I just finished serving on a jury. So now, a rant against the defense attorney...

I just completed my first jury duty experience where I actually served on the panel. The trial was short and sweet, and the defendant was guilty-guilty-not guilty for DUI, DWI, and battery, for those who care.

But that’s not what brings me here. What was killing me during this trial was defense attorney’s absurd logic, redundant questioning, specious arguments, and misleading conclusions. As a soldier in the daily battle against ignorance, some of his statements had me writhing in intellectual agony. I really wanted to yell “FALSE ANALOGY!” (among other things) from the box, but alas, I could not.

So here, I must respond. Let’s begin.

1)“The 300lb victim slammed my client in the back of the head [And no, he didn’t “slam” him, at least from what the evidence told us]. 300lbs! Did you know that Mike Tyson was only 220lbs and George Foreman 230lbs at the height of their career? You can imagine how much more damage he could do at 300lbs.” [I’m estimating his numbers for the boxers.]

Um….yeaahhhh. Somehow I think both of those boxers could beat the holy lovin’ shit out of the 300lb victim (a security guard), and really, almost anyone regardless of size. You know, the whole “Heavyweight Champion of the World” title thing. This comment made me smile.

2) “And, look at me. I’m only about 200lbs [the defendant was a little dude of about 165lbs], so the security guard at 300lbs would be able to hit at least 1.5 times as hard.”

Yeaaaaaaaaahhh. And by that “logic,” someone weighing 1000lbs ought to be able to hit at least 5 times as hard. That is, when they can get the strength to get out of bed. Or lift their clenched fist. This comment had me chuckling to myself and trying to hide my grinning mug behind my hands—after 5 days of this kind of malarkey, I just couldn’t contain it any more.

Now, a little background. The defendant blew a 0.15 and 0.16 an hour and a half after he was arrested, once he arrived at the police station. Why no field sobriety test? He was too drunk to perform the tasks. The police had to help him stagger into the car. Since the test was conducted so much later, they brought in a criminologist who is an expert in forensic alcohol tests to explain (among other things) what the defendant’s likely BAC was at the time of arrest. It’s simple, really. Alcohol metabolizes at a rate of .02 per hour on average (from .009 to .035), and since he had nothing to drink AFTER he was arrested, the lowest his BAC could have been at time of arrest was .18….02 x 1.5 hours = .03. .15 + .03 = .18. No magic there.

**3) Dorky Defense Attorney Who Wears Striped Shirts With Weird Checkered Ties and Tweed Jacket: "Okay, Mr. Expert Witness on breathalyzer tests. [So I’m paraphrasing.] What FORMULA did you use to estimate the BAC of the accused at the time of the arrest?”

Witness: “What formula? There is no formula. It’s just simple arithmetic. Alcohol is process at an average rate of 0.02 per hour, so going back 1.5 hours, it could be as high as 0.18…”

DDAWWSSWWCTATJ: “So can you explain what FORMULA you used?”

W: "WHAT FORMULA? There is no formula for this…02 times 1.5 is .03…”

DDAWWSSWWCTATJ: “So you’re saying there is no formula? You’re just making the numbers up?”**

As a math teacher, I was about to have a stroke. The witness applied simple math reasoning and created a simple equation to solve to problem. THAT’S NOT A FORMULA. And guys, this line of questioning went on FOR OVER 10 MINUTES—the same thing asked 15 different ways. My head asplode.

Then the DDAWWSSWWCTATJ got into the Breathalyzer test. Oh, man. Of course, this is all paraphrased.

**4) DDAWWSSWWCTATJ: “How does a Breathalyzer work? Do you even know how the machine works?”

W: “The DataMaster passes infrared light through a chamber, and uses this light to seek out molecules with the specific wavelength signature of ethyl alcohol. If the molecules with that signature aren’t there, it doesn’t record them. It then estimates the number of alcohol molecules and compares it to the amount of expressed breath.”

DDAWWSSWWCTATJ: “But do you know how it works?

This goes on for…geez…10-15min.

W: :smack:**

Later, in his closing arguments, DDAWWSSWWCTATJ refers to the DataMaster breathalyzer test machine as “The Voodoo Box.” Are you effin’ kidding me?? Look, I know the guy didn’t explain how to build the damn thing, but I certainly got the principle. SHEEZO.

Me: :smack: :smack: :smack:

This feels good, but this feels long. I’ll be back with more later. I should warn you: the dude quotes Wikipedia to try and counter the expert witness’s conclusions from peer-reviewed research and correlation studies.

Oh, and I also have a rant about the one juror who held out (briefly) because she believed the DDAWWSSWWCTATJ.

Personally, I use the ID-10T model ‘Voodoo Box’ from Acme Inc. It actually does come with a user’s manual and handy-dandy decoder ring. In the user’s manual, it does have a formula, including a homogenous equation model from a derived differential equation based on the poles and zeroes based on alcohol in the human blood (with e^1.84 being the root locus).

It’s all really elementary, to be honest. But, it’s okay to be embarrassed . . . most people don’t really get into the nitty-gritty of things.

But then again, if you’re drinking so much to be seeing double, just cover one eye: :smack:

Sounds like the Defendant got what he paid for, lawyer-wise…

Sounds like the defense attorney did a pretty good job. He almost hung the jury by getting the holdout to tag along with him for at least a little while. You do realize that it’s not the job of the defense attorney to use logic or reason, right? It’s his job, in fact his ethical obligation, to do whatever the law allows to keep his client from being convicted. So if he can do that by confusing jurors about how hard someone can hit or how a breathalyzer works, then that’s what he’s going to do.

Did they give you a chance to talk to the attorneys after the trial? When I was on, I was the foreman, so I felt obliged to. The defense in my case did the best he could with a moron for a client and the moron’s friend who contradicted himself. It might have been fun to tell your defense attorney that his tactics backfired for you.

Too bad nobody on the “side” of the jurists is allowed to ask questions and clarify points. Would that backfire somehow or not make the trial “work” properly or somesuch? Imagine going into the deliberation room with a bunch of unanswered questions floating around in your head, ones which nobody will be answering for you.

Otto, you’re absolutely correct that that is the current view of the defense lawyer’s ethical duty.

It doesn’t change that for a majority of people, myself included, the use of these sorts of baseless arguments (Which I believe were pioneered by the use of the original “Twinkie Defense.”) that have little, or nothing, to do with the facts of the case and are only intended to confuse witnesses and/or jurors contribute to the impression of lawyers as lying scum who will say anything for the right price.

I don’t know that there’s any way to change the situation, but I do tend to think that it’s a mode of operation that costs both society and lawyer’s as a class, more than any individual benefit to the client in question might be worth. I don’t know… but it just rubs me the wrong way.

Maybe that’s the case in Florida but in California we were certainly allowed to submit questions (they had to be in writing and they were answered back in court with the entire jury seated).

I bet the prosecutor was more than happy to sit back and let the defense attorney give off I’m-so-desperate-that-I-have-to-resort-to-this-feeble-horseshit vibes for as long as he pleased.

Yeah really… the jury system is just being tried out, in Spain, but if I’m going to be making decisions that affect people’s lives, I bloody well want to be able to ask questions!

Twinkie Defense? It sounds more like the defense attorney was using the Chewbacca Defense.

“Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.”

Was this a crminal case? Are you say that a jury member could request that questions could be posed to witnesses?
I believe that U.S. juries may submit questions to the court, during deliberations, and the judge decides whether the questions are appropriate and can be answered, but I’ve never heard of juries being permitted to ask questions, pertaining to the case, during the trial. I’d like to hear a Ca. lawyer address this.
It may be permitted in civil cases, and I know it’s part of the procedure in a grand jury, but I can’t imagine it in a criminal case. It seems to me that it would lead to chaos and confusion.

I realise that the defence attorney should represent their client to the best of their ability. Nobody wants a show trial demonstrating the power of the State over an individual.
The defence should present their evidence and challenge the prosecution’s case. They can allege corruption or incompetence.
But I fail to see where appealing to stupidity fits in with ethics.
In the case given, the expert clearly knew how the breathalyser worked and (in my opinion) the defence should not have blathered on about ‘how does it work?’. (Asking what the failure rate is would be reasonable.)

Having known a public defender rather well (an ex-boyfriend) they kinda get desperate sometimes, because the guy obviously totally did it and they have nothing to go with. It does sound like he tried with what he could come up with, even if it was stupid, but you work with what ya got.

Innocent until proven guilty yadda yadda…sometimes the proof of guilt is just far too overwhelming and the defense is pretty much screwed.

Heh. That’s exactly right. If you see your opponent floundering and annoying the jury, do your best to avoid the judge’s eye (as he or she sends you eye darts trying to get you to object), and let it all go. It sounds like the bases for his questions were utterly appropriate, and other cases certainly have held that if the “black box” machine which spits out the results isn’t working properly (or the witness can’t demonstrate it’s working properly), then the evidence can’t be admitted.

You work with what you have.

Then welcome to California, land of chaos and confusion. :wink:

Pursuant to some rather wholesale changes to the jury system over the past few years, jurors can take notes, courts can permit a “mini” opening statement before the jury panel is voir dired (i.e., before the jury panel of 50 veniremen is questioned and whittled down to the 12 jurors), the judge can give jury instrutions before the trial begins so the jurors know what’s coming (jury instructions are still given at the end), and, if the jury reaches an impasse, the judge can do a number of things – give new instructions or permit additional closing argument for example – to help the jury reach a verdict.

Relevent to this discussion, trial court rules also permit jurors to ask questions of witnesses, although counsel can object to a question before it’s asked. That, I think, takes care of any concern about chaos and confusion, because it isn’t a free-for-all, but instead just permits a juror to submit a question and, if the judge approves it, the question will be asked. (And, yes, these rules apply to both civil and criminal cases – cite.)

Wow, just Wow!
How long has this been in effect and do you have any take on how it’s working?

That is precisely what I was thinking on day 2 of the trial. I felt like I was living an episode of South Park.

As far as asking questions: We could ask that the court reporter read back testimony to us, and we could ask for clarification on the law or the charges, but that was only once deliberations started. And we absolutely could not question the attorneys or the witnesses. We were a tortured, captive audience.

I did talk to the prosecutor (this was his first jury trial, BTW) and defense attorney briefly after the trial. I really wanted to get home, so I didn’t stick around for long. That, and if I stuck around talking to the Dorky Defense Attorney for much longer, I might have tackled him and placed him under citizen’s arrest for perpetuation of stupidity.

I don’t remember exactly how it came up, but I described to the prosecutor my maddened frustration over the defense attorney’s questions. The prosecutor raised an eyebrow and responded, “So it wasn’t just me? The defense attorney’s questions were aggravating?” Me: “OH DEAR GOD YES they were!”

The prosecutor at another point in the conversation turned to the defense attorney and said, “She [me] was a big fan of my expert witness.”

Me: “Um, well, I wouldn’t exactly call myself a fan. I’m not going to start a fan club or build a website for him.”

Defense attorney: “But he wouldn’t show THE FORMULA he was using!”

Me: :smack: “That’s because THERE WASN’T ONE. He used SIMPLE MATH and applied SIMPLE MATH REASONING to a problem…it’s basic arithmetic!”

Defense Attorney: “Yeah, but I talked to a DUI defense attorney expert–I’m not a DUI lawyer [no shit]–and he said always make the experts show their formulas and explain…”

Me: “THERE WAS NO FORMULA. He explained how he came up with the answer–you were just asking him to show his work, and he did. You kept asking the same question 15 different ways, and he had answered you the first time.”

FTR, the witness had said at one point, “You’re asking for apples when I’m giving you oranges. There ARE no apples for what you want–I’m speaking in oranges only.”

Then the defense attorney was vexed why I believed the machine, asking about calibration and such. I’ll get to that later…I have a toddler needing attention.

The rules have been under consideration for some time, but became effective January 1 of this year. Prior to that point, judges used their own discretion about whether to permit some of the things that now are explicitly authorized, so it was a bit hit-or-miss. But since its implementation, I’ve not heard complaints. I am aware of one trial that permitted closing arguments after the jury reached an impasse – they told the judge that they couldn’t decide, so the judge let the lawyers do another closing argument to help the jurors over the problems they were having. Juror note-taking also is pretty common.

California isn’t alone, by the way. A number of states also are looking at ways to improve the jury system.

If he can get you to believe that the machine wasn’t properly looked after and wasn’t properly calibrated, there’s no evidence his client was drunk. There are a number of appellate cases reversing convictions, etc., because the evidence relating to the machine didn’t show that the machine was reliable.

They also sell “trials in a can” to DUI defense lawyers (frankly, to just about any kind of lawyer – on the civil side for plaintiffs’ lawyers, there’s tobacco trial-in-a-can, drug trial-in-a-can, etc.) that tells the lawyer what to do, what evidence to use, how to challenge witnesses, etc. Sounds like this defense attorney didn’t know what he was doing and was instead relying on someone else’s work (which he didn’t understand) to try the defense.

Ah, yes, the machine calibration.

The expert witness explained–and demonstrated through use of official printed logs–that the Datamaster breathalyzer machine is checked for accuracy on a frequent basis. The machine is connected to the lab’s computer via a server, and every few days the server asks the Datamaster to calculate the ethyl alcohol content of a known substance (it’s .107, IIRC). The machine used in this case had been tested 2 days prior to the defendant’s arrest, and a few days after–and both times was shown to be in perfect working order.

But Mr. Defense Attorney got stuck on demanding “WHEN WAS THE MACHINE CALIBRATED? You mean you don’t know? You mean it hasn’t been physically calibrated since it was built?” And of course Mr. Expert Witness explains–over and OVER again–how the machine was/is frequently tested, shown to be accurate, and thus doesn’t need physical calibration. Again with the “SO IT HASN’T BEEN CALIBRATED, HMMMMM?” argument. Again I say :smack: .

So when Mr. Defense Attorney brought up the whole calibration issue after we’d delivered our verdicts, I again said, “You’re referring to physical calibration…and no, it wasn’t, because it had been REPEATEDLY made clear that this machine was calibrated and thus didn’t NEED physical calibration. It was very obvious it was in fine working order.”

Defense Attorney: “Yeah, but…”

Me: “I gotta go.”


I have jury duty in two weeks. If I get called to a panel and am voir dired, I may mention that one of my hobbies The Fight Against Ignorance and frequently encounter people who have a limited grasp of critical thinking. I seriously doubt I’ll actually serve on a jury. But at least I’ll get to sleep late on the days my juror numer is called, and save a lot of money commuting to work.