When I think back about my second trial it will be a memory of a mess of papers on the podium, with computer printouts of garden supplies overlapping a map of Home Depot marked in multicolored letters in in different departments, confusing even to me and I asked for them. It will be holding impeachment documents without a thought in my head about what I might eventually do with them. Asking questions literally as they occurred to me, with no firm sense of whether I would draw an objection or when I should stop. The sensation of talking too quickly and too angrily. Of lecturing on a subject I knew but without teaching anyone anything. Watching a juror that I thought was my partisan slump and slouch as I continued my argument. Or sitting in at my laptop in the middle of the night struggle to put together a slick presentation for use with my closing argument and failing to come up with anything more complex than just reviewing the jury instructions.
After each trial I’m going to do a little self-analysis. The goal is to look at my performance objectively before a verdict is returned, to avoid letting the jury’s verdict color the analysis. I wasn’t able to get around to this analysis at the right time, but I don’t think it will matter that much because the jury came back “not guilty” this time, and I don’t think there’s too much danger in being too critical. I made mistakes at three critical points: jury selection, cross-examination, and with impeachment evidence.
Heraclitus said “character is fate,” but in jury selection it might as well be “demography is fate.” I found that out the hard way last week. I allowed on several jurors that I had misgivings about, even though I had enough peremptory challenges to get rid of them. Looking back, I thought my charming nature would be enough to overcome any demographic or temperamental difficulties they may have returning a conviction. But I could tell that I made a mistake when one of the jurors that I had been on the fence about would not look me in the eye during my closing argument.
I had the chance to cross-examine three defense witnesses, including the defendant herself. I was trying to be aggressive, but I ended up in a bit of a schoolyard argument with the youngest of these witnesses. I could sense that I was turning the jury off during this encounter. I was told as much after the trial by an uninvolved lawyer. With another witness, I had impeachment information about his criminal history, but I didn’t dwell on it long enough. I felt nervous in front of the jury and I didn’t take the time to come up with enough impeachment questions. I ended up basically asking, “You lied about your criminal record, didn’t you?” without much follow-up. I think the jury may have needed a few questions of follow up before they could really grasp what they were being told and why it was important.
Finally, I was really at sea when it came to impeachment evidence. I had several prior written statements by defense witnesses. I had a document from the public defender’s investigator detailing an interview she took from one of the witnesses. Another witness wrote a confession directly to the district attorney’s office. It differed in small ways from her actual testimony. I had both of these moved into evidence by reference only.
DA in CA 