Jury Duty and How NOT To Get Picked

by Kelly Siegler

How do you feel when you get that familiar jury summons to appear in court on some future date? Excited? Nervous?

Maybe you're one of those people who simply toss it into the trash?

If you are one of those people, why are you avoiding jury duty? Because you think you have too much going on that day or because it will cost you money if you show up rather than go to work? Or maybe because that is a civic responsibility "for other people"?

Ever thought about what would happen in our criminal justice system if every responsible citizen thought they were too busy or too "important" to report for jury duty?

The system would utterly collapse; that's what would happen. Can you imagine what our juries would be like if they were totally made up of citizens who wanted to be on a jury?

When someone who resides in Harris County and who is either a registered voter OR has a Texas driver's license gets summoned for jury duty, the procedure they are required to follow is pretty typical. They are encouraged to visit a Web site where they can read all about what exemptions they can legally use or what might truly disqualify them or how to reset their jury duty if their designated date is not convenient for them.

As a lawyer with enough experience picking juries or should I say, "trying to pretend like I knew what the heck I was doing when I picked juries," let me give you a clue. . . .

There is a really easy way to get out of being picked for a jury by either side's lawyers.

It's called answering the questions. Answering every question. In minute detail. Ad nauseum. Until everyone gets tired of hearing the sound of your voice.

Because the more you talk, the more you increase the odds of being struck by one side or the other, if not both. Remember jury "selection" is not really that at all; no individual juror is selected at all.

In reality, the six or twelve people lucky enough to make the final jury are really "what's left" when all of each side's strikes are gone and their juror numbers happen to be low enough in the panel to make it on the jury.

Why do I say talk and answer the lawyer's questions A LOT? Because a good many years ago when I was a new prosecutor in felony district court and on a day when I was charged with the responsibility of picking a jury in a routine no-big-deal possession of crack cocaine case, I made the big mistake of NOT listening to a lady called down for jury duty.

I selected (which really means that I did not exercise a strike on) a very verbose, very opinionated, but very state's oriented lady on the panel because I was so busy focusing on her answers that I did not listen. Had I listened I would have appreciated that she was SO opinionated and SO strong and SO disagreeable that eleven other people would never be able to stand being in the same small room with her long enough to come to two (guilt AND punishment) independent verdicts!!

But I was young, and can we say naive? The very experienced and wise judge who presided over that trial called it in a heart beat and asked me what I was thinking as soon as all twelve jurors were seated in the jury box. I responded that she gave all "state's oriented" answers to all of the questions put to her. And he sagely replied, "Maybe so, but they will be ready to strangle her before they're done."

And he was right.

Since that day and that trial, which I pretty quickly lost, I have given a name to jurors like that lady with personality traits like hers. I call it the "bow-up" factor.

Bow [Bo] up.

You know. People who "bow up" over any little thing, who are always getting worked up over things that most others would consider petty or insignificant. People who enjoy arguing. Who like to be contrary and difficult.

We all know people like that. If you're one of those kind of people, just let your true colors shine through if you get called down for jury duty. You ought to be safe.

If you aren't one of those people and you want to get OFF of jury duty, then the first step is to keep on talking.

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What Makes a Good Trial Lawyer

by Kelly Siegler

The opinions of individual trial lawyers—if asked what makes a lawyer a good trial lawyer—would be as varied as their own egos. Most laymen and the average citizen called down for jury duty probably assume that all lawyers are good trial lawyers or ought to be anyway. Isn't that what they are paid to do? And way too many lawyers who call themselves trial lawyers, when they aren't, would in some way try to describe themselves in answering the question.

The simplest answer I've given before when asked this question is "preparation." While that is certainly true and a huge part of what makes any trial lawyer good at what he does, preparation alone could never explain it completely. Or even come close. Lots of lawyers try their hardest to be prepared. But does that necessarily carry over to the "presentation" aspect, the part that catches a juror's attention convincingly? Does preparation lay the groundwork for a sought after verdict, even most of the time?

Probably not.

Then what does?

Eloquence perhaps. Tenacity. Aggressiveness. Intelligence. All of these qualities would seem to answer the question.

So do qualities like having a photographic memory or having a way with words. Having a commanding presence in the courtroom certainly helps.

Whatever adjectives you or others might use to try and describe what makes one lawyer a successful trial lawyer where another is not are probably all good answers. But what is that ONE quality or trait or characteristic without which a given trial lawyer fails to pass the test most of the time??

I believe it is the ability to know people.

To empathize with them. To understand what they must be thinking as you put on your case. To appreciate their unique perspectives. To see and hear your evidence and the opposing lawyer's case as if you were inside their minds and their hearts.

To evaluate what is going on inside the courtroom critically from someone's point of view besides your own.

Where does anyone, lawyer or not, get such a trait or ability?

Are you either born with the ability or not? Can a good trial lawyer lose such an ability the more successful he becomes if he allows himself to lose touch with his "old" way of thinking? Don't some people simply have no clue of what it means to understand others' perspectives?

Are how you are raised and where you are from two of the most important contributors to being able to understand, empathize and appreciate other people's opinions?

I would say that they are. For whatever reason someone might have been forced to or called upon to "get along" in the world or "adjust" to a difficult situation, contributes directly to making him deal with human nature. Because to deal with human nature, you have to try and understand it.

Then, when it comes time as a lawyer in a trial to critically decide which citizen would best serve as a favorable juror, you have a better understanding of that juror's possible perspective in viewing your evidence. As any witness testifies, you have a better appreciation of how that witness comes across to twelve, normal citizens. As you interview and prepare your witnesses for their time on the stand, you can prepare them in ways that others might not be able.

If you understand people, you have a different grasp of the words that not only might appeal to them, but also sing to them and stay with them.

Long after any trial lawyer has left the courtroom.

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A Look Behind the Camera

by Jenna Jackson

In January, it will have been 10 years since someone took the life of Belinda Temple (pictured left) and her unborn little girl, Erin, by putting a shotgun to the back of her head and firing. For nearly all of that time, it has been a tale with twists, turns and surprises – and, some feel, still a lot of questions.

I started working on the Belinda Temple murder case for 48 Hours in 2004, just after her husband, David, was arrested. Our show will finally air tomorrow night at 10 p.m. EST on CBS.

The case (and our show, by default) took years to unravel. And this is one of those cases where questions may always linger for some. Many think they know exactly who killed Belinda Temple and why. Her husband, David, was having an affair with another woman, a fellow teacher, at the time of Belinda’s death. Kelly Siegler, also a WCI blogger, prosecuted the case. She is certain of David Temple’s guilt, as are the police, who investigated the case tirelessly for six years before the arrest.

But others – including his family and his defense attorney Dick DeGuerin – are equally and vehemently as sure that Temple is an innocent man. And they point to another man who they say is the real killer.

Our show and the web site give far more details on the case and how it unfolded. But what you won’t see on either of those is how the story process took place. At 48 Hours, we try to follow a story from as close to the beginning as we can get … until it has at least some sort of an ending. (Some stories continue to re-invent themselves. For example, I’m working on a brand new show about a case we followed five years ago – the case of Susan Wright, who was convicted and sentenced to 25 years for stabbing her husband 193 times. Kelly prosecuted that one, too.)

For the Temple story, I did the usual work at the beginning – I called the lawyers on both sides and met with them. We discussed whether they would be able to work with us – and I assured them that nothing would air until after his murder trial was complete. I don’t think anyone at that point knew how long it would take to get to that point. Because of a myriad of unforeseen delays, it ended up taking three years from the time of the arrest until Temple was tried.

Once the trial started, I sat through every day of it. I listened to testimony, took notes, talked to the lawyers on each side about how it was going – and occasionally filmed short interviews so that we could later keep our viewers posted on how this high profile murder trial was unfolding.

The trial was interesting, dramatic and tense. I literally had no idea what the verdict would be when the jury filed out to deliberate – and, generally, you have a pretty good idea of what the likely outcome is. In this case, it was a hard-fought case on both sides. The lawyers – who have a history of butting heads in the courtroom – were both especially devoted to this case.

The jury came back with a guilty verdict – our show will give you a better idea of how it happened. But once that verdict was announced, my real work began. We had filmed, along with every local news station in Houston, the closing arguments and verdict in the case. But we didn’t yet have a story, much less a full hour of television. My job was to get the main characters – notably David Temple – on camera to tell this story.

It is rarely easy to convince a defendant in a murder trial to sit down for a full interview. It becomes even more difficult when that person is convicted and about to head off to prison. The rules in Texas prisons regarding on-camera interviews make it nearly impossible to get a real, in-depth, nice looking interview.

So I had a very short window of opportunity to try to convince David Temple to speak to us before he was transferred to the prison system. He had been taken to the Harris County Jail as soon as he was convicted – and that’s where he would stay until the prison system came to get him. The problem is no one (not even the jail) has much warning as to when this transfer will happen.

On the day of Temple’s motion for a new trial (which was denied by the trial judge, which is pretty standard), his attorney finally told me he would allow Temple to interview with us. I was elated. This would allow us to tell this story – it’s difficult to tell a person’s story if that person chooses not to participate.

My elation quickly turned to a sort of panic. The word was that Temple was likely to be transferred to prison within a day or two now that the motion for new trial had been heard and turned down. So I had to hustle. I immediately called our senior producer – and the correspondent on the case, Richard Schlesinger, and told them the plan. Richard hopped on a plane and headed to Houston – in the hopes that we would make this happen.

I started calling the jail – and booking two crews to come to Houston to be ready to film. After several phone calls and faxes (many of them pleading), the jail said yes. They would allow us inside to interview David Temple.

Our next goal was to make the jail look like anything but a jail. And to make Temple look like anything but an inmate. If the viewers saw him right off the top in a jail uniform, they would assume he’d been convicted – and there would be much less mystery in the show. The typical colors of inmate uniforms are bright orange (not flattering on anyone) and black and white stripes.

I breathed a slight sigh of relief when Temple walked into the room (set with three cameras and at least a dozen lights) in a yellow jumpsuit. We shot the interview as tightly as possible – so you see primarily his face – and hoped everything would come off without a hitch.

David Temple tells a compelling tale of how his life has unfolded. The attorneys on both sides are the best at what they each do. You’ve gotten a glimpse of the behind-the-scenes workings that make a show like this come together. Now I hope you’ll turn to CBS at 10 p.m. EST tomorrow (Saturday) night to see how the actual case takes incredible turns throughout the hour. And I have a feeling this one may not be completely over.

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Waiting on a Verdict

by Katherine Scardino

Last Friday, I found myself sitting in a courtroom in another county—where I had been for the prior two weeks trying a capital murder case.

The prosecutor did not seek the death penalty in this capital case, so if the jury finds my client guilty, he will spend the rest of his life in prison without any hope of parole. Courts have two ways to take a person’s life in Texas. We can execute by lethal injection, or we can send the offender to a Texas prison where he or she will spend the rest of his life sitting in a cell about the size of your closet. In this case, my young male client’s only possible punishment if found guilty is "life without parole."

But I was thinking of something else. I looked at this young man, age 25, a white male, who had graduated high school as a National Merit Scholar. He married his high-school sweetheart, had a set of twins and another baby—three children total—and then signed up for the Marines. He was accepted and was shipped to Iraq where he was in the Military Police. He returned to the United States only a few months before he was arrested for the murder-for-hire of a man in Surfside, Texas.

My question was: How in the world did he find himself sitting in the defendant’s chair at counsel table? . . . What happened to this man? . . . He had an adorable wife, children, supportive family, brains, and most importantly—he had opportunity. But he blew it all. In God’s name, Why???

I think I can answer that question in one word: COCAINE. His now ex-wife explained to me that during high school, he was popular, made good grades, and played sports. It was generally felt that he had a good future. She told me that he did not use drugs then, and only started using drugs after he returned home from Iraq. Did he use drugs in Iraq? Did he get hooked on drugs while serving our country in a place on the other side of the world where no one could see him or help him? She did not know. But she did know that as soon as he returned, he found a group of "friends" who loved cocaine and would do just about anything to get the next hit or snort or injection.

I know that cocaine has been called the "shame of Iraq" and that there have been court martials of soldiers who were caught selling weapons for cocaine. The only logical explanation for my young client is that he started cocaine in Iraq, and continued when he came home to the United States. Obviously, in either location, cocaine is easy to get—all it takes is money.

Hence, my client’s charge of murder in exchange for payment of money, which he used to buy more cocaine.

Going a little further than my client’s situation, I know that drugs in general are a major problem in almost every area of the United States. How can there be so many young people in prison for using drugs, or for committing a crime in order to get more drugs? Do these young people not have any family or friends who can see what is going on and help them stop ruining their lives? Do we, as parents, just sit back and assume "nothing will happen to my child"—thinking that it is just a phase and he or she will grow out of it? Have we become parental zombies who ignore all the signs because we are so busy with ourselves? And, best yet, how do we fix this problem?

I believe that our society has deteriorated to the point that we risk losing our future. I recall in my childhood a time when my family did not have to lock a door, or worry about me when I met my friends at the movies, or even think about crime in our neighborhoods. During that time in the United States, "crime" may have been high-school boys vandalizing a building. The police in these towns did not have much to do on a daily basis. But that was also a time when parents sat down at the dinner table at the end of the day with the entire family. They ate together; they discussed what was going on in everyone’s lives; they talked about their problems; they talked about church, school, and gossiped maybe about their neighbors. But they did it together as a unit, a family. That time is gone. We do not do that anymore. Children play video games about killing cops, committing robberies or other crimes and getting away with it; they watch violent movies on television—all under the same roof as the parents, who do nothing.

Now please—no angry comments about "my kid did all these things and he is now president of his own company" . . . or some such thing. I am not saying that every child who is allowed to grow up like that will turn out to be a mass murderer or a serial killer. I am saying that the habits of our lives today engender an attitude that family doesn’t matter and no one really cares what we do. It is not the best situation for a child.

Back to my client. We are sitting in this courtroom; I see him glance at me and smile. I know he feels that he is going to walk out of the courtroom a free man. I feel differently. I know how juries are and how they will convict someone whom they even remotely feel may be guilty. And, frankly, I gave a great closing argument—(second only to our famous Kelly Siegler’s closings). But even as I sat down, feeling a little smug about what I had done, I knew that it was not enough. I felt it; I sensed it. And I was right. The jury returned a guilty verdict, and my young client was sentenced to spend the rest of his natural life in a prison cell, where the highlight of his day will be feeding time at the zoo.

So sad.

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KELLY SIEGLER AND SUSAN MURPHY-MILANO ON E! THS INVESTIGATES: "HUSBANDS WHO KILL"

Tonight at 9:00 EST, don't miss two WCI contributors on E! THS Investigates. Our Prosecutor-for-Hire Kelly Siegler and our Violence Expert Susan Murphy-Milano were both interviewed for the show. "Husbands Who Kill" explores cases of seemingly loving husbands driven to murder their wives. One was in fact a loving husband. Problem was, his wife loved another man. That case ended in murder-suicide.

As most of our readers know, Susan's father (the decorated Chicago Violent Crimes Detective who caught the "Chicago Rippers") shot her mother to death before turning his gun on himself. Susan, then 29, found her parents' bodies. Ever since that day, she has dedicated herself to saving the lives of endangered women in domestic violence situations. She is also an author.

Susan will be providing commentary throughout the hour on tonight's program, which focuses on four women slain by their husbands. The three men who only appeared to be loving husbands had been living lies. Two had misled family and friends into believing they were pursuing advanced degrees, one in medicine, the other an MBA from Harvard. The truth was that neither had graduated from college and both were running out of money and lies. One of the wives discovered the truth, but did not live to tell. The other man gave his "ailing" wife Gatorade spiked with antifreeze and went on to become a popular radio host. (WCI's Broadcaster Michele McPhee wrote about that case and others in "Why Are Smart Women Carried Away by Fakes?")

The third husband living a lie was David Temple, a Texas football star turned high-school coach. Temple ended up being prosecuted by Kelly Siegler for firing a shotgun into the back of his wife's head. Belinda Temple was eight months pregnant with their second child. (Siegler, right, grills Temple during the trial)

Two of tonight's cases involve husbands convicted of taking the lives of their wives and unborn children. Lately, any story about a pregnant wife murdered by her husband immediately draws a Laci Peterson comparison. The Temple case predated Laci's by a few years, but there are notable similarities. The tale is complete with an Amber Frey look-alike—a mistress with one key character difference: Scott Peterson's lover did not know she was dating a married man until he became a suspect in his wife's disappearance. When Frey realized that Peterson had been motivated to do away with his wife so he could be with Amber, she helped authorities bring him to justice. David Temple's love interest, Heather Scott, a teacher at the school where David coached, knew her lover was someone's husband and father. After David murdered his wife, Heather (above) married him and testified on his behalf.

Once the cold-case made it to trial, the courtroom heated up as Kelly Siegler clashed with renowned criminal defense attorney Dick DeGuerin, making the media's prediction of "fireworks" between the legal giants the only easily predictable aspect of the explosive trial.

DeGuerin maintains his client's innocence, pointing out that Temple was filmed by Home Depot surveillance cameras around the time of the murder. DeGuerin (pictured right of Temple upon conviction) accused Siegler of being so effective at her job that she'd done what defense attorney Richard "Racehorse" Haynes once said was inevitable: "She's convicted an innocent man."

The victim's family saw things differently. When Temple was finally convicted nearly nine years after the murder, Belinda's brother said he'd suspected David's involvement within ten minutes of learning of her death. Following sentencing, her father said, "People have told us, 'Get over it.' You can't get over your baby—especially in these types of circumstances. . . . Put a shotgun to my baby's head and blow her brains out. It just wasn't right. And I'm so glad justice has prevailed."

In tonight's program, Kelly's case is just one of several stories on husbands who kill. For a full hour on the Temple case, watch 48 Hours on December 6 for the show produced by WCI's Jenna Jackson. Next year, expect a book on the case from Kathryn Casey, who's working on Shattered: The David Temple Story.

For tonight, watch Susan and Kelly for what the producer of "Husbands Who Kill" promises to be a provocative hour of television. Click here to watch the trailer for this special THS Investigates: An in-depth examination of criminal behavior.

Friday, November 14
9:00 p.m. EST
E! Entertainment Television Network
THS Investigates
"Husbands Who Kill"

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One Cop Who Never Quit

by Kelly Siegler

We are all raised to believe that what we should strive for in this life is the knowledge that when we leave this earth, we do so having made this world a better place. Isn't that what we have always been told?

If leaving this world better off because you have lived means helping people when they believe that everyone else has failed them or forgotten about them . . . If it means teaching someone that doing the right thing means telling the truth when you would rather not get involved . . . If it means convincing people to speak up and speak out even when doing so might put their very lives at risk . . . If it means taking on the cause of those among us who oftentimes never get heard . . . then I know such a man.

His name is Johnny Bonds. He recently retired from a lifetime career in law enforcement. He spent the first part of his career working for the Houston Police Department eventually finding his way to the Homicide Division. He retired from the Harris County District Attorney's Office as an Investigator. He spent most of his life doing what few have done better, as a "murder cop."

Johnny worked on the high-profile cases often enough during his career. One of his most difficult cases is profiled in The Cop Who Wouldn't Quit , a book Rick Nelson wrote about Bonds. But this article is written to tell you about all of the not-so-high-profile deeds that Johnny Bonds did for so many years.

Because my friends and I were fortunate to work alongside Johnny Bonds for so long, we got to see him in action close-up. His ability to convince people who were reluctant or defiant witnesses to come clean and tell what they knew the truth to be was masterful. His easy-going approach to handling dangerous and tragic situations was a lesson that all rookies would be lucky to study. His innate perception at how best to approach people from all walks of life was impeccable. The number of investigations and unsolved cases he closed are too numerous to count.

In the world of homicide cops, Johnny would tell you that he was no different than any of the other guys he worked alongside. He had far much less machismo and ego than one might expect. He was first and always a team player more committed to getting the job done than to anything else. His ability to laugh and to make others laugh when all seemed so bleak and his ability to size up a situation will always be remembered.

Ah, Johnny Bonds, the families you have given justice, sometimes single-handedly. The grieving parents you have given some measure of solace. The innocents you have helped make safe from the evil visited upon them. The wrongs you have helped right. The good you have done in this at-times terrible world. May God's blessing be always upon you. For all you have done for all of us.

You have truly left our world a better place because you decided to become a cop.

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A Lesson in Confessions

by Katherine Scardino

Fade in to a dimly lit small room with a low bulb hanging over a square table. Two hardback, uncomfortable chairs. There is one door to the room with no windows. A young black man is sitting in one of those straight-back chairs facing an older, white man with a badge so big one could not miss it hanging over his belt.

The white man has on stiff, creased Wrangler jeans with shiny polished black cowboy boots and a starched white shirt. His hair is short and graying. His red face is about an inch from the sweating face of the young black man and he is yelling and pounding on the table.

“You know you are lying! Tell me you did it and we can go all go home!”

That is what we generally think of “confessions.” Not very nicely done . . . but productive. However, as with everything else in our lives, I repeat what I have said many times before on Women in Crime Ink - THERE ARE RULES.

When it comes to an accused person giving a statement, here is "The Rule of all rules":

“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion under the rules hereafter prescribed.”

We have all heard officers on television (or maybe, even in person) recite your “rights” to you. Those rights are referred to as your “Miranda rights,” a slangy term for the holding in Miranda v. Arizona, a case decided by the Supreme Court in 1966. Two of these rights that must be read to you at the time you are making a statement to the police is that (1) you have the right to have an attorney present to advise you before and during any questioning and (2) you have the right to remain silent and not make any statement at all.

There have been literally thousands of cases citing Miranda v. Arizona, where a defendant is contending that his constitutional rights have been violated in some manner. In most criminal cases, the officer at least makes an attempt to question an accused citizen. This accused citizen either cooperates and tells the officer everything he knows, or he refuses to make a statement.

But, whatever he does, it must be done voluntarily. In other words, the officer cannot beat a confession out of you; he cannot promise you something that he knows he cannot deliver to you (such as your freedom); he cannot withhold your attorney from you if he is there and wants to advise you. You have the constitutional right to refuse to say anything, and especially that which may tend to incriminate you.

I bring all this up to you, because Texas has a Death Row inmate who very recently just hit the jackpot - a Federal judge here in Houston just gave him a new trial. He is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Guidry has already had his retrial; he heard that one-word verdict and the dreaded death sentence for the second time. But Mr. Fratta’s new trial is yet to come.

In past postings, I have talked about these rights that you and I have and how important they are. I know some of you will start posting your disgust with the criminal justice system immediately upon reading all this. But, remember, the defense lawyer’s objections that were ultimately ruled valid had to do with a police officer not allowing Mr. Guidry to talk to his lawyer and his confession being admitted as evidence in front of all three juries, who then handed down death sentences.

Think about how our system would work if the rules were different. Imagine your son or husband being arrested for suspicion of committing some crime and being placed in similar circumstances.

Does it make a difference in the way the rule works whether the person is guilty or not?

How would anyone know that during that early stage of investigation?

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

A lot of questions.

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Trying to Control the Uncontrollable

by Kelly Siegler

Ever thought about what it feels like to be the person in charge of a trial? The orchestrator, if you will, of the witnesses and of the evidence? The person who should by all appearances have the presentation completely planned and under control? What does it really feel like to be the prosecutor trying a serious case?

I can tell you. In a word, miserable.

Not fun.

Sick to your stomach.

Scary.

The truth might surprise a lot of people. It might even surprise a lot of long-time prosecutors. Yeah, yeah, we know. . . . We've all heard the lectures and the stories about how "exciting" and "challenging" and "exhilarating" it is to be a trial lawyer. Anyone who truly enjoys being in a trial is to be admired. I wish I could feel that way.

Truth is there aren't a lot of other situations in the job market very much like the stress that comes with preparing for and enduring a jury trial. Throw into that conflict the fact that a heck of a lot of prosecutors tend to like to CONTROL their world as much as possible and their "world" is loaded with nothing but UN-controllables.

Least in our control are the witnesses, as much as we like to think we can prepare them. . . . Other uncontrollables: the jury we ultimately end up with, because we kid ourselves that we picked them—funny; the Judge whose courtroom we find ourselves attempting to orchestrate our "symphony" in; the defense attorney, whose sole purpose it is to try to derail our carefully laid plans; the scheduling, the timing, the cross-examination of every, single witness. . . . Geez, I'm getting sick just thinking about all of it.

And what about the part over which we really think we have control? Our own performance?? How brilliantly we PLAN to make a point or argue our case or kick some butt. . . .

Maybe all of our angst and nerves and stress are the reasons why we resort to such lame and even silly attempts to convince ourselves that we are truly in control. It is pretty amusing to know that a lot of us have ourselves convinced that wearing a certain color on the "big" day will bring us luck or that wearing a certain color will ward off evil spirits. Think I'm making this up? WCI's defense lawyer Katherine Scardino recently disclosed she has a fairy wand.

Believing that if we eat the exact same food every single day of trial or placing our trial "tools" on the table in the courtroom the exact same way every day will guarantee a successful resolution are other "tricks of the trade." Following one of those "tricks" led to a friend of mine getting really sick of eating red Jell-O after three weeks in a trial.

The most commonly seen "side effect" of being in trial is losing weight. We even call it a "trial diet." There aren't too many prosecutors out there who are able to eat a real meal while trying to put on a "perfect" presentation of evidence. Heck, most survive on Diet Cokes and don't eat at all! It once got so bad during a trial that the jury asked the bailiff to see if there was something wrong with me because I was starting to look so lousy after about week five.

So now you know. The next time you see a prosecutor looking ever-so-cool in the middle of a trial . . . nothing could be further from the truth.

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Too Beaten Down to Cry

by Kelly Siegler

The most commonly asked question I have faced during my twenty-plus years as a prosecutor in one of the most-populated counties in the U.S. is, "How do you not let all of those things that you see affect you?"

As a prosecutor in Harris County, Texas, I have seen horrible things: photographs, statements, and details of the worst atrocities one human being can commit against another. Depraved, cruel, sick, heartbreaking crimes. Committed in the name of love, for money, just for the "fun" of it, because it was the easy way out, or for no reason at all.

Strangers murder strangers. Loved ones hurt loves ones. Mothers kill their babies. Daddies abuse their children. Children torture their parents. There is no line drawn anywhere that has ever stopped or ever will stop the horrific ways our world has found to hurt one other.

The details of the many cases and crimes I have handled would disgust and frighten "normal" people and there are too many to list.

Every police officer, medical examiner, or prosecutor who has given chunks of his or her life to law enforcement probably feels the same way. I could tell you about the time I had to display and discuss autopsy photos of the internal organs of a one-year-old girl, spread out on a metal tray, so a jury could see with their own eyes evidence of internal hemorrhaging. Or I could describe autopsy photos that showed the exact marks a hammer left on the skull of the woman Joseph Ezell swore that he loved. I could tell you what the weight of the world felt like when I questioned a little boy about being sexual abused. His eyes clung to mine while I asked him about sordid details he wishes he could forget but will remember forever.

So how do you not let any of that affect you?

Funny. I thought for a long time, that I didn't let it affect me. I answered people who asked me that question, "You just have to learn how not to bring it home with you, how to leave it all at work . . . to just not think about it." That was a skill I thought I'd mastered.

That ended the day I met a young lady named Amber Shore. Amber Shore is the biological daughter of Anthony Allen Shore (pictured right). Anthony Shore now sits on Texas Death Row, convicted of capital murder in Harris County in 2004. Corey Mitchell wrote about the horrible crimes committed by Shore, an admitted serial killer, in his book Strangler.

In preparing for Shore's trial, another prosecutor, Terese Buess, and I spent weeks lining up witnesses and physical evidence from Shore's many murders, in which he raped and strangled his female victims. It wasn't until the second phase of the trial, the punishment phase, that I met Amber in person. She flew to Houston because she had agreed to testify against her father, whom she had not seen for more than seven years. I met with Amber at a Houston hotel, where our office typically houses witnesses, one evening after her father's trial ended for the day. In her early twenties, Amber had dark hair and eyes like her father. She was shy and obviously nervous to meet me.

That evening, I explained all of the questions I would need to ask her on the witness stand the following day and delicately worked my way through her answers. She answered every question, as painful as they had to have been for her, about being raped and humiliated and scorned and degraded by her own father. She talked about being called "stupid," an "idiot," and "retarded" so often by him that she came to believe it. Without flinching and never shedding a tear, she told me everything she remembered.

She told me about her younger sister, Tiffany, and how beautiful and smart and how much more of a "people-person" Tiffany was. I can still see how her eyes lit up when she talked about her "successful" little sister.

But the answer that will always haunt me is when I asked Amber why she finally told someone her father was sexually abusing her. She looked at me and said, "because it didn't matter what he was doing to me. I'm nothing. But I couldn't let him do that to my sister. She's different, and she's special. And I had to protect her."

The contrast of her utter belief that she was "nothing" and her determination to protect her little sister affected me more than any other single moment in my career. It took incredible courage for Amber to stand up in a strange courtroom, years after the fact, and detail her horrific abuse, while her father/abuser, the man who'd convinced her she was nothing, sat directly in front of her.

Amber Shore, believing she was "a retard," testified in the face of the monster who was her father, all for the love of the little sister she was determined to protect. How could a father do to his baby girl what Anthony Shore did to Amber? And to Tiffany? And from where in her genetic make-up did Amber find such amazing courage? So terribly scarred by her father, who had the IQ of a genius, Amber continued to struggle in life.

Please God, watch over Amber.

Now when people ask me that question, "How do you not let all of those things that you hear and see affect you?" I tell them what I have always told them. That you have to learn to keep the two "lives" separate.

I lie. Because it's too painful to think about Amber Shore.

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Unreasonable Doubt?

by Vanessa Leggett

What's a juror supposed to do when common sense says a defendant is guilty, but the law says the prosecution has not proved its case? Before a defendant is brought to trial, the case against him is usually solid enough to secure a conviction. By the time a verdict is read, both sides are primed to hear one word: GUILTY. The evidence should be developed and presented in such a way that even the rare defendant who is actually innocent is mentally prepared to hear that word. That’s why all but the jurors are stunned whenever the verdict read is “Not Guilty.”

I've seen it happen in a Texas courtroom. I'll never forget the experience. My legs went noodly on me. So did the defendant’s, apparently; his attorneys seemed to hold him up. You don't have to be a witness or on trial for your life to appreciate the dramatic effect of those two little words. If you're at least 20, you remember your reaction to the televised verdict in "The Trial of the Century," the O. J. Simpson case. Whether you believed he was guilty or not, your jaw likely dropped. You can see in this video clip an expression of initial disbelief from Simpson himself, who took a moment to absorb the words he had just heard.

I was reminded of this feeling last night. While working on a blog I intended to post on suspected wife killer Drew Peterson, I heard a broadcast announcement that made me change my blog topic:

"We have breaking news to report to you," a talk-radio host announced. "Believe it or not, a jury in St. Paul, Minnesota found Aaron Foster NOT GUILTY for the murder of Barbara Winn. Twenty-seven years after the family fought for justice . . . a murderer, in their mind, Aaron Foster, walked free. . . . A shocking verdict for court watchers."
To my surprise, it was a shocking verdict to me, though I had only a passing knowledge of the case—woman says Get out of my life to abusive partner, who, rather than comply, takes her life. The setup was as familiar as the Simpson and Peterson cases. As was that queasy feeling in my gut that comes when I sense a miscarriage of justice.
Listening to the broadcast announcement of a not-guilty verdict from the other side of the country, I could only imagine the reaction of the victim's family, her children, and others present in the courtroom. No one knows the shock of hearing "Not Guilty" better than surviving family members. They'll tell you the effect is at once as dizzying and as sobering as a slap across the face.

Everyone who witnesses such a verdict is affected on some level. In the Minnesota courtroom, the words "not guilty" created chaos. The FOX affiliate in St. Paul reported that "the verdict left many people in the courtroom upset, swearing and crying." Family members shouted, "Oh my God. Oh my God." Another news source said that several jurors sobbed.

A Single Shot

The first fact I heard—that 39-year-old Barbara Winn had been shot in the chest—had my mind leaning in the direction that the gunshot wound was not self-inflicted. Might seem like jumping the gun, if you'll pardon the pun, but I will explain.

When I taught a course in Homicide Investigation for the Criminal Justice Center at the University of Houston-Downtown, we covered the basics of distinguishing a homicide from a suicide. Cadets are given various handouts (illustrated, incidentally, by the same talented man who designed Women in Crime Ink's Justitia logo—Rex White, Director of the CJC's Police Academy). As I recall, one sketch depicted a woman shot twice in the chest. The caption read: Homicide or Suicide?

Well, the number of shots alone pretty much answers the question. Most people who shoot themselves wouldn’t have the strength to discharge a firearm more than once, even if the first shot was a miss. Still, if the drawing had shown only one gunshot wound, but in the chest, like Barbara Winn's fatal injury, I would still lean toward homicide. Women, vain creatures that we are, rarely mar our faces or breasts.

Too Many Bruises

Barbara's body had been marred before she was shot. She had numerous bruises, some fresh, which prosecutors suggested had been inflicted during the struggle that led to the shooting. Aaron Foster (pictured to right of Barbara) had a pattern of domestic violence with women. His relationship with Barbara had grown increasingly violent, according to the "Justice for Barbara" Web site. Finally, she asked him to move out, told him the relationship was over.

"I'm not your girlfriend anymore,” Barbara wrote to him in a letter. “I will not be abused. I am tired of the bruises. I am somebody and don't have to be treated like a nobody. Strike three you're out."

After Barbara broke up with Aaron, she joined friends and family for a night out. She returned home just after midnight on May 8, 1981. Aaron had not moved out. He was waiting for her.

Later, two of her three children were awakened by a "loud fight." Both heard the gunshot. One son, then 12, testified that he heard his mother utter her last words: "Oh Bubbie, that hurt. . . ." (Aaron Foster's nickname was "Bubbie.") Reading that quote broke my heart. It's so sad, so real, you can almost hear her voice weakened by disbelief.

The boys said they ran to their mother's room just as Bubbie was rushing out. The children found Mama propped in a corner with a hole in her chest. The boys watched their mother die, powerless to keep her alive.

Though Barbara's sons told authorities they saw Aaron Foster running from their mother's room, Aaron's story to police was that at the time of the shooting, he had been downstairs packing his belongings into his car. He admitted he "heard a gunshot." But he said that he'd arrived in the bedroom to find her near death.

According to Aaron's statement to police, Barbara said, "I shot myself. . . . Get rid of the gun." That does not sound real at all. Why would she say, "I shot myself"? . . . Just in case Aaron was wondering who had used his gun to shoot his ex-girlfriend? (The same woman who'd put her feelings about him in writing: "Strike three you're out.") The simplest explanation for what he described as her dying declaration—"I shot myself"—was that he was attempting to clear himself by claiming her death was a suicide.
And he didn't stop there. Looks like he had to create a reason for fleeing with the weapon, so he told police that as Barbara bled to death she supposedly said, "Get rid of the gun."
So that's all it was, Aaron Foster would have us believe—just an unlucky guy trying to fulfill an ex's last request. . . . Come on. A woman is dying, so instead of calling for help, he runs to hide the gun? And what possible reason would Barbara have to tell him to dispose of the weapon? Think about it: Why would a woman who had fatally injured herself be concerned with police finding the weapon she'd used? There is no law against a person taking his or her own life. It's a practical matter. A dead person cannot be prosecuted.

The manner of Barbara’s death was listed as “undetermined,” a finding that did not change for more than a quarter century. Time was not on the side of the State. Over the years, ballistics evidence was misplaced. Surviving family members, understandably, lost hope.

Not Enough Evidence

Law enforcement, as Kelly Siegler noted in yesterday’s post, is routinely frustrated by prosecutors who won’t file charges against suspects who seem guilty to the public. The Barbara Winn case is an instructive example. In a televised press conference last year, the sheriff accused the county prosecutor of “dragging his feet.” Standing with Barbara’s family, he said, “We are befuddled as to why they haven't pressed [charges]. It's either lack of competency, lack of caring, lack of making it a priority . . ."

It had seemed that way until 2006, when a contentious sheriff's election caused prosecutors to lower the bar, indicting Aaron Foster for third-degree murder. According to Minnesota statutes, if Foster, "without intent to effect the death of any person, [did] cause[] the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, [he] is guilty of murder in the third degree."

By charging Foster with third-degree murder, prosecutors had hoped to show that even if Aaron did not mean to murder her, Barbara's death had been brought about during the course of an assault that culminated in a gunshot, killing her. That the manner of her death remained undetermined would not matter with third-degree murder, which can be unintentional or accidental.

The elements of the crime seem to have been satisfied. Barbara had fresh bruises and the couple's scuffle in the bedroom had been heard by the boys (pictured above with sister and mother Barbara). Those facts alone constitute evidence of assault, and exhibiting a deadly weapon (his gun) qualifies as "an act eminently dangerous to others," namely Barbara. An armed man assaulting a defenseless woman seems evidence enough of a "depraved mind." And the essential element, that she died, was indisputable. That's all the jury should need: evidence of a fight and a dead body.

Other circumstantial evidence that was not admitted would have been compelling. She was leaving him, had ordered him out. But the defense was able to suppress her Dear John letter and other evidence taken without a proper search warrant. Nor did the jury hear testimony of Aaron's pattern of violence with other women.

Should prosecutors have waited for more evidence before indicting? Apparently, the county attorney decided it was now or never. Twenty-seven years is a long time, and in all likelihood, prosecutors did not expect evidence would get any better.

Yes, it's true that there is no statute of limitation on murder. But there is a Constitutional limitation on how many times any state can try someone for the same crime. The State of Minnesota had one shot. The government missed. Maybe prosecutors had rolled the dice, taking the "he might beat the rap" tack—prepared to be pacified by taking Foster on the hellacious ride of a murder trial.

This jury's verdict showed that the county prosecutor had not been "dragging his feet," as the sheriff charged. Nor was the State's reluctance to go to trial a sign of incompetence, indifference, or failure to make this case a priority. If prosecutors lacked anything, it was admissible evidence sufficient to convict.

With the trial behind, two things appear clear: The defendant's rights were protected, but justice seems to have been undermined. I believe in safeguarding our civil rights. Yet I also believe in securing justice for victims. One should not have to come at the expense of the other.

Fewer Solutions

So what is a juror supposed to do when guilt is obvious but the evidence is insufficient to convict? Follow the law, as each man and woman on a jury panel must—however onerous and uncomfortable that can sometimes be . . . their internal conflict evident when jurors, as in the Foster case, must read their verdict and weep.

And what are victims supposed to do when they feel justice has not been served? Make their voices heard. Use the power of the pen (or the Internet) to send a message to those who can make a difference. Victims can also write to the jury, as did the family of Barbara Winn, in a letter that states in the opening paragraph, "We are not angry with you, the jurors. . . ."

Members of the jury actually posted written responses. Most agreed with this juror's statement: "[W]e couldn't prove guilt by the information we had at the time." Another juror's comment captured the essence of the conflict: "If you had looked over at the jury box as the verdict was read you would have seen many of us in tears because we so badly wanted to put it to rest. I am sorry for the way it ended but we had to follow the law and not our hearts."

Just Enough Courage

It's sad that after high-profile not-guilty verdicts, the public accuses juries of lacking common sense. I say such juries possess an abundance of courage, sending a message to prosecutors: Don't ask us to find someone guilty unless you plan to put on enough evidence to convict. In more acquittals than not, a jury's doubt was not unreasonable. What might have been unreasonable was the prosecution's decision to put the defendant on trial without having a strong case or a compelling argument.

When a case is weak or a prosecution is made in bad faith, the Constitution is there to shield the individual whose life and/or liberty is at stake. It might not seem right or fair that criminals are sometimes insulated from accountability by laws that occasionally leave victims hanging.

The truth is, the Bill of Rights isn't reserved for the accused. Law-abiding folks can take advantage of other entitlements. Barbara Winn's family members have exercised their First Amendment right to free speech. A scrolling marquee on Justice for Barbara reads: "AARON FOSTER IS A MURDERER." Can they say that? I think so. A defense to accusations can be found in more civil statutes than in criminal courtrooms: Truth.

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WIN AT ALL COSTS? NOT REALLY

by Kelly Siegler

Why is it that the media and Hollywood seem to be obsessed with the idea that prosecutors are always after the "win," the "scalp," the conviction? How many times have we read a book or watched a movie that was all about some unethical prosecutor seeking to advance his or her career by convicting an innocent citizen? Not just about blurring the lines and disregarding the rules of evidence but flat out doing their utmost to convict someone who the make-believe prosecutor knows full well is innocent of any crime.

Oh, it all makes for a very touching and absorbing story. As well as feeding into the kinds of tales that Hollywood likes to tell.

The only problem with such stories is that nothing could be further from the truth. Quite the opposite, in fact, from the standard, typical everyday problem that truly exists with prosecutors. Ask any veteran police officer or detective. Ask any long-time crime victim advocate. Ask any respected judge. They know what the true problem is with way too many prosecutors. And it has nothing to do with trying to convict innocent citizens.

The real problem is that far too many prosecutors are worried about taking on a difficult case, a case that is not a slam-dunk or a whale ("as easy as harpooning a whale in a barrel," as we say in Harris County, Texas). Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow. What prosecutors seem to forget is that the question they need to be asking is whether a jury of twelve, ordinary, normal, non-lawyer citizens would convict on the evidence presented to them or evidence easily developed by the prosecutor after the filing of charges.

Evidence easily developed after the filing of charges. Maybe it's laziness that's the problem. Or maybe prosecutors get away with rejecting charges because everyone forgets that a lawyer can work up a case and investigate it further just like the police officer who initially worked on the case can. There is absolutely no reason for someone preparing to go to trial to not try to make the evidence stronger. The truth is the truth and a prosecutor can find that one additional witness or one little piece of evidence just as easily as a cop can.

I betcha if you could interview a group of experienced detectives and ask them what their number one pet peeve about their job was, the answer you would get would be having to present their cases to prosecutors who have no guts. As a prosecutor with over twenty years of experience, I can't count the number of times I have heard well-respected police officers vent about this problem.

So why is this "chicken" attitude such an unknown problem? Simple. Primarily because prosecutors don't usually talk about it. And those same righteously upset cops don't typically tattle about it; they just try to figure out a way to work around the problem. So instead of officers being able to go to a prosecutor to seek advice on an investigation, what happens more often than you would ever expect is that the officers find the prosecutors they are forced to deal with to be an obstacle in their investigations.

And that is a tragedy.

What is even more tragic is the number of victims in our society who have been made to believe that the crime committed against them or against their loved one is a crime that does not merit the prosecution or filing of charges. It would be a rare case for a police officer to say to a grieving family member that he believed that there was enough evidence to file a charge and convict a guilty defendant BUT the PROSECUTOR he went to decided there was not enough evidence. Cops don't do that because all that does is cause a victim more pain. So in effect what happens is a cowardly prosecutor is shielded from having to make a tough call or take on a difficult prosecution. And a hurt or grieving family is left to suffer even more.

So let this serve as a wake-up call or a call to arms to victims. If you have a true understanding and appreciation of the evidence in a case that concerns you, ask your detective what he thinks about the state of the evidence. If necessary, complain. To the police officer's supervisor, perhaps more importantly to the prosecutor's supervisor. What if the prosecutor is the elected DA who has no boss? Then complain to your local media; that's a story they would love to jump all over. They would get a twofer: the ability to investigate a REAL crime and criticize the local prosecutor's office while showing them up. Besides, what do you have to lose by complaining?

What seems to get lost in all of this is the fact that prosecutors are like any other professionals. By that I mean that no two are alike. Do you think every teacher handles her classroom the same? Or every orthopedic surgeon agrees on when surgery is necessary? Is there a difference in attitude between NFL quarterbacks Brett Favre and David Carr? Or between Diane Sawyer and Nancy Grace? Same thinking applies to prosecutors and how they do their jobs. It's just that we don't seem to appreciate that personalities do affect their decisions, such as what constitutes enough evidence to file charges.

Prosecutors' differences are more apparent in the courtroom during trial. We need to realize that those same differences apply to their decision-making, especially when it comes to that initial decision on whether to take on a case that might well be more difficult than most.

In contrast to the very rare, despicable prosecutor like Mike Nifong (below), how many more are out there handling cases but refusing to accept charges when the evidence seems more than sufficient to you? Nobody truly knows ALL of the evidence in any case but the investigating officers. Do we really know ALL of the evidence in the JonBenét Ramsey case? (See Stacy Dittrich's blog for an update.) Or Natalee Holloway's case? Or even in a case that concerns you?

Win at all costs? Funny. Unfortunately, the truth is, all too often, prosecutors won't even get in the game.

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