I recently went to trial on a case where my client was facing up to fifteen years in prison for the offense of aggravated fleeing and eluding a police officer. He was also charged with driving while license is suspended or revoked. The alleged facts seemed to indicate that my client had no chance of wining at trial. Simply stated, my client (whose license had previously been suspended) was allegedly at a gas station. My client is well known to the local police. I am sure it has nothing to do with the fact that he has been arrested multiple times over the last ten years. Sure enough, a police officer was at this gas station when he believes he has observed my client to be present at the gas station. The officer knew that my client's drivers license was suspended and apparently was pretty confident that my client knew this officer. The officer allegedly said hello to my client and then proceeded to take up a position just outside of the gas station because he strongly believed that my client was about to get into a car and drive off. According to the police officer, that is exactly what occurred and he promptly initiated a traffic stop. Unfortunately for the officer, the person he was attempting to stop, failed to stop and took off at a high rate of speed despite lights and sirens being employed by the officer. The police officer had a no chase policy in place for this type of situation and decided not to give chase, rather he was smug with the fact that he knew who the driver was and he would simply request that a warrant be issued for his arrest. Two months later, my client is arrested and charged with the offenses previously stated.
Quite frankly, this fact pattern was not the most appealing one to go to trial on. I believed that there was a high likelihood that my client would be found guilty as charged and that despite my best counsel to him to accept a generous plea offer he would find himself in jail when he could have been on probation. He was already a convicted felon and I did not get the distinct impression that one more felony conviction was going to matter to my client. He politely, but firmly, told me that he would accept no resolution to this case because despite the police officer's assertions, he was not at the gas station on the day in question and he did not drive off in front of that officer and speed away after being ordered to stop.
Ok, fair enough. After all, it is not my freedom on the line. I assured my client I would do my best to represent his position in court. One of the most sacred rights we enjoy is the right to a trial by jury. This right comes from England and was incorporated into all 13 colonies as a matter of right. The newly formed United States also incorporated the right to a jury trial in our Bill of Rights. Every state in the United States provides a guarantee that its citizens will be granted a jury trial in most instances when that right existed at common law from England. In Florida, people have a right to a jury trial in all criminal offenses unless the prosecution and defendant agree to waive that right. The jury system is a brilliant advancement in dispensing with justice. Of course there are instances where people think juries get it wrong. Many think that occurred with O.J. Simpson in his infamous murder trial. More recently, Casey Anthony was acquitted by a jury in her infamous murder trial. However, the alternative that existed prior to a trial by jury was a trial by one person who was the judge, prosecutor and executioner (aka the "king"). Well, the nobles in England did not care for that system of justice and the jury trial started to evolve with the Magna Carta written in 1215. From there, the rest is history.
A jury trial operates as the ultimate check on the power of government. Rather than the police officer or the strongest thug in town deciding your innocence or guilt, a group of unbiased people are selected to hear the evidence and render a verdict that must be unanimous. This coupled with the fact that every person enjoys a right to be presumed innocent until the evidence convinces a jury beyond a reasonable doubt that a person is guilty is good stuff for all of us. This is where the story gets interesting.
Back at my recent trial, Joe officer takes the witness stand and swears to tell the truth and proceeds to testify pretty much as outlined above. Problem was, this officer did not expect a vigorous challenge to his version of events. Another great feature in a trial is the ability for the accused to confront his accusers and cross-examine them. Joe officer and the prosecution were content to rely upon the fact that nobody could possibly doubt what a police officer had to say and of course this was just a longer way to obtaining a conviction. Due process can be a time consuming and thorn in the government's ass.
The cross examination of the only witness at this trial revealed that this officer failed to remember to write in his report the fact that he had a conversation with my client. He further failed to remember to check the vehicle's tag information. The officer also failed to gather any video evidence from the gas station's video cameras. On top of that, the officer's squad car was equipped with a video camera and he failed to turn over that video tape to the prosecutor. At this point, I probably had enough to request a new trial. A less experienced attorney would have and I probably would have too ten years ago. The error was so obvious, the clerk was already typing up the minutes wherein the court had granted a mistrial. However, not only did I not move for a mistrial, I employed this very evidence against the officer and used it in a devastating manner. I simply asked the officer why he failed to do any of the things to preserve evidence. His smug answer was because he did not need to do so because the officer knew who was the driver and he was 100 percent confident of his position. Hey, prior to trial, I was confident that the officer got it right. However, one of the areas I like to explore with jurors is their feeling about subjective evidence versus objective evidence.
I usually pick out one of the jurors and have them comment on something such as the temperature outside. I ask them to tell me if they were hot or cold when they first got outside. In Florida, I have found that many long time residents are cold if the temperature drops before 70 degrees. I then ask another juror the same question and we usually get a different response. Then I ask them that if they had a thermometer and they all agreed that the instrument was accurate would any of them disagree as to the temperature and of course they would not disagree. Then, I ask them to explain the difference between their belief that it was hot or cold versus their knowledge of what the thermometer tells them the temperature is. We talk about how instruments do not care about what you think of their data. We then talk about police officers and other witnesses and how it is only natural for each witness to have a subjective perception and that every witness wants you to believe their version of events.
Back to the trial, this officer was so proud of his observations that he failed to consider that a trial by an unbiased jury might render a different result. The key lies in the reasonable doubt instruction. Reasonable doubt can arise from the evidence, a lack of evidence or conflict in the evidence. This officer's failure to accurately record his alleged conversation, coupled with his failure to do any type of follow up police work provided me with the fundamental reason why a jury trial is so important. The fact that six citizens who were relatively unbiased were able to review this case and weigh the evidence provided my client with the ultimate check on the government's power. He was found not guilty. I do not pretend to think that there was probably a juror or two who thought he was guilty, but the evidence simply failed to convince them beyond a reasonable doubt of his guilt. The jury trial system worked in this case and I believe it works in most cases. Of course there are verdicts that we do not agree with, but in the end, I can think of no other system that provides a level of protection from those who are in power. I am proud of this trial and some of the gutsy decisions that were made. Experienced trial attorneys can draw on their past experiences and make complex legal decisions that less experienced attorneys sometimes fail to make. Many lawyers will not honor their client's request for a jury trial. This failure by those lawyers is many times not even obvious or consciously being done, rather it is a result of fears that are deep within the attorney. Many lawyers have egos and many don't like to see those egos tested. Trial by jury is all about picking winners and losers, especially in the criminal trial. Trials have many risks for defendants and very little risk for governments. If a defendant proceeds with a trial and loses, he or she could lose their freedom. If the government loses a case, they just move on and try another case.
If you are facing a criminal charge, you owe it to yourself to hire experienced criminal trial attorneys. One way to know whether or not your lawyer is experienced is to check and see if they are board certified in the area of law that you seek assistance in. I am a board certified criminal trial attorney and I am proud of that accomplishment. I always use my skills in the courtroom to help my clients to obtain the best possible results in their case. I provide good solid legal counsel to my clients and respect their decisions to proceed or not to proceed to a trial.