Now The Trial

I know this log is somewhat late, but sometimes I just can’t get in the writing mood. So, please just bear with me and keep checking for new stuff. Lately lots of things crop up in my mind over past experiences and I note them for future posts Anyway back to the Lisa P case.

As mentioned in the previous blog, the case of People v. Lisa P was assigned to Judge Kathy O’Leary for all purposes and the pretrial motions were made and denied, so it’s time to get a jury. Now Kathy was recently in the news as of June 27, 2017 where, as a judge of the 4th District Court of Appeals, the court that hears appeals from the trial courts in Orange County, wrote an opinion upholding Superior Court Judge Tom Goethals ruling of a granting of a retrial in a 1st degree murder case based on a finding the Orange County DA’s Office committed errors of Constitutional dimensions, granting a new trial to a convicted murderer by failing to disclose by the Orange County Sheriff’s Jail division that the main witness against the accused was a long time “snitch” placed in jail cells of various inmates to secure alleged statements incriminating his cell mates including the one in the case presently before him. Kathy wrote the opinion joined by two other appellate judges in a written opinion (not published in the California Reports but will be shortly.) The trial judge, Tom Goethals, is the son of LA County Deputy Public Defender, Dick Goethals, who I knew very well when I was a LA County prosecutor; Dick was assigned to the same Court I was and we dealt or tried cases against each other for years. Dick was a Supreme Lawyer in every respect, fought hard for his clients, and always was the gentleman and ethical advocate. I respected him a great deal. Now Tom, Dick’s son, started his career as a good and honest and ethical prosecutor for the Orange County DA’s Office, rising through the ranks to a top position, assigned heavy cases including several murder cases. Tom eventually went into private practice and joined  one of his former prosecutors in criminal defense. He was good on both sides, DA -Criminal defense. We had a joint defendant case in the LA Court located in Pomona, involving possession of illegal weapons, basically repeating rifles that allegedly could be made fully automatic. Interestingly, the attorney for the National Rifle Association, Mitchell (forgot his first name) gave us a lot of basic information regarding the rifles and, to my memory, we beat the case on some technicality, and Tom was just great. A real pleasure working with him. It’s sort of humorous, as Tom was not the only son or daughter I had come up against or worked with over my many years of practice. Tom not only granted a new trial in the case I am writing about, but he had been involved in a present death penalty case where he kicked out the whole DA’s Office of Orange County based on the Sheriff,” withholding information concerning ” a practice of jail snitches and appointed the State Attorney General’s Office to handle the penalty stage of the trial, as the defendant had been convicted of murder 1st and is considering a sanction of imposing life without parole denying the prosecution from obtaining the Death Penalty. The decision to recuse (kick out) the entire DA’s Office in that case was also upheld (affirmed) in the Appellate Court.

Now in the Lisa P case, working with Jim Rasicott, the jury consultant, we prepared a jury questionnaire setting out questions for the potential jurors to fill out with questions concerning their knowledge of the case, their opinions regarding the death penalty such as “never rule for death” ( I should mention the DA also submitted a questionnaire and the judge and attorneys would gather in the Judge’s chambers and hash out a joint questionnaire encompassing a mixture of the two questionnaires. When the questionnaire is finally agreed upon or, if not agreed, objections are raised, the judge would finalize the questionnaire. The jury commissionaire would then send several hundred potential jurors to the Court, a copy of the questionnaire would be given to each potential juror to answer the proposed questions, a date would be set for a return of the potential jurors and copies of the now-filled-out questionnaire would be given to both sides to review for potential bias and objections as well as hardships, such as physical inability to sit lack or understanding English, and loss of income or job or anything that would prevent a juror from sitting and judging the case. I have had lots of cases where a juror for religious or other reasons states they could not sit as a juror. After review the parties would have to return to court to make their objections and start the jury selection process hoping to get twelve actual jurors and, in this case, four alternative jurors. An alternative juror  generally is seated and would replace a sitting juror at any time, including when the case has concluded, arguments made, jurors are instructed as to the law and the deliberative process begins, and even when the jury is deliberating and trying to reach a verdict, if a juror becomes ill or refuses without cause to deliberate, they could be excused and an alternate juror would be selected. That juror replacement occurs quite often in a lengthy case.

Jim Rasicott, who I mentioned in my earlier blog, and I sat down and reviewed all three hundred questionnaires and graded each juror on a scale of one to five, five most favorable and zero, or one, the least favorable, After comparing our grading, amazingly we disagreed slightly in our rating of the whole bunch only five times, and only by one point- such as I might grade the potential juror a four, and Jim would have the juror as three or vice versa. That told me I could read people as well as anyone, and I really do not need  a juror consultant. The bottom line is you can never know enough about a potential juror in the short time, even with questionnaires, to really get at their biases and prejudices. I have a method I have successfully used over the years, particularly with drunk driving cases, where I ask the jurors if they would eat frog’s legs or snails (escargot.) I get several hands, and then I follow up with have they ever tried the dish and who has never tried them. I point out that bias or prejudice, to pre-judge, is not a bad thing and it is not wrong to be prejudiced or biased regarding drinking drivers and then go on from there, and you would be surprised how many potential jurors admit they could not be fair just based on the charges. That holds true or all cases not just DUIs

Now I wrote I didn’t think I needed a jury consultant, but Jim was most helpful in trial strategy which will be reflected when I write about my opening statement.

Enough for today….been at this or two hours and will get back later.

Marshall