There is nothing quite like representing a disfavored litigant, such as a criminal defendant, at a jury trial.
It is said that public speaking is the most stressful, even terrifying, of human endeavors. What is usually meant by “public speaking” is a presentation by one person to a group of people who are voluntarily there to listen and who, if not favorably disposed to the subject matter and the speaker, are at least not hostile. Yet even in this relatively benign atmosphere, speakers routinely experience anxiety attacks, nausea, fainting spells, and so on, due to the prospect of submitting themselves to the acute scrutiny of people they usually don’t know.
Other than the fact that it involves public speaking, representing a criminal defendant at a jury trial is incomparably more difficult. Incomparably.
In the first place, the audience is not there voluntarily; their attendance has been compelled under subpoena. They have been effectively drafted to appear and to listen. Second, they are not favorably disposed to the subject matter or the speaker. In fact, though some might claim that they wouldn’t care at all about the subject matter except that they had been compelled to attend, the reality is far more daunting. They do care, if only in an abstract and limited way, because nearly everyone cares about “crime”. But that is not a comfort to the criminal defendant or his attorney – quite the contrary – since all that means is that the issue to be placed before them has been disadvantageously framed in advance at a very deep level, and is already, for that reason, resistant to evidence, or argument, or instruction.
But evidence, argument and instruction are all you have to work with.
The atmosphere, for the criminal defendant and his attorney, is therefore not benign. It ranges from an entrenched and difficult to overcome skepticism to a hardened hostility. When you pick the jury, a typically lopsided procedure in itself, you have done the best you can possibly do if the panel is afflicted by entrenched and difficult to overcome skepticism. Most of the time, due to circumstances beyond your control, you do worse.
Then there is the often all too palpable official consensus that permeates the courtroom through its many and seemingly ubiquitous trusted officials: deputies, police officers, the judge, the court staff, the court reporter. The consensus is that the defendant is guilty. This is never said outright; in fact it is often explicitly and formally denied at one point or another during the proceedings, at least by the judge. On the surface this is a corrective measure. At a deeper level it often makes things worse, especially when it rings hollow, contrasting with a thousand other subtle and not-so-subtle things the judge does during a trial that nevertheless unambiguously indicate the opposite.
In the usual public speaking setting, while there is often something at stake such as making a sale or educating the listeners, the relationship between the event and the consequences is diffused and attenuated. You can make up for a bad performance with a good one the next time. You have a team of people behind you or below you or above you that are on your side.
Not so with a criminal defendant. You and your client are alone in the courtroom. You have no friends, at least none who matter or can have any significant effect on the dynamic at work. A bad performance is not remediable: there are no mulligans or do-overs (Appeals? I’ll deal with those elsewhere). The consequences of failure are acute. They happen right in front of you. They are serious: even misdemeanor convictions can have a devastating impact on a person’s life.
From the time a jury pool comes into the courtroom for the selection process, the criminal defendant’s lawyer – if he’s paying attention – can feel the intense scrutiny, as soon as the pool figures out who’s who. The prosecutor faces no such adversity: he or she is routinely seen speaking to and closely collaborating with uniformed, reassuring authority figures who all stay on the prosecutor’s side of the room. On the defendant’s side of the room? Him. His lawyer. Some family members, maybe, who do not wear uniforms or indicate any reassuring, easy familiarity with the judge, the deputies, the other officials.
Here’s how the scrutiny works: the prosecutor can smile, even laugh or joke with the uniformed officials that accompany him. That indicates confidence and self assurance. He can be solemn and taciturn. That indicates seriousness and grim determination brought to the difficult task of combating crime. He can whisper with the officials or assistants or court staff without arousing suspicion.
Not so for the defendant. If he smiles or laughs or jokes he is flippant, arrogant, defiant. If he is solemn and taciturn, he is acting guilty. If he openly and frankly looks at the jurors he is brazen, even threatening. If he looks away he is cowardly and – again – guilty.
He can’t talk with any other players in the courtroom, other than his lawyer, because among other reasons nobody else will talk to him. And when he does talk to his lawyer, in hushed tones, alone, at the defendant’s table, he is suspicious, crafty, hiding something.
To be continued…