Posted On: April 30, 2008

Sean Bell Case Acquittal and Waiving the Right to a Jury Trial

The officer defendants in the Sean Bell case were acquitted Friday, prompting Mark Fass of the New York Law Journal to write an article about the strategic wisdom of waiving the right to a jury trial in certain cases. You can't argue with success; the defense counsel in the Bell case clearly did fine work and were correct to avoid pinning their clients' hopes to jurors who may well have been swayed by their emotions to convict. New York Supreme Court Justice Arthur J. Cooperman found the defendants not guilty on all counts.

As Fass points out, opting for a bench trial is a tried-and-true strategy for defense attorneys representing law enforcement clients in jurisdictions where citizens may have negative opinions of the police.

Fass quotes one defense attorney's explanation of the rationale:

"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.

"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."

But defense attorneys should be careful not to presume that judges are immune from "extra-judicial influences."

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Posted On: April 25, 2008

Maryland Trial Attorneys Find Camaraderie in Inns of Court

Last week the J. Dudley Diggs American Inn of Court in Baltimore had its last meeting of the season. While it's on my mind, I thought I would recommend the Inns of Court to anyone looking for a place to meet and learn from other lawyers and judges. Trial attorneys in Maryland and across America have benefited for decades from these unique institutions.

In this state we have five Inns of Court, one each in Baltimore, Annapolis, Howard County, Prince George’s County, and Montgomery County. Most familiar with Baltimore's Inn, I can shed some light on its activities. But first some background:

We have the English to thank for these groups. Shrouded in the mystery of medieval times, the English Inns of Court today serve as they have since at least the 14th century, as small, local universities of law. The four Inns "across the pond" are, in fact, central to professional life; they have exclusive right to admit the degree of Barrister at Law, which enables one to practice as a courtroom advocate.

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Posted On: April 18, 2008

Litigation Institute for Trial Training

Becoming a better trial attorney is difficult without the opportunity to try cases. That's why I helped launch the ABA's Litigation Institute for Trial Training (LITT). This rigorous two day course for young attorneys had a successful debut last summer, and we are gearing up for the second annual program, scheduled for July 10-11 at the DePaul University College of Law in Chicago.

The program is distinguished from other training opportunities of this sort in that it covers so much ground in such a concentrated period of time (less than two days). And the faculty is tremendous. This year it will include the Hon. Marvin E. Aspen, the Hon. Marvin J. Garbis, U.S. Attorney Patrick J. Fitzgerald, Jo-Ellan Dimitrius, Stephen Susman, Kim J. Askew, and other luminaries of bench and bar.

Participants will have a chance to watch these experts demonstrate the fundamental skills of courtroom advocacy. They will also practice techniques in workshops and take part in peer critique with video footage. The sessions will cover jury selection, opening statements, direct and cross examination, closing argument, and techniques of persuasion. There will be plenty of social time in which attendees can get to know the faculty and each other.

Interested? Read more here, register here, and if you have any questions, feel free to call or write.

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Posted On: April 11, 2008

"D.C. Madam" Prosecutors Get Personal on Direct

Dana Milbank has a revealing sketch of the ongoing "D.C. Madam" trial in today's Washington Post. The prosecutors seem to be holding nothing back in building a case against Deborah Jeane Palfrey. Indicted for allegedly running a prostitution ring made infamous for attracting several Washington luminaries, Palfrey watched as the prosecutors grilled several of her former employees about the services they performed for clients. From Milbank's perspective, these direct examinations were so humiliating, needlessly detailed, and invasive that they discredited the prosecutors.

Here's some of the testimony that got Milbank's attention:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.


"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

Butler pressed on with more humiliating questions until the judge cut him off. "That's enough," Robertson said. Minutes later, the dazed woman was helped out of the room.

If that's how it truly played out, you have to wonder what the prosecutor was thinking. By simply having to show up and testify, the witness had compromised her dignity. The aggressive questioning was just rubbing salt on the wound. And what were the jurors thinking? It could very well be they sympathized with the woman and wanted the lawyer to sit down.

Prosecutors should be wary of even appearing like they might be abusing their significant powers. A few questions too many can cause the prosecutors' courtroom ethos to plummet. Whether that has happened in this trial, we can't know, but if the defense puts on a strong case, any ill will the jury feels toward the prosecutor could come back to haunt him.

One of challenges of direct is being selective--paring the testimony down to the essential and letting those points speak for themselves. "Less is more" serves as a helpful axiom particularly in examinations involving sensational or emotional testimony.

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