The Debriefing

 Posted on July 07, 2010 in Uncategorized

After twelve days of trial and deliberation, the jury found my client guilty of tampering with physical evidence.

Now, ordinarily I figure that going and talking to a jury after a trial is a good way to get lied to, but here we had what I felt was a full and fair exchange of views. And I was left with the definite impression that I had simply failed to communicate with this jury.

The State had to prove that my client had altered or destroyed drugs with the intent to impair their availability as evidence in a pending investigation (the State also had to prove that he knew an investigation was pending, but I think that's subsumed by the specific intent-you can't intend to impair evidence's availability in a pending investigation unless you know that investigation is pending). It wasn't enough to show that my client was negligent or reckless with the drugs, nor that he intended to use the drugs.

Intent is more than negligence or recklessness or even knowledge.A person acts with intent with respect to a result of his conduct when he has the conscious objective or desire to cause the result. So the State had to prove (I don't quibble with the other elements here, though our theory at trial was that my client hadn't altered or destroyed drugs at all) that my client had the conscious objective or desire to impair the drugs' availability as evidence in a pending investigation.

The State had to prove beyond a reasonable doubt that my client consciously wanted to make the drugs unavailable as evidence. And the State presented neither direct nor circumstantial evidence of my client's conscious objective or desire.

When I asked the jury afterward about the specific intent element, they talked about my client having a higher duty, and drew an analogy to a doctor leaving a sponge in a patient (negligence per se, though they didn't use those words). That's comparing apples and orangs. I asked again a little later, and got no more satisfying answer. Though the jury had a written jury charge explaining that the State had to prove that my client had the conscious objective or desire to impair the availability of the drugs, and though I had pointed out in closing argument that the State hadn't proven that, the jury couldn't articulate any evidence of specific intent. They had, it seemed, glossed over that element of the allegations.

Who's to blame? Not the judge, though he gave the jury the "intentional intoxication" instruction, which could have been misread to eliminate the requirement of proof of specific intent. Not the prosecutor--he studiously avoided the question of specific intent at every stage in the trial, but he never argued that he didn't have to prove specific intent. Not the jury-they were a hardworking bunch who did the best they could with the material they were given. When a communication fails, it's a poor communicator who blames his audience.

No, the buck stops with me. I failed to communicate to the jury the importance of that element of the offense, and the significance of the absence of proof of that element. It was the final prong of my closing argument, tossed in as lagniappe. Should it have come first? Should it have been the only prong? I knew from the beginning that the State was going to have no actual evidence that my client had intended to make the drugs unavailable. Should that have been the story I told, instead of the story of the alternate suspect?

Any other strategic or tactical decision I might have made would have had its own dangers. It brings more questions than answers-no answers, actually-but second-guessing is part of doing the job conscientiously. I give myself a day to postmortem the trial and wallow in failure, and then it's on to the next fight. Because it's not the getting knocked down that defines us, it's the getting back up.

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