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Outcome of jury trials dependent on defense attorney’s experience, talent, skill

Attorney David Betras
BKM Managing Partner David Betras

As I write this week’s column, I am busily preparing for a jury trial in Hancock County Common Pleas Court which is located in beautiful, downtown Findlay, Ohio. I’ve lost track of exactly how many jury trials I’ve participated in during my more than three decades as a practicing attorney, but I can say the outcomes have provided most of the highlights and lowlights of my career—and truth be told–I remember a lot more about my losses than my wins.

Why does the angst associated with guilty verdicts last longer than the euphoria that accompanies acquittals? Because the outcome of each trial is in many ways dependent on the defense attorney’s experience, talent, intelligence, rhetorical skill, knowledge, and yes—acting ability. We select the jury, we carefully study and prepare to nullify the evidence and undermine—if not destroy—the credibility of the witnesses presented by the prosecution, we build our defense and craft a compelling narrative that will convince the jurors that our client is not guilty beyond a reasonable doubt, and then we write and deliver a captivating closing argument that will enthrall the jury and win the case.

What could possibly go wrong?

Obviously, lots, which is I and many of my colleagues sit straight up in bed at 3:00 AM and reexamine every facet of a case that ended in a guilty verdict. Did I miss something in jury selectin? Was I slow to respond to an unexpected piece of evidence or testimony. Did my exhibits fall flat. Did I fail to connect with jurors?  I’ll often replay every minute of a trial in my head to identify what I did right and what I could have done better.

While the process is agonizing it is also extremely valuable because practical experience is an indispensable asset to a trial lawyer. That is because although they teach basic trial tactics and the rules of civil and criminal procedure in law school, there is no substitute for preparing and trying cases on behalf of clients who place their freedom, their future, and in some instances their very lives in your hands. Take it from me, courtrooms, not classrooms, are the only places attorneys like me learn to ply our trade.

Yet, despite all the preparation and trepidation involved, I love jury trials and the jury system. And I’m not alone. Throughout history the jury system has been a foundational pillar of civilized societies. Nearly 3,000 years ago bodies known as dikastai composed of as many 1,501 citizens rendered verdicts by majority rule in cases ranging from mundane matters to those involving death, exile, and seizure of property.

The Roman Empire also featured a precursor of modern juries in which capital trials were conducted before thousands of citizens. Interestingly, high government officials and their relatives, people who had been convicted of felonies, gladiators for hire, and men younger than 30 or older than 60 were barred from jury service.  

The system continued to evolve though the centuries and began to resemble the process and configuration that exists today in the late 900s when King Etheired the Unready of England instituted the Wantage Code which required the 12 leading minor nobles in small districts to investigate crimes. These juries differed from modern ones because there were no trials—the jurors were responsible for investigating cases and rendering verdicts on their own.

Juries took a major leap forward during the Reign of King Henry II in the mid 1100s. He established both a process in which a jury of 12 free men arbitrated property disputes and formed grand juries whose members were to report any crimes they knew of to a judge who would then conduct a trial by ordeal. As you might imagine, the guilt or innocence of the defendant was determined by subjecting them to one or more painful experiences. This system was based on the premise that God would help the innocent by performing a miracle on their behalf. Trial by ordeal fell out of favor when Pope Innocent III prohibited priests from participating in trials by fire and water. I can say this, if they were still around, I would have found a different occupation.

The right to trial by jury, along with the entirety of British Common Law, continued to advance and served as both one of reasons for the American Revolution and the basis for the judicial system America’s Founding Fathers enshrined in the Fifth, Sixth, and Seventh Amendments to our Constitution. Thomas Jefferson specifically cited King George’s decision to deprive colonists of trial by jury as a grievance in the Declaration of Independence and John Adams wrote that “…representative government and trial by jury are the heart and lungs of liberty.  Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

I am 100 percent in agreement with Adams, which explains why I believe we all have a civic duty to vote and serve as jurors—and why I refuse to help anyone skirt jury duty. Under Ohio there are very few reasons people may be exempt from service and even those who qualify must be excused by a judge. In the interest of full disclosure, I’ve received a jury summons and duly reported for duty. Unfortunately, I was excused and denied the opportunity to get a very close look at the dynamic that takes place during deliberations. That is an experience I would have relished and used for the remainder of my career.

What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?

Attorney David Betras
BKM Managing Partner David Betras

Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.

Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.

The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.” 

To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.

During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.

And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.

Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.

Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.

Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.

A message from David Betras to anyone who is being questioned by the police: Shut Up!

Attorney David Betras
BKM Managing Partner David Betras

On a number of occasions, I’ve addressed what people should do if they are stopped and questioned by the police. Here’s an excerpt from an August 2021 blog post on the topic:

“First, if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.
Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.
Third, your pre-arrest statements are admissible in court.
Fourth: Shut up. What you do not say cannot be used against you.”

That’s right I said just shut up.

I raise the topic today because as New York Times columnist Faraj Manjoo points out in his most recent piece, prosecutors in New Mexico plan to charge actor Alec Baldwin with involuntary manslaughter in the death of cinematographer Halyna Hutchinson. Hutchinson was working on the set of the movie rust when Baldwin pulled the trigger of a gun that was not supposed to be loaded with live ammunition. She was struck by a bullet and died shortly thereafter.

After the shooting Baldwin agreed to be interviewed by police without his attorney present, waived his Miranda rights, and did anything but shut up: “Still, for about an hour, Baldwin not only answered detectives’ many questions about the shooting but also offered his own theories about the incident and suggested the next steps the police might pursue in their investigation.”

As Manjoo notes, “The Fifth Amendment of the Constitution allows Americans to refuse to answer questions from law enforcement. Yet despite the ritualistic incantation of the Miranda warning on every TV police procedural, silence is a right that people can find hard to accept. If you’re convinced of your innocence, aren’t you obligated to help the police solve the matter under investigation? Refusing to talk to the police seems like something people do only when they’ve got something to hide.”

I’ve lost count of how many clients I’ve defended in court because they decided to abandon their Fifth Amendment rights and “help” the police who in turned helped themselves to an arrest.

In the column Manjoo praises the work of law professor and former defense attorney James Duane, one of the nation’s leading proponents of just shutting up when questioned by law enforcement. The video of his lecture “Don’t Talk to the Police,” has been viewed millions of times on YouTube, you should make it millions plus one by watching: https://youtu.be/d-7o9xYp7eE

In his lecture Duane offers this quote from former US Attorney General Robert Jackson: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” It’s good to know that AG Jackson, one of the most respected lawyers in the history of American jurisprudence would think I am worth my salt.

“The average American — even if they’re a highly sophisticated college graduate or a law school student — really doesn’t know an awful lot about the many different ways in which even innocent people can regret for the rest of their lives the biggest mistake of their lives, the decision to waive their Fifth Amendment right and agree to talk to the police,” Duane said.

Duane argues that a key danger is that in trying to defend yourself to the police, you may unwittingly admit some wrongdoing. Navigating around such dangers is made all the more difficult because courts have given the police wide leeway to lie to people being interrogated.

“They will lie to you about what crime they are actually investigating,” Duane writes in his book, “whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them — even about what those witnesses have or have not said.”

Manjoo closes his column with this passage: “The Fifth Amendment is no mere formality. It is among the best defenses against government overreach that Americans enjoy. We should guard it vigorously. Anytime you’re asked to talk to the police about an incident you are involved in, there are just four words you need to say: “I want a lawyer.”

And then please for the love of God, shut up.

By defending people charged with crimes I protect justice for all

During my career as a criminal defense attorney, I have represented hundreds of people who have been charged with serious offenses. From time to time either the nature of a particular case and/or its outcome will attract the attention of MahoningMatters and other media outlets. I know this will come as a shock, but I […]

You have the right to remain silent…Use it because what you don’t say can’t be used against you in a court of law.

Attorney David BetrasIf you have viewed Law and Order, Law and Order SVU, Law and Order Organized Crime, Law and Order LA, Law and Order Def Comedy Jam or one of the dozen or so other iterations of the franchise, you have undoubtedly heard a cop recite the following to a suspect as they slap on the cuffs:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law

You have the right to talk to a lawyer and have him or her present while you are being questioned.

If you cannot afford an attorney, one will be appointed to represent you before any questioning if you wish.

You can decide at any time to exercise these rights and not answer any questions or make any statements.

Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?

Just a hint: the answer to the last question is always “no.” I will expand on this point shortly.

After watching Lenny Briscoe “Mirandize” a couple thousand criminals, people think they understand what the warning means. Believe me, they do not because this area of the law, like most, is extremely complicated. And that explains why 90% of criminal cases are solved when people who think they know their rights tell on themselves.

Man in handcuffsFor starters, according to the Supreme Court’s 1966 ruling in Miranda v. Arizona, law enforcement officers do not have to issue a Miranda warning unless they are conducting a custodial interrogation. In plain English, that means suspects do not have to be advised of their right to keep their yap shut unless and until they have been deprived of their freedom of action in a significant way.

In light of this fact, police officers often delay placing a suspect in custody and tell them they are free to go. They then begin asking questions that can lead to an arrest. For example, a police officer stops a driver who is swerving and asks, “Have you had anything to drink tonight?” More often than I care to remember, the driver, who I am almost invariably standing next to in front of a judge, will answer, “Well, I’ve had a couple of beers,” as if the officer will be satisfied by the qualifier “couple of beers” and happily send the driver on his or her way with a friendly wave.

Uhm, not so much. At that point, the officer, who was not required to issue a Miranda warning when he posed what amounts to the $10,000 dollar or so question, will ask the driver to exit the car, submit to a field sobriety test, and then a breathalyzer exam. At the end of the process, the driver will be arrested and Mirandized—which does not mean much at that point.

So, here are the takeaways from this week’s column:

First,  if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.

Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.

Third, your pre-arrest statements are admissible in court.

Fourth: Shut up. What you do not say cannot be used against you.

Society wins not only when the guilty are convicted, but when criminal trials are fair

Attorney David BetrasIn his most recent MahoningMatters column, BKH managing partner David Betras, one of the area’s leading criminal defense attorneys, discusses prosecutorial misconduct and the threat overzealous prosecutors pose to every American’s freedom…

Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. The lawyers who represent the people of the United States or the people of Ohio have near-total discretion to decide who is charged and with what—the old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true, they are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science.

To balance the legal playing field and protect society, the rules of criminal procedure, the law, and codes of conduct administered by the courts and bar associations have established strict guidelines and boundaries designed to prevent prosecutors from abusing their authority. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions.  This principle is embodied in Ohio’s Code of Professional Conduct which states:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS):

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict… The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

Man in handcuffsAlong with defining prosecutors’ role, the rules, laws, and Supreme Court decisions also set forth their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”

This standard encapsulates the Supreme Court’s 1963 decision in Brady v Maryland, In that case, a 7-2 majority held that “…the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley  that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.

Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.

This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers, and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done.

Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.

The George Floyd murder trial: the justice system worked–this time…

Attorney David BetrasAs a criminal defense attorney, I watched with great interest the trial of the former Minneapolis police officer convicted of murdering George Floyd.

Here are my thoughts on the case that has mesmerized the nation and the world since May 25, 2020.

The visual evidence secured the conviction. Creating reasonable doubt in the mind of at least one juror is a defense attorney’s No. 1 task. In this case, the astounding amount of video and audio evidence available to the prosecution made that task extremely difficult if not virtually impossible.

The cellphone video of Mr. Floyd’s killing captured by Darnella Frazier combined with newly released police body camera footage painted a stark and irrefutable picture of the incident. The defense attorney would have lost all credibility with the jury if he had asked them to disbelieve what they were seeing with their own eyes and hearing with their own ears: the defendant’s knee squarely planted on Mr. Floyd’s neck, the look of utter disdain on the officer’s face, Mr. Floyd’s pleas for his life and the defendant’s derisive and snide replies.

The defense attorney could not afford to lose all credibility with the jurors because he needed at least one of them to buy into the arguments he made on his client’s behalf.

First, he claimed that Mr. Floyd died because of the drugs in his system and because of his diseased heart — rather than the knee on his neck. In the practice of  law, this is known as the principle of causation and it was a dead-end for the defense because the prosecution had effectively proven that “but for” the actions of the officer Mr. Floyd would still be alive.

Next, he contended that the members of the crowd who were begging for Mr. Floyd’s life were at fault because the defendant felt threatened and turned his attention away from the person he was obviously killing — even though he could clearly be heard talking to Mr. Floyd while he had him pinned to the ground.

Finally, he said the defendant’s use of force was justified because he could not control Mr. Floyd, a statement directly contradicted by both the video evidence and the numerous law enforcement officials and experts who testified the officer’s actions were excessive and unjustified.

The jury did its job. In an earlier column, I said I was confident extensive voir dire had yielded an impartial jury capable of reviewing the evidence and rendering a just verdict. I believe the diverse group of 12 men and women who sat in judgment of what is undoubtedly the case of the 21st century did exactly that.

The system worked — this time.

That outcome would have been tragic for Mr. Floyd’s family and our nation.

Ohio inmates serving time in state prisons ravaged by COVID-19 may file for judicial release

Ohio’s state correctional facilities are COVID-19 hotspots. If you have a relative or friend incarcerated at one of these dangerous facilities Betras, Kopp & Harshman may be able to help by securing their judicial release from prison.

Call us today at 330-746-848 or 800-457-2889 to learn more!

Under Ohio law, qualifying inmates may ask their trial court judge to grant early “judicial release” from prison. The procedure is complicated and requires the preparation and filing of motions and court hearings, but it does offer a ray of hope for people trapped in the state’s COVID-19 ravaged correctional facilities.

An inmate is eligible if the following apply:

☑️He or she was sentenced in Ohio state court for Ohio state offenses.
☑️The sentence includes a “non-mandatory” prison term.
☑️The offender is not imprisoned for a felony related to and committed while he or she held public office in Ohio.

Eligible inmates may be granted judicial release according to this time-served schedule:

☑️Sentence of two years or less: eligible for immediate release.
☑️More than two years but less than five: must serve six months.
☑️Five years: must serve four years.
☑️More than five years but less than ten: must serve five years.
☑️More than ten years: the greater of half the time sentenced or five years.

Don’t delay, contact us today to learn more about the judicial release process. If your relative or friend is eligible Betras, Kopp & Harshman’s experienced criminal defense team will go to work immediately to secure their release from Ohio’s COVID-19 ravaged prisons.

Don’t delay. Contact us TODAY!

TV Law is Easy, We Win the Tough Ones in the Real World

Series featuring lawyers have been a staple on television since the first set flickered to life decades ago. Along with attracting millions of viewers, the shows shaped America’s perception of the criminal justice system. For instance, according to TV, crimes were committed, investigations conducted, and trials held in an hour, minus 14 minutes of commercials.

Winning on TV takes half-way decent acting and an hour. Winning a case in the real world takes years, knowledge, dedication and a highly skilled attorney like David Betras.

Those devoted to Perry Mason, the Defenders, Judd for the Defense, LA Law, the Defenders, or Matlock believed defendants would always be acquitted in the last five or ten minutes of the show—usually as the result of the real villain being unmasked in court. Fans of the various iterations of Law and Order know one thing for sure: the bad guy or guys are going down and then they’re going up the river—usually for decades.

After 34 years of practicing criminal law, I’ve learned one thing: the legal world portrayed on TV is a fantasy. First of all, it can take years to investigate a criminal case, research the applicable law, file briefs and motions, consider plea deals, and if necessary try the case in court.

Second, winning a criminal case is not anywhere near as easy as Perry Mason makes it seem. I’ve won hundreds, but each one has been a long, uphill battle waged against talented prosecutors who walk into court confident they have the evidence that will convict my client.

And, I can tell you from personal experience U.S. attorneys, who have all the resources of the federal government at their disposal, are the most confident of all. There may only be one or two lawyers from the Justice Department in court, but when I look over at the prosecution table, I see thousands of FBI/DEA/ATF agents, forensic experts with PhDs from Harvard and MIT, and an army of highly trained paralegals who do nothing but help the attorneys I’m facing prepare the government’s case. It’s an intimidating situation to say the least.

But even though Jack McCoy may win every time on TV, it is possible to mount a defense that results in the dismissal of the charges filed against my client or a “not guilty” verdict from a judge or jury. It’s important to note, however, that I’ve never achieved that outcome by cross-examining a witness so adroitly that they break down and confess to the crime while on the stand.

So what does it take to win? Hard work, knowledge of the law and how to apply it, a fair amount of theatrical skills, and total commitment to seeking and securing justice for my clients.

Here’s an example of how the legal system works in the real world.

In the early morning of June 1, 2016, Warren, Ohio police officers who had responded to a house alarm entered the home in question to investigate a burglary and shooting incident that had taken place at the residence. While walking through the home they noticed what they believed was evidence of narcotics trafficking. Based on that observation, the police obtained a warrant, searched the home and found drugs, drug paraphernalia, money, and loaded firearms.  I’m sure you won’t be shocked to learn that the homeowners were soon indicted and charged with a number of drug and firearms-related offenses.

So far so good, right?

Well, actually no, because after reviewing the facts and the law, I concluded that the police had violated my clients’ Fourth Amendment rights. Just about everyone is familiar with the First and

It may be the Fourth Amendment, but it is every bit as important as the First and Second…

Second Amendments, but believe me, the Fourth is just as important because it’s the one that protects all of us against unreasonable searches and seizures.

In light of the Fourth Amendment violations, I filed a motion in Federal Court to suppress the evidence in the case. Not surprisingly, the Justice Department opposed my motion. On August 7, 2019, more than three years after my clients were arrested, Federal Judge Christopher Boyko conducted an evidentiary hearing on the matter. On August 21, he issued this ruling:

Law enforcement did not have consent to enter the Residence a third time and process the scene for evidence related to the burglary and assault on police. And since police did not have a warrant, the third reentry was unreasonable and therefore a violation of the Fourth Amendment. Since Detective Gambill based her Affidavit for a search warrant on facts she uncovered during the third reentry, those facts must be excised from the Affidavit. Finally, the Government failed to establish by a preponderance that the evidence it seeks to introduce would have been inevitably discovered in a lawful manner. Thus, any evidence uncovered or learned about during Detective Laprocina’ s search of the Residence must be excluded. Defendants’ Motions to Suppress are GRANTED. You can read Judge Boyko’s order in its entirety here: Opinion and Order (002)

What does the decision prove?

It proves that cases can take years to work their way through the criminal justice system.

It proves that the government must play by the rules. Please don’t underestimate how important this is. As I noted earlier, the government possesses awesome power. If police and prosecutors abuse it by ignoring the Constitution they are undermining the rule of law, endangering the freedoms we hold dear, and placing all of us, including law-abiding citizens, in jeopardy.

It proves that a skilled, knowledgeable, experienced, and dedicated attorney can take on the federal government and prevail.

Victories like this, which demonstrate the fundamental strength and fairness of our judicial system, make me proud to be an American and an attorney.

And I have to admit, as I read Judge Boyko’s order, I could swear I heard the Perry Mason theme song playing softly in the background…