Knowledge Seminar: Criminal Trials Journey to Justice

[Applause] [Music] hello and welcome to the court a Oh exchange programs knowledge seminar I'm your moderator Charley Hall of all the events that occur in a federal court few are more central or more dramatic than a criminal trial today's knowledge seminar is going to provide an inside look at criminal trials from the viewpoint of judges prosecutors and defense lawyers today you will witness a crime in progress then follow the process from investigation and arrest through plea negotiations through opening statements and witness testimony and finally the jury verdict I am pleased to introduce our panelists joining us today to my immediate right is senior judge Henry Hudson judge Hudson has been a US District Judge for the Eastern District of Virginia since 2002 in an extraordinarily rounded career he has served as US attorney for the Eastern District he has been US Marshal for the entire federal system and he even started actually as a deputy sheriff in Arlington County has truly seen the justice system from every possible angle moving further to the right I'd like to introduce Magistrate Judge James Ornstein of the Eastern District of New York Judge Ornstein has been an assistant US attorney in New York he also is an adjunct professor at the new New York University School of Law and he also has taught at Fordham and Brooklyn law schools also joining us is Xia Farooqi from the US Attorney's Office in the District of Columbia Xia has litigated numerous civil and criminal matters at both the district court and Court of Appeals levels his area focuses on international money laundering in the areas of national security and cybercrime and then finally of course there are two sides in every criminal trial so representing the defense perspective as Keanu Givens she's an assistant federal defender for the Western District of Washington but Kiana currently is actually working here at the ayo on temporary detail to the defender services office she's a faculty member at the national criminal defense college and for the trial skills Academy for federal defenders she trains lawyers in the use of technology at sentencing and also address unconscious bias during jury selection so welcome Keanu and thank you for being part of this so now I so hope if we get luck okay so to start our program we have created a short video as an introduction to criminal trials let's take a look in federal court the main prosecuting agency is the United States Attorney's Office often the first stage of any case is an investigation where state or federal law enforcement officers gather evidence investigators must approach a judge in order to obtain a search warrant based on probable cause in the federal courts a magistrate judge often presides over these requests if there's evidence of probable cause to believe that a person committed a felony the prosecuting attorney may seek an indictment from a grand jury formally charging the crime the information or grand jury indictment provide the basis for requesting an arrest warrant from a judge law enforcement officers then arrest the suspect during this stage officers will give a Miranda warning to comply with the rights granted by the fifth and sixth amendment the suspect now a defendant is then brought before a magistrate judge without unnecessary delay for an initial appearance hearing there several things happen a magistrate judge advises the defendant about the nature of the charges filed defendants unable to afford counsel are advised of their rights to a court-appointed attorney if the prosecutor moves to detain the defendant pending trial the court schedules a detention hearing if the defendant pleads guilty the judge may impose a sentence but more commonly will schedule a later sentencing hearing if the defendant pleads not guilty the judge will schedule a trial before the trial begins each district court randomly summons a jury pool of the defendants peers after the jury selection the trial begins with opening statements from each side then the prosecution begins to present its main case in a criminal trial the burden of proof is on the government and the defendant must be found guilty beyond a reasonable doubt the sworn testimony of witnesses is the main way the prosecution presents the evidence of guilt the defendants attorney my cross-examine those witnesses to undermine the value of their testimony or their credibility the prosecutor and the defense attorneys then present closing arguments after the defendants attorneys closing arguments the prosecutor or make a rebuttal argument after instructions from the judge the jury then begins deliberation towards a verdict which must be unanimous guilty or not guilty if their decision is not unanimous the Court declares a mistrial and the defendant may be tried again if a jury finds the defendant not guilty then the trial is over the prosecuting attorney cannot appeal and the defendant cannot be tried again in federal court for the same alleged offense because the US Constitution prohibits double jeopardy if the jury finds the defendant guilty the defendant may be taken into custody or release until the judge is able to hold a sentencing hearing where he or she will determine the appropriate sentence felony sentences may result in large fines and a longer incarceration in a federal prison being accused of a crime is a serious matter so verdicts and judgments require careful consideration which takes time the methodical approach to justice under the rule of law is a fundamental principle that binds our society together it's a bedrock of our government and provides stability security and safety in nearly every part of our public and private lives thank you to our video production team for that that introductory video we're going to switch to a different type of video what you're about to witness is a crime in progress in this Bank video three masked gunmen enter the bank Rob it and then disappear in the coming days investigators will try to identify these gunmen they also will name a fourth suspect who may be less obvious is they say in the movies today's knowledge seminar is based on a true story our questions will follow a scenario inspired by this real-life bank video with the help of our panelists we've added some fictional wrinkles to help our discussion so let's start with a very basic question and as we see from the video the suspects have masks and they get away judge Hudson I would like to start with you what are some ways investigators might start connecting the dots and begin identifying real suspects well taking it from the scene Charlie as you can imagine there are a few calls that a police officer responds to that pose more danger than an armed - bank robbery not only to the officer but also to the occupants the last thing he or she wants is one of the occupants to be taken as a hostage once the bank is clear and it's safe for the officers to go in the first thing they're going to do is do a quick protective sweep to make sure there's no danger left then they're going to begin collecting information and one of their objectives is to identify as much information clothing characteristics of the bank robbers as you possibly can not only will the officer would be doing that on the inside but outside police officers are going to be interviewing everyone in the area there they can find and stopping every car in the parking lot to get as much identifying information as possible to put out a lookout for that vehicle or those individuals often even though their faces are covered they have distinguishing characteristics such as tattoos hair distinctive clothing or things like that all that can help in identifying the perpetrators they also want to notify the alarm camera company to get a technician out there to get the film so they can review that and then they want the forensic technicians to go in and gather any fingerprints hairs fibers or footprints that may be a forensic value fabulous Ziya as a prosecutor how quickly are you brought into the investigation and what other things might be happening in these first couple of days we try to get involved as quickly as possible it's interesting from having travelled and seen judicial systems other countries sometimes there's a real divorce between the prosecutors and law enforcement but in our system I think it works efficiently and maybe sometimes defense counsel feel we're too close in arms but we we do try to be very involved from early on because ultimately investigators they're trying to do is collect evidence that can be admissible in court and our job is to make sure that they are doing things in the legal fashion collecting records so for instance if they're getting historical cell site location data you know to see where maybe if they've identified a suspect where they're going and we'll talk a little about that Supreme Court has recently ruled that we have to get that via search warrant so they can't just call up AT&T and say get me the last six months of this person's location information because it may lead to the recovery of evidence but if it's not admissible to what end and so we do try to get involved early on you know the probably the biggest tool that we used is Grand Jury subpoenas and so people are either compelled to come to our grand jury here in DC or they can send records in lieu of appearance and that's typically how we get information judge Ornstein I want to follow up on something Xia just said our scenario actually does involve some electronic information gathering he mentioned cell towers if you could tell us what a tower dump is how it might play a role in it and then how would you as a magistrate judge be involved once that began happening sure so you know our phones are always in communication with local cell towers so that if you get a call you know you can be found that generates a lot of information that law enforcement uses and one of the big legal issues in recent years is how does out of the courts deal with that and what kind of proof do the prosecutors and agents need to show to get this information so if you've got just the one robbery that we've got here it might not come into play right away but if you've got a pattern of robberies someone like Xia will come to me and say we want to get all the information from the cell towers nearest each bank at the at the time surrounding the robbery and the question is do they have to show probable cause to get a warrant is it some lesser showing that's actually still up in the air for that particular kind of request but they'll come to me for for permission to make this cell phone providers give them that information so that they can look for you know a phone that's in all three locations at the time of the robbery because that will help identify a suspect okay so Keanu you have not been involved yet you're a defense lawyer not informed of this during all of this kind of electronic gather and it's specifically with with these cell tower dumps which we'll use in our scenario do you have any perspective as a defense attorney on this well this is the hardest part about being a defense attorney much like this discussion we're invited late in the game there's been a lot of evidence gathering and by the time I get involved is usually at the time where an arrest is made as a federal public defender we are appointed counsel so we're assigned and the way we do it in Western District of Washington is whatever comes through the door on the day that you're on duty becomes your case and so if I was on duty this day and mr. bystander was arrested then I would go for a pretrial hearing and represent him and our primary goal would be release the first step that usually I'm involved in is for release hearing and I don't think people know that we don't talk about the facts of the case and the cell tower dumps it's really two questions is he gonna flee and is he a danger to the community and if the answer is no to both those questions then if I've done my job well he gets to go home that night okay and so in our scenario what's happening is that they've been multiple robberies with similar cast of characters and in two of the robberies these cell tower dumps show a single number that's come up and that identifies a suspect judge Ornstein my understanding you've been involved in cases like this in this particular case we get the cell phone from the suspect all the information is encrypted so nobody knows who he's been talking to what he's been writing how how do you handle that as a judge well it may not even come to me as a judge there are a lot of ways law enforcement can try and get behind that encryption including just seeing if they can work out an agreement with the suspect you know to trade leniency to get access to his information because it may lead them to others but let's assume they can't first step is they have to have a warrant to search the phone and that's probably going to be the easy part if they can show that the phone was at the vicinity of two bank robberies I'm probably going to give them a warrant to do the search but they try to do the search and it's locked they need a password or a fingerprint and it's strange but the law is actually different about whether you unlock a phone with a password or a fingerprint what you have to prove to be able to get access to it but what if you can't get the fingerprint or or the the access code a lot of time what happens is law enforcement will come to me or someone like me and say tell the company that made the phone Apple Samsung whatever to defeat its own security force them to write new code or break into the phone and now you're recruiting a non-party to help the investigation and that's an area that's really up in the air legally that the technology companies are opposing it and I had one case a few years ago but it's really unresolved about whether that can even be done legally and if so you know what's the authority the government relies on this statute from 1789 for a thorny fit and obviously something written then what didn't have this situation clearly in mind there's exactly one written opinion in the country so far on it that's my opinion from three years ago because often the government can avoid having to test it out legally and it's in their interest to avoid doing that to avoid getting bad law I've had the same experience that Judge Orrin state has had in cases where they want to get into encrypted phones the providers service providers are going to resist every step of the way I think they feel like they're compromising their relationship with their with their their clients by by not but I doing that by being cooperative anyway in each case that I have had the FBI does have the capability of getting into those telephones but as I've told no number of times it is extremely expensive probably the people that can go into those telephones makes more than a brain surgeon does it's it's a very very complicated feeling there are a few people that can do it but there are other devices that are often used Charlie to track down bank robbers and I'd be more than glad to add that if you wish very quickly sir all right I had a case not long ago involving a bank robbery and in Reiko County Virginia and they used a device that I have never seen before in 22 years within law enforcement it is a 3 SI gps tracker what is that that is a device that is put in the bait bills which are the bills that they give to the bank robbers to kind of activate the alarm system with it with the GPS tracker inside 40 $20 bills there is a tracking device that is in there once that tracking device is moved off the magnetic holder it sets on it activates a satellite signal 15 seconds after it's removed and within a matter of minutes satellites pick up that tracking and every six seconds it will give a lot of longitude and latitude of that tracker and put it on a screen that the police dispatcher has so he or she can route police cars directly to where that GPS tracker is and in the bank robbery case I had it took them about four minutes to track it down to a house about five blocks from the bank so it's a miraculous device it really opens up a new Vista when it comes to tracking down perpetrators of these types of crimes so with a scenario they get away these phone records eventually start tying people together and three alleged gunman are arrested but as I mentioned earlier we have a fourth mystery suspect who's perhaps less obvious the man in the blue jacket okay the theory of the case is that for reasons that Keanu we'll explain shortly is he's not just an unlucky customer who's walked into the bank that their theory of the government is he was here as essentially a lookout to alert the gunmen if anything unexpected was happening now Keanu you are invited to the party you have been appointed this man with the blue baseball cap to be your defendant tell you what you tell us normally what you would do at this stage and in this particular case what have you learned about his circumstances assuming that we're beyond the pre-trial stage but even as early the pretrial release stage I would be talking to him about his perspective this is the government's perspective that he's a lookout and I'm sure mr. Bluejackets perspective is that he was in the wrong place at the wrong time and so we would probably spend a lot of time talking about that eventually I would you know through my visits at the Bureau of Prisons I would talk with him and it is very likely to come out that he perhaps shared a cell with one of the people perhaps the man who jumps over the counter on a prior offense and still my clients theory is that he knows them and he had presence but he wasn't involved soozee I'm gonna turn to you with this look out person is this a case you would bring in real life or would you want to do more investigating before taking him to trial I think it'd be very challenging I mean yeah the best part I think about being a federal prosecutor and I think you know panels see her I can speak to it even you know was more experienced than me but is being a gatekeeper I mean I don't want to charge cases that are where you're not sure we have the luxury that we're in a business with a lot of supply a lot of crime so why would we go and pick the defendants or cases where we're uncomfortable or unsure I think this one would be very challenging on these facts alone if it's just someone that he knew were there but you know you start getting more facts of well if they have shared phone numbers and shared phone calls I think it is potentially a case that you would want to investigate more not not charged but the goal and I think that you know I'm sure there's sometimes frustration that as prosecutors we always want to try to toe the line of finding the people that will flip on the people above them but not charging people that are so low down that it doesn't make sense in terms of resources and that the only way you learn that fine line is I think through experience judge the new thoughts yeah I agree having even both the state and federal prosecutor state prosecutors are much more reactive ordinarily by the time they get a hold of the case the first is already in custody and getting ready for a preliminary hearing and a federal prosecutor ordinarily has a chance to review it with the agents before there's an actual arrest and it makes it much easier to handle so you feel like you have enough information and judge Ornstein you handle a lot of grand jury activity what is the significance of taking a case to a grand jury for indictment well look the process that Xia was talking about is a really important one in terms of prosecutorial discretion you know do I have enough to charge and that's where the grand jury comes in you use that subpoena power to get evidence before the grand jury it's you know it's a group of 23 people who got jury summons is only they got sent to one room instead of the trial court and they're hearing just the law enforcement side of it but they're seeing all of the evidence that might be available to support a finding of guilt so the phone evidence and maybe there's a an informant not a cooperating witness who knows these guys and knows something about it so bring all that in front of the grand jury and it's also sort of a sounding board for the prosecutor to see if this is a case that actually does appeal to regular folks so there's investigation going on there's a charging decision being made jointly with the grand jury they have to vote on it and that's how you get from that do I have enough stage two yeah this is somebody who should be going to trial let me just add what they charge another advantage in presenting a witness before a federal grand jury is you can lock them into their testimony and they can't retreat later during the trial typically if you conduct an investigation and like he I I did a lot of white-collar types of investigations and sometimes people want a weasel onto their testimony a little bit later before that when the trial comes up they're locked in when you would you take in their testimony in front of the grand jury because there's a court reporter down that records everything another really important aspect of it is it's completely secret so somebody who's under investigation isn't having the reputation of harm just by being under investigation but also you know these investigations go step by step and if it becomes public too early the the people who committed the crimes if they become aware of it can flee they can destroy evidence so the fact that it's kept secret allows the prosecutor to orderly investigation and present all of it at once to the grand jury for consideration look I only be released by court order event correct yeah okay so in this case the indictments are handed down I think we eventually counted five we have the three gunmen we have the alleged lookout person that Keanu is representing and then as judge Hudson reminded no robbery like this should ever be attempted whether a getaway driver so we also will have a getaway driver on trial two there's a host of pretrial motions Keanu you talked a little bit about the bond hearing or the initial appearance I'm thinking maybe judges Ornstein and Hudson you can walk us through some of the pretrial activity you guys have to face first of all one of the motions that's made is a motion for discovery the defense has the right to many access to police reports forensic laboratory examinations some statements of witnesses photographs and things like that one of the things that I have found what I was a prosecutor that helped resolve a lot of cases was to have an open file discovery policy and it did that even when I was a state prosecutor in Arlington County right across the bridge let them look at everything now there's never any debate later when it gets on appeal that something was withheld give them all the information and most people will plead guilty if they're if you have a strong case if they see the evidence secondly a motion to suppress often a police officer sees something without a warrant seizes something without a warrant or there's a search warrant that the defense feels is defective it'll be the subject of a motion to suppress to see whether that evidence can be used at trial often in a trial prosecutors will want to use criminal conduct that happened at another time to show a common scheme or plan motive and things like that that's what we call 404 be evidence and every time you use that there's almost uniformly a motion to try to exclude that and then you have motion to sever defendants when they claim that there's extreme prejudice because you're trying to or more or defendants at the same time very very difficult under the federal rules to have your client severed from the other members of a conspiracy if you take a hundred clients who are convicted of a felony and in the federal system more than ninety seven percent will get there by pleading guilty fewer than three percent actually face a jury trial at all why do so few cases actually go to trial why do some money settle with a plea agreement some of it is based on the prosecutors eum's talked about before about you know using their cases they're not going to choose the case that has some real weakness which you know means that the defendant is going to feel less confident about going to trial sentencing guidelines and sensing laws including minimum sentences give defendants a real disincentive to take a chance prosecutors have the discretion when a defendant says no I'm going to go to trial to pile on more charges and to basically make it too dangerous too risky to go to exercise your right to a trial and on the other side they could say but if you don't make us take you to trial we'll give you this really lenient plea so a lot of it rests on the discretion that the prosecutors have to leverage their power and make it just too hard too too dangerous the US Sentencing Guidelines which is the guide that we use in sentencing and we're required to put on the record that we have computed the guidelines and we have considered them and all the other statutory factors they actually have a built-in incentive for people to enter a plea of guilty you can get up to a three level reduction in your sentencing guidelines if you enter a plea of guilty in addition if you plead guilty and cooperate even if you're charged with an offense that carries a mandatory minimum sentence there are statutory provisions that allow the prosecutor to make a recommendation that you receive a below guideline sentence also in an indictment you'll have some counts generally not always but sometimes counts to carry a mandatory minimum sentence significant mandatory minimum sentence and others that don't and it is sometimes incentive for a definitive Hendra plea of guilty to every other count other than the mandatory minimum because that gives them a lot more latitude at trial to argue for a more favorable sentence so if I may turn to counsel on both tables here you're talking with each other about a possible plea negotiation how does that work what what are you eating for how do you go about doing this so one of the things I think that's nice being the US Attorney's Office different than my colleagues at main justice is we had to typically appear before the same judges in our district and we get to be typically working with or against however you want to say it a defense counsel and so some of it is just having relationships that you built there's certain defense lawyers that I know that you know start off with you know just like when you're buying a house or something at cards if you don't know the person you may be you're gonna try to start with a high offer and work your way down or you can just say look this is the best offer that you're gonna get and so a lot of it is from repetition and getting to know and building up trust I think more so from the defense counsel side I mean going back to what you were saying before of like you know you don't know what's in that other file right you don't know if there's a third file and so it's the luxury on the prosecutors side that theoretically you have all the information in front of you both weaknesses and not and we have an ethical obligation to disclose those but defense counsel's really got to you know if they trust you that's going to go a long way to making efficient plea negotiations because they know that there's not something lurking out there that could make this a much more a challenging case and that they really should be going to trial yeah I mean I think plea negotiations from a defense attorney perspective is primarily a decision by the defendant so it's not a choice I make and it's not a choice that any of these folks get to make I present the evidence the facts the law to my client and they have a choice to make and the reason why it's so important to have a well-funded public defense system is so that we have skilled people who know what questions to ask and know the risks and where we might be able to mitigate so one of the things that judge Hudson was alluding to was cooperation but in all of these secret files one of the things that I'm often doing is asking my client is there any other information that they want to share it could be nothing to do with this crime but with some other unsolved crime and maybe we can offer some information that is part of the negotiation to convince you to come down a little bit on his ask but I also want to give the numbers a bank robbery usually is no nothing short of five years in prison but so you're talking somewhere between five years 2025 years and so when main justice and AUSA say reasonable sentence we're still talking about taking someone away from their families and so that's where the high risk becomes a very big deal so in your case we're talking potentially somebody might be adding on the idea how you think your is if somebody goes before a jury and they lose they might be tacking on any estimate ten years twenty years to the sons that or more it could be you know someone who I know in our office that there was a case where a person they saw mandatory life and in the federal system there is no you know probation where you get to you know you get your 15 percent if it's less than life and if it's life then you're gonna serve your whole life there I think that you know judges to some extent or often they try to be the bulwark against that but they don't want people to punished for exercising their constitutional right to go to trial that is a right you shouldn't be punished we're doing that but by the same token I think prosecutors are trying to weigh you know you you can't offer someone a better deal or the same deal necessarily if they go to trial because there is just like in anything else you trying to think about resources and other people that you might be investigating or prosecuting that crime and so it's challenging I think often what happens for better or worse is you look at what other people did before you when you try to measure up against that well someone else had a similar bank robbery how much jail time do they get if they went to trial it from this particular judge and how much time do we offer to cut off if we didn't go to trial I represent a person and they're just like all of us who want something certain so a common thing that happens in plea negotiations Azia may say hey if he pleads now I will allow you to ask as low as that five years 60-month number and I'll ask no more than 78 months so it gives some a little bit more certainty for the defendant to make a choice and they may say I rather go with something certain than the unknowns that could happen at trial so Keanu do you always do clients always plate or do you oftentimes represent them in trial and how would you handle this gift what's your expectation in this case well in the federal system there's no always there's about nationally 1% of cases that go to trial I know that I tend to go to trial a little bit above average because I don't mind dealing with uncertainty and a lot of that has to do with the relationships I build with my client and the degree that I'm willing to go do investigation so in this case your client has decided to go forward judges any any risks beyond the ones you mentioned already in that decision one this is really drawn my basis as a prosecutor sometimes wait what you say in plea negotiations is you know plead guilty to this bank robbery we're done you know I've got other cases to move on to but if I start preparing for trial I'm really going to be investigating you don't know what else I'm going to find out about your client and there may be more charges and so that is a risk of going to trial follow up on George or satine's comment in almost every one of our plea agreements in the Eastern District of Virginia there's a provision in there that the United States agrees not to prosecute the defendant for any other related nonviolent conduct and that insulates them from just the thing that the judge was talking about a moment ago and that is the entity trial revealing evidence that might support prosecution for other offenses now I've had cases they had one not long ago where a defendant after the trial tried to suborn perjury by trying to have a witness go back and recant his testimony and I understand he will be indicted very soon but those kind of things do happen and those are the risk you have when you go to trial so one last topic before I go to trial is selecting the jury judge Ornstein why don't you tell us a little bit about the Vaugier process okay well in vlad year two you know not English it's a Yiddish raise me tell me about yourself it's it's a process people get their jury summons as they come in and usually certainly in my district in the federal system the judge does the questioning and in state courts it's often the lawyers doing the questioning but the idea is to get information by first of all telling them what the case is about and asking them a lot of questions about their backgrounds their views maybe where they get their news from to see if they have any biases that would that would keep them from being completely fair to both sides given the kind of case this is and the other purpose that the questioning serves is to let the lawyers make their decisions about who to excuse because they have the right to excuse a certain number without giving any reason as long as long as they're not acting on the basis of discrimination they can just say you know that I don't like schoolteachers you know I think they're bad jurors for this case so you know you're a schoolteacher out so it allows the the parties to sort of figure out who's best for this case Co do you play any particular strategy to jury selection pick the best jurors it's challenging I think that it's I had the opportunity to argue at an appellate court have this exact issue of you know struck a juror and there was a strike made when we struck the defense said that it was for you know reasons of race and had to provide a race-neutral reason and when was in front of the Circuit Court I generally like to be fairly familiar I guess to tell a little jokes and so I just told a narrative I was I just was got engaged in my wife who was a PhD scientist and I said that you know this juror was sitting the way that I when I'm at the dinner table my wife starts talking about very technical science materials slumped over kind of looking away so that I would be sleeping on the couch and I think that you know those aren't things that are not like you know you can't put your finger on it you have to eats a lot of intuition it's an art not a science and you never really know what's gonna happen so I think I guess that's the closest I get to the position of having that kind of mystery file or the mystery what's out there there's a total asymmetry of information you may have a juror that you think I recently at a trial and with the foreperson was a a corporate lawyer and it was a kind of a technical case we actually had a law enforcement agent we were prosecuting for smuggling money out and not filing those forms you get on the airplanes and I thought they'll definitely convict because it's so serious and they convicted on one charge that we thought we wouldn't win and they convicted on the other one and we thought this juror was going to be great for the technical charge and so there's just goes to show you I think that we probably I mean we're analytic people and so I think we sometimes overthink a lot of is you just gotta hope for the best and hope that you're gonna get people a fair but I think by and large people are not coming up with wild excuses when they're faced with a federal judge asking the question are you really someone who believes you can't put someone in prison or you really you know most people back down say look I'll yes I'll be fair and honest and I think that you know they're in a community their peers you can't really have often people who are just kind of outlandish and doing wild things so you gotta hope for the best so Keanu what do you how do you approach jury selection and we mentioned that you study unconscious bias before if you could weave that into your answer that would be great sure so I think as a defense attorney one of the things that we're trained to do is actually have a plan when it comes to selecting a jury so if you get an opportunity to have what's called attorney conducted voir dare versus judge conducted Vaugier then it has to be consistent with your theme and theory of the case your theory of an innocence for your client and so I most defense attorneys including myself we go in with a plan and we have some ideas of the types of jurors that we're looking at but it's a misnomer to say you're selecting a jury I think what we're moving toward at least in my community is we're deselecting a jury we're plucking out the people who we don't think can contain their bias or maybe this just isn't the case for them you know some people there's just certain topics that there's no way because we are all subject to unconscious bias do all of us in this room out there you can't leave that at the courthouse doors as much as you would like to so as a defense attorney we're more trying to get people to open up about where their biases and I'll just say this what the studies show is there's no Voodoo to picking a jury all you can do is sort of prime them to remember you're supposed to be unbiased and by asking them questions about bias you prime them to be more careful when it comes to making an ultimate decision and that's about as good as we can get judge Hudson tell me a little bit about what they are in your court well I have a standard series of questions that are very extensive it probably takes me a half hour to 45 minutes to go through them with the jury before I even begin my my-y dear I always ask the defense attorneys in advance seven days in advance to submit to me their proposed why do your questions so integrate those in I go through whether they they are related in any way to the lawyers the defendants have they ever met lawyers of the defendants I go through the list of witnesses in the case I go through the occupation their occupation the occupation members of their family whether they're members of the NRA whether a member of any organization that is in favor of legalizing drugs and drug cases whether or not that any of more police officers whatever the nature of the case is I try to find out whether anybody and their family might be in a position to have formed an opinion and that could be contagious they could affect them and whether or not they've studied the law or any member of their family as a lawyer and whether or not they understand they got to set that aside and base their decisions strictly on the law as I provided a criminal trial begins with opening statements first from the prosecutor and then the defense lawyer socia and Keanu in that order Ziya tell us what kinds of things you try to focus on when you're doing an opening statement do is you're trying to tell a narrative a story you know there could be very complicated fraud Ponzi scheme investigation it could be a bank robbery like this case but whatever you're trying to do you're trying to create a simple narrative because there's that folks haven't seen the video right in the jurors yet and this is the government is lucky to make the first impression and so you you both want to put out the narrative what happens but we always say that you know in terms of strategy also want us to take the sting out of anything that might be bad so say for instance there's some fact that you know that's really gonna look bad for one of your witnesses or a fact that you know that really is in the benefit of the defense you're going to take the earliest opportunity to get it out there so it looks like that the other side isn't getting that and it you weren't unprepared for it you want really at the end of the day the jury to think look this is our burden as the government that we're prepared were organized and that we're being fair and just laying the facts out without adding any like color or you know showmanship and things like that kiona well our strategy I think for opening statement is pretty much what Zia said is to tell a story as human beings were wired for story so as defense attorneys we pride ourselves in being the one that tells the best story the best trailer for what the jury is about to see we want them to be interested and watch out for things that we think are weaknesses in the government's case and also we may talk about things that we know will come out in the trial and we never over promise things that we aren't sure whether it'll come out and if it does come out whether it'll come out our way so opening statements I think are important I think you can have 50 defense attorneys in a room and they try it 50 different ways so it's not a prescription but it ultimately is about story keeping the attention and telling them what they're about to see and why the government has it wrong I want to actually turn to our two judges and from this point on judge Lawrence Dean is a magistrate judge and they do not magistrate judges do not try federal felonies so we're going to draw now in your experience as a former federal prosecutor but I'd welcome the thoughts from judge Ornstein and judge Hudson what are the qualities of a strong opening statement well now short to the point here's what we're going to prove and here's how and establishing yourself whether you're the prosecutor of defender establishing yourself as the person the jurors can look to for the voice of reason he's the he's the voice of authority in the courtroom but you're the could be you know giving the honest broker of the facts so that when things are in doubt they'll look to your side and think you have some credibility I've always believed that opening statement like final argument is one of the greatest exercise of applied psychology you will ever have and what it really is is having a common sensical approach to the evidence it's the art of persuasion in both a final argument as well as the opening statement I think it's important to stress the main points in your case but also give a common sensical path of how they're going to reach the conclusion that's favorable to you and that I think is the magic behind being a really effective litigator so I want to talk just briefly the human side of this Keanu you have a real-life defendant sitting next to you who might be going away for a long time what are they going through while this is happening yeah I always have a real-life defendants in it next to me and I think that's what makes me different I'm dealing with people whose lives are really in crisis and they're nervous and anxious oftentimes before trial I make a point of the night before going to visit my clients because they're not going to sleep that night either the family pressures are great it's just riddled with anxiety and part of my job is not only to be a persuasive and effective litigator but it's also to counsel my client in a way that makes them feel confident that they're going to be treated with dignity and fairness and effectiveness and the human side for both you and Xia you guys must be going through tremendous stresses for this moment or just having everything together for trial standing before the jury do you go through any jitters or stage fright when this happens go back to I don't know if it's either very good or very bad to be married to a lawyer because but the one thing my wife knows if there's a trial it's just kind of yeah to stay away it's not a good time because you get stressed out you're working longer hours you still have your regular docket right so I mean how many I can't imagine any clients that you have so you have to still go home at the evenings and pay attention those other cases and so it is a challenging time I yeah you know you can't speak for anyone but I find it hard to believe that most lawyers didn't get a little nervous no matter the most experienced lens when you're standing up in front of a judge let alone a jury I mean a jury is a total you know you have an unknown you don't know what you're getting into and you're nervous because you know it's your profession you care about it you want to do the right thing and I think as a prosecutor there are some cases where it's more obvious than others that there could be victims or there could be a threat to the community and you feel like if you mess up that you know someone could be hurt by what you hope is not a mistake that you make so absolutely it is you get nervous but by the same token after you get a few of them under your belt once you start going then it's like driving or anything else I think you started kind of you just try want to get into rhythm and keep things going that's why you know some people think an effective way to play defense or often sort of gonna call is to try to object and things like that I think it's bad because I think jurors get annoyed because it breaks up their rhythm and judges are wanted things be orderly but some people think that's an effective way because it can throw the other person off from their rhythm sometimes so judge Hudson you are in the position of having to manage the trial starting with the jury but then all the different motions objections and everything what are the biggest things you have to factor in and just running the trial well I want to keep it moving I want to make sure that the evidence presented is competent evidence I'm not going to be reversed on appeal I want to be sure that I rule on the objections properly they come out and while I don't always object on my own to things if a lawyer is doing something that could lead to reversible error I'm very very quick to correct them irrespective of whether or not a motion is made I want to be sure that the jurors are treated properly and the time is now wasted during the course of the trial and as I want to make sure the jurors are properly instructed and want to be sure that all of the defendants rights are properly attended to during the course of the trial is basically what I do at a kind of an overarching fashion so I want to come back we've mentioned the judge managing the trial and earlier came up that lawyers also have to man a lot of balls Xia's mentioned a few Kiana do you want to talk about just a little bit of what other things you have to manage getting ready for trial yes you know I think it's important to say that I'm the defense attorney but I don't do it alone there's often if I'm well funded and supported have an investigator a paralegal sometimes a social worker also working with me and often at the table I'll have a paralegal with me as well and so we're managing our team as well as the defendant because remember defendants sometimes like a bank robbery like this may have sat through a week and a half of people saying things that he or she does not agree with they have to bite their tongue and so I have to prep them for what that feels like to hold their hold their tongue because they don't get to take the stand until the end and sometimes just the anxiety of that and not being able to say they got that wrong or that's not it you know so we have to manage our client emotions as well so we're gonna do one last question in the trial for the two lawyers and then we'll start wrapping up the section Ziya and Keanu tell us a little bit about how you organize your case how you choose which witnesses how you try to build it through evidence and of course Keanu with your side how do you decide whether to put your client on the stand or not so see if you could get us started with that usually we try to think of as the kind of the book ends as you want to finish and off with a really strong witness I think it presents well and you want to start with the witness was gonna set the table and in between is where you're at risk of losing interest and things like that and so those two are aware personally where I say I start with this Who am I going to finish with and Who am I going to start with and then kind of work my way in the middle you know you have a I guess a natural inclination of wanting to do overwhelming shock and awe put everything in and that is not I think the best way to try a case but I would say again everyone is different you got to do the case the way that you feel natural and comfortable because the jurors are looking for one thing I think that's authenticity and so if you have four witnesses that saw these people come in and you the video you do not need to put on for witnesses that's going to annoy the jurors because they you know yeah we already heard that okay you know move on because they want to get back to their lives I think's gonna know where the judges because judges feel like it's their job to Shepherd an efficient trial and it's great for the defense work because four people have seen four things that are identical somewhat similar similar but also differently and so you're just putting yourself at real risk when you wanna do that so trying to get just the least amount of witnesses necessary to tell your story I think for me any witness that I'm gonna call has to be helpful to our case theory of innocence and that's sort of the filter that I put every witness through they have to be credible believable and relevant to the questions you know trials are actually people think there are about a whole bunch of things there about the elements of Roberts really and every witness has to add something to answering the questions about whether the elements of robbery are met and if they're not there's no reason for me to call them same by cross-examining witnesses of the government sort of the thing it's hard for defense attorneys to learn that some of your best questioning is to know when to be quiet as far as whether I put my defendant on the stand you know I try to tell my clients that I don't work for them I work with them and they are as much a part of the team as all the other people that are on their team and so I it's a choice again much like whether they plea whether a person testifies that their trial is their choice all I can do is prep them but what I think I've learned over time is I tend to put my clients on the stand a little more often than maybe even my supervisor would like me to because we're human and people jurors want to hear my client side of the story and so if we can put him on and it's credible and relevant and there's some perspective that he or she can add that isn't there through the government's case and absolutely I'll put them all into place I agree completely one of the biggest mistakes that I see in all the year I tried over 100 jury trials you asking a question asking one question too many when a lawyer gets a question that I've against an answer to a question that is extremely helpful to their case shut up and sit down because you might on that next question get the response well wait a minute I want to clarify my answer to the last question and that's particularly true on cross-examination when you strike gold sit down good advice for future lawyers we're going to go all the way down beginning with Khanna and ending up with judge Hudson this is the moment of jury decision or even everything leading up to jury waiting for the jury to come back keyonna what's happening with you your clients pretty much everybody just what is this like from the various perspectives you hold and free again judge Warren seen as a prosecutor I think yeah I think waiting for a jury verdict to return is like waiting for a baby to be born it is anxiety riddled but you're somewhat excited if the trial went well you're pleased with the work that you've done but I can't ever forget that I represent a person so it's not really about me and how I feel but I have to remember to go to lockup usually my client when we're waiting for a verdict is in a lock-up in the courthouse and sometimes right behind the courtroom and I get to go to my office and usually I'm walking in circles because I can't eat I can't do work so I'll go over and I'll sit with my client and we'll talk about what happened at the trial I make a point to tell them what a pleasure it was to represent them no matter what happens in the verdict and I hear their how they're feeling so that's usually what's going on with me when I'm waiting for a verdict to return to you I think there's a similar where a lot of pacing and you can kind of tell in the hallways when you know someone is waiting for a verdict to come back because people are both avoiding the person but also try to send positive thoughts to them I think it's you know it's it's just stressful and especially the moment we were waiting for that jury to read the verdict it's an incredibly tense moment and I think I hope that other people feel like you know I was educated and I started in st. Louis by the US Attorney's Office there that you know it's not like that we are high-fiving as prosecutors when it's over if someone gets a ten year sentence or 20 year sentence it's sad someone's life is as COUNTA saying it they are taken away from their family and that's not a good thing there are people who are around that person they're gonna suffer and so you have to really as a prosecutor be ready to hear someone say not just not guilty but ready to hear them say guilty and know that you feel comfortable that that the right thing is happening when that if that happens yeah and so as a litigator as mostly working as a prosecutor it is a little different in perhaps more like Kiana's experience as a prosecutor when there's a victim in the case which isn't very often in criminal court trials so then you're helping someone to get through that process a little more but yeah it's the most nerve-wracking time that you go through as a lawyer well for a judge it's a little bit easier I'm just sitting back in the office talking about staff of waiting for a verdict and answering the questions of the jury as best as I possibly can one of the most important things that we do is to make sure the jury has the support they need copies of the exhibits any other items they want to inspect the guns and things like that my bailiff handles all that I just set back on cruise control and wait if Lee comes in and tells me there's a verdict although actually something was mentioned during the video the notion of a potentially hung jury you ever had juries that have struggled to get to a verdict I have and what I do is I'll give them a modified Allen charge which is kind of a statement to say that if you can't render a verdict in the case your neighbor is going to have to come back next week and hear the same evidence and make the same decision hopefully that will coax have been doing decision basically just like to ask you've got a wonderfully full discussion thank you so much I'd like to ask starting with Keanu and moving towards judge Hudson what is one thing you would like people in this audience to take from today's discussion and something I'm also curious about we're talking about an adversary process with many rules that guide the introduction of evidence as you talked about one thing you'd like us to take away I welcome your thoughts and just generally how successful the process is at delivering justice so gonna start off with you I'll start with your last question first I think it's difficult to measure how successful we are at delivering justice but still in our society we have a mass incarceration that has disproportionate representation of people of color in the system and for all of us that should be a concern so if there's not an even sort of people who are in the system for various reasons then I'm not sure we're reaching justice because we have too many I think black and brown people who are incarcerated and maybe not as well-funded as they need to be on the defense side one thing I would say though I love my job I love being a public defender I consider it an honor we get to tell people's stories and I think Brian Stevenson says it best that no one person is the sum of things that they did on their worst day but I get to come in on their worst day and say I'm with you I'm aligning with you I'm gonna shoot for fairness I'm gonna negotiate on your behalf and try to get as close to justice as we can know if I ever commit a crime I know I'm going to fly Keanu she Solis is a public defender but she had a business I mean she's feel that's very moving I think that the thing to think about is I also I love my job and I think that I struggle maybe with some of those same issues of thinking about making sure am i doing my job the right way and making sure that justice is being evenly doled out I think the best thing about being a prosecutor is at least in my experience and both st. Louis and DC your attorney's offices no one is measuring your success by how long of sentences and things you're doing what they're measuring is are you are you doing the right thing and you feel like you're doing the right thing and I think there's very few jobs we can go to where that's what you're being measured on and that's why I think being a prosecutor if you are doing the right place and have the right support it's a really great and important job I you know do we always get to justice probably not but we have a system filled with people who aren't in it for the money that's for sure they're doing it because they're trying to get it right that gets us a long way there I'm not sure that you can measure justice by did the did we get the right result of guilty or not guilty I think one of the things that we have to aim for is looking for other ways to deal with problems of crime by getting at their root causes quartz can't really solve that but they can try by getting away from these ideas of it's just about getting something to trial or to jail or declared innocent we could be partners in trying to solve the problems that create the crime I can't look you in the eye and tell you that our criminal justice system is flawless because it is not but it is the best that I have seen until someone comes up with a better idea I think we're well served by the system that we have I want to thank everybody on the panel unfortunately we're out of time so I want to thank those of you who asked questions and for joining us in today's knowledge seminar and then for all of us here at the administrative office I'm Charlie Hall we look forward to seeing you at the next knowledge seminar [Applause] [Music] you

Channel: United States Courts

Views: 3,900

Rating: 4.5932202 out of 5

Keywords: Criminal, Trials, Knowledge Seminar, Henry Hudson, James Orenstein, Zia Faruqui, Kyana Givens, AO, Exchange, Programs, Prosecutor, Defense, Lawyer, Case, Plea, Negotiations, Jury, Testimony, Witness, Bank, Robbery, Process

Id: SYSTnUvqTaE

Length: 58min 20sec (3500 seconds)

Published: Wed Dec 04 2019