Making it up as you go along

Forget what you see on TV and in the movies. The practice of law is mostly boring. (So is law school, but that's a whole different subject since law school bears only an occasional and coincidental relationship to the practice of law.)

Trials, in particular, tend to be tedious. Witnesses don't tell gripping stories. Fact witnesses (that's the ones who say what they saw or heard or did) give mostly halting, not terribly articulate reports in little snippets interrupted by questions. Oh, there's sometimes the odd dramatic or gripping moment. But more typically, this is what juries hear.

Q: Were there any street lights that night?
A: You mean on the corner?
Q: Was the area lit?
A: There was a light on the porch.
Q: Could you see clearly?
A: Oh, yes.
Q: And did you see the man?
OBJECTION: Not specific. What man is counsel asking about.
Q: I'll rephrase the question. Did you see a man holding a knife?
OBJECTION: Leading.
COURT: Overruled, you may answer.
A: He was there.
Q: Did you see him arrive?
A: I'm not really sure, but he was there.

This can take the better part of an hour.

But when lawyers try to speed it up, they get answers that ramble, filled with all sorts of inadmissible material.

Q: Just tell us what you saw.
A: It was very dark except for the lights and I was coming back from the store with a quart of milk when that monster was over there with the poor old man and the man was scared and he was just doing what he always did and the next thing I knew he was running away like before.

So testimony has that slow, muddled, mechanical pace for a reason. As for opening statements and closing arguments, well, few lawyers are spellbinding orators, and frankly they need to convince the jury, not sell CDs of their performance.

And then there are the judges. We're not talking balls and strikes here. The jury doesn't know whether the objection was properly sustained or overruled. Half the time neither the parties nor the judge really knows. It's all quick and from the gut. Juries typically hear such exciting lines as

You may call your next witness.

Any redirect, counsel?

We'll take a ten minute recess. Jurors are reminded not to speak about this case and not to let anyone else speak about this case during the break. Be back in your seats at 2:45.

But judges in the trial process do have a singular role where they get to speak a lot, interminably it often seems. That's when they charge the jury. The jury charge is the explanation to the jury of how they're supposed to do their job. How do they weigh the evidence? What do they consider? What is evidence, anyway? What burden of proof is there and on whom? What questions are the jurors supposed to answer? To do that, what particular things must the jurors agree are true or not true.

Jury charges these days are typically patterned. That is, there's a more-or-less standardized set for the jurisdiction on all the things that judges typically have to say and they choose the relevant sections. (Lawyers may, of course, argue about just what should be in the charge, especially if the case has some unusual twists.) Then this document that consists of portions of other documents, all originally drafted by committees, is read aloud to the jury in a monotone (so that nothing will get undue emphasis).

It may take 20 minutes. It may take an hour or more. Nobody understands a word of it.

There are regular efforts to simplify jury instructions, to write them in plain English. None are particularly satisfying because they have to satisfy the demands of a confused legal precision.

Once in a while, a judge tries to be creative and simplify. When he does, you get People v. Garrett, a case decided by the Michigan Court of Appeals on Tuesday. Here's the plot:

This case arises out of the death of seventy-three year old Mayrose Hall, who lived by herself in a home in the City of Detroit. The prosecutor’s theory of the case was that, on February 4, 1997, defendant broke into Hall’s home, intending to commit a larceny, and was surprised to find Hall at home. Defendant then inflicted several blunt force injuries to Hall’s head, and left.

During jury selection the judge was explaining just what they'd be facing. This isn't plain old murder, she said, This is felony murder, and "[f]elony murder is different. What you look at is the intent to do an underlying crime.” The judge talked about armed robbery and said that if a person “. . . did not have the intent to kill that person, the fact of the matter is that when they died during this robbery its called felony murder.” The judge continued:

THE COURT: Okay, juror number three, you grab my necklace, and smack me, and I fall down and hit my head on a rock. “Well, I didn’t push her down, she fell, her heels were too high.” Does it make a difference juror number three?
JUROR THREE: It doesn’t make a difference.
THE COURT: Huh?
JUROR THREE: It doesn’t make a difference.
THE COURT: Because when you grabbed my necklace, and you smacked me, even though I slipped and fell, it was during the course of what?
JUROR THREE: You grabbing the necklace.
THE COURT: Which is?
JUROR THREE: A robbery.
THE COURT: A robbery, do you understand juror number two?
JUROR TWO: Yes.
THE COURT: But I didn’t mean to kill her, all I wanted to do is just get that
necklace. Does it make a difference, juror number two?
JUROR TWO: No.
THE COURT: That’s felony murder. See, you all learned all of this, and people go to law school forever.

So the jurors got it. Good teaching. Good for the judge.

Well, no. The jurors actually got it wrong. So did the judge. Bad teaching. Bad class. Bad judge.

Felony murder under Michigan law does involve a killing in the course of committing another felony, but as the Michigan Supreme Court had explained back in 1999, intent does matter. It's only felony murder if the killer acted

with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.

When the judge decided to be creative, she blew it. (The prosecutor admitted as much in the court of appeals.)

I remember sitting in the back of the courtroom one day watching closing arguments and then the jury instructions in a death penalty case. Counsel for the defendant and the prosecutor were all experienced death penalty lawyers. They knew the law well. They knew what was supposed to happen. The trial judge had been down this road a number of times. So had the court staff. Even the defendant had been here before, since it was his second capital trial in the case. (I'd gotten him a new trial on appeal after he was first sentenced to die.)

So I was listening to the judge drone on with the jury instructions, only half paying attention because I knew the drill, knew what was supposed to be there, and again it wasn't my case. At the end of the instructions, the jury reads the verdict forms to the jury and explains to them how to fill in the blanks which, in this case, determine the sentence - life or death. And as I'm nodding off, I realize that the judge just said something wrong. The verdict form screwed up the burden of proof.

As soon as the jury was sent off to deliberate, I got the attention of the lawyers and then the judge and the error was corrected. But it shouldn't have taken me.

Jury instructions need, desperately, to be simplified. Probably someone who writes good non-fiction for the 12-14 year old set should be hired to lead the rewriting effort. But the simplification can't be done on the fly or blown off.

Trials, ultimately, are boring for a reason - the rules and the details count. They can be better done, sure. But seriously practical limits.

There's a moral in all this about smart ass trial judges who think they know better: Just do the damn job. And there's a moral for lawyers: Don't nod off and just trust the judge; pay attention.

This was actually Garrett's third trial for killing Hall. The first time there was a hung jury which effectively means a do-over. The second time Garrett was convicted but received a new trial because his lawyer screwed up so badly.

Fourth trial coming up.