Though it’s not my way to write about my cases, Houston criminal defense lawyer Mark Bennett has chosen a different path, following his trial on charges of evidence tampering.  After twelve days of trial and deliberations, the jury verdict came in: Guilty.  He ponders why.

When I asked the jury afterward about the specific intent element, they talked about my client having a higher duty, and drew an analogy to a doctor leaving a sponge in a patient (negligence per se, though they didn’t use those words). That’s comparing apples and oranges. I asked again a little later, and got no more satisfying answer. Though the jury had a written jury charge explaining that the State had to prove that my client had the conscious objective or desire to impair the availability of the drugs, and though I had pointed out in closing argument that the State hadn’t proven that, the jury couldn’t articulate any evidence of specific intent. They had, it seemed, glossed over that element of the allegations.

It’s like a punch to the gut.  All the effort, thought, energy, resources put into making one critical point clear to a jury, and to learn afterward that they didn’t get it.  There are plenty of reasons why this happens, ranging from the jury trying to second guess the evidence and law to reach a conclusion that makes the group feel that they have surpassed the mundane game of trial and reached a higher understanding.  Or maybe the words were too big.  Of course, it could also be that they felt an inherent distrust of the system and needed to reach their own conclusion despite the law and facts.

Who really knows?  The jurors are unlikely to have that depth of self-understanding.  They are often quite proud of themselves for having outsmarted the lawyers and the judge.  They are often very proud of their reaching what they believe to be a “just” verdict.  Few jurors give much thought to the notion of justice. 

Mark then runs through the possible culprits upon asking the question that most people ask after learning that the jury reached a verdict that “glossed over that element of the allegations.”  He concludes that the only shoulders upon which he can place fault is his own.  He failed to adequately communicate.

No, the buck stops with me. I failed to communicate to the jury the importance of that element of the offense, and the significance of the absence of proof of that element. It was the final prong of my closing argument, tossed in as lagniappe. Should it have come first? Should it have been the only prong? I knew from the beginning that the State was going to have no actual evidence that my client had intended to make the drugs unavailable. Should that have been the story I told, instead of the story of the alternate suspect?

Any other strategic or tactical decision I might have made would have had its own dangers. It brings more questions than answers—no answers, actually—but second-guessing is part of doing the job conscientiously.

And therein lies the problem.  Mark is absolutely right that the fault lies with the criminal defense lawyer.  That doesn’t mean that he did a bad job, though lawyers who do a bad job are at fault.  It means that the buck stops with him, as it does with all criminal defense lawyers.  Regardless of where the jury’s train went off the rails, it’s our job to keep it on the rails no matter what.

The problem is that we never exactly know how to do so.  We craft arguments, but as anyone who has ever watched a focus group knows, the dynamic of the jury room can go in a thousand possible directions that simply can’t be anticipated or addressed.  Sure, it would be great if we could be in there with them, explaining as a juror went off on a tangent why they are wrong or why their idea doesn’t hold water.  But at that point, they are on their own.  If a juror comes up with a crazy idea and another says, “yeah, that’s right,” chances are that they are going to end up in some strange place that no one anticipated. 

Bennett kept the jury out for days.  Clearly, he made them work.  The loss wasn’t because he did wrong, but because he somehow didn’t do the right kind of right, and that’s what he had to do.  He is responsible, even though he did nothing wrong.

Some of the commenters to his post offered their solace; he shouldn’t be too hard on himself.  While sweet, it wasn’t necessary.  Aside from the fact that warm and fuzzy doesn’t change anything, Mark wasn’t taking it any more personally than any trial lawyer would, or should, but making a point.  Ultimately, the job is to find the way to communicate the message despite the potentially insurmountable obstacles to making a jury understand. When it doesn’t happen, we ask what we could have done better, and hope to always learn from the loss.

In contrast, a  takes Lindsay Lohan’s lawyer to task for no discernable reason other than the “hefty fees” presumably paid.

At the same time, I can’t help believing that the fault for Lohan’s repeated probation violations – failing to attend weekly alcohol education classes, for example – lies at least partially with her lawyer.  Given the hefty fees I presume the lawyer is charging Lohan, it seems to me the lawyer could have hired someone to personally pick her up and accompany her to the classes. 

The author of the bizarre accusation begins by admitting that he’s got no basis for this belief, but it doesn’t stop him from writing about it anyway.  The implicit assumption is that the well-paid lawyer has some super-lawyerly control over a client, and a different responsibility than the lesser-compensated lawyer.  There’s no claim that the author was inside the meeting between attorney and client, explaining the responsibilities the client undertook with probation.  Rather, there’s only the utterly inexplicable expectation that if a lawyer is paid enough, she should be held accountable for things that have nothing to do with her representation and fall totally outside the lawyer’s purview.

Critical to the lawyer’s task, and responsibility, is a firm grasp of the things for which we are responsible, and the things for which we aren’t.  The size of the fee doesn’t dictate the scope of a lawyer’s duties.  High priced lawyers don’t carry their clients around in a sedan chair until their probation is over.  They are lawyers, not “handlers”. 

If there was reason to believe that the lawyer neglected to inform her client of the consequences of the failure to abide by the terms of probation, there would be good cause to criticize.  But that would be true no matter what the fee.  And there is absolutely no reason to suspect any impropriety on the part of the lawyer.   Perhaps Lohan wasn’t the most compliant client around.  Is that the lawyer’s fault too, as long as she was paid a “hefty fee”? 

Mark Bennett did nothing wrong, yet holds himself scrupulously to his responsibilities.  There are enough burdens on us to get it right in the face of variables about which we can only learn after the fact.  Manufacturing responsibilities that have nothing to do with the lawyer’s job, particularly based on some strange legal class-warfare basis where lawyers who don’t earn “hefty fees” cast baseless aspersions on lawyers who do, is the antithesis of what Bennett is trying to accomplish. 

Bennett’s post-mortem is intended to help him to perform his function as criminal defense lawyer better.  The other seeks to place blame on the criminal defense lawyer in the absence of factual basis or responsibility.  The former helps lawyers.  The latter is wrong and counterproductive.