THE JURY SYSTEM MAZE

It's far from perfect. So are human beings. Suppose, just suppose, that a bug was secretly installed in the jury room. My guess is that in 75% of the cases, a mistrial, after verdict, would be warranted. Revealed would be some extrinsic information, not introduced at trial, but improperly considered. And, if this happens, it is rarely, if ever, discovered. Even if it is, the jurors will bond defensibly and deny it. The requirement of an unanimous verdict brings them together as one, and God help the rat.

EXAMPLE:
                 The defendant is of a minority race or religion. During recesses, throughout the trial, one juror refers to the defendant as "just another damned-------(you fill in the blanks). They're all alike." The rest of the jurors jump on the bandwagon. Generally, religious or racial bias is vehemently denied, yet lurks beneath the surface, alive and well. A human frailty but jurors are human. When deliberations begin, two people are designated as alternate jurors. They do not participate, but rather remain outside the jury room in the event that one of the other twelve is incapacitated. One of the alternates is brooding over the overtones of prejudice which permeated the jury room during trial. After a verdict of guilty is returned, an astute defense attorney dispatches a private investigator to interview the jurors at their homes. Some refuse to discuss the case, others answer questions in the expected way i,e, everything went properly. The alternate juror, however, perhaps motivated by guilt, explains what has been bothering him. He signs an affidavit. A motion for new trial is made. The judge recalls the jurors and questions them individually. As one, they deny the alternate's allegations. It happened but it can't be proved. The guilty verdict stands. This, or something similar, happens more frequently than you dare imagine.

Do you really believe that all jurors obey their instructions and go home each day, refusing to discuss the case with their spouses? That they don't read newspapers or watch T.V. lest they be influenced by  something they see? Does a trend exist wherein jurors are reluctant to convict for murder unless all doubt has been obviated by the prosecution? These are questions lacking answers of certainty.

The most a lawyer can do is to examine all the evidence and formulate his "pre-ordained theory of the case." Thereafter, everything he does, from picking a jury to closing argument, is consistent with, and in support of, his theory of the case. His ultimate job is to persuade the jury to adopt this theory.

Figuring out a jury is as impossible as truly understanding the legal definition of "reasonable doubt." It is the truest mystery of all.

 An attorney must be fully prepared and become attuned with the mindset of the jury. Remain on that frequency and turn them your way.

What a moment that is, when you rise alongside your client and wait for the verdict to be read. Your mouth is dry and your palms drip with sweat.

It's all up to the jury. The ultimate riddle. But, it'll have to do 'till a better thing comes along.

A PRE-TRIAL ANALYSIS OF THE ROGER CLEMENS PERJURY CASE

As I attempt to summarize, in concentrated form, the factual issues, the resolve of which will resolve the trial, please note the several intangibles coming into play, which may even have more weight.

Clemens faces six felony counts on accusations he lied to Congress under oath when he testified that he never used steroids or human growth hormone. His statements came during a deposition and a hearing at the House Government Reform committee. His long time trainer, Brian McNamee testified that he injected Clemens repeatedly with both substances. Clemen's former teammate, Andy Pettitte, testified that Clemens once told him that he used human growth hormone. There will undoubtedly be more witnesses testifying tangentially about the rampant use of these banned substances at the time, but there you have the crux of the case. McNamee also claims to have kept the vials and syringes used in the injection process. Sounds like a pretty strong case, no?

The word is that the defense has barrels of evidence with which to shred McNamee's credibility to bits. Combine that with the cutting figure Clemens cast on the mound during his record breaking performances, his most notable awards,etc. and, further, his steadfast denials of of any wrongdoing, and you've got the stuff that wins the hearts and minds of jurors. Clemens had been advised not to testify before the Committee, but he would have none of that tactic. His mantra: I never took these banned substances and, therefore, I did not lie. He has proclaimed that McName is lying and that Pettitte misheard him.

That's where the action will be. Picture the moment of Pettitte's taking the stand, as a Government witness. Clemen's attorneys have the right to cross-examine Pettitte, buy they may not want to be that aggressive, and they may not have to. If Pettitte's testimony acknowledges that he may have misheard what Clemens told him, that, along with all the other good ole' boy sentiments flying around the courtroom may be enough for a N.G . Recipe book says, "approach the witness with two hands holding sugar."

This time around, we've got Mr. Apple Pie for a defendant, an American Icon whose praises have already been sung by various members of Congress.

Can't you just hear the jury grumbling among themselves,"don't Congress have more important things to do, like tendin' to three middle eastern wars, than to waist their time, and ours, in trying to bring down an American heero?"

Shiyittt yes!

And, who's gonna give me an "AMEN" on that?

GERALD ALCH: I WUZ THINKIN': THE WAY IT IS. A LAST LOOK BACK AT THE CASEY ANTHO...

GERALD ALCH: I WUZ THINKIN': THE WAY IT IS. A LAST LOOK BACK AT THE CASEY ANTHO...: "Most people enjoy the drama, suspense, mystery and, yes, glamour of a criminal trial. Be it in movies, t.v. or real life, it is a unique and..."

THE WAY IT IS. A LAST LOOK BACK AT THE CASEY ANTHONY CASE

Most people enjoy the drama, suspense, mystery and, yes, glamour of a criminal trial. Be it in movies, t.v. or real life, it is a unique and fascinating genre (oh, daddy, listen to me!). Even the Mesdames and Messieurs of the jury (dat's it with da French ting) have their own special allure. And, it's all about justice. A trial is a search for the truth which is translated into justice when the guilty go to jail and the innocent go free. But, that's not the way it really is.

Ya see, the fuel each lawyer depends on, is the desire to win and the truth be damned. The courtroom is the  amphitheater and opposing counsel are the gladiators who are in it for the juice of being the more effective persuader. Because that's what brings home the verdict. All the training, and the just plain hard work of preparing, is for that singular and very personal moment. Few attorneys will openly acknowledge this. They will cling to their respective folklore. The prosecutor represents the people against the bad guy, while defense counsel clings to the constitutional right of an accused to due process of law. True enough. But that's not what drives them. It's the high of the win.

Look at all federal and state criminal statutes. Choose any offense. Look at its elements. You will never find "motive". Legally, it does not have to be shown by either side. Practically, it's the most persuasive component of everything that you ask the jury to believe. If you claim a person did or did not do something, they want to know why. It explains human conduct. In the Casey Anthony case, there was abundant evidence as to why she committed some degree of homicide. She had the motive to kill. Sick as it was, she wanted nothing to stand between her and the swingin' life. Her motive to lie was to conceal her oh-so-dirty hands. To believe her lying was the result of past sexual abuse, requires a complete abandonment of common sense. Like asking someone to meet you at a corner where the streets don't come together. She had the motive to commit the crimes charged. That is why the verdict is so astounding. Today, the talking heads were all over themselves in trying to explain the thought process of the jurors as focusing on insufficient evidence. A desperate attempt to explain the unexplainable by reading minds. The jury should have been able to touch, feel and grab onto motive, which permeated the prosecution's case. Add to this mix, the nonsense of wanting to make an accident appear to be murder, and one is tempted to stick one's head in the oven. The truth did not win out, the defense counsel did. The people did not lose, the prosecutor did. In this case, an aberration.

I may sound overly cynical in all of this. Lay people and professionals may criticize me. That's o.k. If everyone agreed with me, I'd question myself.

POSTMORTEM

Casey Anthony was acquitted of all homicide-related charges. She was convicted on four misdemeanor counts of lying to the police.
The unpredictability of a jury is not in dispute. From my second hand seat, the evidence of guilt appeared overwhelming. An innocent person does not lie to the police. Circumstantial evidence, alone, can be a legitimate predicate for a guilty verdict. Was the jury turned off by the smirk of preposterousness on the prosecutor's face when the defense was presenting its closing argument? We won't know until, and unless, a juror speaks out or writes a book.

When I first became a Judge, I sat in an old courtroom. The jury room was adjacent to my lobby. During deliberations, I would occasionally put my ear to the wall and listen in. More often than not, I would internally react by asking myself, "What case are they talking about?" The Anthony jury was out for an extraordinarily short time, given the length of trial and the volume of evidence presented. I suggest that more time was required for an evidentiary comprehensive review. They may have formulated many issues which required deep thought and extensive discussion. And, they may have concluded that the immediate absence of common resolve equalled "reasonable doubt." They may have been waiting for the smoking gun which never materialized. Having been sequestered for forty-five days, they may have wanted to simply go home.

Body language, notwithstanding, a jury cannot be "read."

You can lead a horse to water, but a pencil must be led.

Next case.

THREE OVERVIEWS OF THE CASEY ANTHONY MURDER CASE

I have not attended any portion of the trial. There has been excellent coverage by legal media consultants as to each day's events. Their outstanding detailed work says it all re development of evidence, the positions of both sides and "right there" descriptions of what happened at trial. Kudos to them. I cannot match their hard work
The first media coverage I have looked at, took place 3 hours ago, July 5, at 1 a.m. Three things jumped out at me.

1) During the latter part of the trial, defense counsel asked that the defendant be examined for competency (or lack thereof) to stand trial. The Judge granted their request, apparently agreeing that the defendant's trial behavior warranted a resolution of this issue. The test must be whether the defendant has sufficient present ability to consult with her lawyers with a reasonable degree of rational understanding, and whether she has a rational as well as a factual understanding of the proceedings against her.
It was concluded that she was, indeed, in possession of these required faculties, and the trial continued. The jury has not, and will not be made aware of this.
But, I wonder: with all the evidence of her inconsistent and inappropriate conduct between the time of her daughter's disappearance and the body being found, should not the availability of an insanity defense at least have been explored?
Not in this case, for such a plea of not guilty by reason of insanity admits that the crime was committed, but that Casey's mental state was such that she could not distinguish right from wrong, or, if she could, she was unable to adhere to the right. Her story, as put forth by counsel, was that Caylee's death was an accident, in effect, a complete denial of wrongdoing.
So, why this late, curious suggestion of incompetency? Was Casey acting weird? Was she falling apart? Was she reacting to the weight of the evidence unfolding before her very eyes"
One thing is for sure: something was going on that made defense counsel want to cover their asses, on the record?
There's trouble in River City.

2) In his opening statement (wherein a lawyer tells the jury what the evidence will show), defense counsel alleged that Casey had been sexually assaulted by her father since she was eight years old and that her brother had made sexual advances towards her. The jury will never know the relevance of these allegations because they were never proved. Accordingly, defense counsel could make no mention of these claims in his closing argument. A BIG NO-NO. The jurors may have been waiting for such evidence, since their attention had been called to it in the opening. When it wasn't presented, the lawyer in question is looked upon as one who speaks with forked tongue. A Law school student mistake. Promise only what you can deliver. Any doubt, omit it from the opening.

3) In closing, defense counsel maintained that Baby Caylee drowned, accidentally, in the family pool. Casey panicked, whereupon her father, a former cop, decided to make the death look like a homicide by placing duct tape over the child's mouth and dumping the body in some nearby woods.
This "frequently happens" scenario was denied by the father.
Moreover. the prosecutor, in his closing, proclaimed that "no one makes an innocent accident look like a murder." Jersey Joe Walcott has just been punched by Rocky Marciano.
9, 10 AND OUT! Everybody go home. The fight is over.

The jury begins their second day of deliberation in a few hours.
Mention has been made of a similarity between this case and the O.J. Simpson trial. I know of only one.
During the Simpson case. many people whom I had looked upon as semi-intelligent, would come up to me, look me straight in the eye and, breathlessly ask, in a whisper,"Do you think he really did it?"
As I looked at the questioner, my brain would taunt me to reply, "You really can't be that big a freakin' a--hole, can ya?"

In the Casey Anthony case, the same question will get you the same answer.

A FRENCH KISS

The New York Times reported, on July 1, that "the sexual assault case against Dominique Strauss-Kahn is on the verge of collapse as investigators have uncovered major holes in the credibility of the housekeeper who charged that he attacked her in his Manhattan hotel suite in May........."
She made her initial allegation on May 14, causing Strauss-Kahn to resign from his post as managing director of the International Monetary Fund. He was required to post one million dollars and a five million dollar bond. He had been a top candidate for the French Presidency before the accusations.

Not exactly Joe Sixpack, a user of public transportation and a resident of the projects.


And note, it was the prosecutor's investigators who found the information which so devastatingly undermine the alleged victim's credibility. And just what are these exonerating, "newly discovered" circumstances?

The woman had a phone conversation with an incarcerated man within a day of her encounter with Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him.

That man had been arrested on charges of possessing 400 pounds of marijuana. He was among a number of individuals who made multiple cash deposits, totaling approximately $100,000, into the woman's bank account over the last two years.

It was also learned that she was paying hundreds of dollars every month in phone charges to five different companies. The woman insisted that she only had a single phone and said she knew nothing about the deposits except that they were made by a man she described as her fiance and his friends.

The alleged victim has admitted that she has lied about what happened after the encounter. She initially said that after being attacked she waited in a hallway until Strauss-Kahn left the room. She now admits that after the episode, she cleaned a nearby room, then returned to Strauss-Kahn's suite to clean there. Only after that did she report to her supervisor that she had been attacked.

In her application for asylum from Guinea, she claimed to have been a victim of gang rape. She now admits that this was a lie.
This information was obtained from published reports of Jim Dwyer, William K. Rashbaum and John Eligon, in the New York Times, the Boston Globe, and others.

Please note: forensic tests found unambiguous evidence of a sexual encounter between Strauss-Kahn and the woman, whose account of the alleged sexual attack, itself, has never wavered. The District  Attorney was initially emphatic about the strength of the case. But then, the magnitude of the defendant's persona was, obviously called to the Prosecutor's attention. And the popcorn began to pop. At the District Attorney's request, the defendant's bail was changed to personal recognizance and he was released from house arrest.


As a criminal defense attorney, I would be extolling the Prosecutor's work as the essence of justice. He, no doubt, got the word from very high upstairs: This guy was head of the I.M.F.  He was in line ( and still may be ) for the Presidency of France. France is our NATO partner, currently engaging, with us, in military operations in Libya. Don't proceed with this case unless it's an open and shut no-brainer.

As  former judge, I say "try the case." All  this newly discovered evidence certainly tends to undermine the credibility of the alleged victim, but in a tangential way. Only two people have personal knowledge as to whether a sexual assault occurred. Let them face-off in a courtroom. Utilize the criminal justice system. Let the finder of fact (this could be a jury waived trial) weigh everything in context. That way, the verdict will be clean. A dismissal of charges, once so adamantly made, may be deemed by some to be expeditious, but it will be tainted by the suggestion of political pressure from the highest quarter.


I once presided over a similar case, where the defendant was a Doctor, accused of sexually assaulting a patient. Three experts testified that his procedures were in strict conformity with high standards of medical practice. The prosecution presented no experts to support its theory. The defense attorney was drooling with expectation of a "win." But, when the accuser took the stand, her testimony smacked of truth and reason, the absence of supportive expert testimony, notwithstanding. Her words constituted a bullseye to the heart. The defendant was convicted.

The District Attorney has declared his intention to handle this case "as he would any other."
Let it be so.
Even a woman with transgressions of her own, can be the victim of a sexual assault. Don't dismiss the more serious charges and allow Strauss-Kahn to plead to a misdemeanor. Let it all hang out in a trial.

That's the way it would be done with Joe Sixpack.

And, surely, the alleged victim must have been put through and passed a vigorous vetting process.

Mister District Attorney, call your first witness!