I spend the morning yesterday judging the regional semi-finals of a national law school mock trial competition which, fortunately for me, dealt with a criminal trial.  The judges consisted of a former trial court judge, a former AUSA (fresh out of the office), a former ADA (who left the office 25 years ago to take up med-mal defense) and a criminal defense lawyer.  It was fascinating to see how differently we saw the same thing.

As always, the law students did a great job, showing great presence and a remarkable facility to question and argue.  While their approach was generally overly rule-based, showing why the difference between good and great trial lawyering is found in the art rather than science of the job, they still performed far better than many lawyers who hold real people’s lives in their hands.  It’s gratifying to see that law schools can offer students the opportunity to learn some of the actual skills needed to practice, though they may fall far short of offering enough students the chance to learn to be lawyers.

The judging of these competitions often comes down to some highly nuanced takes on what the students can, and should, do with the fact pattern given and the available weapons.  This is where the bias of the judges came into play.  The judges were instructed to score the participants without discussion and then decide on who “won” the trial, with each of us left to our own perspectives before we had a chance to see what the others thought. 

What was initially striking was the former (now retired) judge’s view that the fact pattern heavily favored the prosecution.  At first blush, one might think this showed a bias in favor of the defense, as I mistakenly thought.  I was wrong.  What she meant was that not that the fact pattern was unfair, but that the evidence of guilt was so overwhelming that the defense couldn’t possibly prevail.  The problem was that the fact pattern and rules of the game were hardly overwhelming, and intentionally designed to provide gaping holes in the prosecution, so that the defense had plenty to work with. 

The former judge saw none of this.  She saw guilty from the start.  Not that she wanted to see things that way; this was moot court and there was no real criminal to be hung out to dry.  It was just that smoke meant fire, and she couldn’t get past it.

The former AUSA and ADA focused far more on the advocacy and interrogation skills of the students than the content of the fact pattern when it came to judging, The ADA, sitting next to me, jokingly muttered “guilty” after every question, but he was just poking me for fun.  The scoring remained close from opening through the last witness, with neither team scoring a coup and both doing a yeoman’s job.

It came down to summations for a real winner to emerge, much like it does in real life.  Both teams struggled with summation, hitting the theme from their opening statement, just like the lawprofs told them they should do, but neither down their case.  The prosecution appropriate raised the evidence, piece by piece, through it’s closing, but never distinguished the critical point of why it showed more than a possibility that the defendant committed the crime rather than proof that the defendant did, beyond a reasonable doubt.  This hole was big enough to drive a Mack truck though, and I marked them relatively low because of it.

The defense summation was long on rhetoric and decidedly short on substance.  The prosecution had just failed to preclude the built-in possibility of innocence, and the defense closing ignored it.  The flaw of excess preparation reared its ugly head.  The defense scored lower than the prosecution for having failed to notice the gaping hole.

At the end, the judges, aside from scoring the participants, were to decide who “won” the case.  This is where our bias showed through, loud and clear. 

Bennett posted yesterday about how a former prosecutor was unable to leave behind his inherent belief that the prosecution is the “good guys.”  In his post, a former Texas AAG who took up a post with the state disciplinary commission asks prosecutors to “help” him do his job by forwarding the names of lawyers who they think should be disciplined.  He concludes:

I still think prosecutors are the best bunch of people around and I am proud to know so many of you! Keep up the great work!

It’s hard to get past the notion that when one side is ascribed righteousness, the other is doomed.  No doubt the former AAG means well in his request, he is unable to see how he has turned a blind eye to his friends and targeted his former adversaries. 

The mock trial ended with a 3 to 1 win for the prosecution.  Guess who was the only person to vote for the defense?  After, we talked about why we decided as we did.  The others picked the prosecution primarily because the defense’s summation failed to pick apart the evidence, failed to point out the evidence in favor of innocence and failed to show up the prosecution’s failure to distinguish between the possibility of guilt and the burden.

I pointed out that while I agreed completely with their criticisms of the defense closing, the burden remains on the prosecution.  Even though the prosecution did a better job on summation than the defense, it failed to meet its burden based on its failure to offer a persuasive argument that it’s evidence precluded reasonable doubt.  This never occurred to the others.

Even though I was there early on a Sunday morning to help out a bunch of law students, it was a learning experience for me as well.