Juries Play Fair (when the world doesn’t)

In business, politics and our daily commute, we see rampant power rewarded.  The business that destroys its competition is praised for being innovative and nimble, exemplifying the entrepreneurial spirit.  The politician who speaks the loudest and most blunt message, who interrupts and then drowns out his quieter debate opponent even though the rules say not to, is praised for single-minded focus.  The fastest driver of the biggest SUV forces his way through the traffic signal at Broad and Vine, while those of us lower to the ground get out of the way and wait our turn, anonymously.  I’m glad to say that juries don’t respond well to the rude behavior that so often carries the day in business, politics and driving.

I was fortunate to have obtained a defense verdict last month in a case where my client was charged with distribution of more than five lbs. of marijuana.  The weight-based sentence would have been substantial had defendant been found guilty, and our trial judge would have repaid my client’s insistence on a jury with an enhanced term of incarceration had we been required to proceed to sentencing.  My goal in this trial, as in all, was to be the honest guide, to explain to the jury what really happened by having my client testify, and to then call the passenger in his pickup truck to explain that neither of them had put the box of marijuana in the truck during a move-out that had been interrupted by a domestic dispute, that instead it was probably the action of the passenger’s jilted girlfriend, who had been given a large amount of marijuana by a friend to temporarily hide.  I didn’t presume to prove these facts with certainty, but merely to get enough supporting evidence into the record to argue that they were at least as plausible as the Commonwealth’s view of the world.

I conveyed my message through the Scylla of an overexcited and dismissive ADA, the Charybdis of an evidently prosecution-oriented judge, and a Commonwealth expert who, as he took the stand, eyed me as the Ogre from Grimm’s Tales, who was about to grind my bones to make his bread.  The expert had evidently won over juries hundreds of times.  The ADA needed to ask only the most basic questions on direct, and the expert took it from there, explaining how marijuana is packaged, how drug dealers industriously hide and guard it, and how this particularly large freezer bag filled with marijuana would have had a street value in excess of $6,000.  The questions I asked on cross were merely annoying, like mosquitoes on the porch in August.  The expert didn’t answer my questions, instead using them as jumping off points to further embellish what he had said on direct, a diving board from which to launch a cannonball jump into my pathetic case of excuses.  When I politely asked the expert to answer my question, the Judge reprimanded me in front of the jury for not listening to the answer, or for opening the door to testimony that had nothing to do with the question I had asked.  As my cross-examination progressed, his comfort on the stand increased, inversely to the discomfort I tried to mask by smiling a bit, and holding my hands quietly in front me as he droned on.  The only time this expert helped me was when he thought he was doing real damage – he agreed that drug dealers guard their stock in trade, hide it as well as possible, and don’t let anyone near it who might be a stranger.

It so happened that my would-be drug dealer did absolutely nothing to conceal or guard the diaper box filled with marijuana that ended up in the back of his pick up truck with the detritus of a North Philly cleanout, drove it through town in a vintage, backfiring borrowed truck with an expired registration sticker, and made no attempt to escape from police as they began following him down 55th Street towards Arch.  The jury was struck by this disconnect between my client’s behavior and what Mr. Big Expert had told them a drug dealer does, and they definitely were not impressed by the ADA who described the suggestion that the passenger’s girlfriend had secreted the marijuana in the truck bed as “crap” and “garbage.”

I learned several other valuable lessons by speaking with the jury after the verdict.  They did not appreciate the expert interrupting me, and as the Judge was reprimanding me for asking for an answer instead of a speech, the jury agreed that the expert answered almost none of my questions.  Far from impressed by the shock and awe tactics of this expert, the jury described them as disrespectful, arrogant, as not playing by the rules.  While the jury agreed (with reference to the adage that hell hath no fury like a woman scorned) that the passenger’s girlfriend could well have placed the box of marijuana in the pickup truck just before it drove off, they were concerned about what had happened to this woman – had she been the victim of retaliation by the drug dealer who had entrusted her with six lbs. of marijuana, only to have it vanish into police custody?  My answer was that as far as I knew from the witness, the woman was doing ok.  I also reassured them that my client had never been in trouble with the law before, and that he really was a registered nurse who did cleanouts and other odd jobs on weekends.

What the jury appreciated most was being provided with facts.  They watched intently as a police officer drew a diagram of where he had recovered the box of marijuana from the pickup truck loading bed, and agreed with the main point of my cross-examination: That his depiction had moved the box several feet closer to the passenger compartment, compared to the description he had given under oath a few minutes earlier.  I realized while talking with the jury, that if they if they had been guided by the rules of the Business Journal, of party politics, or of the road, me and my client would have been written off, and possibly laughed at in the process.  But the jury took seriously a duty they had sworn to uphold just before trial began – to do justice.  Thanks to their collective decision to honor the oath, this unlikely trial lawyer received another defense verdict.  I will remember them – the stern Vietnam vet, the student at Peirce College, the stay at home mom, the skeptical city worker, for a long time to come.

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