After the panel shuffled into the courtroom and took their seats, Judge Danny Fitzgerald called us to the bench and asked whether we had any problem with his excusing the potential juror sitting in the front row. I turned around and saw. There was Gerry Shargel, giving the “hi” sign from the Little Rascals.
The judge took for granted that there were no possibility that Gerry could serve, even though then-Chief Judge Kaye had eliminated the exemption for attorneys on juries in her effort to make jury service more palatable to the public. I immediately argued that there was no reason to presume that Gerry wasn’t capable of serving on the jury. The prosecutor said nothing. The judge responded, we’re wasting his time since there’s no way that she (the prosecutor) would allow him on the jury.
“So let her eat a peremptory,” I reply. “Come on,” the judge said. “Granted for cause.” He called Gerry to the bench, we all chit-chatted for a minute and he was gone. Poof.
Via Dr. Sunwolf, long-time criminal defense lawyer Tony Tamburello was chosen to sit as a juror in a murder trial. Via the San Francisco Gate :
Tamburello, despite his history as an advocate, told everyone he could be fair.
“It’s unusual to see in a murder trial,” said deputy public defender Chris Gauger, who handles complex litigation and appeals for the office.
Prosecutor Asit Panwala did not object to Tamburello’s service, nor did defense attorney Kleigh Hathaway or Judge Garrett Wong. District attorney’s spokeswoman Erica Derryck said she would not comment about the decision to leave Tamburello on the panel, other than to note that all the seated jurors had said they could be fair and impartial.
An interesting choice, but probably a good one in many respects. As noted here before, criminal defense lawyers are not proponents of crime. We don’t think crime is good, or acceptable, or tolerable. We defend people accused of crime. A nuanced distinction, but a very real one.
Questions that arise from this choice suggest that Tamburello will be inherently biased in favor of the defense. Nonsense. What he will be is not inherently biased in favor of the prosecution, not naturally inclined to have blind faith in the police. If he’s to reach a verdict of guilty, it will be because the defendant has been proven guilty. And if proven guilty, there’s no reason to believe that he won’t render that verdict.
On the other side, it’s suggested that Tamburello, as a criminal defense lawyer, will be able to “see through the tricks” that defense lawyers play on jurors. Initially, the word “tricks” is just the pejorative term for challenging the veracity of witnesses, theory of prosecution and weight of the evidence. There’s little doubt he will see through cheap tricks, but that cuts both ways. He will not be swayed by appeals to prejudice, by assumptive argument, or by empty rhetoric. Neither side will gain an advantage.
If there is any legitimate concern with having a criminal defense lawyer on a jury, it’s that he may well be viewed by others on the jury as an “expert”, capable of answering questions of law that would otherwise be put to the judge and whose opinion is given greater weight than that of other jurors. His speaking skills, couple with his familiarity with the jargon of the law, may enable to him to be a more persuasive juror than others, capable of explaining his opinion better than other jurors who are unable to find the words to express their doubt or belief in the evidence.
The fear is that a lawyer on a jury may, for no better reason than deference by other jurors, be given control of the verdict. That means that it’s a jury of one with eleven helpers. It could inure to the benefit of the prosecution or defense, since it can’t be assumed that he will necessarily side with the defense.
Then again, it’s been my experience that most jurors take their service very seriously, and once in deliberations, are unwilling to give up their vote easily. They believe that they have a personal duty and the execute that duty with sincerity, if not always intelligence.
Would I leave a criminal defense lawyer on my jury. Without hesitation. My personal preference is to have a jury consisting of smart, thoughtful, questioning jurors. I believe they understand what happens during the course of the trial better, they are better capable of processing the information that comes to them unexpectedly and without sufficient context, and they can understand arguments of a more complex, and less concrete, nature.
I fear stupid people. I never know what they’re thinking, how they’ve processed the information that appears meaningless at the time it’s shoved in their face, It’s impossible to know whether they comprehend an argument or are just bobbing their heads to keep them from falling against the rail. Some criminal defense lawyers find it easy to communicate their points to stupid people. I’ve never been comfortable with it.
So, Tony Tamburello is on my jury? The panel is acceptable to the defense as well, your Honor.
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I did a trial several years ago where a judge wound up on the panel. My voir dire was heavy on whether the other jurors would make sure to think for themselves, and not let it turn into a jury of one — and whether the juror-judge would be able to follow the sitting judge’s instructions even if he’d have done it differently.
Both opposing counsel and I figured he’d be good to have on the jury, for the same reasons you mention — we could be sure of an intelligent juror who could do his job properly.
It was good for the judge who got picked, as well, to see the process from the jurors’ perspective. It might improve the profession if more lawyers and judges served as jurors.
There are a bunch of experiences that every judge should have (like enjoying some nice, quiet jail time, for example), and this should be one of them. It makes me nuts when they give a curative instruction a lawyer can barely follow, and truly believe they’ve solved the problem.
“My personal preference is to have a jury consisting of smart, thoughtful, questioning jurors.”
I finished a jury trial this week where I followed your jury selection advice without even knowing it. I found it amusing that the DA was booting the same people I would have, had she not done so first. And the result was very good for my client.
But my instincts tell me that if I have a case where the evidence is more overwhelming, and the reasonable “smart” person might be expected to find guilt more obvious, I should forget about IQ and just hope for 12 people who might be expected to hate one another. Do you do the same in the cases that can be viewed as slam-dunks for the DA?
That’s a hard question. I can’t recall a case I’ve tried where I didn’t go into trial with a theory of defense, despite the evidence against us. If I have a theory of defense, I look for a jury who will understand me, my argument, my theory, despite the evidence against us. Even when evidence appears overwhelming, I’ve been able to develop a theory to oppose it.
I’m sure there are cases out there where no viable, reasonable theory can be developed and where the defendant, for whever reason, either wants or must go to trial, and where the evidence is overwhelming. My guess, since I’ve never done such a trial, is that I would look to a Darrow-type defense, one long in emotional rhetoric, maybe some bible, some justice, some tyranny, and short on facts and law. My gut now still says that I need 12 to whom the point can be made, and that they would have to be 12 who appreciate the argument.
I had a partner years ago who could confuse a case like nobody’s business. He would make the most absurd arguments that would make me and the judge laugh out loud, but would appeal to dumb jurors in ways I could never imagine. He would get acquittals in cases where the evidence was crushing for reasons that made no sense whatsoever. Seriously, his summations were ridiculous, but somehow they reasonated with stupid people. I never had that ability. He was brilliant at it. I don’t think it would ever work for me.
Sounds like he invented the Chewbacca defense!