Directed Verdict of Acquittal
Those are sweet, sweet words to the ears of a criminal defense attorney. They are also very, very rare.
I picked a jury on a domestic violence case this morning, although I had some misgivings. After my last domestic violence case, I've gotten a little gunshy. That last verdict threw me for a loop because it just seemed unjust, in the truest sense of the word. There is no way that the State could have carried their burden, yet the jury found that they did. Go figure.
Essentially, all the State had here was the 911 tape. The complaining witness had gone over to the neighbor's house and had the neighbor dial 911. I managed to keep the most damaging portions of it out of evidence, but there was still a fair amount of crying and drama on the tape. The State wasn't able to serve the complaining witness, so she wasn't there. (I had made a motion to dismiss for want of prosecution first thing, but the Judge denied it.) And the neighbor testified about what she heard, which wasn't much. And then the State tried to call the police officer. While he appeared in the morning, first thing, he could not be found later one. He had worked the morning watch, and had gone to take a nap in his truck. Apparently, his cell phone wasn't working in the parking deck. So the Judge recessed for lunch early.
I agonized over whether the client should testify or not. In all the D.V. cases that I've won, the client has testified. In those cases where the client hasn't testified, we've lost. And that's something that I didn't realize until I typed those very words. In any event, I was nervous in this case, because I think juries, no matter how much you try to educate them to the contrary, want to hear from the defendant. In this case, however, things would have gotten a little sticky had the client testified.
When we returned after lunch, the officer could not be found, and the Judge looked directly at me and said, "do you have a motion?" I was a little thrown off, because the State hadn't formally rested, it wasn't quite time yet to make the directed motion verdict but I went ahead and renewed the motion to dismiss for want of prosecution. And, because the Judge didn't respond, I made a motion for directed verdict on some counts where there was an utter failure or proof.
The Judge then asked for the State's position, and ended up granting the motion to dimiss for want of prosecution. He stated twice, I think, that they State couldn't prove essential elements of the offense. It then became clear that he was talking about all of the charges, and not just the ones I identified in my motion. When the assistant prosecutor pointed out that they had in fact prosecuted, the Judge agreed that the motion I had made wasn't the proper vehicle, and directed a verdict on all of the counts. I did not expect that at all, because it is so very rare. There was some testimony that the complaining witness had cuts and had hair torn out. I had assumed that the Judge would find that, given the circumstances, the State had established a prima facie case. Needless to say, I was pleasantly surprised and then explained it all to my client.
The only downside was, I never got to give my closing. All of the energy I had built up had nowehere to go. I did nothing for the rest of the afternoon, and I'm sure that I'll be paying for that.
I picked a jury on a domestic violence case this morning, although I had some misgivings. After my last domestic violence case, I've gotten a little gunshy. That last verdict threw me for a loop because it just seemed unjust, in the truest sense of the word. There is no way that the State could have carried their burden, yet the jury found that they did. Go figure.
Essentially, all the State had here was the 911 tape. The complaining witness had gone over to the neighbor's house and had the neighbor dial 911. I managed to keep the most damaging portions of it out of evidence, but there was still a fair amount of crying and drama on the tape. The State wasn't able to serve the complaining witness, so she wasn't there. (I had made a motion to dismiss for want of prosecution first thing, but the Judge denied it.) And the neighbor testified about what she heard, which wasn't much. And then the State tried to call the police officer. While he appeared in the morning, first thing, he could not be found later one. He had worked the morning watch, and had gone to take a nap in his truck. Apparently, his cell phone wasn't working in the parking deck. So the Judge recessed for lunch early.
I agonized over whether the client should testify or not. In all the D.V. cases that I've won, the client has testified. In those cases where the client hasn't testified, we've lost. And that's something that I didn't realize until I typed those very words. In any event, I was nervous in this case, because I think juries, no matter how much you try to educate them to the contrary, want to hear from the defendant. In this case, however, things would have gotten a little sticky had the client testified.
When we returned after lunch, the officer could not be found, and the Judge looked directly at me and said, "do you have a motion?" I was a little thrown off, because the State hadn't formally rested, it wasn't quite time yet to make the directed motion verdict but I went ahead and renewed the motion to dismiss for want of prosecution. And, because the Judge didn't respond, I made a motion for directed verdict on some counts where there was an utter failure or proof.
The Judge then asked for the State's position, and ended up granting the motion to dimiss for want of prosecution. He stated twice, I think, that they State couldn't prove essential elements of the offense. It then became clear that he was talking about all of the charges, and not just the ones I identified in my motion. When the assistant prosecutor pointed out that they had in fact prosecuted, the Judge agreed that the motion I had made wasn't the proper vehicle, and directed a verdict on all of the counts. I did not expect that at all, because it is so very rare. There was some testimony that the complaining witness had cuts and had hair torn out. I had assumed that the Judge would find that, given the circumstances, the State had established a prima facie case. Needless to say, I was pleasantly surprised and then explained it all to my client.
The only downside was, I never got to give my closing. All of the energy I had built up had nowehere to go. I did nothing for the rest of the afternoon, and I'm sure that I'll be paying for that.
posted by swd at 9:06 PM
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