Surly doesn’t win trials!

Posted on November 29, 2012 by kmsmith

I’ve known some very nice people. I’ve also known some rather surly characters. Some of the nice ones were (and are) successful. Some not so successful. The same thing can be said about the surly types. Donald Trump seems really nice, and he’s also really rich. Steve Jobs, sadly, appears to have been pretty surly when he didn’t like someone’s ideas. He was also really rich. So, if wealth is what you want, you can get it being nice or surly.

But I’ve discovered something over my years as a prosecutor and defense attorney. Jurors don’t like surly. They adore nice.

This week I am in the midst of another jury-trial heavy phase of my law practice. I’ve had 10 jury trials in the last twelve months. That’s more than you’d imagine. Most lawyers are lucky (or cursed, depending on their attitudes…surly?) to be in jury trial once every three months, so this has been a remarkably litigious year for my clients and me. I had a trial two weeks ago…NOT GUILTY! And another this week…NOT GUILTY! (Both were DUI trials, by the way.) I have another coming up the middle of December (I’m prosecuting for a municipality then, so will be going for a guilty verdict!). These last two trials taught me something very valuable. As I said above, Jurors don’t like surly.

Here’s what happened. In the first trial the deputy was surly from the get go (the incident was recorded on video). I can’t share details due to attorney-client privilege, but let’s just say that nature called and the deputy put the call on hold, even though there were clear extenuating circumstances that should have compelled him to be nice and allow the defendant to avoid embarrassment. In fact, shoot forward two weeks, and that’s exactly what the nice deputy did for the other defendant. After that first trial’s NOT GUILTY verdict, the prosecutor and I talked to the jurors. They unanimously did not appreciate the attitude (meanness/surliness) of the deputy. Fortunately for the defendant, not only was he mean in the field, but he had a really cocky, know-it-all attitude on the witness stand. The defendant, on the other hand, took the stand and was very humble and nice, and talked and walked as well then as the night of his arrest. Still, it was clear that had the deputy been nicer the outcome might have been different.

I’m happy he was surly.

Now for this week’s trial. That deputy was courteous and nice to the defendant on the night of her arrest (it was recorded on video, too). There were other circumstances there that I believe compelled the jury to find her NOT GUILTY (e.g., the video showed ok though not perfect driving through a construction zone, and she wore 5-inch high heels and didn’t have coordination issues when not performing “unnatural human acts”), but the comments from the jurors were night and day compared to the previous trial. They had nothing negative to say about the latter deputy’s attitude. They did think that what he saw on the video was different than what they saw (credibility?), but didn’t focus on him being a jerk like the other trial.

They thought the first deputy was a jerk. The second was “just doing his job.”

As my grandmother put it, “you can catch more flies with honey than vinegar.” So true. Officers who are courteous and polite with defendants and jurors tend to be more persuasive during jury deliberations even though they never enter the jury room.

By the way, I’ve adopted a combative attitude with witnesses in the past. This accomplishes two things. One, it puts the witness on the defense and he will likely weasel his way around the question. Two, it makes jurors hate me, which is not good for the client. Nice is a much better examination style. Nice attorneys get more helpful answers and endear themselves to juries (or at least don’t tick them off!). Hence, “what’s good for the goose (witness) is good for the gander (attorney).” If I’d been perceived as a jerk in these trials it would have likely cancelled out the officers’ surliness and the clients might have lost.

So there it is. Average, everyday people (including engineers, teachers, counselors, salesmen) prefer nice. If they prefer nice, so should we. So let’s be nice. It’s a really good time of year to adopt such an attitude.

If you find yourself in need of representation in a domestic, criminal, traffic, estate planning, or business matter, call me at 316-262-2331. Two NOT GUILTY verdicts in a row! I’m on a roll and would love to help you, too.

Topeka Capital journal report on Senate confirmation hearing…

Posted on August 30, 2012 by kmsmith

Senators concerned about public defender funding

A Senate committee grilled appointees to a board that oversees the state’s public defenders Wednesday, asking repeatedly if they will fight to ensure the program is properly funded.

Paul Eugene Beck and Kevin Mark Smith were confirmed to three-year terms on the state’s Board of Indigent Defense Services, but not before several senators attempted to impress upon them the board’s bleak fiscal position.

Sen. Tim Owens, R-Overland Park, said the state could be “in dire trouble” if it doesn’t provide more money for public defenders for defendants who can’t afford them. Owens, a lawyer, suggested that the state could face lawsuits if it fails to do so.

“Will you be willing to go to the governor and go to the Legislature and say we need more money for this?” Owens asked Beck.

“Yes, I can do that,” Beck answered.

Beck isn’t a lawyer, but said from talking to lawyers he understands Kansas public defenders make far less than their private-sector counterparts.

Smith said he believes the indigents defense program suffers from a public perception problem. He said he fears the public thinks of defendants in criminal cases not as citizens who are innocent until proven guilty, but as “social undesirables.”

“We need to get over that,” Smith said. “We need to educate the public and educate the Legislature.”

Smith said citizens and even legislators often don’t know enough about the Constitution and the Bill of Rights to understand the importance of providing poor defendants not only with a lawyer, but with a competent one. A lawyer himself, Smith said he had seen an inordinate number of criminal cases end up at the appellate level when public defenders were involved.

Smith said it was his understanding the going rate for public defense work is $62 an hour. Owens said the average public defender salary is $46,000.

Owens wasn’t the only member of the six-person committee to express concern. Sen. Jean Schodorf, R-Wichita, said she believed the indigent defense program had been “underserved and underfunded” throughout her 12 years in the Legislature and warned Beck to gird himself for further cuts.

Sen. Jay Emler, R-McPherson, the committee chairman and a lawyer, said his colleagues’ concerns about public defense are valid.

“When you look at current level of funding and the number of cases we have, it’s problematic,” Emler said.

Topeka native Dean Reynoldson joined Beck and Smith among the 17 state government appointees who were confirmed Wednesday.

Reynoldson was tapped to head the Kansas Department of Revenue’s Alcoholic Beverage Control agency in June and was immediately tasked with implementing a raft of liquor law changes. He said that effort is ongoing.

“Given the large number of statutes amended, we’re still in the process of updating industry handbooks,” Reynoldson said. “We want to make it as easy as possible for licensees to comply with liquor laws. Education is a big part of that.”

The other appointees confirmed Wednesday were: Montee Coffman (University of Kansas Hospital Authority seat), Bill Gale (Department of Health and Environment inspector general), Rick Cox (Kansas Lottery Commission member), Eric Meyers (Pooled Money Investment Board member), Eileen King (Racing and Gaming Commission member), Sue Christopher (state Civil Service Board member), Shari Feist Albrecht (Kansas Corporation Commission member), Doug Jorgensen (state fire marshal), Leslie Evans (Kansas Electric Transmission Authority), Richard Fish (state banking board member), Dale Koch (state banking board member), James Needham (state banking board member) and Dave Kerr (University of Kansas Hospital Authority seat).

Another slow day in the law, but at least we have Trayvon Martin

Posted on April 20, 2012 by kmsmith

Our government schools are doing a lousy job educating our children about the Constitution. Case in point is the Trayvon Martin case and in particular the simply absurd position taken by activists today. First, the catalyst. Today George Zimmerman had his bond hearing. I listened to what sounded like a black judge issue his ruling, so let’s start with that. All the bruhaha in the media about Zimmerman and we get a black judge. The good news is that it sounds like this judge will not kowtow to the activists (suspicion growing?).

The State wanted no bond or a $1 million bond. Guess it’s not presuming Zimmerman’s innocence. As a criminal defense lawyer I can tell you that it is much more difficult to prepare a case when your client is in jail. I suspect that the unspoken motivation of prosecutors is to make the defense more problematic. Again, so much for the presumption of innocence.

As an aside, someone needs to investigate the true motivation in Kansas behind moving in-custody defendants to other facilities 3-6 hours away from the courts where their cases are pending. Most such defendants are represented by public defenders or court-appointed counsel. Guess how much such counsel is paid to travel all that distance to prepare for trial. Zero. Guess how many times such lawyers see their clients once transported. Zero. Guess why such policies are in place? It’s a rhetorical question.

Back to Zimmerman. The defense asked for a $15,000 professional surety bond (this means they have to pay 10% of the value to a bondsman, or $1,500). The reasoning behind setting a bond amount is suppose to be the risk of flight. Zimmerman has a clean record. He has lots of family in Florida. Also, he has a solid defense (the Florida Stand Your Ground law). Hence, he is a very low flight risk.

The black judge heard all arguments and set the bond at $150,000.00 ($15k to spring Zimmerman). This is more than a fair amount. It’s just when we are suppose to presume innocence.

What are the whacko activists saying? That we have put the value of a black youth’s life at just $150,000.00. So much for the presumption of innocence. So much for wanting Zimmerman, the one charged, to get a fair trial. The only just outcome for these zealots is a finding of guilt. Then I suspect they will not feel like justice is done unless Zimmerman is decapitated. If the jury finds him not guilty, there will be riots. Guaranteed.

Sadly, I suspect that many poorly educated Americans probably side with the dead black teen, regardless of the Constitution. Last I checked we didn’t live in China, Cuba, or any other totalitarian state. This is America. The scales of justice are suppose to be balanced, and until the jury returns a verdict, they are suppose to favor the defense not put a value on the victim, especially when that victim might have been the reason the crime happened in the first place.

Who makes the better criminal defense attorney, a Conservative or Liberal?

Posted on April 19, 2012 by kmsmith

An interesting discussion occurred this week on a defense attorney list serve. Someone made some snarky comment about conservatives. A Conservative lawyer responded that the Constitution is not reserved for liberals. Indeed, if one looks back on America’s history, he would find that the men who wrote the Constitution and the Bill of Rights were extremely conservative. They were fighting for individual liberty and the right to property, not some liberal ideal of collective rights or welfare.

Consider this. As far as due process and other criminal defense issues, John Adams successfully defended seven British soldiers who killed colonists in a riot. It was called the Boston Massacre. I’m sure if he had the chance to defend tea partiers who destroyed a shipment of tea, he would have done so. Defended British invaders, check. Defended patriots opposed to his former clients, check.

Simply put, conservatives hate government controlling people’s lives, including busting down doors when no probable cause exists. In fact, it was a liberal Supreme Court that authored Terry v. Ohio, the case that began he unravelling of almost two centuries of sacred search and seizure protections. Conservatives gave us Apprendi and Padilla. I’ll leave it up to the reader to research those important cases.

So, is due process and individual rights a conservative or liberal issue? I think both.

Hire a lawyer who understands the importance of telling a good story

Posted on April 12, 2012 by kmsmith

When I was a prosecutor I had a list of elements and issues I had to prove in order to secure a conviction. I even had little boxes on my notepad that I would check off when I believed I satisfied the elements. Some items on the list were exhibits I had to admit. Some were questions I had to ask (such as, what county did this happen in?). It was a mechanical, methodical approach. And since I, as the prosecutor, had the luxury of only prosecuting those cases I knew stood a high likelihood of conviction (clear evidence, in my skewed perspective), it worked more than 90% of the time.

But then I became a defense attorney/litigator. Much of my early work was via court appointments. I took these cases to trial as often as the retained clients, but my training as a prosecutor had me doing the same thing as then, only in reverse. I.e., admit exhibit that contests prosecutor’s claim, check; bash witness credibility, check; admit picture that shows my client as the one beaten, not the alleged victim, check. But something was missing.

While I’ve been fighting tooth and nail for my clients for more than a decade with good results, I had a mini-revelation a few months ago thanks to technology. First, an explaination as to why I wasn’t quick to modenize earlier. Simply put, I loved to play the part of the little guy. “We don’t have the unlimited resources of the government, so you won’t see me throw up PowerPoint slides or overwhelm you with flashy, technological wonders. You will hear the facts, facts that show that my client is innocent!” It worked pretty well, but something was missing.

Then I found myself facing an unwinnable trial. The evidence, circumstantial and otherwise, was simply overwhelming, but the client had nothing to lose. He was getting probation regardless of plea or trial. I also expected the prosecutor to lay out those facts in closing clearly and succinctly, and I needed to muddy up the water a bit. So I cringed and decided to brainstorm with the aid of my iPad’s Keynote program, basically PowerPoint light. Suddenly, I found myself thinking differently, more as a novel writer than attorney. The slides laid out the elements, for sure, but I went further than that. The closing is argument, so attorneys have wide leeway in making their points as long as they don’t discuss evidence that wasn’t admitted in trial. So I added a few quotes from sources as varied as Sherlock Holmes, and even Proverbs. Then the light went off.

Good trial lawyers aren’t just fact builders. They are storytellers. The facts are the things we lay out as we question witnesses. But the ultimate goal is to bring them together into a coherent story, one that jurors will have reason to believe (or a story that will sow “reasonable doubt” into their thoughts).

Don’t misunderstand me. There is a time to be the methodical list follower, or evidence automaton. There is also a time to get vicious in cross examining witness, the only chance an attorney has to make the jurors believe that the other side’s witnesses are less believable than his own. But that time is not the closing. Sure, the good lawyer must show how the State has not met its burden of proof on one or many of the essential elements of the case, but he must do so in a way that does not bore them to tears, or in a way that does nothing to counter the emotional intensity that comes with criminal and even civil cases (such as the bad medical outcome case where a child dies or patient is injured severely). People think in stories, emotional stories that captivate, so the good lawyer must play the part of the courtroom thespian or storyteller.

Simply put, Keynote has opened my eyes in a striking, dramatic way. It has helped me to see theories (plots) of cases I didn’t necessarily see before. When something is needed to move the story to the climax, the glaring emptiness in the Keynote slides is apparent, so I explore. I go to the scene of the crime to take pictures. I call up my investigator and have him interview a witness or two, or I call the witness myself to see if I need the PI to call him (do not make yourself a witness!).

There’s something else interesting about this process. In my last trial I flubbed the Keynote presentation by including a word that was not actually used in the jury instructions, so I winged it and referred back to the slides to prove my points. It actually went very well. Better, in fact, than I think it would have gone had I just stuck to the script. Hence, all this forethought and “storyboarding” seared the story into my mind.

In conclusion, I am not writing this post to brag, merely to state a point. Just because a lawyer has a JD degree doesn’t mean he will represent you effectively. He must (1) love to tell stories, and (2) know how to present his cases like a storyteller. This begins with a willingness, indeed, a passion, for trials. He wants to tell your story to as many people as will fit in the courtroom. If he doesn’t have this mentality, hire someone else. But remember, your case might not make for a very good story, at least one that would compel a jury to find you not guilty. Make sure he also recognizes the difference between a good story and a bad one.

Travails of a defense attorney

Posted on April 5, 2012 by kmsmith

I don’t blog much about actual trial or practice experiences. Too much risk of divulging attonrey-client privilege. But every so often the crap I have to deal with compels me to rant a little. This is one of those rants.

How hard is it really to live responsibly? It’s not nuclear science, right? Marry the woman you will have children with. Don’t make the babies first. Also, if you are going to make babies sans marriage, do so with one woman or man, not multiple ones. Perhaps most important, if you do screw around and have kids, don’t be surprised when the mother or father sues for custody or child support.

And another thing. Don’t drive a car unless you have insurance and a valid license. Don’t ever drive after drinking alcohol. Don’t take stuff that isn’t yours. Don’t beat your spouse or children. Etc.

I could go on, and on, and on. People today have no common sense. Church is good for that, but who wants to feel bad about what they are doing when that thing is clearly immoral and wrong?

Here’s the good news. If you don’t refrain from the above and get into trouble, I can probably get you out of it. I’ve got a pretty good record at doing just that. I’d just prefer that the next legal matter I help you with is something fun like an adoption, will, or business incorporation.

Rant is over. Have a good day.