Crime, Trials

Sorry, Jurors, But Criminal Defense Attorneys Almost Never Know If Their Clients Are Guilty

Defense attorneys weren't present at the scene of the crime, so how could they possibly know the truth?

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I finished the week off with a hung jury on a major felony case.  The jury had been deliberating two full 9:30-to-5:00 days, with few requests for read-back.  I could tell from the get-go (as could my client) that I’d never get an acquittal on the case, so the hang note was a relief.

Sometimes you know as soon as the jury venire walks in that the majority are pro-prosecution.  They all seem to have friends who are cops, or they’re people who’ve never known anyone to be arrested wrongfully, or they’re just surly looking, angry to be there, and ready to hold it against the defendant.  I’d used all but one of my peremptory challenges during voir dire and would have used them all but for fear of who’d get seated next.

As deliberations continued and we watched the jurors come and go, I could tell they were taking things seriously, refusing to look at either defense or prosecution tables, but they were severe and humorless.

We started making bets on who the holdouts were.  Juror No. 9 really turned her head away when she passed in front of us.  Juror No. 7 had been nodding in agreement with my points on summation, but Juror No. 5 did the same for the prosecutor.  Juror No. 11 looked like he was sleeping through most of the trial, and Juror No. 1 just wanted to get her cell phone back and leave.

The interesting thing was, turned out I was completely wrong about most of them.  (So much for body language.)  When the case was declared a mistrial, despite it being 6:00 p.m. on a Friday and despite having been locked together in a small room without even being allowed outside for lunch, they were all waiting in the hall after the trial to speak to us.

At first, they were uncertain if they could be open about their deliberations, but after assuring them that they were free from any trial restrictions, they were happy to talk.

It always amazes me how slight differences in making an argument or presenting a piece of evidence could have made the difference.  Why didn’t the prosecutor do XYZ? Why didn’t I explain why my client ran from police?  (I had, but I guess I didn’t emphasize it enough, because they hadn’t remembered.)

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After we finished asking them questions, what they wanted to know from us was: What really happened?  Did my client commit the crime or not?

They were troubled by the mess police made of what could have been a straightforward case — not taking photos of the evidence or injuries, not finding certain witnesses.  They were puzzled why my client was indicted for robbery instead of the crimes he admitted committing — misdemeanor assault and criminal possession of stolen property.  Shouldn’t I know what really happened?

I told them, quite honestly, that I didn’t.   I wasn’t there, therefore I didn’t know the truth.

There’s an assumption, often made by prosecutors, that just because as defense lawyers we speak to defendants, we therefore know what really happened.   However, we only know what our clients choose to tell us, and no one who’s practiced criminal defense for more than a few years assumes that just because a client says something is true, makes it so.  Sometimes what the client says has the ring of truth, sometimes it doesn’t.  Most times it’s a hybrid.

I always object when a judge tells a jury their job is to find out what really happened on such and such a date.

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True, they are the “fact finders,” but that’s not the equivalent of the truth.  While whatever facts they find become the story of what happened, it does not always correspond with the reality of what actually occurred.  (Thus, the numerous wrongful convictions.)

The jury’s job is simply to figure out if the evidence produced by the prosecutor is sufficient to prove the elements of the crime charged.

As a seasoned judge once told me early on in my career when I asked the jury to render a verdict in accordance with justice, “Counselor, justice has nothing to do with it.”  Simply put, the prosecutor’s evidence is either sufficient or it’s not.

I always warn jurors during voir dire that they may never know the “truth” about what happened in the case.  Theirs is not the role of detective or crime-solver.  It’s much more circumscribed.

And while that may be frustrating at the end — everyone ultimately wants to know what really happened — they’re not reading a novel or watching a movie.  Life is messy and sometimes no clear answers exist. Their desire for the truth is often left unfulfilled.

Yet, that’s the uncertainty we defense attorneys embrace.  It’s the price of following the law — not shifting the burden to the defendant, but compelling the prosecution to prove its case beyond a reasonable doubt.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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