One time, when trying a case as a prosecutor, I asked the jury to find the defendant Not Guilty. I did not ask them this on purpose. As you might imagine, if I take a case to trial, my job as the prosecutor is to get a Guilty verdict. So to ask the jury to find the defendant Not Guilty isn’t what you’d consider setting yourself up for success.
Why did I say it? It was a slip of the tongue, I suppose. Probably because I didn’t believe the defendant was guilty. Then why was I trying the case?
Because I didn’t know any better. Because as the case went on and after the victim testified, I started to believe the defendant more than the victim. Because misdemeanor assaults are always a mess, and without clear, visible injuries to the victim, such cases can easily unravel into chaos mid-trial.
There’s no worse feeling as a trial lawyer than hearing your witness say something on the stand for the first time. “Ah,” you’re thinking to yourself, seething, “Glad you shared that for the first time for everyone to hear. Wish you’d have told me that before I put you on the witness stand.”
In this case, it seemed that the defendant was trying to protect himself from the victim, and because he got the better of the victim, he got charged with assault by the police when they responded to her phone call. But I couldn’t see all this until the victim testified. (Lack of time plays a role, too. As a misdemeanor prosecutor, you are trying cases every single week. You don’t have the time to devote hours of witness interviews, research and analysis into a case like you would for a felony trial.)
Now, it wasn’t all for nothing. They found this defendant guilty on count 2, and the guy went to jail for a minute. Count 2 was something like Interference with an Emergency Phone Call, which is also a misdemeanor charge.
What the jury did was “split the baby”. They did not want to find the defendant guilty of assault, but they wanted to make sure he was guilty of something, and since they had the count 2 option to pick, that’s the way they went.
When I told the jury to find the defendant Not Guilty, there were several snickers from the jury, not to mention the judge, and a stiff side-eye from my trial partner, who projected a look of something akin to “what the f*ck did you just say?” (Keep in mind, a Not Guilty verdict reflects poorly on your trial partner, too. After all, they participated in the losing effort right there with you, and they too will get one in the “L column”, same as you. So me asking the jury to do such a thing was not what she had in mind.)
When I realized what I’d said, I was halfway back to counsel’s table. I turned around, went back to the jury box, and tried to put on a serious face. I couldn’t help but laugh a little myself—how can you not? I messed up, best to own it. And when I got back to the jury box I gave them some bullshit like “if this wasn’t a serious case, my comment would be funny, but it is serious, very serious, and you need to find him guilty.”
Nah, the jury said, we’re good. We like what you said the first time around. But tell you what, we’ll find him guilty on Count 2 because we like you, prosecutor. How about that?
What did I learn from this blunder? Well, first I learned not to try cases that suck. That’s a good place to start. I also learned not to take cases to trial when the defendant isn’t clearly guilty, as such a notion might creep into your subconscious at the worst time: closing argument to the jury. But the most important thing I learned was that mistakes happen—this was the first of many during my time as a prosecutor—and all I can do that’s productive from here on out is embrace it, and learn from it. I mean what else can I do? As they say, they call it the “practice” of law for a reason.
The defense attorney was such a nice guy that I was kind of OK with the fact that the jury found the defendant Not Guilty on Count 1. This defense attorney was immensely likable, and he earned every bit of that Not Guilty verdict for his client. And for what it’s worth, there is a nearly 100% chance that the jury was going to find the defendant Not Guilty on Count 1 whether I said what I said or not. I simply opted, unconsciously, to ask them politely to do so.
Misdemeanor assault cases are the hardest cases in the courthouse to prosecute, a 30-year prosecutor once told me. He wasn’t the only one to say it. Such cases render more Not Guilty verdicts than any other criminal case that you’ll try. There are myriad reasons for this, but a couple stand out.
First, the injuries usually aren’t bad, i.e., visible, in a misdemeanor assault case. If the injuries were any good, i.e., serious, then the case would be a felony, and some other prosecutor in the felony division would be trying the case, not you.
In other words, you’re lucky if the victim actually had a bruise or a scrape to speak of, let alone had it documented in a photo.
Second, misdemeanor assaults are usually stupid tussles, almost always with alcohol involved, with both defendant and victim participating in the fight. Usually it’s a lot of pushing and shoving back and forth until finally one side gets a good blow in, and the fight is over. By the time it’s done, no one in sight can tell who started it, or what set it off. “Because he was talkin’ to my girl!”; “Because he looked at me funny!”; “Because he called me a lil’ bitch!”
Because if the victim started the fight, it’s kind of hard for a jury to get mad at a defendant for finishing it. Even when a woman starts a fight against a man, I’ve seen a jury find the man Not Guilty because they didn’t like the woman. She had no marks on her, she started the fight, when she tried to hit him ten times, he pushed her away, she fell down, and hit her elbow, and she called the cops. Jury says he’s Not Guilty. Right call? Who knows. You weren’t there. It doesn’t make it right, but a jury will do what a jury does. You weren’t in the room, they’d say. You didn’t hear her speak.
I have had a jury tell me these exact words: “Yeah, we think he did pick her up and slam her, but we don’t think he assaulted her. Plus, she had it coming.” I am not kidding. They literally said those words. They said this to me and my trial partner, verbatim, after finding the defendant Not Guilty.
Imagine that feeling. Imagine being the prosecutor. Imagine being the victim. And the jury tells you this after the trial. How would you feel? “Sounds like you just said he assaulted her, ladies and gentlemen, so tell me, why exactly did you find him Not Guilty of assault?
Because hell if I know. If you think you would never, you might think again. Once the facts come out, and the victim is unlikable, it’s hard to come back from that.
But let’s get back to this story.
I am not proud of telling the jury to find a defendant Not Guilty. It’s exactly what you DON’T want your prosecutor to do. I went on to prosecute some good cases, and had many Guilty verdicts to my name, but of course you only remember the losses, and the blunders. And don’t worry, I’m not a prosecutor anymore. I am no longer in a position, on behalf of the state of Texas, to try a case against a defendant and then the jury to find this defendant Not Guilty.
I will always have the utmost respect for prosecutors. It is a stressful job, and it leads to a stressful life. You take your cases home with you. Their facts and emotions and pictures sit like a cloud over your dinner table, your drive home, your ceiling fan as you try to fall asleep. Especially the ones involving children. Every move, every word, every step and misstep, every woulda-coulda, every if-only-I’d have-said-this…they all count in front of a jury.
Once you try the big cases, a mess-up can be catastrophic. That’s why you cut your teeth trying misdemeanor cases, like I was doing in this story. This was maybe my 5th trial or so, ever, and I had so much to learn. I was just trying to keep everything straight in my head, juggling all the balls in the air, putting on a decent case, only to tell the jury at the very end of it to: “ignore all that, find him Not Guilty.”
The truth is, they would’ve found him Not Guilty anyway, not because of what I said, but because it was the correct decision, and my case never had a chance. I didn’t know that until I tried it, and learned it, the hard way.
Many more mistakes were to come. I have won many more cases than I’ve lost. But I barely remember the victories. Mostly I remember the losses. Such is being human. I can only look back on these mistakes with gratitude for what I learned and how I learned it, and with love for such a rookie prosecutor.
I tell this story to other younger lawyers, and I hope that maybe by telling them these stories, they can put their mistakes in context, learn from them, and not be so goddamn hard on themselves. You’ll never forget your failures. They’ll swirl in your head for the rest of your life. You might as well use them for good.
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