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Insights of an Attorney Serving on a Criminal Jury Trial

Christopher Mark Neilson
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06/05/07

INSIGHTS OF AN ATTORNEY SERVING ON A CRIMINAL JURY TRIAL

This is the third, and final, article of a series of three articles containing some personal insights and observations concerning jury trials. This story is true to the best of my recollection, since the case took place almost three years ago, and I do not have the actual files or transcripts. This is only a brief partial summary, since space is limited. It was Tuesday, January 18, 2000, and the Courthouse reopened after the long three-day weekend following the Martin Luther King Court Holiday. Having been summoned for jury duty, I arrived at the Courthouse at 7:45 A.M. and went directly to the Jury Assembly Room from the East third-floor walkway bridge entrance, which is directly across from the Burger King inside the building. The room was very crowded, and a pleasant woman ended up sitting next to me. We listened to the initial prospective jurors' briefings, and watched the film on jury duty. During down time, we struck up a conversation, and wouldn't you know I learned that she worked for the same company my wife works for, Vitas Hospice! We both hoped we would be called right away, and by 9:00 A.M. we had actually been called, back to back, to separate panels!

My panel was escorted to the courtroom where Judge Horowitz was presiding (in fact, I believe this was his last trial sitting as a County Court Judge on special assignment over Circuit Court Criminal Felony Cases, prior to his elevation to the Circuit Court Bench.) The Assistant State Attorney was Carl C. Schreck, who was much more experienced than his youthful appearance suggested.

Ryal J. Gaudiosi, of the Broward County Public Defender's Office, was the seasoned defense attorney. Both attorneys were extremely professional and well prepared, and it was indeed a pleasure to have the opportunity to observe their different demeanor and presentations. Mr. Schreck was calm and deliberate, and Mr. Gaudiosi was more animated and emotional. Judge Horowitz was the consummate judge, as smooth, well spoken, and polished as they come. He utilized some preprinted questionnaires for his initial voir dire'. The Judge inquired if anybody knew anyone involved in the case. I immediately raised my hand, and responded that I knew the Judge, the Court Clerk, most of the courtroom personnel, and Mr. Gaudiosi, and just about everyone in the courthouse from my employment of approximately four years in the Broward County Courthouse as a Judicial Staff Attorney several years before. I also knew some of the police officers who were named as being involved in the case, and was actually Class Advisor to the Broward County Police Academy with one of them.

Well, voir dire took all day! The Judge asked if the fact that I had worked with him would have any effect on my being fair and impartial, and I answered that it would not, and that it had been a pleasure working for him and it would be a pleasure to serve on the jury if that occurred. The Judge wanted to know if there was any reason why I couldn't serve on the Jury. I explained that I was a solo practitioner, and that it would be an inconvenience for me, as well as impose a financial hardship on my being away from my office (having to pay my expenses, secretary, etc., not to mention lost business, while on jury duty), however that I would serve if chosen because I believe in the right to a trial by jury, and that it is our civic duty.

The State Attorney was interested in my background. He was interested in my law practice, which I explained was a general practice of law, including Personal Injury, some Civil Litigation, some Family Law, and also included some Criminal Defense and Special Public Defender work. He learned that I had also been a police officer for several years, and had also served as an Assistant Attorney General for the State of Florida. He wanted to know if I could be fair and impartial to all sides, and if I would also give the State a fair trial, and if I could render a guilty verdict if the State proved the case, to which I said yes.

Mr. Gaudiosi had an extensive dialogue with me on all sorts of interesting topics. It seemed like he wisely used me as a sounding board for the rest of the jury to hear areas he wanted to "telephone" to them. He inquired if anyone on the entire prospective jury panel owned a firearm. Clearly 75% of the entire room raised their hands! At that, a lady sitting next to me from New York gasped. She exclaimed that much to her surprise and dismay, she really couldn't believe how many people actually owned guns. She was pale, exasperated, and totally shocked! Mr. Gaudiosi went into the basic concepts of Presumption of Innocence (including the right of the Defendant not to testify, and that no negative inference should be drawn from that), Burden of Proof, and Reasonable Doubt.

After I was selected, and much to my surprise, it was obvious that the Judge, the Prosecutor, and the Defense all felt that my experience from all perspectives (the Bench, Defense, and Prosecution) was what they wanted in a juror.

The case involved the brutal robbery of more than $100,000 from a restaurant supply house which occurred right around Christmas the year or so prior to the trial. Three masked gunmen had somehow sneaked into the store at closing time. They ordered the employees into a back office, "pistol-whipped" them and forced the manager to open the safe where they took the money. They duct taped the victims, and fled the scene. Physical evidence was lacking, there were no confessions, no admissions, no co-defendants, no weapons recovered, and no money ever recovered. Only one person was arrested. He was a former employee, who the manager said called him "Mr. Slinky," an expression that one of the gunmen had used during the robbery. The manager also testified that he thought it sounded like the defendant, but he wasn't completely sure. The manager admitted that he didn't like the defendant to begin with, and had fired him. The evidence showed that the defendant was in the store that afternoon. The manager's testimony was full of inconsistencies, including that when he first reported the crime he told the police that the suspects had masks on covering their faces, but all of a sudden at trial for the very first time he testified that he thought he saw a part of the defendant's face when he was putting on the mask. Other inconsistencies included totally different clothing the defendant was alleged to be wearing, and the fact that huge floor to almost ceiling shelving units full of merchandise would have obstructed the view the manager was referring to. I believe the evidence established that the defendant did testify that he was at the business that afternoon, to get supplies for his grandmother for Christmas, and left long before the robbery occurred. Does this sound quite circumstantial or what? But, we did not have one fingerprint, not one photograph, not one other ID of the defendant, no physical evidence, a "he-said /she-said" bad relationship with motives on both sides concerning the defendant, and no admissions or confessions before us. Wow, what a case. Talk about the jury instruction about an abiding conviction of guilt, and not one that "vacillates." It was like a clash of the titans! What a really interesting trial!

The trail went a full week. It lasted into the evening of Monday, January 24, 2000. During this time, we all got to know each other. We were finally sent back to deliberate. It was getting late, and everybody was hungry. Well. The first order of business was getting something to eat. Remember my last article where meals were provided? Not anymore! In fact, one of the jurors from the Virgin Islands complained that he had recently served on a jury there, and meals were provided. It was well into supper time, he was hungry, and he couldn't afford to buy a meal. Just to show you how nice and civil people can be, the rest of the jury agreed to pay for his dinner. We then had to ask for some menus, which were not available. We asked to have some faxed over from some local restaurants that delivered, and the Judge complied. We finally received the menus, and then everyone had to decide what they wanted. As agreed, we fully intended to deliberate well into the evening if necessary.

The next order of business was selecting a foreman. Well, all eyes fell on me! I said that I really didn't want to be the foreman, to let someone else have the opportunity. Well, they wouldn't budge. They all knew I was an attorney and was familiar with the courthouse. They literally insisted that I serve as Foreman, and after some debate I reluctantly said that I would, if, and only if, no one else wanted to. So, now I'm Foreman. One of the female jurors blurted out "what are we doing here anyway," and that they didn't prove that he did it. Another male juror jumped in and said "not so fast!". Another juror wanted to take a preliminary poll. We went around the table, each person saying how they felt and why. The consensus was that while it didn't look good for the defendant, he was caked with the "Presumption of Innocence." Even with the defendant having been there the afternoon of the robbery, and having obvious anger at having been fired, and even with the tentative ID of the manager, the inconsistencies and admitted dislike of the defendant by the manager, coupled with the lack of any other evidence, provided reasonable doubt. While the state did a tremendous job with what they had, they had not met their Burden of Proof of beyond and to the exclusion of a reasonable doubt. It was agreed that the defendant was Not Guilty, and we signaled the Bailiff, who then notified the Judge. We were called back in, passed our verdict to the Clerk, and our verdict was announced. The defendant embraced Mr. Gaudiosi, smiled very happily, and said a big THANK YOU! to the jury. We canceled the dinner order, and went on our way.

As an interesting side-note, I was later contacted by three of the people I met while on jury duty concerning legal representation. So, again, if you are ever given the chance to serve on a jury, go for it! Well, we've come full circle! The first article addressed where the right to a jury trial came from, and provided a snapshot into growing up with our freedoms. The second article described a very unusual jury trial, with a police officer sitting in judgement of an accused criminal. This, the third, and final article, briefly touched upon some insights of an attorney serving on a criminal jury. Don't miss the chance to serve on a jury if you're ever given the opportunity. It will provide the memories of a lifetime.

In conclusion, I would like to thank the Broward County Bar Association Publications Committee for providing me with the opportunity, and for allowing me the privilege, of contributing these articles to the BARRISTER. Thank you for your review and editing assistance, and for giving me with the literary license to share what I believe are some interesting and informative personal anecdotes. The Committee, under Past BCBA President and current committee Chair Alan C. "Peter" Brandt Jr.'s leadership, and with the assistance and direction of our current President Nancy W. Gregoire, President-Elect Michael J. Carbo, Executive Director Art Goldberg, and the rest of the committee listed in the Barrister, decided it was important to try to make the BARRISTER a little more interesting and fun to read. I really hope that in some small way, I may have contributed to that goal. I truly hope that you have enjoyed these articles, as well as the many other articles, contained in the Barrister. The Committee meets monthly and is always looking for good copy. If you are interested in submitting an article, please contact the Committee.

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