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Several years ago I had the somewhat frustrating (yet also deeply fascinating) experience of sitting on a jury. That last experience gave me a first hand view inside the drug war. Today, unfortunately, I found myself asking (and being granted) an excuse from jury duty do to family medical problems, after about three hours of voir dire on a murder trial.

Below, I discuss some impressions and reflections about this morning's voir dire experience,and relate it briefly back to my earlier experience. Some day,  I may yet get around to writing at lengthy about my first experience.

This diary was written Monday evening (the 26th). The jury reached a verdict of guilty on all but one count yesterday, Friday the 30th.

This particular case, as it turns out, is a murder case. But apparently it is not "who dunnit" but a "whydunnit". The defense, as seemed quite clear from this morning's voir dire plans to argue self defense.

The prosecution (argued by an assistant DA and the Chief Prosecutor) opened this morning with a brief summary of their case: The defendant was under a restraining order, violated that restraining order and committed a rather gruesome murder, stabbing the victim 11 times, three in the back. According to the prosecution, the defendant attacked the victim when he entered the apartment, presuming, wrongly, he was in a relationship with the defendant's estranged common law wife.

The defense counters with what seems like an initially weak opening. And then things get interesting.

The Prosecutor goes through the normal and predictable voir dire questions. One juror says the defendant looks like someone the juror knows who molested their kids. On cross (probably not the right word) the defense attorney pins this juror down. This juror spends a lot of time insisting that they can be fair and impartial, while continuing to insist she can't put the image of a child molester out of her mind. The Defense attorney kept pushing her and finally got what he wanted-exclusion for cause. My opinion of the lawyering skills of the defense attorney is going up. He also hones in on the body language of another prospective juror. On the whole, throughout the voir dire, the defense attorney does one thing really really well: he establishes the importance of understanding "guilty beyond reasonable doubt". As I'm watching this, I realize that practicing law is a lot more than just understanding law and the evidence. This guy did a really good job of getting the jury to see him in at least as positive a light as the prosecutor (as it turns out he is fairly high profile locally and has defended some controversial cases). He also very carefully lays the groundwork for self defense in the trial.

Two really important points stand out:

  1. The judge instructs on the law;
  1. Evidence comes from the jury box-it has to be admitted as testimony or exhibits.

Earlier, the prosecutor had asked the jury the following question: if this is a football game, how far down the field do I have to move the ball? The prosecutor spent some time emphasizing how nothing is really certain and making sure the jury didn't expect CSI. But then he explains how far down the field he has to move the ball:

  1. Probable cause for a search warrant: 20 yards.
  1. Preponderance of evidence for a civil case: 51 yard line.
  1. Guilty beyond a reasonable doubt: the 20 yard line.

At this point I was still sitting in the pews (not actually in the jury box).

I thought the defense had a good comeback to this and made this point over and over: guilty beyond reasonable doubt means that you have the same level of confidence to act as you would in the most important affairs of your life (actually the law in Ohio). He gives the example of acting on behalf of a family member. I thought he could have pushed that a little bit. What came to my mind would be a case like Teri Schiavo: if you are going to remove a feeding tube from someone, you want to be medically certain that there is no chance of recovery. Granted, legal certainty is not quite the same as medical certainty.

The defense attorney did a good job at laying a foundation-but who knows what the evidence really is. I have no idea if I would have been maintained on the jury anyway. I do think that I would have been a good juror. In spite of the horrible analogy by the prosecutor, it wouldn't have stopped me from voting guilty if the evidence warranted it. The prosecutor did mention the 11 stab wounds and that some were in the back-if that's true, it does lessen the appeal of "self defense".

That's as far as I got (about halfway through voir dire)  before the judge and both sides agreed to excuse me for family medical problems.

Several years ago I participated in a hung jury on a drug case. The case was quickly retried and the defendant convicted, and then he later pled guilty to perjury. I voted "not guilty" in that case-along with five others. The reasons in that case were quite complex and did raise a bit of a quandary for me.

Originally posted to Citizen Rat on Sat Oct 31, 2009 at 05:55 AM PDT.

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