Non-verbal communication during Voir Dire

Phil Stackhouse. July ’10 Grad. 

Belief in your client?  Why?

Back in November 2011, Maren Chaloupka forwarded an email from Joey Low who was describing a overwhelming victory by Johnny Zelbst in a civil case.  Joey wrote a paragraph that I found very thought provoking – especially as it is applied to criminal law.  He wrote:

“That until I get past my hope or my wish about my case, and well into fighting and defending my BELIEF in my client’s cause, (defending it to the death), then the jury will not begin to defend it either.  This is what is possible when we are so committed to our cause that the non verbal communication, that can only come from our commitment to our beliefs, is what does the majority of the persuading.  Not the mouth moving, not the words formed, but the emotional connection to the client, to the cause, to the jury and to ourselves that oozes out of our pores and onto the floor.”

I struggled with this during a trial last week. That’s a tough position to be in during a criminal trial and when your client must testify to have a chance for success. You have to find something to believe in and it must fit with what you are trying to communicate to the jury: I think.

CLIENT is a 50 year old woman in the Army who married HUSBAND in 1985. She lived with HUSBAND as husband and wife until about 1989.  After that, they met several times, there was some financial support and career guidance, and there were a few visits to CLIENT’s family together, but that’s about it. CLIENT claims she has been estranged (my word not hers) since around 1990. An investigation began in 2010 when her marital status came into question due to a relationship she was in with another soldier.  During the investigation, divorce paperwork was discovered in California that showed CLIENT waived her appearance by signature and HUSBAND effected a divorce as of 1991. CLIENT was charged with larceny of housing funds to the tune of about $25,000 given to her over the last 5 years.  This was as far back as the prosecutor could go given the statute of limitations. Of course the amount is much greater if you don’t believe CLIENT: around $80,000.

“Ex” husband made a statement to investigators saying CLIENT knew they were divorced because HUSBAND told CLIENT; CLIENT signed the court paperwork; and, HUSBAND got remarried and divorced since then and CLIENT AND HUSBAND discussed it. HUSBAND then did not comply with subpoena he was issued for trial and the US Marshal Service couldn’t find him – so their communications didn’t come into evidence.

The case was prosecuted, for the most part, on paper.  The prosecutors introduced pay records showing the housing payments were made; the divorce decree to prove the divorce; business records with CLIENT’s signature so the jury could compare; and, they introduced other circumstantial evidence, e.g. tax records showing single filing status and head of household status to prove knowledge.

I had a difficult time wrapping my arms around the fact that CLIENT did not know she was divorced – not because it doesn’t fit within the mold of what society recognizes as a marriage. I mean a marriage and a family could only be as follows: Husband, Wife, 2 1/2 kids and 1 dog & 1 cat right?  The difficulty I had was that CLIENT was very very smart and savvy.  I just had a hard time believing she would suffer some fool for 20 years, except love makes you do crazy things. 

CLIENT testified that her parents were married for over 50 years and that she believes that once you get married, you stay married.  While she dated over the last 20 years – CLIENT never took anyone back to meet her parents, because she felt that they would be mad that she was “cheating” on her husband.  CLIENT never “re”married, tried to “re”marry, or ever talked to a “boyfriend” about getting “re”married. CLIENT had no financial requirements that would lead her to “need” the extra few hundreds a month she received. However, how do you not live with your wife or husband for twenty years; not see them sometimes for years at a stretch; only have sporadic phone calls; and, NOT know something is up. 

In a way, I let all of that get in my way of believing my client…no matter how much I care for her and love her…which I do…but I let it get in my way however slightly.  I think it’s like being slightly pregnant.

Pretrial negotiations were limited. Prosecutors wanted at least 1 year of jail and Dishonorable Discharge equivalent, which would result in loss of retirement pay amounting to several hundred thousand dollars, plus she would have to admit to larceny.

Voir Dire – we were not allowed to get the members in a discussion with one another, but did get to do some Q&A in group.  We elicited agreement and disagreements and had them explain why. We got an objection toward the end – that my type of Questions were better saved for individual voir dire. My response to judge was that I felt the juror would like to have his answer heard by the court. The juror’s head nodded and judge allowed him to answer. Didn’t get to talk to the jury to see if that was appreciated or not. I think it was.

Opening for me felt lame. We didn’t know if the US Marshals were going to arrest the “ex” – because the prosectors were telling the judge they were “hot on his trail.”  Since we weren’t sure what would happen, I didn’t want to over commit – I think not “committing” was a mistake.  I think I could have don’t a much more compelling 1st person opening from my clients perspective and done it emotionally. We weren’t 100% committed to client testifying, but in my gut – I knew she was going to testify and, in fact, had to testify in order to have any chance for success.  Essentially, I second guessed my gut.  A mistake.

Because the governments case was paper – we didn’t have much cross examination for the government witnesses.  Essentially we elicited that there was a lot of speculation, they sought to include vs. exclude CLIENT of misconduct, and there was animosity between her co-workers and client.  Quite a bit of the government’s case was the submission of records under self authenticating seal/attestation.

Our evidence focused on good character, character for truthfulness, testimony of witnesses who testified CLIENT has always held herself out to be a married woman. CLIENT testified for about 2 1/2 hours.

The jury convicted.

NOW BACK TO THE belief in your case.  In my soul I did not believe she deserved to go to jail  She was a good person, a force in her community, and had served in the Army for a long, long time.

The sentencing argument became passionate in a different way than the lame openings and the meticulous closing where we cut the governments case slice by slice. 

At the college – I believe Joshua Karton posts a quote in his magnificent production and stage setting – that says “if you are arguing reasonable doubt, you’re losing” or something like that.  I’ve heard Gerry say the same thing.  I felt like my closing was how jacked up the governments case was, where they failed to prove anything in the face of the case we presented.  The betrayal that her “ex” committed upon her and that prosecuting her was a mistake – she should have just been required to pay back the money, not prosecuted.

At sentencing – it was much more why the appropriate sentence of repayment of the money through a fine was the right thing to do — not why the government was fucked up — but why we are right.  It was a much stronger position from which to argue.

The self analysis continues …  but at the end of the day, while they did convict CLIENT — she was able to go home with her family and friends, i.e. no jail time; she was able to stay in the Army, which means she will be able to retire with honor and a sizable retirement check — and most importantly…she hugged us on the way out.


2017-12-27T11:26:23-07:00 February 18, 2012|TLC Blog|
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