Second of Three Jury Trials

Wednesday I presided over the second of three jury trials in the final six weeks before leaving for Ukraine. The charges included one count of driving under the influence of alcohol We had an unusual jury panel of nineteen, including a scientist, a widow, an aerial cartographer, several office workers, two students, two current or former jailers and three firefighters. Voir dire took about an hour and a half. I struck five of the panel for cause or bias, including the two jailers. We started hearing evidence about 10:30 a.m., after my preliminary instructions. The prosecutor, Mr. M, put on two witnesses, both police officers. The strategy for the defense attorney, Mr. B, appeared to be to highlight several minor errors the arresting officer made in filling out the reports, and to argue that the chemical test was faulty. The disparity between the time occupied by the prosecutor, Mr. M, and the defense attorney, Mr. B, was remarkable--Mr. M occupied the podium for approximately 50 minutes during the trial, while Mr. B took up more than four hours, mostly on cross examination. In my view, the case was decided during closing argument: Mr. M laid out a very simple case, highlighting the "elements" of the offense very clearly and showing how the evidence had satisfied each individual element. Mr. B's closing strategy seemed to be to cast a vast cloud of doubt over the entire proceedings, but I believe that the result was a sense of annoyance and impatience in the jury--you could literally see it in their eyes. The jury went out for deliberation just after 6:00 p.m., and returned a guilty verdict on all charges in about 45 minutes.

Jury Trial--One of Three

I have three jury trials set in the last seven weeks before my departure for Ukraine. This week I presided over the first of these. Interestingly, the two attorneys trying the case were both very young, having only passed the bar exam in October of 2008. (Pictured here, left to right, are my in-court clerk, Ms. A for the defense, me in my robe and Mr. B for the prosecution). It was Ms. A's very first jury trial, and the second or third for Mr. B. They were both outstanding, particularly in opening and closing. Ms. A showed a great deal of poise and equanimity during the trial. Mr. B was brilliant in cross-examination and in closing. It was a delight to watch these two outstanding lawyers at the very commencement of their careers, and reminded me of my previous work with so many capable and bright Ukrainian law students.

The case involved nine charges, including terroristic threat, disorderly conduct, open container and driving under the influence. The 20-member jury pool was a fascinating mix, including a reporter from a local newspaper, an elderly woman who makes wooden toys with her husband (and is called "Mrs. Claus"), a 42 year veteran of the police force, a retired prosecutor and judge, a rocket scientist and a baseball coach and (coincidentally) one of his former star players. Voir dire took a couple of hours, including about six in-camera discussions. The prosecution put on three witnesses--all law enforcement officers--and the defense put on her client.

The jury deliberated a couple of hours and returned guilty verdicts on eight counts, and an acquittal on the terroristic threat charge.

Three Jury Trials Before My Ukraine Trip

With my court staff, I am preparing to conduct three jury trials between today and my departure for Ukraine on November 7th. In my court we reserve at least one jury setting each month, and these days become the highlight of my experience on the bench. Currently I have juries set to begin on September 16, on October 14 and on November 4. (The bench and well area of my courtroom is shown in the first picture and several members of the court staff are shown in the second)

It has only been in the last ten years or so that I have fully appreciated the extraordinary impact the jury trial has upon the entire legal system. It's effect is almost incalcuble. Even though very few cases ever actually go before a jury, the threat or potential that a case may be reach that stage affects everything. In my court we have something like 8,000 cases filed every year--perhaps 10 of those will be tried before a jury. Each of the 8,000 cases, when filed, have the potential to be taken before the jury. There is potential risk to both defendants and prosecution in taking a case before a jury. You can never be assured as to the outcome. A defendant loses the opportunity to strike plea agreements with the prosecution, which may reduce charges or result in stipulated sentencing recommendations. A prosecutor may also have great uncertainty over how his or her witnesses will come across to a jury. Jury trials are also expensive to conduct--a defendant may not want to spend the time and money necessary to hire a private attorney to prepare for and sit through a lengthy jury trial. Likewise, the prosecutor who takes too many questionable cases to jury trial may find his or her credibility or bargaining power with the defense bar to be diminished. It is a fascinating kind of "dance" between the two sides, and it truly has a trickle-down effect on all preparations, negotiations and decisions in a case.

My New Judicial Bulava

Before coming to Ukraine I had in mind bringing home some antique, or replica of something old, which I could display in my judicial chambers in the courthouse. Hence, a few days ago I visited a Russian antique vendor in a tiny underground shop near the Lva Tolstovo Metro station to try to buy an old statue. Today while browsing in the Andresyky Spusk I found just the thing--a replica of an ancient bulava ("булава" in both Russian and Ukrainian). A bulava is a ceremonial mace or baton carried by an officer of the highest military rank, and hence is a symbol of power and authority. It's historical use extends to all of the Slavic nations, but especially in Ukraine. Hence, when Ukrainian President Viktor Yuschchenko was being sworn into office he held a bulava in his right hand. My new bulava is about twenty inches long, and feels very substantial as I heft it in my hand. It has a richly carved handle, two large Ukrainian coats of arms on two sides of a block, and Kyivian crest on the other two, and a massive, bulbous head with at least nineteen spikes. It is a formidable looking thing. (I now remember that our young friend who had served an LDS mission in Donetsk told us that he brought a bulava home from Ukraine as well.) I intend to hang it up in my judicial chambers as a wonderful memento of my Ukrainian journey. (Note: It could also double as a backup defensive weapon--four or five years ago I was with a group of judges being trained by a security expert, who told us that if all else fails, we could strike an attacker from the bench with our gavels, right between the eyes.)

Clearing the Decks

On this my last day in court before my great Ukrainian adventure, I worked in chambers in the morning dealing with a number of last minute matters given to me by the clerks. From mid morning through late afternoon I handled a moderately large calendar of about 120 criminal and miscellaneous arraignments. These were mostly retail theft, assault and numerous minor offenses. I did handle two domestic violence and child abuse cases, with the defendants in custody. One of the defense attorneys was checking his calendar to schedule a disposition hearing in December and apologized that he was unavailable because he was taking his wife on a trip to Central America. He said, "But I would gladly trade places with you and go to Russia, Judge." We have arranged for a substitute judge to handle any emergency matters halfway through my trip.

The temperature in Salt Lake City today is in the 60's, with clear blue skies and the trees bedecked in bright fall colors. I have high windows in my courtroom, letting in all of that warm sunlight. Beyond the windows is a park where there are frequently football or lacrosse games in progress during the last hour or so of the court day. Sometimes I look out over the spectators in the courtroom and marvel at the unusually rapt attention they are giving me. Then I turn around and realize that someone is scoring a goal. The next twenty-four hours will be a shock. The weather forecast for Kyiv is rain on Friday and Saturday and snow on Sunday, with the highs below 35 degrees Fahrenheit. I intend to dress warmly.

I should finish my trials by 4:30 p.m. Tonight, I will finish my packing, and try to get a good nights sleep so that I can arise early to get to the airport.