"BA"

One of the most fun and amusing moments that I have had in court came last week. While in jail court, we had a stipulated bench trial that centered around one issue: does mooning a police officer after you have been arrested for DUI constitute lewd conduct. I had to keep a straight face as I argued that it is possible to have one's genitals exposed while mooning, because showing one's behind is not enough to constitute lewd conduct. After court, the judge and I continued the conversation and he thinks it is possible to moon somebody without exposing one's genitals, but the reason the city lost was because he didn't think that the intent of the lewd conduct ordinance was to punish people for that kind of behavior. He also did not think the officer was offended either. It was one of those fun arguments that I really did not care if I won because the defendant was already pleading guilty to the DUI, and it is exactly the kind of thing that makes me want to continue practicing criminal law.

The rest of my courtroom time this week was not nearly as fun. I did a jury trial on Tuesday on a charge of telephone harassment domestic violence. We had a weak case and he was acquitted, which has had me thinking all week about what I could have done better. I was again reminded how the most important part of a trial is getting your good evidence from your witnesses out in a simple understandable logical manner. Taking direct testimony is very difficult and it is so easy to get all tied up and have it come out in a jumble. It did not help that we had a recanting victim and I was handed the case 30 minutes prior to when I had to get up in front of the jury.

From a pedagogical perspective, it is really better to loose a trial. When I have won, I usually just enjoy the victory and forget about it. Loosing causes you to think about what you could do better. I would feel worse if there was a victim who really was on board; on the other-hand, I loath the fact that somebody gets away with hitting or harassing another person because the victim goes along with the perp's version of events. It kind of left me with a bad taste and I think I have been a bit harsher in plea negotiations this week. I wonder how a prosecutor balances that sense of punishing people for their wrongs and making sure that punishment is imposed fairly and not based on the whims of one's mood. Something to ponder. . .

Merry Christmas

Merry Christmas. Well, Christmas is mostly over. I am heading back to work after a wonderful couple of days of relaxation. I had to move, again, but after that was over I had plenty of time to hang out with the dogs, read books I wanted to read, and cook. I even made bread today, which is one of those hobbies that has unfortunately gone to the wayside since starting law school.

At least I am only just heading back to work and have another three weeks before my last semester begins. If I passed Business Entities, I will only have four classes this next semester. I have 3 credits in the bank from that dreadful summer Administrative Law class. That should leave me some time to actually learn the law. As I have said many times before, I learn a lot more by doing the law than by reading about others doing, messing up, appealing, having their case decided, published and deemed important enough to be put in a text book.

For example, between my finals I did a trial. All the senior prosecutors said it was a dog of a case. We tried it anyway. The outcome, however, isn't important. The jury was hung like a . . . jury that could not agree, but at least we got a majority of the jurors to agree with us and maybe he will take our plea or we will take another crack at it. Again, the outcome is not as important as what I learned in that case: Doing direct and cross is difficult!

I had a moment during closing arguments where I really hit my stride. I had at least a majority of the jurors right with me; I was off the script speaking directly with the jury, convincing them that I was right; it was smooth and clear and fun. The same cannot be said of the testimony part of the trial. Closing is theater; testimony, on the other-hand is difficult and technical. It is so hard to get from your witness all the information you want without the stuff you do not want and cross can easily get out of your control and meander into an area you do not want to visit. It is so hard to tell a story using other people's words without being able to tell them what to say or how to say it and have it all make sense to a jury. It must take a lifetime to really get good at taking testimony. I think opening and closing are really very simple compared to testimony. Learning that is going to take many, many trials and a lot of mistakes.

And that is why I need free time from law school to learn the law.

Juries will do strange things

I lost a jury trial case last week. When I explain the facts to you you will wonder how it is possible to loose. A man, in a drug induced state, walks into a 91 year old womans house in the middle of the afternoon while she is taking a nap. He claimed at trial that he doesn't remember doing any of this, but after going into her house, he finds her bathroom, takes out his dentures (meth causes people to loose their teeth) and takes a crap on her toilet. When the 91 year old woman wakes up, she finds him passed out on her toilet with his pants around his knees.

How could he not be found guilty of Criminal Trespass? All I can say is that juries do strange things. When talking with them afterwards, they mentioned that we hadn't proved the case "beyond a shadow of a doubt." I guess we didn't discuss reasonable doubt well enough, but I am positive there was not a single mention of "shadow of a doubt" at trial or in the jury instructions. I guess I need to do a better job of explaining reasonable doubt.

I think the jury system is an amazing system of justice and criminal law gives defendants the benefit of the doubt, but sometimes it feels like it just does not work. That is why civil lawyers are so hesitant to take their cases to trial, and it is a good lesson to learn early on in my career.

Oh my where the time goes. . .

I just realized that school starts this week and I have not blogged in almost a month. I guess I have been too busy to blog, so I will try and summaries a few of the highlights from the past weeks.

At work, probably the biggest highlight was that I did my first jury trial. I always thought I would spend lots of time preparing for my first trial, but this did not happen like that. I learned about a half-hour before it began that my case would be going and another prosecutor asked if I had voir dire prepared. I had time to jot down a few notes, but mostly I had to wing it. It was a lot of fun, especially once I realized I was just having a conversation with the jury. There was a constant underlying fear that I would do something appealable (like call the defendant a liar,) but since there was a not-guilty verdict, any mistakes I made have long since been forgotten. It all went pretty well, except my testifying officer, when I asked him to name the defendant, used the first name of the defendant and the last name of the victim: it was an assault case: a bar fight to be more exact. It was not an easy case to get a guilty verdict. Essentially it came down to deciding who threw the first punch and I believe the jury just kind of threw up their arms and came back not-guilty (the judge said it was clear that the defendant was lying through his teeth on the stand, but why do you think his lawyer wanted a jury and not a bench trial.)

In my own defense for not blogging, I was gone for a whole week in Alaska. Here is a picture of a grizzly bear we saw:



I really liked Alaska. Granted we only saw a very little of it (only a week cruise up the inland passage) but it still maintains such wilderness as I have never experienced, unlike Colorado, Washington, or anywhere else I have been. If we ever run away from it all, it is to Alaska we will go.

And now school starts this week. I only have classes on Tuesdays and Thursdays this week, so tomorrow is going to be just a plain old work day for me--except that I have to do homework. I have successful forgotten about homework until, well, right about now when I am going to start reading. As you can tell, I have chosen to blog instead. That must mean school has started. I am already looking for distractions. This is supposed to be the year they bore you to death.

There is really a lot more that happened in the last month, but sometimes life is just meant to be lived and not recorded.