The story has already been told in jury selection and opening statement. And really, the jurors already know what they will do or at least know what they want to do. Now, I just need to tell it again in cross examination and in direct with Carolynn. This was a case about a young girl who was drinking and driving in the middle of a war, a case about a girl who trusted a machine to tell the truth. Tim Evans told us at Rusty Duncan and few years ago about how practicing law has changed over the years. Apparently, lawyers didn’t have to deal with all the wars years ago. This war on drinking and driving is unfair to the people because in war innocent civilians are sometimes injured or killed. To win consistently, we need themes, theories, power statements, and our story. One size doesn’t fit all though.

Carolynn’s story didn’t just come to me on the morning of trial. You’ve heard them say, “C’mon, it is just a DWI case”. No, Carolynn’s story and her case, like a fingerprint, is different than any other DWI you’ve seen. While there can be similarities, Carolynn’s story includes her life experiences, up to the time she walked in my office. It includes what she has been through and what she is going through in her life. We’ve got to spend many hours outside the courtroom to get to know our clients and their stories and the issues that concern us about their case. The concerning issues are key in jury selection. I begin making my list when I meet clients for the first time.

If someone can tell you what happened, they can also show you. By using psychodrama techniques, Carolynn can show us scenes from her life and from the day of her arrest. Through this process, we get to know and care about our clients. We are able to find the “bad guy” that Dan Hurley has told us about. Remember, it doesn’t have to be a particular person; it can be society, the government, or anything. We learn how the propaganda war may have affected Carolynn. She felt guilty about drinking and driving and being arrested. We see what really happened after the video was turned off. We see that she is telling the truth about the Trooper not being in her presence for 15 minutes prior to the test. Also, her memory of the events in the jail, are relevant to her mental and physical faculties. We are able to see the inside of the jail. We see the colors, we hear the sounds, and we can smell it. “We” is everyone in the courtroom. If we don’t care about our clients, why would a jury? If we don’t know our client’s story, how can we tell it?

The worst thing we can do in a trial is to bore the jury. From time to time, I entertain the possibility of becoming a judge one day. I quickly change my mind after thinking about being trapped up there on the thrown every day. Usually we don’t realize it or care about being boring because we are too busy asking our next great question. I understand that none of us will ever be David Guinn funny, but that is alright because we have to be ourselves to be genuine. We can only dream about the possibility. I’ve learned over the years, and still have to constantly remind myself, not to fight with the witnesses. Again, I have to resist the urge to lose control of myself. I make my points and move on. Since I knew the issues in this case, I didn’t waste time arguing about the angle of the stimulus and the speed in which it passed and other irrelevant matters. I tell my story in cross knowing that the witness’s answer will often be disagreeable. Sit in the Trooper’s shoes and feel what it is like to be in his position. What is behind the standard testimony that comes out so freely on direct examination by the prosecutor? What is true about him that he doesn’t want to admit or say?

I didn’t want to fight with the technical supervisor or show him how smart I was either. When we fight with the state’s experts, we will lose with the jury even if we win a point or two in the process. I simply got what I needed that was relevant to win this case and got out.

Closing and Conclusion

If the case isn’t won by closing argument, it’s probably too late, but I believe it certainly can be lost there. It is again time to give the control to the jury. We give them the power and reason to help our clients. It isn’t really about Carolynn anyway, it is about the jury. How can their decision help Carolynn and them at the same time? Maybe they don’t want the “bad guy” to get them or their family. Maybe they don’t like betrayal. After a few days in trial, the jury found Carolynn Not Guilty of DWI despite strong breath test evidence. Several of the jurors wanted to hug her. Why? You could call it love, but they cared about her.

The jury changed when I gave up my control and shared a part of me. By being genuine and acknowledging them and their beliefs, we became a group for justice.

I’ve never had a jury panel as unfavorable as this one seemed to be.  Carolynn and I are sitting at a table alone, while the prosecutor is doing his best to minimize his burden and instill fear in the minds of the potential jurors.  We hear the jurors talk about relatives injured or killed by intoxicated drivers.   One of the jurors begins to cry as she tells us about her husband being killed by a drunk.  Before I stand up, all kinds of thoughts and feelings are racing through my head.  “What am I going to do with this?”  “I should have found a way to put this trial off for another day”.  “I was ready at the last setting, why couldn’t I have tried the case then”.  “I’m blaming myself, because I shouldn’t have asked the judge for a continuance in July so I could go to Wyoming”.   “We don’t have a chance to win this now”.  “If the case in front of us wouldn’t have pled, we wouldn’t be here now”.  “Why does Carolynn have to be the unlucky person to get this jury?”   Remember, my typical response to feeling helpless and how anxiety can get in my way?  Since I can’t run or come back another day, I stand up and walk around the table and face them.  After all, if it goes bad, I can always blame the jury later.

If I had not taken the time to look at myself and work on my issues, I would probably have become overly nervous, anxious, and would have allowed the feeling of helplessness take its control.  I probably would have resorted to some of the useless, harmful phrases and questions that came so easily over the years.  “As Carolynn sits here, she is presumed innocent”.  “She doesn’t have to produce any evidence at all”.  “Mr. Jones, if we stop now and you hear nothing else during this trial, what does your verdict have to be?”  It is embarrassing as I type and think about using those words of the past.  I probably would have argued with the jurors who disagreed with me while trying to control their responses for fear that any more bad answers would surely kill my efforts to help Carolynn.  I would have become tied the seemingly important legal questions I wanted to ask.  Their answers would mean nothing really since I had to move on to my next great question and I would not have heard them.  How are we doing?  Are we making progress with this panel?  When we conduct this type of “Voir Dire”, we may feel pretty cool, smart, or slick, but the momentum isn’t moving to our side.  How does the juror feel when we ask him the clever or trick question?  How do the jurors feel when we attempt to control them?  How do the other potential jurors feel as they watch this take place?  How do we feel, when we are in their seats?  Carolynn would be better off if we spent the 30 minutes talking about a recent football game.

Instead, I face the panel.  Internally, I ask myself, “What is really going on with me as I stand up?  What am I feeling? What is the jury feeling?”  I acknowledge what I’m feeling in that moment i.e. feeling of anxiety and/or the helpless feeling and realize my potential to lose control of myself, the part of me, that I’ve struggled with in the past.  I’m still not warmed up to this task and the jury isn’t warmed up much either, certainly not to me.  I look around at the panel a moment and ask them if anyone has an idea about what’s going on with me right now?  Does anyone have an idea of how I’m feeling now?  There is a little bit of silence, but they are working on it.  Sometimes, we don’t like silence, and feel like we have to talk, and of course then, we usually ruin it.  One juror near the middle of the panel speaks up, says something like, “you’ve got a problem”.   I might say, “Tell me what you mean?” or “Yes, with all this about drunk drivers, it isn’t looking very good for Carolynn is it?” or maybe, “I heard that too, but we’ve got these rights- presumption of innocence, right to remain silent, state’s burden to prove their case beyond a reasonable doubt.  We’ve got nothing to worry about, right?” (Semi facetiously)  Basically, I listen to this juror and acknowledge him in some way.  We use our judgment to decide how we want to acknowledge their answers.  It might be as simple as “Yes”, a nod, or “I imagine you were frustrated”

Although it has been a part of my training for the last twelve (12) years, I didn’t realize that I was using what Carl Rogers believes is key to creating a climate that benefits us.  When we are genuine, or real, our body language will be congruent with our words.  Instead of arguing with the jurors, we accept them where they are.  Finally, we listen to their answers and sincerely acknowledge them rather than hurrying to our next great question.

Well, we’ve used our time wisely and discussed the issues important in Carolynn’s story and managed to gain a little momentum, but we’ve got a long way to go.  The state will give their brief opening statement and call their witnesses that will surely say that Carolynn is guilty beyond a reasonable doubt.

Today, we are the person we have become as a result of our individual life experiences and our choices.  Those life experiences include the good, the bad, and maybe, something we think is unspeakable.   Many will go through their entire life without thinking or looking at why they think, act, or react in this world.  Why is it important?  Why should we care?  Besides, isn’t it easier to ignore it and keep living life the same way we’ve been doing it?  Change isn’t easy, especially changing something that has been ingrained in us as a child.   I relate to Alfred Adler’s view, “there can no longer be any doubt that everything we call a body shows a striving to become a whole”. [1](Rogers, 1980 p. 113)  We lawyers all have that paper on our wall that says, “Attorney and Counselor at Law”.  Is that all we need to win?  What if we really listened to ourselves, our gut, and continued our search for ways to get better?

In 1975, John Ackerman was searching for better ways to teach lawyers.  While President of the National College for Criminal Defense, Ackerman was not satisfied with lecture style of teaching students, and was searching for a way to help lawyers become more creative, spontaneous, and intuitive so that they would be better able to deal with the constant changes in the courtroom.  He talked with John Johnson, a social worker, who after thinking and researching, came up with psychodrama. [2] (Nolte, 2008 p. 264-265)

Similarly, sensing I needed something more, I began searching for answers.  Everything I knew about lawyering came from other lawyers, many of which were doing it wrong.  Do you remember phrases like, “Can you be fair and impartial?” or “I take it by your silence that you can”  They were silent because it wasn’t real or genuine.  Jurors are intuitive and they can see right through the facades, and tricks, that we sometimes feel the urge to employ.  It isn’t productive and we know it.  Again, Gary Trichter was teaching and he said something like, “all lawyers need some psychotherapy”.   After searching the internet for “psychotherapy”, I found the Trial Lawyer’s College (TLC) in Wyoming founded by Gerry Spence in 1994.  Fortunately, Ackerman, with the help of John Johnson, had introduced psychodrama to his friend, Spence, who incorporated it into his Trial College from the beginning.  I think he saw psychodrama as a way to teach others what he had discovered in his journey.

Psychodrama was developed by Jacob L. Moreno.  He defined it as exploring the truth by dramatic methods.  We live in the same world with each other, but we all experience it differently.  My truth or perception of this world is different than yours and anyone on the jury.  Psychodrama explores an individual’s perception of the world or universe. [3] Although you can read about it in a book, psychodrama is learned best by experiencing it.  For me, it has helped me recognize and understand why I am the way I am and provides a way for me to explore other ways to live.  As an example, I now know that my well-bred reaction to feeling helpless is losing control and I now know why.  In addition, I’ve explored how anxiety, has gotten in the way of really being present in the courtroom, and in life.  At times, anxiety has been debilitating.

I told Carolynn to kick me if I started to lose my temper during the trial because I knew that the helpless feeling would come.  I knew that my own anxiety might get in the way, if I allowed it and  I knew that if it did, I wouldn’t be fully present with the jurors and would be unable to really hear them.  How does any of this apply to jury selection?  The panel is in front of us, and prosecutor is up doing what he was taught and it is looking ugly for us right now.

People are asking questions like, “How did you overcome a .14 breath test?” I want to give them an answer, but I can’t do it quickly because it involves a combination of my life experiences. Many of which involve many other lawyers and friends along the journey or what Greg Westfall refers to as the “Process of Life”.

Why do I write this for anyone to read? Why spend the time to get this right? I feel a need to share what others have given me. With it, comes my need to fight the knaves that surely will come. I thank my friend, David Guinn, for sharing the poem “IF” by Rudyard Kipling. I especially relate to the part about “If you can bear to hear the truth you’ve spoken, Twisted by knaves to make a trap for fools”. Sometimes, the truth will strike a chord in us that will cause a reaction. It could be that any reaction is better than none. We can all learn from each other in this world, but we have to be open. Open to the possibility that there is more to this life than just going through the motions and merely existing until we die. Similarly, there can be, and should be, more to a trial than just going through the motions. I’ve learned from so many lawyers over the years and, at 50 years old, I still know there is much more to learn and that I don’t know it all. We, as lawyers, have the opportunity to make change in this world even if it is only one jury at a time. We have the ability to change clients, judges, prosecutors, jurors, and ourselves.

It is a little embarrassing to admit that this case was only my second trial with a breath test result above .14 in twelve (12) years. Well, admittedly, I’m not one of the self-proclaimed DWI Kings, or Dudes. Yes, I struggle with sarcasm, but truth is also important to me. Lawyers like Gary Trichter and Troy McKinney have paved the way and taught many of us how to win these, as well as other types of cases. They did it with passion and hard work, not slogans. As with respect, they’ve earned it and don’t have a need to demand it or sell anyone. For me, trying only, or mainly, DWI cases would become dull and boring, and I would lose the passion required to be effective. If it is only about the money, then we probably ought to do something different with the life given to us. To be effective, we have to invest ourselves, which requires our heart. As Gerry Spence says, “To win, you have to put it all in”.

When I first heard the phrase, they were just words that sounded good and right. Just like when he said, “It all begins with me”. I struggled with the phrase. It sounded so cocky and arrogant to me, until I realized it wasn’t “about” me. It begins with me, or us, because we have to know ourselves. I have to know why I am the way I am before I can be self-aware of what is happening with me and why. Knowing ourselves is also necessary in understanding others (the jury). I know that where it begins is probably deeper, but let’s begin with us. We have to find a way to explore or examine ourselves.

I want to share some Kelly Case with you. We need more lawyers like him. Government saying “Trust us” shouldn’t be good enough to brand us.

“Mr.” John R. Roach, Sr. probably didn’t appreciate the fact that Suzanne ran against and beat incumbent, Charles Sandoval.  Everyone involved in Collin County politics knew that while, John Roach, Sr. was in charge, “if you fight, he will indict”  (from my friend Montgomery).  Mr. Roach enjoyed instilling fear in everyone.  I feel sorry for his wife and family because I don’t think you can turn off the need for power when you go home.   It tells you a lot about the man, when he insists on being called “Judge” by his friends at informal settings and by his employees after he left the bench to become the District Attorney.  Judge Suzanne Wooten was just one of his many targets.   Fortunately, his efforts to prevent Judge Greg Willis from becoming the Collin County District Attorney were unsuccessful.   Greg will bring back some respect and integrity to our County.  Greg doesn’t need to demand respect.  He gets it because we want to give it.  We got lucky this time folks.   The John Roach, Sr. and Charles Sandoval’s will be back.  Who will be left to fight?  Who will have Suzanne’s guts and courage?

Charles Sandoval should never have been a judge anywhere.  He was and is, in my opinion, a very bad lawyer and judge.  Yet, the people, through our partisan politics, voted him into office.  He was the kind of judge, like many others, who would more than likely make you pay if you did not support him.  Suzanne knew the probable consequences when she decided to run against him.  She was given money by people who had been the recipients of his authority and wanted him out.  Many lawyers would not support Suzanne publicly for fear of retaliation by Sandoval if she lost the election.  Suzanne had the courage to take on the bully and beat him soundly in his bid for reelection.  Since the controversial donor to her campaign had a case pending in her court, she had a visiting judge hear his case to avoid any conflict of interest.  Now, think about all the donations given to campaigns from law firms, PACs, etc.   Why do they do it?  Do they enjoy giving money away?  Where is their Indictment?   Suzanne wasn’t bribed by anyone.  She did what most of us didn’t have the courage to do. 

As my good friend, Matt, put it, “A judge is now a convicted felon.  Suzanne will be disbarred, her law license and a lifetime of work is taken away in the blink of an eye.  An assistant attorney general will receive a hero’s welcome upon his arrival back to Austin.  The public will undoubtedly rejoice in the downfall and destruction of a lawyer.  An awful day for our profession…”  Is that how we are supposed to treat others?  I believe the prosecution violated their duty.  Their primary duty is not to convict, but to see that justice is done.  How does the Golden Rule fit in with all of this?  Is it really justice to ruin Judge Suzanne Wooten’s life?   I don’t think so. 

The assistant attorney general, John Roach, Sr., Chris Milner, Greg Davis and anyone else who had a part in this prosecution ought to be ashamed, not proud.  Judge Suzanne Wooten is the hero. 

I thank Judge Suzanne Wooten for standing up to a bad judge and the self-proclaimed Daddy of Collin County, Mr. John Roach, Sr.  I thank her for showing us what it means to be courageous.  This fight for justice is never ending.  Sometimes, we feel defeated, but we sleep and get up to fight some more.   I hope Suzanne will get back up and keep fighting in her journey.   I pray for peace for Suzanne and her family.   

Note- while I’m here:

 There has to be a better way to select our judges.  Although we’ve been fortunate lately (for the most part) in Collin County, partisan politics causes people to support and vote blindly.  It isn’t about getting the best person for public office; it is about picking teams and trying to win.  It is merely a game and unfortunately, most voters are simply, uninformed or affected by the propaganda that is constantly pushed in our faces.  The people that are starved for power will do what it takes and play the silly games to get what they desire.  If our local group of lawyers were to anonymously choose lawyers, who would be great judges, the list would include lawyers who would never choose to run because they would have to bite their tongues and maybe even lie to satisfy the “right” thinking, gullible individuals.   The list would surely exclude some judges currently sitting in our courts. 

The more I think and write about this, the more I blame myself for not having Suzanne’s courage years ago.  We humans are weak, scared, and selfish at times.  Doing the right thing is not always easy and usually involves risk.   I wish I had all the answers.  This world is not, and will never be, perfect.

Some of the ones that “never will” say things like, “Everything will be O.K.” or “I’ve got it under control”

I initially thought that Don wanted me to get him “Deferred Disposition” to keep the citation off his driving record because that is what most people want. It is easy, relatively inexpensive, and avoids the risk of conviction. I’m glad Don insisted on a trial in his case.

Don was charged with driving through a business parking lot to avoid congestion, as were many other citizens. We all know that we aren’t supposed to cut through the corner gas station to avoid the intersection, but Don’s situation was different. Yes, Don wanted to avoid the congested intersection. Don’t we all want to do that at times? I’d rather drive all over town for an extra 30 minutes, than sit still in traffic. Anyway, Don turned into a marked left turn lane to take a left off of a major roadway onto what appeared to be a public roadway. Once he turned left, the only options he had were two make a U-turn and go back or turn right in front of a Montessori School. It appeared that a road for “thru traffic” will be completed in the future.

At trial, we learned that many people were doing the same thing and the Montessori school had been complaining about it. It looked like a public street and there were no signs notifying the public otherwise. By the way, if you ever decide to cut through a parking lot, make sure you come to at least one complete stop during the crossing then it won’t be an offense. As the Court was excusing the jurors to deliberate, one of the jurors asked, “How many other tickets were issued to others at that location?” The judge couldn’t answer, but I appreciated his question. I wonder how many of our citizens received the same citation and gave their money to the city?

All of us should seriously consider using our resources to contest charges in Municipal or Justice Courts, especially, when we feel the accuser made a mistake. Like George Roland said, “If you keep doing what you’ve been doing, they’ll keep doing what they’ve been doing.” Regardless of the jury’s decision, our accusers will be held accountable. Our system works better when “the people” run the show.

Is it really just a ticket?

Generally, when a citizen is arrested, he is entitled to “bail”. “Bail” is the security given by the accused to insure that he will appear before the proper court and answer the accusation brought against him. “Bail” can be satisfied by a cash bond, bail bond, a pretrial release bond, and occasionally, a personal bond. A “bail bond” is a written undertaking entered into by the accused and his sureties for his appearance in court.

Although the power to deny or require bail is not supposed to be used as an instrument of oppression, there are judges that will sometimes abuse their power. A large percentage of bail is set by Justices of the Peace and Municipal court judges during the arraignment process. For some reason, many of them feel it is necessary to set the bail very high. The accused person wants out of jail and will exhaust his resources to get out. And so, the bondsman can drive a Cadillac Escalade, while the accused can’t afford to hire a lawyer to defend him. It is possible to reduce the bail amount by filing a Writ of Habeas Corpus.

What do you do if a bond is not set?

If a bond is not set, and the arrested person does not want to wait for a judge to set his bond, he can get a lawyer to file a Writ of Habeas Corpus to get a bond set. It is commonly referred to around the jail as a “Writ Bond”. It is a bond that is set through the writ of habeas corpus process.

For misdemeanor cases, the Collin County Court at Law judges have set up a way for people arrested to have bail set prior to arraignment by a magistrate (judge). When a person has been arrested for a misdemeanor allegedly committed in Collin County, an attorney can file a Writ of Habeas Corpus “writ” at the jail and the bond will be automatically set at previously determined amount. Presently, the predetermined amounts are as follows:

Class A misdemeanor and DWI cases- $500.00
Class B misdemeanor- $350.00

Felony cases require an arraignment by a magistrate or a “Writ” to be signed by a judge.

The bond can be posted by a bondsman or you can post a Cash Bond. A bondsman will charge a fee for posting a bond that will not be returned. A cash bond will be returned to the arrested person, minus a small percentage, after the disposition of the case.

Pat Barber burns his sign

http://www.justsaynotosearches.org/index.php/newsmenu/72-article-by-pat-barber-