"Any Lawyer Who Has Never Lost A Trial"

By Carl D. Ceder (written in February 2010 while working for Jamie Balagia, AKA "The DWI Dude")

Any lawyer who has NOT lost a jury trial is either lying or has not tried enough cases. "Beyond a Reasonable Doubt" and the "Presumption of Innocence" are terms that every criminal defense attorney is familiar with. Seminars and legal books revolve completely around how a lawyer should convey each term to prospective jury members. 

Not too long ago I lost a hard fought trial after over 6 hours of jury deliberation. Most lawyers wouldn't announce this fact to the world, much less write a blog about how the jury considered the evidence and the law. First off, any lawyer who HAS NOT lost a jury trial is either lying, or has not tried enough cases. If either of these is true, they have not done proper service to their clients. This was a .15 breath test case in Travis County, and the verdict ultimately centered on the result of the chemical specimen given. As I wrote previously, the jury spent over 6 hours deliberating before reaching a  verdict. After they came back with a "Guilty" verdict, I polled the jury to help improve my performance for future trials. The foreman, who happened to be an engineer (who seemed to be very impressed with his knowledge and grasp of the trial, evidence, and the law), told me that right before casting their final ballots, they voted and the results came back 4-2. Four voted "Guilty" and two voted "Not Guilty." 

After this, they then further considered the evidence and the two "Not Guilty" votes then changed to that dreaded one-word verdict criminal defense attorneys hate to hear. When I asked how they deliberated, he told me they drew a long straight line on a dry erase board. He said they then started at the beginning of the line and placed "Guilty" at the start position, and "Not Guilty" at the other end. He said they then considered the evidence to decide whether there was enough evidence to try and get to the "Not Guilty" portion of the line on the opposite end. And he said because there was a breath test...they simply couldn't do it. 

I was embarrassed. As much as I tried to convey how to think about the legal concepts in a criminal trial, I obviously failed. I take pride in my ability to successfully convey the two concepts and reverberate throughout the trial the importance of each...but I obviously came up short in this trial. I write this missive because I will try to NEVER make the same mistake twice every again. 

I told him that he thought about it absolutely correctly. The "line" analogy is fantastic. HOWEVER...he did it completely backwards. You should start at "Not Guilty" considering the "Presumption of Innocence," and then work your way through the evidence to see if you can properly apply the heavy burden of proof of "Beyond a Reasonable Doubt" across the line to test whether the government properly satisfied that very lofty burden. He looked dumbfounded. He looked like a small toddler who was first learning to spell his first word. He proceeded to explain to me again how they thought about the case, and I again told him it was a correct way to think about it...he just applied it incorrectly. He still looked baffled. 

Never again will I make this mistake. In fact, in voir dire (possibly closing argument)...I will explain this story when the case calls for it and I will make certain this will never happen again as I practice law. The "Presumption of Innocence" - being considered innocent until proven guilty - is a legal right that the individual accused has in EVER criminal trial. The "Burden of Proof" is  on the prosecution, which has to collect and present enough compelling evidence to convince the jury that the accused is guilty "Beyond a Reasonable Doubt." When the jury has ANY reasonable doubt, the accused is to be acquitted. This legal concept is derived from the Latin legal principle "ei incumbit probatio qui dicit, non qui negat" (the burden of proof rests on who asserts, not on who denies). 

What this means is that the government has the burden of proof to prove their case. Period. In reality then, the defendant starts completely innocent. Hence, the foreman should have started at "Not Guilty" at the beginning of his line analogy. And he should have considered the evidence with the other jurors...and then decided whether using the "Beyond a Reasonable Doubt" analogy the government had proven their case. 

In my experience the smarter the juror thinks himself to be, the more likely you need to explain fully how to properly apply the legal concepts the law requires them to apply. Sometimes jurors are very prideful, and often create their own strategies for how to apply something they deem so complex. 

What concerned me most, however, was how two jurors shifted their "Not Guilty" votes into a "Guilty" vote. "Beyond a Reasonable Doubt" is a very heavy burden for the government to meet to prove ANY criminal case. Any hesitation...ANY reasonable doubt, and the jury must return a verdict of "Not Guilty." It doesn't necessarily mean that the jury believes the defendant "innocent"...just that they have a reasonable doubt regarding the guilt of the accused. 

Thus, I am of the position that if a juror says "Not Guilty" once during deliberations and after hearing all of the evidence...it is impossible for them to somehow change their mind (and their vote) into a "Guilty" verdict. This would basically mean that miraculously the reasonable doubt they once had somehow had been removed. To me, this is absolutely impossible. If you have a reasonable doubt once, it is impossible for that doubt to somehow eliminate into absolute oblivion and cease to exist. 

Which brings me to my next point. What I believe really happened was some of the jurors in this case simply got tired of deliberating and caved in due to pressure. To me, this is the biggest travesty in our criminal justice system. I do not have as big of a problem with the juror who changes their vote...what I do have a problem with, however, is a person who exerts pressure on another juror when deliberating. I think this should be an infraction punishable by contempt, and possibly even jail. 

My last trial I received a "Not Guilty" verdict after around 2 hours of jury deliberation. When polling the jury, the foreman told me the vote was 8-4. Eight voted "Not Guilty" and four voted "Guilty." After reviewing the evidence, the four then changed their votes to "Not Guilty." The foreman conveyed to me that this happened when they collectively considered the evidenced, and it was demonstrated and agreed upon that the government failed to meet the very high burden of proof imposed by the law. I was beaming with pride after being told this. It seems then that some juries DO know how to properly consider the evidence and how to analyze it given what the law requires in a criminal case. As well, I did not let what happened once...happen again.