The Secret Behind a Not Guilty Verdict



Our criminal justice system isn’t perfect, far from it. Our judicial history is littered with discrimination, injustice and convictions of innocent defendants. Today verdicts are increasingly being overturned because of DNA analysis and exculpatory evidence after the fact. For others however their wrongful convictions and executions can never be undone.

On the other hand juries also acquit guilty defendants despite mountains of evidence and eyewitness testimony against them. In 1955 Emmett Till, a 14 year old African American boy was beaten and murdered in Mississippi by a white mob who were seen kidnapping him from his bedroom before throwing him in the back of a truck and subsequently beating and shooting him to death. An all white jury acquitted the defendants.  Sadly the Till case is not unique and clearly our juries are not always right. So why do people get acquitted even when they are guilty? I’m about to spill the beans on one of the best-kept secrets in criminal law.

When I was a new attorney working for the Public Defender I attended a lecture by one of the most respected and successful criminal attorneys in the county. His presentation was about how to ensure acquittals and his simple theory was one I’ll never forget. “The jury will only acquit someone they don’t want to convict, and they’ll only convict someone they don’t want to acquit.” It took a minute to sink in but when it did it changed the way I try cases.

The bottom line is that the most significant factor in an acquittal is getting the jury to like your client. Not only must they like him or her but they also have to empathize and relate to him or her enough to acquit, even if he or she is guilty. Evidence and witness testimony are important but they are just one part of the equation. Emmett Till’s tragic story is a case in point. Two white men were acquitted despite eyewitness testimony and evidence that left no doubt that the defendants kidnapped and murdered the young man. The white 1950’s era jury wanted to acquit the defendants of killing Till who allegedly whistled at a white woman outside of a grocery store that was owned by one of the defendants. By all accounts the verdict was a miscarriage of justice, an ugly scar on our judicial history. A lesson in this tragedy is that jury verdicts are not just about factual guilt or innocence. They’re about how the jury sees a client and victim and whether they like the client enough to acquit, or dislike them enough to convict.

A skilled defense attorney tells a story to the jury that connects them with the defendant and makes sure they like him or her enough to return a not guilty verdict. The advocate must draw upon a jury’s compassion for the client even when it is not apparent on the surface. There are many ways to do this and each successful attorney has their own style.

A former DUI client in Riverside County drove with a blood alcohol level nearly three times the legal limit. He was chased out of a bikini bar after he grabbed a waitress from behind. The defendant’s “legal argument” at trial was that he drove out of necessity because he was being chased by a group of angry white males who were yelling racial slurs at the black defendant. They followed him to the parking lot screaming and pushing him until he got in his car and drove away to protect himself. The problem was that my client turned around and drove right back to the bar less than five minutes later just as the police pulled up and arrested him for drunk driving.   My client was very large but soft spoken and articulate. He took the stand and cried about the incident and how hard it was for him to hear the racial slurs. The jury came back Not Guilty! The prosecutor was shocked but the jurors were hugging and consoling my client outside the courtroom after the verdict. I presented the jury with a sympathetic client and a weak necessity defense but that’s all they needed to acquit him. Factually speaking the necessity defense should have failed when he turned around and drove right back to the bar instead of going somewhere safe. The jury cared less about the details and more about my client who they clearly sympathized with.

The key is to paint the defendant in the most positive light. When a client is not likeable it certainly makes things harder. I’ve had my share of rude, mean and generally unsympathetic trial clients where the only thing to do was to keep them off the witness stand and as far away from the jury as possible. You still have to make your sympathy pitch and often times that is much more effective when your client remains silently seated next to you at counsel table and keeps a low profile.

A good defense lawyer is an artist, a conductor who leads a symphony so that the jury absorbs an emotional and compelling melody that speaks to their hearts. By the time closing arguments are done the jury has to see your client as the protagonist in order to find him not guilty, regardless of the facts. It certainly helps when the facts are on your side, but that alone never guarantees victory.


July 4th DUI Tips

DUI Checkpoint

Independence Day is about celebration, but for too many it becomes the anniversary of their first DUI. If you are drinking this weekend, don’t drive. Even drinking a small amount puts you at risk of being arrested if you get pulled over and “fail” a field sobriety test. As an attorney I’ve had to defend too many people in court whose blood alcohol level was over and under .08% (California’s legal limit). Know that the law does not require your blood alcohol level to be over the limit to be convicted. The vehicle code includes a section that allows for prosecution for any amount of alcohol (or drug) in your system if an officer believes you are impaired such that you could not drive with the same caution as a sober person. This is very subjective making it easy to justify an arrest, especially on nights like July 4th and New Years Eve when there are check points all over the city.

If you get pulled over or stopped at a checkpoint know that you have the right to refuse a field sobriety test (FST). In my decade of criminal defense experience I have NEVER read a police report where the officer indicates that the driver “passed” a FST. The test is administered in a way that helps police observe everything about you and collect enough information to find you “impaired” and convict you.  Even on their best day most people have trouble balancing on one leg for 30 seconds or walking in a straight line “heel to toe” without using their arms to balance. The best thing to do when asked to do a field sobriety test is to refuse. You have the right to refuse and that refusal can not be used against you in court.

You can also refuse the interview. If you’ve been drinking and the officer asks you how much you’ve had to drink you can simply refuse to answer or ask “are you detaining me or am I free to go?” The cop has to decide at that moment if there is enough evidence to arrest you without a field sobriety test or breathalyzer. If he doesn’t have enough, and he shouldn’t, then he will let you go or keep you talking to get more information. If you engage in lengthy conversation the officer will make “observations” to determine your sobriety, or lack thereof. If you admit to drinking then you have bolstered the case against you so keep your mouth shut or ask politely again “am I being detained, or may I leave?” Repeat as needed.

The best way to stay out of trouble this weekend is by NOT DRINKING AND DRIVING.  Call a cab. That will be safer and much cheaper than the $7,500 in DUI fines, fees and legal costs. If you are feeling tipsy you can also call AAA‘s tispy tow hotline tonight for a free local tow and ride home (1-800-400-4222).

Have a happy and safe 4th of July.