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View Diary: AL lesbian viciously beaten by girlfriend's brother in horrific Thanksgiving Day hate crime (238 comments)

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  •  Thanks for the long explanation. (3+ / 0-)

    I had a friend who was a prosecutor working in a sex crimes division and he said that there were many times that he personally believed the victim but couldn't prosecute because he felt there wasn't enough evidence to convict. Since I know him and we had a few serious discussions about this, I know he did not make that decision lightly. He was frequently quite torn up about the fact that it was so hard to get a conviction in these cases. It was eye-opening because I was coming at it from a feminist perspective and, I confess, thought that the reason rape was so infrequently prosecuted had to do with the fact that the police or the prosecutors didn't take it seriously as a crime. Now, I'm not saying this to dismiss anyone who themselves has had a bad experience with prosecutors. I'm sure that happens, so I'm not addressing any specific case here.

    Since you're a prosecutor, may I ask another question? Since the ability of the prosecutor to get a conviction is, I imagine, affected by the attitudes of the members of the community who are likely to make up a jury, what would you do if you thought personal prejudice on the part of the jurors was likely to influence the jury? That strikes me as being a possibility in this case.

    •  Well, actually, I do informal defense work for now (2+ / 0-)

      but I've seen things from both sides and will probably end up working on the state's side at some point.

      Every case has emotionally-charged issues in it.  Even in something like a DUI (which in my county is in practice the least-serious crime that you can get a jury trial for), voir dire - jury selection - takes up a large amount of trial time; a ten-hour DUI trial could spend 2-3 hours seating a jury.  There are a lot of questions out there that are asked to try to filter for people who have had experiences in life such that having them on the jury would make the whole exercise pointless.  But at the end of the day, judges don't want to spend a week on voir dire and lawyers have only so many peremptory challenges.  Every lawyer develops their own personal theory on when, how and even occasionally if to use them.  High-profile federal trials (and federal judges have much more time per case than state judges do) will go all-out and use the jury consultants you see on the TV shows.  The vast, vast majority of lawyers are left with their gut and common sense.

      On top of that, one thing that I've always felt is that we need to be realistic - we're not buying computers or carpenter nailshere.  Jury members come with past life experiences.  Sure, we can ask if they've been assaulted, do they know someone that's been assaulted, have they been a witness in a criminal trial, is their spouse a crisis counselor, all sorts of personal and really invasive questions, and that may pull people off the jury who are totally unable to listen to facts.  I once saw a juror member, an older Caucasian religious woman say something so outlandish that the room was left speechless, I think it was something patently ridiculous like wanting to execute - hang, in fact - all drinkers of alcohol or something like that (I live in a Mormon county).  Did she believe what she said?  Did she just want to go home early?  Fuck if I know.  But the judge was the first one to recover and quickly but politely excused her.

      At the end of the day, you're speaking to a bunch of humans, humans that only the really skilled trial attorneys can get a lot of non-verbal feedback from individually during trial, although it's a bit easier to get non-verbal feedback from the whole group en masse.  But really, you kind of have to either have faith in the system working or you'll stop coming to work each day.

      In this case?  If I thought that I had a jury of 75-year-old Southern Baptist housewives?  Emphasize the crime, emphasize the injuries and the wounds, get your facts in a line and your witnesses as prepped as they can be, and if hate crime enhancements were available here in state court (they're not), tread lightly and focus on the law here, try to stay as far, far, far away from "gay marriage" or other political issues, even if the victim's friends want to go there, and keep it simple (I've learned the hard way that your own witnesses can do far more damage to you than the other side's witnesses could dream of doing).  "Well, actually, Mr. Defense Attorney, now that you mention it, I remember that my husband had 12 Bloody Marys before driving home that night."

      Unless the prosecution has fundamental problems of proof here (e.g. because of circumstances they have trouble identifying any one family member as the assailant), I think that the injuries here make the state's case pretty straightforward regardless of whatever the assault charge turns into.  So long as they don't succumb to political pressure and charge attempted murder when the facts show that it was a heat-of-passion knock-down-drag-out fight (I'm not saying that's what happened, just that if that IS what happened, that's risky to over-charge).

      The hate crimes stuff can be harder, in my opinion, and that's where you need to at least try to identify with your jury and find something unifying about your community that others outside of it may not understand - I might, in a closing to those theoretical 75-year-old SBC members, allude to the persecutions faced by Christians in China in explaining why hate crimes laws are important in society and why it's their duty to protect a minority from their abusers.  It's the same as you can do in any sort of business requiring persuasion - get your audience to put themselves in your shoes or, here, the shoes of the victim.  After that, the facts either fit or they don't.

      Sadly, lawyers never let other lawyers on jury panels so I'll never see how it works but in federal court (which is not where I practice, but I've done a federal internship), lawyers regularly talk to jury panels after the fact with the judge present (some jurors often opt out).  A federal judge is the closest thing that we have in the legal community to a life peer so everyone is on their best behavior (in actuality, the legal profession is usually quite cordial and friendly).  In the post-trial talks that I've observed, I'd say juror members took what they had to do far more seriously than anyone expected; they noticed facts that only with hindsight I considered important that perhaps went unnoticed to all of us, and while we don't make it easy for jurors because of how difficult a federal verdict form is (in some ways, it's worse than doing your taxes), I always felt like there was a lot of buy-in on their part.  So while some of my longer-practicing colleagues are probably more cynical, I think that our system actually works most of the time.

      No system is foolproof, but - from both the prosecution and the defense's viewpoints - I suspect ours gets the right answer more often than not.  It's strangely comforting to me that when we get it badly wrong, it's major national news, be it the OJ acquittal or the recent wrongful convictions in the death penalty world.  That implies to me that, while every system can and should be improved, we're probably doing OK.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Tue Nov 27, 2012 at 09:43:45 AM PST

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