Always Think Client Control

Whenever you are going to try a criminal case, you have to always be aware of what your clients are doing in the courtroom, and presentation to their potential audience, which is the jury.

This actually happened to a friend of mine and his law partner, who went on to later become aMississippi Supreme Court judge. They were defending three men accused of robbery. This was in a rural Mississippi County and they and their clients arrived early to do all the last-minute preparations, motions, etc. that always go on in these things. In any event, the three clients were seated out in the main room of the courthouse. This was also where the jury pool was to be seated so the jury could be chosen.

Unfortunately these three geniuses were left to their own devices. As the bailiff was seating the jury pool, which is the group people for whom the12 jurors will be chosen, he was moving them all to one side of the courtroom. When he came upon our three entrepreneurs he asked them "Are you jurors?" To which the brightest of the group replied, "No sir, we're the thieves."

Needless to say, this did away with any pretense of a presumption of innocence, since every single person who would be voting on the guilt or innocence of these three accused heard the declaration of this individual. A plea-bargain was quickly worked out.

What do we learn from this? Always be aware of where your clients are, and who is talking to them. They should be seated near you, or with someone on your team. They should be instructed to speak to no one without getting permission from you first. Furthermore, they should be told about the general procedures, such as there will bailiff in this room sorting out people called for jury duty. Smile and be polite, but do not talk to him or anyone else without getting permission from your lawyer.

Let the Client Explain It on the Stand

You do not always have the option, in criminal defense law, of putting your client on the stand. Sometimes the prior record of your client, which can be brought out, is entirely too prejudicial to let the jury hear. However, if you can, I believe it is always a good idea. This echoes the sentiments of the late and great Edward Bennett Williams, who was also a proponent of letting the client explain on the stand what happened .

I once was able to get a not guilty verdict for a client who was charged with refusal DUI (refusing to take the DUI test, which gives you a conviction the same as if you had blown over the limit) and possession of marijuana, but not an open container violation by putting my client on the stand and letting him tell his version of the facts. (In a Mississippi "dry County", you may transport alcohol only if it is closed and sealed. Having an open container of alcohol is a crime in those counties.)

Russell, my client, was pulled over in Rankin County and refused to take the DUI test. They found an open beer in his car, along with some marijuana. We went to trial in the case before a notoriously strict judge in a very pro-prosecution Mississippi County. However, Russell had a reasonable story as to why he refused to take the DUI test. He was a black man, being arrested late at night in a white majority county by white police officer. He told the jury that he feared the actions the officer might take on the side of the road, and only wanted to be taken to an area, such as the police station, where there were witnesses. For whatever reason, they did not give them an opportunity to take the DUI test at the station.

The jury believed Russell's story. Even though, technically, he did in fact refuse to take the test, the jury believed that he would have taken the test under the right circumstances and so felt he did not willfully refuse to take the DUI test. They also found him not guilty of possession of marijuana, as he claimed it was not his but a friend's. This version of the facts, which seems on its face very weak, was believed because his credibility as a whole made that portion of the story believable. There was no way to get around the open container, as he truthfully admitted that the beer was his.

The moral of this story is that if you can put a credible client on the stand to explain what happened, do it. The jury, I believe, is predisposed towards the prosecution, wanting to get criminals off the street. They also do not understand the reasoning behind not getting up and denying the charge. Like most criminal defense attorneys, I do not believe a jury can put aside the prior convictions for crimes, particularly if they are similar crimes, and focus just on the facts of the case before them. This eliminates putting your client on if they have any type of serious record. But if there is some way to put the person on, do it, because a jury might believe "it wasn't me, it was some other guy" if the witness' demeanor and credibility is good enough.