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Minority Matters October 2013

The trial process, the important decisions lawyers make their effect on the outcome of a trail. Panelist: Michael Johnson- UALR Law Professor, Jimmy Morris Jr. - Defense Attorney.


Welcome to "Minority Matters".  I am your host Sylvester Smith.  Most of us have some curiosity about the legal system.  We watch TV shows about lawyers and debate the outcomes of real life trials and today we will talk about the trial process and the important decisions lawyers make and the effects of the outcomes of the trial.  Today joining me is Michael Johnson a law professor at University School of Law and Jimmy Morris an defense attorney in Little Rock.  Thank you for joining us today.

Thank you for having us.

I have been hosting the show and I will take a point of personal privilege and Dr. Johnson was one of my professors and taught me everything I know how to do a trial and I learned from you Jimmy Morris and if you see me practicing law in a way you don't appreciate you can reach out to these two gentlemen. Let's pull back the curtain for of the legal process.  For most people they experience a trial with a civil issue they deal with or an accident that they or a family or friend deal with and let's educate the audience how that process will work. Dr. Johnson, I will start with you.  What are the different components of a trial?

Well, the trial starts after a suit is brought or charges are brought in a civil or criminal case and based on discovery based on the rules, civil or criminal the parties exchange information, factual information directed by various rules that apply.  Once then that is done the trial will start with the selection of a jury.  It will then be followed by a certain number of steps that occur beginning with the party that has the burden of proof.  In a criminal case that's the prosecution.  They will present an opening statement.  The defense will present an opening statement.  Those aspects are designed to outline for the jury what they could expect the parties expect to be shown during the trial.  The party with the burden of proof, the prosecution will present its evidence and witnesses and at the conclusion which the defense has the option whether to present evidence or not to present evidence.  If they choose to present evidence they will present their side of the case.  The prosecution will have the opportunity to present evidence to refute what the defense presented.  The judge will instruct the jury to the applicable law and the conclusion is the final statements, final arguments by the parties and then the jury's deliberation.  I mentioned that it starts with an opening statement but really I skipped one pretty critical part and that is the jury selection process itself.  People from the voter rolls are summons to court and go through I process called voir dire and the parties are allowed to ask them questions within guidelines and they're picked for the jury whether they're qualified to sit for that particular case. Qualification means they don't have a preconceived opinion about the case and they can be fair and impartial to both sides.  It's the essential rules of the trial process.  That is the trial process.  It's also governed by certain rules they think are important for us to understand because it is an effort to determine the truth, but at the same time we have rules of procedure and process that govern what the jury's allowed to consider, and in many instances those can be critically important to the outcome of a particular case.

I think that was a very good overview of the different components.  Jimmy, let's talk a little bit from your perspective about which one of those components is the most critical?

Well, I remember this old joke and starts out stating that during jury selection this is where cases start in America, and the old lawyer says this is where they start and end.  I think one of the most critical phases especially from the defense standpoint is jury selection.  If the jury cannot relate to you, relate to your client, cannot understand what is going to be going on as it relates to the law and what is going to be presented to them I think that is going to hinder any other aspect of your case, and so for me I found that my cases are generally better served or better done if I spent a lot more time on jury selection and jury little time on opening because I get a chance to talk to jurors.  See how they feel, educate them about why we have certain rights and certain privileges in America, and also I get a chance to lay a foundation for who has the burden and what that burden is.  A lot of times in a criminal trial it looks as though we are searching for the truth, but truth may not ever come out.  What you want them to understand any deficiencies in the system should go towards the defendant and so I think that the only time you get a chance to talk to the jury and best time to lay that foundation is going to be during jury selection or voir dire.

Just to clarify when you speak of the burden you're talking about the burden of proof.  Who has the obligation to convince the jury of one thing or another?

Absolutely.  In a criminal trial the state or federal government has the burden and keeps the burden the whole time. The defendant doesn't have to prove anything, and so if you show a jury or people in the panel that they're going to have the burden and you make sure that they keep that particular burden throughout the whole thing from a defense perspective it always makes your trial go a little smoother because it keeps the burden on the prosecution. Now I will say this.  When we -- just in regular day life we want to hear both sides of the story, and whichever side tells the best story is generally what we believe, but that's not the process in a criminal case.  Who -- or the prosecution itself keeps the burden the whole time. They have to prove it and in America they have to prove it beyond a reasonable doubt and that sounds like an easy burden but that's the most difficult burden we have in this system of jurisprudence.

And he brings up a interesting point and I know this wasn't necessarily on the syllabi for the discussion and would you speak to this and I know you speak about the systems of jurisprudence and he mentioned the burden is beyond a reasonable doubt and in other systems there are different burdens and systems which the defendant has to prove innocence.

Yes?  Systems have that and Jimmy is talking about a fundamental aspect of our constitution.  That's why we have the burden of beyond a reasonable doubt and leave with with the government and there are certain exceptions and I will address those in a second and some of those are based on the outcome of the George Zimmerman trial but the constitution defines a series of rights every person charged with a crime has requires the government consistent with recognizing those rights to establish guilty beyond a reasonable doubt, so it is a heavy burden.  It often can be met but in cases where there is a dispute factually it can't be met and that's because the facts are not clear enough for a jury to decide beyond a reasonable doubt.  There are sometimes we put a burden on a defendant when the defendant assert what is we call an affirmative defense. The self defense is sometimes referred to as an affirmative defense and at least one state that puts the burden on the defendant to establish by a lessor degree than beyond a reasonable doubt that he or she is entitled to self defense.  In other jurisdictions, Florida being one of those, and that's common in most jurisdictions in the United States, once the defendant provides an ample factual basis that he or she acted in self defense the government still has the burden to prove beyond a reasonable doubt a crime and now has the burden to prove beyond a reasonable doubt that self defense wasn't available to the defendant and that was the case in Florida with the George Zimmerman case and Jimmy you talked about voir dire --

Voir dire is the Latin and legal term for jury selection.

It is the term for jury selection.  It literally means "to speak the truth."  We ask the jurors to speak the truth of things they may know.  An example of things done in voir dire is to determine in the George Zimmerman prosecution whether the jurors had been exposed to publicity.  They're charged with the responsibility of deciding the case inside the courtroom and not outside the courtroom before they got there and part of the process is to determine whether they were exposed to publicity, whether that publicity affected their opinion about the matter before they're selected.  That is an example of a type of thing but what Jimmy said is critical important to emphasize here and as you know when we did the national trial competition of which you were a team member, something I emphasized a great deal, and that is the concept of primacy and recency.  Those are actually education theories and what I mean by those what people hear first and last they retain best.  For example if I gave you a list of words to repeat back to me I could predict that you would most easily remember the first word on the list and the last word on the list and have more trouble with the words in the middle so what Jimmy is really talking about voir dire is primacy.  If you have your opportunity to both establish your personal credibility within the jury process and outline the legal ethical basis for the claims and your factual assertions you're taking advantage of primacy.  You're getting the jury from the beginning to see it or view it from the perspective you want to view it and that's a very important component of trial.

Let's talk a little bit about what we see on television.  On every episode on "Law and Order" it seems like the case is decided upon the closing argument and it's the same thing in any legal drama on television.  Is that the reality in real life that the closing argument determines the outcome of the trial?

Not to me.  If you don't start strong all the jury studies that have been done where jurors can asked to indicate how strongly they favor a view throughout a trial all of them indicate there is an 80% correlation how people first assess a matter and how they finally decide it.  That means if you start well you have four chances out of five that the jury will decide the case in your favor and so to me opening and voir dire are the critical parts of a case.  If you're waiting until closing argument to win a case you've lost. Closing argument I think is extremely important but it primarily serves the purpose of satisfying the jury that they're feeling about what the outcome ought to be is correct.

And I agree.  However, I will say this.  When I prepare a case I prepare it in reverse.  I prepare for what I am going to argue at the end, but I try to win it in the beginning.  In other words, the closing argument I use just to connect the dots and I put a lot of dots out there and at the end I come back to connect the dots but if I don't establish at the beginning certain things I don't think I can connect the dots. The other thing is I have learned the Smucker's Complex as it relates to trial or business. In other words a lot of people are susceptible to be promised a lot of things.  The problem is it has expectations and I learned to lower the expectation and exceed them is generally better so in the opening I don't tell you a lot I'm going to prove and especially in a criminal case because I'm not going to prove anything.  I will be the class clown and make fun of the state's evidence like it's the biggest joke ever but  if I haven't established a rapport with the jury they're not going to laugh at me making fun of the prosecution's case. They're not going to find it funny unless we establish some rapport and the closing is connecting everything during the trial or everything you made fun of during the trial.  It also goes to you what you established in voir dire and I think in this Trayvon Martin case that we will discuss later on I think the defense attorney did an excellent attorney of showing in closing argument what beyond a reasonable doubt was and I don't know if you recall he had a chart, and in his chart it had a burden, reasonable suspicion which is very low and stair stepped all the way up and he got all the way up to you really, really believe this person did it.  That's still not beyond a reasonable doubt, and so at the end of the chart it would show not guilty.  Well, if you look at what he did in the beginning to prep them for that chart showing them the different burdens and how it would be not guilty that chart would have no play at the end so you establish at the the beginning and connect the dots at the end and if you wait until closing arguments you have lost that case. >>I think this is a great organic transition.  I believe it's great to explain to people how things work but it solidifies in their mind when you connect it to recent events and seems every year we have a trial of the century that Nancy Grace is going on and on about and the most recent one was the Trayvon Martin trial -- excuse me, the State of Florida versus George Zimmerman and we refer to as the Trayvon Martin case and let's use what Jimmy did and highlight for the audience some of the approaches we're talking about.  I think the most read about thing and Professor Johnson you're a former federal prosecutor and ask you to look at the defense case but not exclusively and Jimmy I am -- I'm sorry I want you to look from your vantage point at the defense case and Jimmy since you're a defense attorney look primarily at the state's case but again not exclusively but it seems that one of the most important moments at that trial that was talked about more than anything else was the knock knock joke, the joke that Zimmerman's attorney told at the beginning and will you talk about that joke and whether humor has a place in a judicial proceeding and especially one that was on trial for murder.

The joke was "knock, knock, who is there?  George, George who?  You're on the jury" and to me that was insulting to the jury and basically calling them being disconnected in society and ignorant of the publicity that had been nationwide for a considerable time for the incident involving Trayvon Martin.  It was a terrible choice in my view for the defense attorney to start his opening statement with that joke.  It fell very flat but obviously they recovered from it.  On the subject of humor in trial -- I mean trials are really about feelings, particularly lawyers want to think that jurors make decisions based on facts and my personal assessment juries decide cases based on how they feel.  They do what they believe to be right. Now that isn't they ignore the law and they ignore the facts but they're trying to do what is right in the context of the law that they're given and that's really about as a feeling.  They look to the facts and the law to validate that feeling as justified, so do emotions play a part in a courtroom? Absolutely.  Every witness that gets on the stand has some emotion about it.  I mean certainly Trayvon Martin's parents who testified.  George Zimmerman's parents who testified all had some emotional connection.  There were a lot of witnesses who were friends of George Zimmerman.  There were the people -- Zimmerman and people from the neighborhood and everyone had feelings and to ignore that is a mistake on the part of lawyers.  Where does humor come in?  It's one of the feelings we have and we think some things are funny but it has to be appropriate to the circumstance.  That's one.  It has to be appropriate to the circumstance.  Second, sarcasm is very subtle humor and great humor when we appreciate it but it really requires us to know the person and the circumstance and appreciate it and very hard to pull it off effectively.  I think the attempt at humor to lighten something may have been a tactical mistake in the first place.  Certainly that jokes and thinking about the implications of what it means I thought was a horrible tactical choice.  That doesn't mean humor doesn't have a choice.  I think that one was particularly misplaced in that trial.

And I would agree.  I mean I personally use humor and emotion as it relates to trial.  I have been told that -- well, we ask jurors not to use sympathy and prejudice but we're asking them to disconnect what they're going to do anyway but I have been told that a good lawyer is going to have an emotional response from the jury, emotional tie to the jury of some sort, so yes sometimes.  Sometimes sympathy. I have apologized to witnesses for what they're going through before and so I think it always is going to play a part in a criminal trial.

Oh okay believe it or not we're down to the last five minutes of the show and we will enter the lighten round and pick up the pace and I will throw things out there and you comment on them or very important moments in the trial we want to discuss let's get them out.  One of the most telling moments for me was the testimony of Ms. Janell I can't remember the last name but Trayvon Martin's friend he was speaking to on the phone and one of the key components is witness prep and she was the state's witness and Jimmy do you think they prepared her adequately?

No.  I don't think they prepared her adequately.  I think they probably spoke with her a couple of times but I don't think they took the time to prepare her for what she was going to experience on cross-examination and I think it showed.

One of the other things that I really like to talk about unless you have a significant thought on Janel?

No, I agree entirely with Jimmy.

One thing I would like to talk about and this was a decision by the prosecution but it worked to the defense's advantage, the fact that the prosecution introduced some of Mr. Zimmerman's statements into their case and chief created a situation in which Zimmerman didn't have to testify.  Talk to me about that decision and whether or not you think that allowed Zimmerman to get away without testifying? >>I think absolutely.  It made the tactical decision for the defense very easy, and this really requires a bit of explanation and it's very easy to sit here months after, not having the responsibility for putting together the case to look back on it and seem critical, and I don't mean to convey that notion, but from a tactical standpoint the statements that George Zimmerman said to the police, the video reenactment that he walked the police through, none of that is admissible from his attorneys based on the rules of evidence. They couldn't have elicited that information even when the police testified hence the state opening the door to allow that and once they did that and recounted the events that took place between him and Trayvon Martin George Zimmerman's story was out there for the jury without the risk of George Zimmerman facing cross-examination in front of that jury.  That was a huge tactical advantage for the defense and made the right decision in my view and not expose him to cross-examination and there was nothing he could have added about the factual scenario and talked about in opening and closing very successfully.  They were able to convey through the statements Zimmerman had given to the police that the prosecution put in that Trayvon Martin acted as the aggressor and the physical confrontation and to me that was critically pivotal in the outcome of the case.

And if you add to that the prosecution had no viable theory of how the allocation started. They have him getting out of the start and coming into contact with Trayvon.  They have somebody telling what Trayvon said and then it stops. Everything goes quiet and there is no theory and a good defense attorney is going to think during voir dire "What are you going to do if a state doesn't meet an element or has a gap? Are you going to fill it in for them?" and had the expectation they would fill it in but they didn't.

And we're about to wrap up and overall thoughts and assessment of the trial from both sides? >>I think the evidence is what the evidence is.  What I mean is the physical evidence really dictates which witnesses we will believe and which witnesses stories we wouldn't believe.  It wasn't surprising that the neighborhood witnesses saw things differently.  That's human nature.  Some people had George Zimmerman on top of Trayvon Martin and some on Trayvon Martin on top of George Zimmerman and they weren't trying to lie but relive the event from a limited perspective and it's typical of witness testimony.  The defense did a great job of tying the physical evidence of the cuts and bruising that Zimmerman had, the grass stains on his back with their theory, and the prosecution failed to tie the physical evidence to any theory, and I think that was critically difference in the outcome.

Jimmy I got about 30 seconds for you.

I can make it brief. Insufficient evidence:  When the prosecution got the case there wasn't evidence based on the investigation to get a conviction and I think it showed.  I think the prosecution did the best with what they had but they didn't have much.

With that I want to thank you gentlemen for coming and joining us and this has been a very dynamic and educational conversation and with that ladies and gentlemen most importantly I want to thank you for watching us and we will see you next month.