Mark Bennett’s “Nike Rule” for jury selection (and 15 others) [updated 8/24/09]

When Mark Bennett announced a week or so ago that he had 16 simple rules for jury selection, the first of which began with “The Nike Rule,” I anxiously awaited the specifics which were to arrive subsequently.  Well, he did post the details on “The Nike Rule,” which essentially is this:

You have to “just do it,” rather than planning out your questions or taking an overly logistical or tactical approach to it.

Don’t worry, don’t think about it, don’t plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.

I have found that I perform best in a criminal jury trial when I do this throughout the trial.  Rather than be overly logistical, I like to listen, and then when it is my turn to question a witness, or to give a closing argument, I just get up and let the words flow.  I think it is the most sincere and passionate way to advocate.  And sincerity and passion breeds results – at least in my opinion.  But of course, you can only do this when you are intimately knowledgeable about the facts of the case.

Certainly I agree that this approach is the best way to conduct the voir dire process.  When trying a jury trial, credibility is king, and if from the beginning you have to get the jurors to, not necessarily like you, but to respect what you say.  You have to build and maintain your credibility with them.  The best way to do that is to start the trial off by talking to them for just about as long as the judge will let you, and educating them about the process and the ultimate importance of their immediate responsibilities.  And if you can make them laugh a couple of times it doesn’t hurt.  This is especially effective in those situations where the prosecutor stands up and says, “no questions, judge,” and let’s the defense do all the talking, which for some reason I have encountered several times.  This has always baffled me.  Why wouldn’t you want to at least build a rapport with the jury?

Hopefully the outcome is that you get to know them better, and they get to know you.  Then you have something to go off of when it comes down to the choice between juror no. 5 and juror no. 9, which may seem arbitrary, but which also may mean the difference between liberty and imprisonment for your client.

I look forward to hearing what Mark’s second rule, “The Blind Date Rule,” is.

UPDATE: “The Blind Date Rule” has now been posted.

Essentially the advice is to treat jury selection like a blind date with 60 people (or unfortunately, in West Virginia, more like 38 to 40 people).  Bennett explains his thinking:

Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.

It’s always extremely interesting to get advice from another criminal defense attorney who actually tries cases and wins – at least some of the time (no real criminal defense lawyer wins all the time).  There is a right way (or rather many different right ways) and a wrong way to try a criminal case.  Many would argue that jury selection is the most important part of the case.  It’s also the most unpredictable part, and the most likely part to absolutely blow up in your face.  But it works the other way as well, and you can really achieve a lot for your client.

It seems to me that the trick always is creating some sort of connection between yourself and the jury, and actually getting the point where you can have a conversation with them.  During most of the trial, the conversation is mostly indirect and one-way.  But during jury selection, you can have a two-way conversation, and it makes sense that it is just like any conversation you have outside the courtroom.

I like the way of looking at it like a blind date.  Not that I have ever been on a blind date, but I assume that you walk a fine line between cutting the tension and breeding contempt.  I also suppose that some lawyers, like many in the blind-dating world, no matter how hard they try, are just always going to be awful at this….  Again, I love it when people share advice on how they have won criminal jury trials in the past.

UPDATE – 8/24/09:

The Shrek rule for jury selection, now explained, makes sense.  Though it befuddles me to imagine how he thought of this, other than if it was on his mind as he was watching Shrek…  I think that one of the by-products of being a trial lawyer, is that your mind never stops analyzing issues related to pending cases – for better or worse – usually worse.  I know that I would pay any amount of money for a switch that turned off lawyer-related thoughts from passing through my brain the moment I stepped out of my office for the day  But it will never happen.  Nevertheless, the gist of the rule comes from this scene in Shrek:

[They are walking through the forest and Shrek belches….]




What?  It’s a compliment.  Better out than in, I always say. (laughs)


Well, It’s now way to behave in front of a princess.

[Then, Fiona belches.]

Bennett notes that:

The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.

How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.

It’s always an odd moment in jury selection when one prospective juror says, “yeah I know the defendant, and he’s a no good piece of garbage like the rest of his family, and I fear for my children unless he’s locked away for good.”  You could probably write a book on the proper reaction to that happening.  But better during voir dire than in the jury room.  I have experienced a case where almost that exact phrase was said for the first time during jury deliberations, and only after the verdict did the defense lawyers find out about it.  Of course, when this particular juror was asked by the judge whether he knew the defendant, he never spoke up.  But that is another issue itself.  At least when you get that out of him during jury selection, you have the opportunity to (1) get the guy excused for cause; and (2) rehabilitate your client by exposing the source of the guy’s animosity as incredible and irrelevant.  And, as a bonus, you may get others to agree with him and get them off as well.

The 4th Rule is the 90/10 Rule, which basically means listen 90% of the time and talk only 10%.  This is probably the easiest rule to remember, yet the most difficult to accomplish.  In my experience, it can get surprisingly difficult to get people talking – especially when things turn personal.

Bennett has now also posted his 5th Rule, the MacCarthy Rule, named after a Chicago public defender who said “talk in a courtroom like you would talk in a bar room.”  In short, don’t use “lawyerly” words and don’t condescend to the jury panel.  Or else, they get to burn you in the end.  This seems to be a corollary to the “be a nice person” rule, which I would add to the list.  We all know people who are nice people, and we all know jerks – whether they realize we know or not.  I believe that being a sincerely nice and friendly person will help the jurors like and trust you, while, like the rest of us, they will see through a facade of friendliness put before them by a world class jerk.  And we usually like to help those we like, and we generally don’t mind sticking it to those we think are jerks.

– John H. Bryan, West Virginia Attorney.

The job of defense is only easy when your client is the cop

The job of being a criminal defense attorney is a difficult one, and more so because you are constantly contradicting and questioning the testimony of police officers. Oftentimes it’s a losing battle, because most jurors are reluctant to believe that a cop would lie – or even exaggerate. But the tables turn in the rare instances when cops are charged with civil rights violations.

Bobby Frederick at the South Carolina Criminal Defense Blog had been covering the criminal trial of SC Trooper Steve Garren, who was basically caught red handed by his dash cam of swerving to hit a fleeing pedestrian suspect, all-the-while claiming “yeah, I hit him. I was trying to hit him.”

Despite this video evidence, replete with an audio admission, the jury found him not guilty. Now I have no idea what happened at the trial or in the jury deliberations, but the fact that this guy was a state trooper was the 800 pound gorilla in the courtroom. Certainly this would have been evidence beyond a reasonable doubt to a jury if we were talking about a civilian defendant. But jurors will give police officers a huge benefit of the doubt – whether it be with respect to weighing credibility against the defendant, or with respect to the rare instances where law enforcement officers are actually held to task for committing a crime.

These are one of the rare, rare situations where a jury will ever give a criminal defendant the benefit of doubt – including possibly acquitting him despite their belief that he was guilty. The jurors may have thought, yeah he did it, but the guy he hit deserved it, he shouldn’t have been fleeing.

– John H. Bryan, West Virginia Attorney

You never really know what did it…

After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.

There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.

There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.

– John H. Bryan, West Virginia Attorney.

Judge Halts Trial Because Jurors Were Playing Sudoku

Although this was in Australia, what would any government expect when you make jurors sit for a trial for 66 days? What kind of crime is worth spending a million dollars to prosecute? Drug conspiracy? If as the prosecutor, you reach day 66 of your drug conspiracy trial, you have officially bored the hell out of the jurors – not to mention put them out of business and caused their families to lose their home in foreclosure. Who can afford two months of jury duty?

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Braxton County Magistrate Convicted After Jury Trial

From the Charleston Gazette:

A jury found a Braxton County magistrate who is up for re-election next week guilty of attempted retaliation against a state witness Wednesday.

Prosecutors charged Carolyn Cruickshanks with conspiring to retaliate against Philip Dailey, who testified against her son, Jordan Grubb, in a drug case.

Cruickshanks reportedly delivered a copy of Philip Dailey’s plea agreement and a transcript of his plea hearing to the jail, where Grubb hoped other inmates would punish Dailey for being a snitch.

It always amazes me that these small-town political conspiracies involving corrupt public officials actually take place in West Virginia. Then, the corrupt official still runs for office as they are on trial…. Unbelievable.

Read the full two-page article here.

– John H. Bryan, West Virginia Attorney.

Mercer County Teacher Charged With Sexual Abuse- Illustrates Abuse of the Law

From the Charleston Daily Mail:

A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.

State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.

Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.

Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.

Tincher says the teacher has been suspended from her job.

What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.

Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.

Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Martin Found Guilty in Fayette County Triple Murder Case – Prosecutor Attacks the 2nd Amendment

From the Register-Herald today:

Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.

Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.

This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:

“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”

According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Prosecution Witnesses Testify in Martin Murder Trial in Fayette County

From the Register-Herald today:

Fayette County prosecutors presented 16 witnesses Monday and explained that they plan to call just one more today in the triple-murder trial of a Hico area man accused of gunning down three young men with an AK-47 semi-automatic rifle last Memorial Day on the road in front of his home.

Gary D. Martin, 57, of Stringtown Road, is charged with three counts of first-degree murder in the May 28 shooting deaths of Dustin Tyler Hughes, 22, of Hico, Christopher Lee Legg, 23, of Hico, and Carl Blaine Cox Jr., 24, of Edmond.

The defense is claiming that since a Glock pistol in a holster was found one one of the victims, that the shootings were justifiable homicide – or self defense. However, there are some problems with that defense; namely, that the pistol was found shot and damaged with the holster. The article doesn’t say whether the gun was actually still in the holster or not. If it was, then self defense would be a tough row to hoe. If the gun was not in the holster, then self defense would be an easier case. Reportedly, there were seven rounds in the magazine, which holds nine. So it is possible that the victim shot two rounds. However, none were found at the scene (but that still doesn’t mean they weren’t there). I wonder if they tested the Glock for gunshot residue – or the victim’s hands for gunshot residue. That could prove almost conclusively whether or not he fired a gun. I would hit hard on that if I were one of the defense attorneys. You will see a pattern of sloppy investigative work and repeated failure by the State to do all of the forensic testing or evidence collection that could have been done. Your theory almost has to be that it was self defense, and the State cannot prove beyond a reasonable doubt that it was not self defense, because they failed to do all of the testing that could have proven it.

Of course, all of this is assuming you have a fair and impartial jury. See my earlier posts regarding motions for change of venue. This would have been a good case for one.

Another problem with the defense is that there were three victims shot to death. Even if one of the victims had threatened or shot at the defendant, it would not have been justifiable to shoot all three to death. Yet another problem is the statements made to the passing motorists and EMT workers afterwards.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

What’s With the Thefts of Catalytic Converters in West Virginia?

You know times are getting tough when society’s derelicts stop burglarizing homes and robbing gas stations and begin stealing catalytic converters off of cars and electrocuting themselves trying to get copper wire off power lines.

Actually, from the incessant loud vehicles driving throughout some ares of West Virginia, I wasn’t aware that there were that many cars around that still had catalytic converters. It must be a right-of-passage for many high school sophomores or juniors to buy a 90’s model Mustang or F-150, and take off the muffler and catalytic converter, to therefore make it excruciatingly annoying to everyone else around them. Then, once they are off, they are pretty much off for good.

In the Register-Herald today, there was a story that police have arrested five members of a catalytic converter theft ring. Their names were Billy Jack Smith, 23, of Midway, Billy Price, 25, of Coal City, Nicholas Dale Bragg, 21, of Beckley, and Jeremy Allen Sanger, 25, of Hilltop.

They were charged with grand larceny, which is basically stealing something worth more than $1,000. What is the value of a catalytic converter? Are they basing the value of the catalytic converters on their black market value? Their individual prices if bought as new? The cost for buying a new one and installing it on the victim’s vehicle? That may be a jury issue. If either of the defendants can convince the jury that, although they stole the converters, the value was under $1,000, they would only be convicted of misdemeanors.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Not Guilty Verdict in Summersville Sexual Abuse Case

Yesterday Richard Workman, 40, of Summersville, West Virginia, was acquitted on charges of first-degree sexual abuse and sexual abuse by a parent guardian or custodian after a jury trial. The jury deliberated less than an hour before returning the not guilty verdict.

Reportedly, there was no physical evidence corroborating the testimony of the alleged victim. The alleged victim, who testified, was ten years-old. Assistant prosecutor Kelly Hamon said during closing arguments the girl had no reason to lie or to make up a story about Workman. Hamon also said Workman had two years to work on his story and was unable to testify without the aid of a written time line.

These are the most frightening cases imaginable. These charges will put people in prison for the same amount of time as first or second degree murder. However, unlike murder cases, the State does not collect a large amount of evidence. Prosecutors often rely solely on the testimony of alleged victims. The problem is, that without corroborating evidence, how can that be evidence beyond a reasonable doubt? Prosecutors like to rely on the argument that the alleged victim “had no reason to lie or to make up a story” about the defendant. The fact is, that it has been documented time and time again that some children will lie and make things up. Does it matter why they are doing it? No, it only matters that they could be making it up and there is no corroborating evidence.

In these types of cases (in West Virginia), the defense can give a special instruction to the jury – called a “Perry Instruction” informing the jury that if they believe that the testimony of the alleged victim is uncorroborated, they should scrutinize that testimony with “care and caution.”

This case is very similar to a case that I tried earlier this month, after which my client was also found not guilty. People don’t realize that in order to be found “not guilty,” all 12 jurors have to unanimously return a verdict of “not guilty.” Needless to say, it can be very difficult to get 12 people to agree on anything. The goal of the defense attorney in these cases is to pound into the jurors’ heads the fact that the prosecution has the burden of proof to prove the defendant guilty “beyond a reasonable doubt.” This is not always an easy job, because jurors want to listen to the alleged victim testify, and then listen to the defendant testify (which, by the way, the defendant almost always has to testify in these cases) and then compare the two. They tend to choose the one they most believe. Their duty, however, is to compare the alleged victim’s testimony and the state’s lack of evidence against the “reasonable doubt” standard – which in reality should be a difficult burden for the state.

However, for every acquittal, there are probably several others who are wrongfully convicted on evidence that was far less than a “reasonable doubt.”

Read the entire article from the Register-Herald here.

– John H. Bryan, West Virginia Attorney.