When a guilty verdict is a good thing for a defense lawyer

While I think jury trials are horribly inefficient in this era of efficiency above all else, I respect the common sense of jurors. In fact, I am in awe of the collective wisdom of jurors. But, sometimes, things go awry.

Recently, a jury returned a verdict of guilty in a manslaughter case where a man was charged with killing his wife. The verdict was guilty, but, for the defense, that was a good thing.  A reporter was there to catch and release this fascinating story for the rest of us:

First they said “guilty.” Then, in a stunning reversal, a state Superior Court jury acquitted Robert Bell of all charges in the December 2012 shooting of his wife.

Just after 12:35 p.m. Tuesday, jury forewoman Jody Bayer announced they had found the 64-year-old defendant guilty of first-degree manslaughter for killing Svetlana Bell at their New Fairfield home. But that verdict then set off a series of twists and turns that had courtroom observers on the edge of their seats, asking each other what was happening.

While jurors were being individually polled, one asked a question about the process of delivering a verdict in a case where the killing itself was never in dispute and the defense was based on a claim of self-defense. It soon became clear that the jurors were uncertain if they had made a mistake.

Judge Robin Pavia sent them back into the jury room, and following an exchange of notes with them and conferences with attorneys, said she was not accepting the guilty finding. She then directed jurors to resume deliberations.

They returned 10 minutes later, about an hour after their guilty finding, and pronounced Bell not guilty.

John Pirro, Jury convicts, then acquits Bell in manslaughter casestamfordadvocate.com (December 3, 2013).

In short, the jury believed that they first had to find the defendant guilty of the killing before they could find him not guilty by reason of self-defense. That is not entirely crazy.

The defense lawyer said it best. “‘To have your heart fall with them announcing a verdict of guilty, and then to realize it was simply they had not fully announced their verdict … It was kind of a death by degrees, and then elation,’ defense attorney John Gulash said afterward.”

There is an important lesson or two to be learned from this case for trial lawyers and trial judges alike. For you experienced practitioners, tell us what those lessons might be.


PS Thanks to Gary Hochman for the tip.

12 responses

  1. The first thought that falls into my head is that the jury instructions needed to be clearer. Years ago, I had a client who had a law degree and had even passed the bar, but who then went off and made a fortune in business. We worked together quite intensively for two or three years. When he was impatient with me, he’d shake his finger and say, “You’re thinking like a lawyer!” It took me a few years after my last encounter with him to realize that he was right, and that thinking like a lawyer is not always a good thing. The point I’m trying to make is that lawyers and judges need to think of jury instructions not merely as unobjectionable (and unappealable) statements of the law, but as explanations that must be understood by a collection of people who have little acquaintance with the law beyond the nightly news, stories on the Internet and crime shows on TV. And it will help if the court provides a recording of the instructions so that jurors can go over them as they deliberate. (A judge who did so explained that he would not provide his written instructions, because what he said, not what he had written, counted.)

    As to the feelings of the defense lawyer, I can relate. I have had two trials in which the juries found that my clients had not been subjected to discrimination, but had been victims of retaliation. The five to ten seconds between those pronouncements were long enough for my heart to fall to the center of the Earth and then come back.

  2. With all due respect to one of my favorite federa trial court judges – if jury trials are innefficient it is largely the fault of te trial court judge. But even if you are right – jurors allmost always deliver justice — so in my mind it is worth the price of some inefficiency — until I see a better way.

  3. Most criminal trials, except for the ones where some ambiguously drafted legislative crimes get resolved, are a waste of time, as they challenge the system’s ability to present the evidence fairly and arrive at a just verdict found by a panel of out-of-touch citizens who would rather be doing something else. Jurors don’t follow the evidence or the charge as closely as all would like, except in the easiest cases. Lawyers don’t generally try cases where there clients have not done what the Governmnent has charged in the accusatory instrument obtained in the outdated and somewhat bloviated grand jury indictment process (VT just uses verified informations). Every lawyers nightmare is an innocent client. Not sure I ever had one, but who knows? The only reason to have a trial is to allow the judge to determine the sentence, which in the Federal Courts means the sentencing guidelines. Ever wonder why so many cases plead out?

    So, what’s the message for trial lawyers, a term I assume includes prosecutors for this discussion, and judges? And, let me add that I defended a person in a like case where the jury returned a verdict and when I requested a one-by-one inquiry which the judge reluctantly granted, one juror said the guilty verdict was not their verdict. The jury unltimately hung and I don’t remember what happened next. Why did I ask, you ask? The juror sat crying, shaking her head as the foreman announced a verdict.

    Back to the point: (1) Don’t overtry or overcharge the case, government, accepting an acquittal on the higher counts to get to the fair result; (2) Try the case and not the message to be delivered to the community or the fact the guy who died deserved to be dead or the person who testified is a dirt bag an isn’t entitled to have his truthful testimony credited, because he got a deal; (3) Make the jury instructions understandable and don’t use “beyond a reasonable doubt” for a standard.

    But if you want justice, Judges, tell the jury that after careful weighing of the evidence, they can do whatever they want with the case. Jurors care more about the sentence than the finding of guilt or non guilt. Let them find facts and participate in the sentencing, leaving the victims on in the pews.

  4. Have always gotten my feathers in a dander from with all due respect, because it means just the opposite. Now that I don’t practice anymore, I never hear anyone say it.

  5. Gary Hochman was kind enough to send me a link to the story as well, but that was nearly two weeks ago. In internet time, that’s an eternity. A kind reader, who is the courtroom dep of an EDNY senior judge, noted that this is why they always poll the jury, regardless of whether counsel requests it. Of course, that doesn’t aid in the effectiveness and comprehension of jury instructions, but then no one has ever come up with a real fix for that, so we’re all left to pretend.

  6. Lessons:
    1. Fight for clear and concise jury instructions if you can get them;
    2. Ditto for the verdict sheet;
    3. If you lose, ALWAYS have the jury polled;
    4. If you win, get out of the courtroom as quickly as possible (preferably before the other side asks for the jury to be polled).

  7. Pat,

    Yes, I do. They also have a copy of the verdict form as a part of the instructions, so they see the decision matrix as I read the instructions. I literally read the verdict form to them.

    All the best.


  8. Rich, that’s good. Here’s what I suspect happened in the case we’re discussing. Probably the instructions contained some “if-then” statements. “If you find that the defendant committed an intentional homicide under extreme emotional disturbance, then you must proceed to determine whether the defendant was acting in self defense.” If would then go on to spell out the elements of self defense and explain that the burden is now on the defendant.

    My guess is that they took this very literally. They thought: “OK, we’ve not decided the first part, so we have to go back out and report on our progress.” Maybe they were then expecting further evidence on self defense. As you say, it’s not completely crazy that they would have thought of it this way.

    Plus there’s the additional complication (probably) of “imperfect” self defense, where the defendant has an honest but unreasonable fear of death or great bodily harm, which takes murder down to voluntary manslaughter. That said, it had to have been gut-wrenching for the defendant and the defense lawyer. Best, Pat.

  9. It really seems like an honest mistake and a misunderstanding. You must keep in mind that jurors are peers, everyday people in society and may not have the knowledge and legal background as others of the courtroom do. This is why the communication to the jurors must be very clear and completely understood. It seems as though the instructions were unclear and things like this can be avoided if proper instructions are given. When considering a man’s life, this should not be taken lightly.

  10. There is “something worse than being tried and punished for one’s crimes, and that is being treated by our legal system as less than human.” United States v. Kaczynski, 262 F.3d 1034, 1035 (9th Cir. 2001) (Kozinski, J., dissenting from denial of petition for reh’g en banc).

    Given that “judicial efficiency” translates to an appellate panel deciding 50 appeals in two hours (Judge Arnold), writing 50 drafts of an opinion to get it into casebooks (Kozinski), judges not even bothering to read the opinions they deliver (Michael McConnell), imperious behavior on the bench (e.g., “If you smile, you are going to find out what power I really have.”), and wretched judicial poetry, Busch v. Busch, 773 A.2d 1274 (Pa.Super. 1999) (Judge Eakin’s opinion actually put into verse), I am of the opinion that we need the the humanizing influence the jury brings. The jury understands what it is like to have a man’s fate in their hands. Juries are more likely to take care in making that decision than a jaded judge for whom this has become mundane and even an annoyance, and only sees the litigant as a file number. And having a jury around keeps the judge on his or her best behavior–well, most of the time.

    It sounds like the jurors got it right, but the instructions were too abstruse. Lawyers tend to, well, write like lawyers. Sure, they may make a few mistakes, but I doubt strenuously that they would ever not recoil in horror at the thought of a judge sitting in judgment of his own case.

  11. LD: “Ever wonder why so many cases plead out?”

    Because unaccountable prosecutors deliberately overcharge in an attempt to blackmail a possibly-innocent defendant into pleading out (my CrimLaw prof used to say that he’d “plead his mother out to a misdemeanor”), judges allow them to run roughshod over grand juries to the point where “you could indict a ham sandwich” (Judge Sol Wachtler), the wheels of justice can be ground to a halt by prosecutors, judges, and overworked public defenders. and if you are so impertinent as to dare to maintain your innocence, the system will invariably trickle down on you. Take alleged child-killer Cameron John Brown (synopsis of case at http://sprocket-trials.blogspot.com/2009/07/cameron-brown-retrial-quick-links.html). His second trial, held in 2009, resulted in a “hung jury that reportedly voted 6-6 for second degree murder or involuntary manslaughter.” http://cameron-brown.blogspot.com/ But he was denied bail.

    The Los Angeles Sheriff Department tried to frame him by planting a shiv in his cell. The judge threw out the charge, but nothing was done to the officials who apparently planted the contraband. Remember, this is Los Angeles.

    The LASD, in violation of the ICCPR (we are signatories, but you would never suspect that from the judge-made “law” effectively repealing it) and common decency, have kept Brown in the functional equivalent of a dungeon for TEN freakin’ years:

    My notes are not clear, but I believe Judge Lomeli asks one of the senior deputies, a Sargent Lewis (sp?) standing in the well of the court about the books. It’s a jail issue (in a?) housing unit. The other senior deputy (Kyles?) tells Judge Lomeli that when he was there (many years ago) detainees at the jail can’t have more than five books at a time.

    Laub also brings up another issue. Brown is in a cell that has no natural light. For the past month, there is a night light (it’s not clear if it’s outside or inside Brown’s cell) that has been out. Brown is currently being house on a “disciplinary” ward. It’s not clear why that is. “There’s no natural light in that cell,” Laub tells the court. “The light that should be on in that cell (for so many hours of the day?) … he’s in total darkness for the majority of the day.”


    Our cruel joke of a system of criminal law encourages plea bargains by making the alternative so unpleasant that no sane person would ever want to endure it, and anyone subjected to such unrelenting abuse is virtually certain to suffer a mental breakdown.

    Brown has become so desperate that he wants to represent himself. And so, they declare him incompetent, and keep him in the slam. They caused it, and he is forced to suffer permanent mental injury as a consequence.

    I don’t know if Brown is guilty or innocent, but of one thing I am certain: The LASD is guilty of a crime against humanity.

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