying this case will result in anything substantially different, and there is no reason to believe that a new jury wouldn't have the same issues as they (the jury) are having. "Punting" the issue of guilt or innocence to 12 new people is an abdication of their duty.

The case I have been working on just resulted in a mistrial. The jury voted 10-2 in favor of acquittal. While this was somewhat gratifying in the sense that most of the jurors voted our way, it wasn't a complete victory. Now, the defendant faces the possibility of a retrial. We may have to do this all over again. He still is not "free," and won't be until the State drops the charges entirely. In fact, he is not even free in the literal sense. The bond reduction hearing is today. So, a man who has been in jail for 2.5 years awaiting his day in court now waits another day, because 10-2 is NOT 12-0. As defense counsel said, "it was a dry run." Nothing more.

And that is a mistrial...

Closing Arguments in Disorder

We all watch the movies, television. We have all seen the dramatic scenes where the "good" lawyer moves the other characters, or even you, to tears, rage, or joy because of their well-selected phrases, and their ability to build a logical argument that is so persuasive that it is impossible to deny.

However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?

Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.

Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.

This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.

Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.

Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.

In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...

To Testify or Not to Testify?

That is the question! Of course no one ever has to testify in a court proceeding where they're the defendant, but there are different reasons and strategies as to why someone may, or may not choose to testify on their own behalf.

First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?

The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.

You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.

From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.

My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.