Many clients are not always aware of the various tasks and prep work that are required when a criminal defense lawyer is preparing for a trial.  Obviously, the lawyer needs to do his or her homework on the facts, find out what the witnesses will say, and develop methods for attacking the witnesses for the prosecution.  The lawyer sometimes also needs to prepare his or her own witnesses.  One of the biggest tasks is counseling the accused person on whether he or she should, or should not, testify in their own defense.  The final decision on whether the Defendant should testify is completely up to the client, the lawyer can merely provide advice.  However, this often is the biggest single decision in a case, and good defense counsel always put a lot of work and thought into providing this advice to their clients.

Today, I am also working on a less well-known aspect of trial preparation: proposed jury instructions.   Some of you may know that when the evidence is finished in a criminal case, the Judge has to tell the jury his or her “instructions” or what is sometimes called the “jury charge.”  These are basically the rules that the jury has to follow when deciding if the prosecutor has met the burden of proving that the Defendant is guilty of the charges beyond a reasonable doubt.

Most jurisdictions, such as the State of Georgia and the Federal Courts, have “pattern” or “standard” jury instructions.  These have been developed by judges and experienced practitioners for use in the more common and run-of-the-mill case.  These standard charges cover areas such as how the jury acts, the rules for considering evidence, burdens of proof, and specific rules for deciding if certain crimes have been proven.  The standard instructions also cover some defenses, like alibi, mental illness or self-defense.

Most judges want each side to propose jury instructions.  Toward the end of the case, the Judge will usually have a conference with the attorneys, and may hear some arguments about which charges he or she will, or will not, actually use with the jury.  The are two main reasons this is often a crucial part of the case.  First, I usually want the Judge to give the rules that are more favorable to the defense. Second, when the Judge refuses to give an instruction that is proper and a correct statement of the law, that refusal is often an issue I can bring up on appeal if my client is convicted.  “Bad” jury instructions are one of the most common errors that get a conviction reversed by the Court of Appeals.  For these two reasons, I usually try to put significant effort into the proposed jury instructions that I file when getting ready for a trial.

For starters, in this and every other criminal defense case I have handled for the past 36 years, THE DEFENDANT IS PRESUMED TO BE INNOCENT!!!!!!!!!!!!! Please people, remember how it would feel if someone made accusations against you or your family.  There are merely allegations by prosecutors who have not had to have their theories tested by experienced criminal defense lawyers.  I cannot tell you how many times in my career a prosecutor or investigator told me or a Judge early on that the government had a “strong case” and had to eat those words later when the Judge and/or jury agreed with our defense and found the Defendant “Not Guilty.”

Second, the press, once again, is miserably failing in its obligation to realize that this is merely one side of the story.  One can look far and wide to try and find a story where some journalist casts a critical eye on all of the prosecution’s claims, which it bears repeating, have not been tested in court.

Third, this case may be the worst example yet of the increasing use of the “perp walk” in non-violent and high-profile arrests and prosecutions.  I am shocked and dismayed that some foolish supervisor in the Department of Justice said it was OK for armed federal agents to creep up to an actress’s home at dawn with weapons and handcuffs, all because the actress supposedly paid for an advantage for her child in the competitive college admissions process. TAKE A CHILL PILL, this is not a violent crime.

I’ll close my screed with a story of a somewhat similar case I handled two decades ago.  Prosecutors thought they had a “strong case.”  They got an indictment and arrest warrant for my client.  They notified the press, who like obedient school children trooped out to my client’s place of business so they could get video footage of him being brought out in handcuffs.  The story was prominently featured on the evening news, and my client and his family were mortified.  Fast forward 6 months to the final day of trial, a few minutes after the jury found my client “Not Guilty” of all charges. No reporters were present.  The prosecutors did not issue a press release to say that they had unfairly tarnished the reputation of an innocent man. Fortunately, one honest reporter agreed to do a story about the acquittal, and featured it on the evening news.  Again, everyone needs to calm down and let the system work. Oh yeah, the press needs to go back to school and re-learn the lesson that just because someone from the Government says something, that does not mean it is is a true statement.

I hope whoever is reading this finds my words with sincerity. I had been accused of a crime that I was 100% innocent of but the circumstances made me appear to be implicated in some way. My name and image were published in the newspaper and plastered on the internet. Myself and Paul were up against a task force who in court gave their expert testimony against me. They did an excellent job vilifying me in court. But Paul did a much better job conveying my innocence. His speech was delivered with a surgeon’s precision. He was passionate about my innocence. I couldn’t believe it when Paul cross examined one of the expert witnesses who was also the arresting officer. Paul got him to admit on the stand that their entire case against me was speculation and that based on their evidence and approach I could have easily been as innocent as I was guilty. Paul got the truth to come out of this officer’s mouth on the stand in front of the jury! There are so many good things I can say about Paul Kish. I am now able to move on with my life with a clean record because of this man. I couldn’t believe how hard Paul fought for me in court. Right before the Foreperson read the verdict I turned to Paul and let him know that no matter how the verdict came back I was truly grateful for the effort he put in. He was worth every penny. Thank you again Paul! (Not Guilty!) (Before Trial) I decided to fire my previous attorney who tried to get me to settle my case (the very same case that Paul Kish got me a NOT GUILTY verdict in). I called several law firms trying to find a serious lawyer and none appealed to me like Paul. The first thing I noticed was that Paul didn’t immediately accept my case. He took a moment to review all details and spoke to me himself (not through a paralegal). This was unusual because I had spoken to at least 10 other paralegals that day. The second thing I noticed was that before agreeing to take my case, Paul never made it seem as if he was surely going to win my case like most attorneys that I have dealt with have done. After reviewing all of the details Paul let me know he believed me and agreed to take my case. I’ve dealt with lawyers that have taken my money and then you rarely hear from them. Paul kept his same positive and professional attitude towards me the entire time. He was always prompt and consistent when responding. Thank you again for exceeding my expectations and personifying honor, integrity, hard work and determination. You are truly a man of your word! The definition of what a lawyer should be is Paul Kish.

It is interesting to me how this all appeared from my client’s point of view.  Things that I take for granted seemed extraordinary to him.  I always want to know quite a bit about a case before I decide to accept the matter, but that seemed unusual for this man’s experience.  Also, it is gratifying that my work in some way let this man see that many lawyers are passionate about their work and try to accomplish the very best for their clients.

Winning a criminal case is always an uphill battle, and puts a lot of stress on the attorney.  A federal judge who has presided over criminal trials for many years posted his own observations about these stresses: https://blog.simplejustice.us/2017/03/29/kopfs-top-ten-observations-about-criminal-defense-lawyers/.  This judge noted that, “When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.”  However, today I want to briefly talk about the impact on clients who have the guts to take their cases to trial.

Yesterday’s case was a perfect example of the extraordinary stress that a client faces when he or she decides to take their case to trial.  My client had no prior criminal record, is 31, and an extremely hard-working man.  He has big plans for his future, and consistently denied that he committed the crime he was accused of doing. The prosecutor had a not-very-strong case, and continued to make “offers” to get the client to plead guilty.  In the final offer, the prosecutor agreed that if the client pled guilty he would get no jail time, a minimal fine, and that after a short period of probation the conviction would be “restricted” from his record. However, many people know that these “record restriction” rules still allow for the conviction to remain on a person’s record, but only law enforcement officials can see the case.

My client refused to take the “offer.”  He is one of those unfortunately rare people who had the guts to stand up to bullies like this prosecutor and the police officers who arrested him for no good reason. However, the stress on my client was obvious.  He was nervous, could not sleep, and was so shaken when the jury found him “not guilty” he could barely speak.

Again, I am always happy when a jury rewards my hard work with an acquittal.  But I always try to remember that that the “win” came at a large cost to my client who was improperly charged with a crime that he or she did not commit.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.

Another thing to remember is that the lawyers are not really “picking” a jury.  Remember, they have a certain number of “strikes” after which the next 12 available people are on the jury.  The process of striking people until both sides are down to 12 people for whom neither side had a huge problem basically means that the lawyers are really choosing the 12 least objectionable individuals for a jury.

What do lawyers consider when striking possible jurors? That is a huge subject, but for the most part the lawyer is trying to get rid of a juror whose life experiences or opinions show that he or she would be likely to vote for the opposing side in the case.  The other side’s attorney is doing just the opposite, so, as just mentioned, the jury ends up with 12 rather average folks that neither side has a huge objection to serving on the jury.

After almost 100 trials, I still think that jurors all try to do their job as best as they can.  However, people are fallible, and sometimes they get it wrong.  Still, it is probably the best system out there.