One day a lady came to me with a DWI charge. She had already visited with several other lawyers, all of whom had said her case was hopeless—but they could get her a “good deal.” She was 45 and close to retirement as a jailer for TDCJ. If she received a conviction, she would lose her job and her retirement. As a single, that job was her life support, and she wanted to fight the case.
The Facts
Motorists are calling DPS about an obvious drunk driver on I-20 in Smith County. The trooper locates and videos her a good distance before stopping her. Video already looks really bad. Her car smells like a distillery, and she admits to being at a Shreveport casino all day. There is an empty 24-ounce beer can on the front floorboard, and her driver’s seat is really wet! She admits to urinating in her car.
Outside, she shows six clues on the HGN (of course). Trooper has to stop her from slanting off into traffic on the WAT, and she did not do well on the OLS. Although she had a college education and made five attempts, she could not recite the alphabet completely.
As she is being strapped in the front passenger seat of the trooper’s car, she looks up at him and says, “I gotta go again!”
The trooper scrambles for his raincoat, and as he brings it to her, she says, “You’re too late!”
On the way to the jail, the video shows her practicing her alphabet and then says, “I gotta go again!”
Trooper glumly says, “Go ahead.” No breath or blood test.
This case is given to the new prosecutor to ensure a “win” for his very first case. Client testifies how embarrassed she was to have urinated once in her car and twice in trooper’s. She testifies how mortified she was to have to tell the story to the court and six jurors. The jury (all white, she is African-American) returns their verdict in 15 minutes. Not Guilty!
Why? How?
In the 1980s, the University of Chicago conducted a study regarding jurors’ decisions, concluding that 80 percent of jurors have decided their verdict by the end of opening statements! Eighty . . . wait for it . . . per . . . wait for it . . . cent! Knowing this, I used my strikes and requested “strikes for cause” in an effort to eliminate as many young jurors as possible.
In closing, I asked the five older women and one older man just how they would feel if this happened to them. I told them you can find her guilty of being incontinent. You can find her guilty of having a small bladder. But, please, do not find her guilty of driving while intoxicated! They did not.
Analysis
We lawyers often focus on the facts and how to try and neutralize the bad and sugarcoat the good. We are worried about something bad in the case. Through cross-examination, we want to explain the facts. In just about every criminally charged case, the facts are against the accused. There is even an instant-replay video showing the naked truth in DWI cases.
Well, I have said for a long time to the citizens who put their faith and trust in me that I probably cannot win the case on the basic facts, but I can tweak the facts and pull on the emotions and feelings of those who make the ultimate decision.
Everything we do in front of the decision makers (jury) must be calculated to pull at their emotions and feelings. They need to be entertained, interested, and involved on a personal level in their viewing of this specter we call a trial. In the courtroom, we must not be schooled, professional-looking lawyers. Instead, we must consider ourselves actors. The courtroom is the stage. The jury is the audience. The prosecution is Snidely Whiplash. Our client is Nell, tied to the railroad tracks, and we are Dudley Do-Right coming to the rescue.
Everybody is scared! Nell is scared for her life. Dudley is scared for Nell. Snidely is scared that he will be foiled again. The only person who is not scared is the viewer . . . the audience. Why? Because we all know the good guy wins and saves the girl. It is always the plot. The Theme. But, who is going to be the good guy?
How does that apply to a criminal case? Consider this. What is the good in a criminal case? What do jurors want to see happen? They want what is right! Screw the facts . . . even screw the letter of the law. They want what is right. They want the good to win. So, what is good?
It is what would be good for them if they were the accused!
It is also vitally important to address any fears in the case: blood/breath test, bad driving, questionable performance on SFSTs, racial issues, origin issues, etc. If any fear is neglected, what is the jury going to focus on? Well, they will focus on that bad issue that is not discussed, and they will think it is because Nell is guilty. Addressing any fear is a vital part of the emotional pull on the jury. Bringing the fear to the front shows strength and confidence on the part of Dudley to deal with it, and also causes the audience to pull for Dudley and Nell.
When we express our fear to the jury members—who are to be our helpers—we are expressing our emotion to them. Consider this: When someone comes to you personally for your help, what is your reaction? Well, depending on your status you are going to try to help that person, within your ability. It is only natural. It is in our DNA!
So, we need to personalize our client to each juror and explain all the legal stuff—presumption of innocence, burden of proof, and especially our greatest legal friend, acquittal upon the failure of the prosecution to prove the case. That legal jewel alone gives jurors the escape they need to cut our client loose from the facts and the letter of the law. The law actually cuts our client loose to go home, not the juror. The jurors only decide that the prosecution did not meet their legal burden of proof! That way, Mr. Juror can go home and tell his family the prosecutor failed. Not, “I let a drunk driver walk today.”
To personalize our client, we need to find a way during the entire trial process for Mr. Straight to identify with Mr. Tattoo. During the trial, Mr. Tattoo will transform to Nell. It starts with jury selection. Nell is neither a client nor a defendant. She is a living, caring person just like each of the jurors. Jurors have feelings. So does Nell. Jurors have fears. So does Nell. Jurors have had a problem before. So does Nell. All questions in jury selection should reflect these emotions.
During cross questions to the prosecutor’s witnesses, the humanity and emotions of Nell, not the officer’s or lab/breath technician’s, must be reflected. Issues must be framed to answer the juror’s questions, not ours.
Our client’s testimony will be the deciding factor! Upon interviewing jurors after each trial, I have heard jurors, when my client did not testify, say, “We really would have liked to hear from your client,” or, “We wondered why your client did not tell his/her side of the case.”
Our client needs to be personalized and neutralized to any criticism by the jurors. Even most prior convictions can be explained and neutralized. I have found that most prior convictions resulted from some kind of plea, not a jury trial. Then, it was easy for client to plead guilty because he was guilty—but really learned a lesson. Now, he is fighting the case because he knows in this situation he is not guilty. Further, Mr./Ms. Client needs to explain the situation, and that, as far as he/she felt (feelings), he/she was normal. Ideally, jurors should see themselves in our client’s position. Accordingly, they will want to release our client from this situation since that is what they would want, personally.
Summary
Facts got our client in this situation. Facts are what the prosecution wants the jury to focus on. Facts will usually bring a conviction.
Pull the emotions from the jurors. Put the juror in the client’s chair. Express your fear. Ask for help. Be the emotional actor on stage and beg the audience to help Dudley rescue Nell.
Empathy wins over sympathy—every time!!!
And they rode off into the sunset . . . free . . . happily ever after!
