January 2016

Can a Single Juror Make a Difference? Ask Steven Avery.

We, like many of you, have been sucked into the sad, frustrating, and very real tale of the murder trial of Steven Avery in Manitowoc County, Wisconsin brought forth in the Netflix documentary “Making a Murderer." While much has been made of Steven Avery’s guilt or innocence, the coerced confession from his nephew Brandon Dassey (see full confession transcript HERE), and the possible foul play of the law enforcement in Manitowoc County, one major key to the case has been largely overlooked - the power of the jury. Without a guilty verdict from the jury, there is no frenzy over a viral documentary and certainly Steven Avery is a free man.

Recently, the filmmakers have reported to the press that a member of the jury now admits that he or she believed Avery was not guilty. This juror, wishing to remain anonymous, claims to have changed their vote to “guilty” after succumbing to fear and pressure. In reality, the juror believed, and still believes, that Avery was framed for murder. Speaking to the filmmakers, the juror said “I’m the reason the justice system failed.” Is the juror right?

Criminal Verdicts in Texas Must Be Unanimous. Every Juror Vote Counts.

Jury deliberations are secret, so only the jurors themselves could ever say for sure exactly why they arrive at a certain verdict for a case. In a criminal case, a jury verdict must be unanimous, which ensures that each juror’s vote is important and not diluted in a simple majority. If this one juror had summoned the courage to stay true to their “not guilty” vote, it would have caused a mistrial. A mistrial forces authorities to make the difficult decision of whether or not to retry the accused. Who knows what would have happened in a hypothetical second trial of Steven Avery.

For years, this juror has shouldered guilt from this trial, proving that the decisions juries are asked to make are indeed difficult ones. The next time you are on a jury, take a lesson from this case. Stand up for what you believe in and refuse to cave to pressure or fear. Do not be overpowered by the person with the loudest voice in the jury room. Remember, your vote holds the power of incarceration or freedom.

I hope we didn't spoil the documentary for you, but if you haven't watched it, this post does not even scratch the surface of the things you will see in this series.  We suggest you watch it and consider the case for yourself.  If nothing else, you'll see that there are two sides to every story and you'll understand to importance of having a fair and conscientious jury in a criminal trial.

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas.  The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

Read up on the U.S. Attorneys' Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA's mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

Get out ahead of the government's case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it's an opportunity for you to shape the case before it even gets started. Don't be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and "pretrial diversion" (Section 9-22.000) in lieu of indictment.

Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn't rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and "acceptance of responsibility." See section 3E1.1.  Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

"The squeaky wheel gets the grease"/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client's case and hearing from you, it's more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I'll start preparing to do so.

The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don't have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

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Glen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues.  See his past article at Task & Purpose.