Using humor in the courtroom

The other day I saw a blog post about the “8 worst courtroom jokes,” which is worth reading even though the author thinks there is little place in a courtroom for humor.

I respectfully disagree.  There is nothing inherently wrong when an attorney makes a joke in open court. It just has to be done carefully.

Obviously, this became a subject of debate after the defense attorney in the Zimmerman case began his opening argument with a “knock knock” joke (“Zimmerman who?”  “Okay, you are good for the jury.” da-dum) – a joke that was universally panned, even if it didn’t cost him the case.

If you are going to use humor in the courtroom, you have to be aware of the appropriateness of a joke in that situation, who is your audience, and how receptive will they be to that joke.

Beginning a speech with a joke is a long-standing tradition.  It can break the ice, get the audience in a receptive mood, and get them on your side.  And I have heard criminal defense attorneys say that “a smiling jury is good for the defense.”  So why aren’t defense attorneys taught to begin their opening statements with a joke?

We can start off with the fact that a defense attorney makes his or her opening statement after the prosecution.  The prosecutor gets to set a mood.  In a violent crime case, that mood will likely be emotional, sad and angry.

Clearing the atmosphere of this emotional state is a must for a defense attorney.  But it has to be done carefully.  The jury’s first impression at the beginning of the trial will often decide how they will view evidence from that point out.  If, after hearing opening statements they find themselves favoring one side, they will begin to look at each piece of evidence in terms of how it helps prove that side’s case.  Evidence that doesn’t fit that side’s theory of the case might be mentally doubted or discredited.

In this situation, the right joke could lighten the mood, diminish the state’s opening statement, and get the jurors in a more receptive state of mind.  But, the wrong joke could inflame a jury against the defense, and close their mind against it, because it may come across as an indication of the defendant’s lack of remorse or sympathy for the victim.  So tread carefully.  This is why most trial attorneys avoid jokes and instead begin their opening statement with an attempt to re-frame the narrative with the defense’s theory of the case.

Over the years, I have been in lots of courtrooms where the judge appreciates (or makes) a good joke.  That is the way some courtrooms are.  But not all courtrooms.  I have also seen judges snap at attorneys for minor transgressions.  For example, one time I saw a judge take down an attorney for referring to the parties pre-trial maneuvering as part of the “game” (“Counsel, this is not a game!”).   Attorneys have to be careful of each word they use in court, and be mindful of the reaction they might trigger with the wrong phrase or comment.

Another problem I find is that some trial attorneys lose their sense of perspective.  Because they deal with the worst side of people on a daily basis, they develop a form of gallows humor.  As a result, there is a tendency to make all sorts of inappropriate jokes that might get an appreciative audience from a fellow attorney (maybe),  but not from victims of crime or a jury panel.   The Zimmerman “knock knock” joke is the type of “joke” that might’ve gotten a laugh from the judge and prosecutor during a private conference in chambers, but was not appropriate in front of a jury.

Of course, when trying a case before a jury, one of an attorney’s main goals should be to try to get the jury to like you.  When done right, a joke can help in this area.  But when done wrong, a joke can truly backfire.  This was the cardinal sin of the Zimmerman “knock knock” joke – don’t zing your jury!

Simply stated, humor in the courtroom can be a valuable tool in an attorney’s arsenal, so long as he or she is always aware of his or her audience.

Worth Reading: A Juror’s Perspective on a DUI trial

Columnist Chris Coursey of the Santa Rosa, California Press-Democrat served as an alternate juror in a recent DUI trial.  Here are his thoughts.

Update:  I think I will add my own two cents to this.  Of course, I wasn’t there for the trial, but it sounds to me like the evidence was weak.  There was no impaired driving, and Coursey makes it sound like the defendant did not exhibit indicators of impairment (beyond those consistent with a 60 year old male being asked to perform field sobriety tests).  I discount the hospital blood test result because typically they run 15-20% higher for alcohol due to the nature of the blood testing that hospitals do.  That would bring the hospital result down to about the same as the police breath test result of 0.08, which to me is margin of error stuff and not sufficient for proof beyond a reasonable doubt.  Particularly with the “rising alcohol” defense mentioned in the column.  The defendant probably was drunk, but probable is not enough for a conviction.  Thus, based on this evidence (and again, I wasn’t there for the trial, so I might be swayed by some other evidence not mentioned by Coursey), I would vote not guilty.

New Rule: Illinois Jurors will be allowed to ask witnesses questions in Civil Cases

Effective July 1, 2012, jurors in Illinois civil cases will be allowed to ask questions of witnesses, under new Supreme Court Rule 243.

The Rules states:

243. Written Juror Questions Directed to Witnesses

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.

(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.

(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.

(d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Adopted April 3, 2012, eff. July 1, 2012.

I think this is an important rule change and can only help to assist jurors in their role as fact finders, by allowing them to get additional answers to questions that may not have been asked by the attorneys, either by inadvertence or intentionally.

In talking with jurors after a trial, I often find that they have many good questions that went unanswered.  Heck, often the attorneys kick themselves because they forgot to ask something.  When you add twelve more people into the mix, someone is bound to come up with a good question that could be helpful in resolving the case.

Note that the jurors’ questions are subject to objections, just like any question posed by an attorney.  This is because many questions that a layperson would ask would not be allowed at trial.  Such questions could lead to the jury basing their decision on facts or sentiments that are not directly relevant to the case.  It was wise to require that these objections be heard outside the presence of the jury.  That way, an attorney can feel free to make his or her objections without worrying that his or her client will be penalized for “blocking” someone’s question.

I am told that juries have been allowed to ask questions in other jurisdictions, generally with good results.  I am curious to see how this works out in Illinois.

Any thoughts?

A real life demonstration of why you should never speak to police

Link: Melissa Calusinski declares her innocence.

As I was reading the Chicago Tribune today, I saw an article that touched upon two of my recent blog posts — the one about Melissa Calusinksi, and the one where I linked to Professor James Duane’s lecture about why you should never speak to the police.

Professor Duane used the following example (slightly altered by me): Lets say the police are “investigating” the murder of John Doe in Highwood last Sunday and want to talk to you.

You agree, since you have nothing to hide.

You say, “I hated that guy, but I didn’t do it.” Now, the police will say you admitted hating the victim. You have a motive.

You add, “I was in Highwood, but I didn’t do it.” Now, the police will say that you had the opportunity and the motive to commit the crime.

Or lets say, you say “I was in Sauk Village at the time, I wasn’t anywhere near there.” But you don’t have any definitive proof besides your mom’s word for it. Now, lets say the police find a witness who (mistakenly) confirms that you were in Highwood that night. Now, your statement can be used to show that you made a false statement (even though it was true!).

And so on.

Now, read Calusinski’s account to the Tribune:

In Calusinski’s case, she had been interrogated for more than six hours before offering the first hint of culpability in the boy’s death. Earlier in the questioning, she had suggested Benjamin might have injured himself because of his propensity to throw himself onto the ground during tantrums. Later, she offered that he might have hit his head on a chair when he accidentally slipped from her arms.

Over those hours, Calusinski’s interrogators — Round Lake Park police Chief George Filenko and Highland Park police Detective Sean Curran — tried different tactics to elicit her confession, ranging from telling her that they were sure the boy’s death was accidental, to telling her they were sure it was intentional.

Eventually, she agreed with a “yeah,” after Curran suggested she had intentionally thrown Benjamin to the floor. Later, she recounted that version of events back to the investigators and used a doll to demonstrate how she mishandled the boy.

During her jailhouse interview this week, though, Calusinski said that she finally confessed because she was “very scared.” She also said she was grief-stricken over Benjamin’s death and was lacking sleep and food.

“I wanted to get out of there. … I was so isolated,” said Calusinski, who added she’s never been in trouble before besides a parking ticket. “I thought, ‘I’ll tell them what they wanted to hear so we can all go home.’ I didn’t think about jail. They made it clear I was going home.”

After the confession, when she was told she was being charged, Calusinski said she immediately protested and claimed her innocence.

“I was like, ‘You guys are making a huge mistake, I did nothing to him,'” she said. “They ignored me.”

Calusinski said she’s always been obedient and did what she was told. She said that might have led her to agree with police when they told her she was involved in Benjamin’s death.

She also admits that learning was never easy for her and she was often the brunt of teasing and bullying because of it.

If you have seen all of Professor Duane’s presentation, and Detective Bruch’s “rebuttal,” you will recognize these methods.

Remember, that Melissa was 22 years old, and had an IQ of 74. The Tribune describes her as petite. This is in addition to the new information that she has had a history of being bullied.

Six hours of interrogation don’t get the police to stop. So, Melissa tries to “help” them by providing explanations for Benjamin’s death — he had tantrums where he hit his head; he hit his head on a chair. To the police, these “explanations” are just admissions that Melissa had some involvement in Benjamin’s death.

The police try to get her to agree that she caused the death, but it was accidental. This will get her to admit being at fault.

They also tell her that they know that she intentionally murdered Benjamin.

They finally get her to agree to their theory that she intentionally threw Benjamin. She now says that she only agreed because she felt that if she agreed, she would get to go home. She says that as soon as she was informed that she was being charged with murder, she recanted. Too late.

As I said in my post last week, outside of the confession and the dead toddler, there doesn’t seem to be hardly an evidence to show that Benjamin was intentionally killed. Outside of the confession, it would appear that he either died as the result of a momentary, stress induced horrible act by Melissa (which would amount to manslaughter, not first degree murder) or he died as the result of injuries caused by something else entirely (such as banging his head too hard on the floor).

What I do know, however, is that Professor Duane had it correct: Don’t talk to the police, even if you are 100% innocent.

Recommended Reading: Jurors and Smartphones

Vanessa Romo has an interesting blog post up entitled “Jurors and Smartphones, a troubling mix for courtroom judges,” which has some interesting news about how Washington State courts are dealing with the growing trends of jurors searching for extra-judicial information about the case through their smartphone, or inappropriately sharing their thoughts about the proceeding during the trial through social media.

She also has some stories from around the country about jurors tweeting throughout trials. Unsurprisingly, appeals are pending.

This link was brought to my attention by attorney Thomas Bruno.

I am deeply troubled by the Calusinski sentence

Today, 25 year old former day-care worker Melissa Calusinski was sentenced to 31 years for the first-degree murder of 16 month old Benjamin Kingan. This strikes me as a great injustice.

I must of course preface my remarks by stating that I was not present at the trial, and have no knowledge of the case beyond what has been reported in the media.

For those of you who don’t know, Ms. Calusinski was working at the Minee Subee day care center in January, 2009. She was a junior level day care worker. The allegations are that Ms. Calusinski became frustrated with Benjamin and threw him to the ground. The boy picked up his pacifier and blanket, then sat in his favorite bouncy seat until he went unconscious and he died shortly thereafter. In the room was his twin sister.

This case, with its allegation of the horrific murder of a defenseless toddler by a uncaring day care worker is heartbreaking. As a parent who lives near the day care center, I was horrified by this story when it was first reported, and followed it in the newspapers.

So why am I troubled by the verdict and sentence?

The evidence against Melissa Calusinki mainly consisted of her own confession, as well as the medical testimony that Benjamin died of a skull fracture. There were no eyewitnesses.

First of all, the facts surrounding Melissa’s confession raise significant concerns to anyone familiar with false confessions. She has an IQ of 74. She did not have a lawyer present. There has been all sorts of testimony and evidence indicating that she is a very simple person, easily confused and pressured. Her interrogation lasted for 10 hours. She did not offer a detailed explanation; instead the detectives put words in her mouth. The officer asked if she hurt Benjamin after being frustrated and she said “Yeah.” After her confession, she asked to see her puppy.

There was evidence at the trial that Benjamin had bruises on his body days before his death. He had been sick and was vomiting during this time. According to a co-worker, on the day of Benjamin’s death, he had a violent tantrum and threw his head back onto the ground. There was medical testimony that raised questions about the coroner’s conclusions about Benjamin’s death.

There was also testimony that Melissa was a sweet person, not prone to anger or violence. There has also been reports that the day care center was understaffed, had previous code violations, and that Melissa was put in a situation way to stressful for anyone, let alone a low IQ 22 year old.

In my opinion, the evidence did not support first degree murder. If anything, it supported a lesser charge of manslaughter, based upon the theory that Melissa was overwhelmed and unable to handle Benjamin’s tantrum, and reacted in a manner that unintentionally, but recklessly, caused his death.

If this was the case, it would be hard to see a sentence of more than 8 years.

And that’s the worst case scenario.

Although I am not sure what happened at Minee Subee that day, it is ultimately the prosecution’s burden of proof to show, beyond a reasonable doubt that the defendant intentionally battered Benjamin Kingan with the intent of causing great bodily harm that lead to his death. I cannot place much faith in a confession that comes out only after hours and hours of high pressure interrogation, when the defendant is an intellectually challenged young person who likely cannot withstand any pressure and will say anything to get out (she thought) of that room. Especially when it appears that the detectives put the words into her mouth and got her to agree.

Furthermore, the State’s medical testimony was challenged by the testimony of the other day-care workers who saw Benjamin’s bruises and sickness consistent with prior head injury, the tantrum he had where he threw his head onto the ground, and the many questions raised at trial about the accuracy of the coroner’s opinion. Given that, I believe that the evidence was simply not there. Which is not to say that Melissa is innocent — just that the evidence is questionable, and in such a case, when the state fails to meet is burden of proof beyond a reasonable doubt, the defendant wins.

Melissa maintains her innocence, and her attorneys, including Kathleen Zellner, will appeal her conviction and sentence.

Juror’s tweets result in reversal of murder conviction

In the latest development in the evolving intersection of law and social media, the Arkansas Supreme Court reversed a murder conviction in part because a juror tweeted during the trial.

About six weeks ago, I wrote about an Illinois civil case against Metra where a juror tweeted some of her experiences.  Metra sought to use those tweets to overturn the judgement against it, but both the trial judge and the appellate court found that the tweets did indicate that either any outside influence had been exerted on the jury or that the juror had done anything improper.

In the new Arkansas case, the juror’s tweets also failed to reveal anything improper about the jurors conduct.  The tweets included “the coffee sucks” and “choices to be made, hearts to be broken.” The tweets that have been published seem vague enough to me that, in a less serious case, might be considered harmless error.  In fact, that is what the lower appellate court had found.

However, this was a capital murder case. Error that might be excusable in a civil case where only money is at stake become inexcusable in a criminal case, when someone’s freedom or life are on the line.

In addition, the jurors in this case were specifically instructed against using twitter during the trial.  So this juror disobeyed the Court’s instruction.

Finally, by “tweeting” and participating in social media, one is engaging in a conversation with others — and discussing the trial that one is hearing is an act which is forbidden during jury service.

We will continue to keep a close eye on these cases as they come along.

What do you think?