The moment I saved this young man’s life….


Somebody sent me a copy of audio which was recorded almost a decade ago at a criminal felony jury trial.  It is the audio of my closing argument to the jury in a First Degree Arson Trial in February of 2010.  Wow, it brought back memories.  Here is the last 11 and a half minutes of it.  Listen to how I hand the case over to the jury at the end…..   I got that from Gerry Spence.

People ask lawyers all the time: do you ever think your client is guilty? The worst possible scenario as a trial lawyer is to be responsible for defending someone who is actually innocent, and screw something up.  This young man was innocent.  Yet he was facing 20 years in prison.  His family came to me and asked me to save their son.  He had done a stupid, ridiculous thing, and had given a false confession to a girl over the telephone, for some reason thinking it would impress her.  He bragged that he started a fire which had burned down a big barn, which had been a local mystery up to that point.  But he didn’t actually do it.  But…. he was caught on a recorded phone conversation stating that he did.

He was charged with first degree arson.  I ended up proving to the jury that he had lied about it, and that he was actually innocent.  Talk about a difficult task.  But I did it.  This was the fastest I’ve ever had a jury return a verdict.  It took maybe 6 or 7 minutes.  This guy/kid could have spent the last decade sitting in prison….

Choosing a lawyer is an important decision.  With this audio, you can hear an example of me speaking for somebody in court, in a situation when that individual’s liberty was at stake, and see the end result.  Pretty cool.



Monroe County Jury Verdict in Elder Financial Abuse Case

Last week I tried a four day jury trial in the Circuit Court of Monroe County, West Virginia, for a 98 year old lady named Isadora Beavers. On July 23, 2013, she walked into my office in her black and white polka dot dress, and hat, and demanded to see me. She told me that she had a power of attorney whom she suspected was stealing from her. She told me that her power of attorney was also the Vice President of her bank, and that she had been unable to get copies of her bank statements. That same day I helped her revoke the power of attorney and, at her request, demanded copies of ten years of her bank records from her bank.

Shortly afterwards she fell and was admitted into the hospital. I visited her in the hospital and told her what I had found in the past few years of her bank records – primarily lots of “cash” checks. I asked her if she spent much cash. She told me no, that she grew up in the Great Depression era and was thrifty with her money. She did admit that she indulged in getting a fancy haircut every once and awhile. And she liked to eat at Shoney’s. I told her that a deed existed giving her power of attorney joint ownership of all of her real estate, with a right of survivorship. She said, no, that property was supposed to go to her family after her death.

Not long after she began to decline pretty quickly. She started to suffer from dementia. Family members arrived in the area and petitioned the court to become her guardians and conservators, which was granted. They later contacted me and asked me to get the real estate back so they could finance the best possible medical care for Isadora. We demanded the return of the real estate. The response from the ex-power of attorney was that she would deed the property back, but wanted a release from liability in exchange for it. Not surprisingly, this offended pretty much all of Isadora’s relatives, and they gave me the go-ahead to sue her.

Last week, we presented the overwhelming evidence to the jury. They returned with a plaintiffs’ verdict on all counts: fraud, breach of fiduciary duty, conversion and unjust enrichment. They awarded $326,771.06 in damages against the defendant, Betty B. Brown. That included $175,000.00 of punitive damages.

In my closing argument, I asked the jury to send a message that financial abuse of the elderly will not be tolerated. I believe they sent that message loud and clear.  By the way, all money collected is going to Isadora to fund her medical care and expenses.  The defendant is going to be reasonable for paying all of our attorney fees and expenses as well.

Media Reports:

Former bank exec is liable in elder abuse suit

Jury awards $325K to elderly victim of financial abuse

State woman to pay $325,000 in elder abuse case

In the courtroom with some of Isadora Beavers’ nieces and nephews immediately following the verdict:

IMG_4623 copy

New Summary of the Sawyer v. Asbury Opinion

I just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source.  If you have followed the case on this blog, it’s interesting to take a step back and analyze the Court’s ruling as it finds its place in Fourth Circuit excessive force case law.

Federal Courthouse in Parkersburg Closing

This is my 300th post, and unfortunately a sad one.

I was disappointed to see in the Charleston Gazette this morning that the federal courthouse in Parkersburg, West Virginia is closing up shop.  I think I tried the last jury trial ever in that courthouse, which was the first trial there in around three years, if I recall correctly.  The article says something to the effect that it couldn’t keep up with modern technology.  Actually, we used all the modern technology which you would expect in a modern-day jury trial, including “ELMO” machines and video footage.  They did have to bring the devices from Charleston for the trial – which was not a big deal.

One piece of modern technology which didn’t work there however, was the mute button on Judge Goodwin’s microphone.  So he told the jurors to loudly talk amongst themselves whenever he said “beep” so that we could have side bar conferences.  It worked amazingly well – in fact probably much better than a mute button.  And everyone got a kick out of it.

The last day is this Friday.  R.I.P. Parkersburg Federal Courthouse.

Judgment as a matter of law was just granted in Sawyer 1983 case

Unfortunately we lost at jury trial.  But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor.  There will be a new trial to determine damages.  Yes!

Update: Link to newspaper article.

2nd Update: Gazette article by Zac Taylor.  Some excerpts:

In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.

“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”

The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.

. . .

“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”

. . .

Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.

Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.

 . . .

During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.

“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.

TV News article.

The Order:

Another win in a West Virginia civil jury trial

We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor.  One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury.  You would think this would bore them to death.  But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out.  Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.

Bennett’s jury selection rules (cont’d)

I never quite finished going through Mark Bennett‘s jury selection rules, so I feel it is necessary to include the rest he subsequently posted, all of which can be found here.

We left off at Improv Rule I, which refers to improvisational theater.  The rule is, “no scripts.”  If you follow your outline of questions, you are going to get outlined answers.  Voir dire should have the flow of a conversation – a real one.

And then there is Improv Rule II, which also derives it’s name from improvisational theater.  He’s says that the rule is to “not block,” which means that if your partner at the improv, i.e., a prospective juror, brings up a topic to discuss, don’t ignore that topic or switch to another which is more comfortable for you.  This is how a conversation, and also voir dire, should work.

Rule 8 is the Shrink Rule.  Rather than just confirming by silence that the prospective jurors agree with the points of view, legalities, or issues as you/the court see them, ask the jurors openly, how they feel about any particular issue or idea, and let them answer.

Rule 9 is the Beer Pong Rule.  “The ball is always in play.  If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.”  Comments, issues and questions, should be forwarded from one prospective juror to another, i.e., “who disagrees with Mr. Jones.

Rule 10 is the Marathon Rule: save something for the end.  This is something that should be utilized also in cross examinations.  In cross examinations, you always want to have one final question – one completely unobjectionable (you never want to end a cross by sitting down on a sustained objection), hard-hitting, no-way-out, glance-at-the-jury -as-you-are-sitting-down-triumphantly-question.  That way, no matter how the cross examination goes, you end on a high note, and it is never awkward.  The cross may have been a disaster, but if you end with your ace-in-the-hole question, you leave off on a high-note.  It’s a great idea to also have one of those for voir dire.  Bennett suggests something like, “raise your hand if you promise to give [client] a fair shake,” or “can we all agree to wait till all the evidence is in before deciding this case?”

Rule 11 is the Playing Doctor Rule: I’ll show you mine if you show me yours.  If you want the jury to discuss something deep, such as prejudices (which he rightly states that we all have – including lawyers and jurors) we have to be willing to discuss our own, such as our first thoughts when we saw our client’s tattoos – or something of that nature.

Rule 12 is the Field Trip Rule.  This is about paying attention to the group dynamics that develop between these strangers who are forced together, such as on a field trip.  And also it is about becoming a part of the group, and allowing these dynamics to steer the conversation of voir dire.

Rule 13 is the Undertow Rule.  It’s not possible for one person to keep up with all of the prospective jurors, whether there are 30 of them or 60 of them.  You have to have an assistant, or another lawyer, to help you keep track of what is going on.  It literally is impossible to do this yourself, and is foolish.  Of course, as Bennett notes, your client can help you, and indeed should have a say in the process, but that is questionable help given the circumstances.  Once the process starts, it goes quickly in my experience.  And it takes at least one person full-time to mark down names and particular answers which need to be followed up on during individual voir dire – if the jurisdiction allows.  It also helps to know the exact layout in which jurors will be seated, in order to develop some type of diagram to aid your assistant, and yourself when it comes time to make the tough decisions.  It can be different from judge to judge.

Rule 14 is the Atticus Finch Rule: be the lawyer they want to stand up for.  This refers to the scene in To Kill a Mockingbird where the African Americans stand up for lawyer Atticus Finch as he walks out of the courtroom – not because he won, but because he was a good man.  I have said this before.  There are a lot of jerk lawyers out there.  Jurors pick up on these things, and they naturally, I believe, will lean towards those who they respect.  And they don’t respect the jerks.

Rule 15 is the Bat Rule: ping, then listen, or fail.  I other words, ask questions and then listen to the answers.  Obviously this is the foundation of being a trial lawyer.  But it can be easy to rattle off questions without really listening to what is being said.  It takes conscious effort at listening and absorbing the answers to lead the conversation, rather than just your questions.

And lastly, the Herd Rule.  A jury pool is like a herd of animals.  This can always be taken into account when asking questions.  People don’t want to separate from the rest of the group.  They are more likely to raise their hand or speak up if you ask “how many of you agree with [prospective juror] about [issue]?” and are less likely to respond to “do any of you believe [issue].”  Always remember the Herd.

Thanks again to Mark Bennett for coming up with these great rules.  He reminds me of the bar exam instructors, who teach things in terms of little stories and songs so that you can remember them during the test.  It certainly is helpful to be able to quickly review these before voir dire.

– John H. Bryan, West Virginia Attorney.