Difficult factfinders are a challenge to be welcomed rather than feared

Difficult factfinders and other challenging litigation situations abound with criminal defense, whether from harsh laws, prosecution-friendly procedures and evidentiary rules, biased jurors, judges who do not give the defense enough time to prepare and present their case, deaf-acting prosecutors, or police acting irritated when Virginia criminal defendants assert their Constitutional, statutory and procedural rights to proceed to trial and in other respects. As a Fairfax criminal lawyer, when I am faced with hurdles, I am reminded that every challenge is an opportunity. In that context, a great lesson for transcending trial and other criminal defense obstacles comes from lawyer Wayne Hsiung, who often has gotten arrested for his animal rights actions, and often represents himself pro se. In this podcast, Wayne presents the steps he took to get acquitted by one of the toughest possible juries in his prosecution for allegedly stealing two piglets from a factory farm in a county where a major national pork producer dominates the county’s economy and employment base.

Difficult factfinders can be persuaded

In his podcast, Wayne explains how after his acquittal some jurors/ initially difficult factfinders said they initially saw the prosecution as an open and shut case, where Mr. Hsiung was apparently caught red handed with removing the two piglets from the factory farm. Kudos to Wayne for including the essential approaches of making a checklist from the elements of the theft crime charged agaisnt him, making the alleged victim more favorable to Wayne than the prosecutor was,sticking to a plain and persuasive theme and case theory, and using mnemonics to help the jurors remember essential case details without belittling them. At first blush, even a vegan-eater like I wondered how it was possible for such a difficult jury to acquit Wayne of theft where the evidence apparently was beyond successful challenge that he seized and carried away the piglets from their factory farm. His defense was at once simple and brilliant: He wins under both the theory that he had no intent to permanently depriive the owner of his piglets (versus to simply nurse them back to health after they had suffered from malnoutrition from getting insufficient milk from their mother, apparently including from one or more of her teats being destroyed from eating competition among her piglets), and the pigs had no monetary value to their owner who would have had them killed for not being able to produce sufficientl sellable meat, and who were worth $40 each to the farmer but who would require more than twice that amount to receive veterinary care.

Making the purported victim more favorable to the defendant than the prosecutor’s view of the defendant

One of the most striking aspects of Wayne’s foregoing podcast about appearing before these seemingly difficult factfinders, is how the farmer did not seem outraged at Wayne’s effort to restore the health of piglets that the farmer would otherwise have killed rather than paying twice their sale value to a veterinarian charging 2.5 times that price. That viewpoing of the farmer would have helped Wayne win his case without Wayne’s having to say a word about it. The farmer was the prosecutor’s witness, which barred the prosector from cross examining or otherwise grilling him, where he could not have been characterized as a hostile prosecution witness.

Seeing apparently difficult factfinders and everyone as potential allies

Good for Wayne for pointing out that today’s opponents can be tomorrow’s allies in another respect which was shown in his turning around seeming difficult factfinders. His being the source of such an essential message is all the more striking when considering how much of his liberty and well being he puts on the line with every single act of civil disobedience he engages in on behalf of voiceless animals. Such an approach also avoids anger, which weakens criminal defense lawyers and everyone else.

Seeing the possibilities for persuasion even with uphill battles

Wayne had the option to simply throw down the towel with such a pool of apparently difficult factfinders and having been caught redhanded. Instead, he did not back down, and probably gave the prosecutor a run for his money. Without flash nor sleight of hand, Wayne stuck to his simple argument of the absence of value of the piglets he took away and absence of intent to permanently deprive the owner of those piglets. It appears that Wayne also engaged in the essentail storytelling and scene re-enactment / psychodrama approach of helping the jury visualize that being without these two piglets that would have been like a drop in the bucket for this farmer who was raising thousands of pigs, with these two piglets covered in blood from the teat of their mother that had been destroyed by sibling rivalry for her milk.

Taking care of jurors

Wayne also does a good job in pointing out the importance of taking care of the jurors — whether or not they seem to be difficult factfinders — including for them to have enough rest so as to have clear minds in listeniing to the evidence and deciding the case, as well as in helping them remember the evidence, for instance therough the 3P’s mnemonic of piglets, profit and purpose. These two pigs had not profit potential for the above-stated reasons. They could not serve the purpose for which they were bred and raised, which was to produce profitalble meat.

Beware defending yourself as a pro se criminal defendant

Wayne represents himself in order for him to get his message out in the way he wants including to seemingly difficult factfinders. He is a lawyer, an experienced trial lawyer, and probably knows his subject matter infinitely better than laweyrs who could do a good job for him. He testifies at his trials, apparently admitting to his actions but then arguing why his actions are not the crimes for which he is charged. That is much different than the sitaution of most criminal defendants, for whom it is often best to assert their Fifth Amendment Constitutional right to remain silent, for whom being in the courtroom is like being a fish out of water, and for whom cross examining witnesses, dealing with courtroom procedures, and handling any sentencing proceedings is totally alien to them. Rarely should a criminal defendant represent themselves if not for the purpose of furthering a political or social justice agenda, and even that category of defendants should beware defending themselves without a lawyer.

Fairfax criminal lawyer Jonathan Katz relentlessly defends you without regard to his personal opinion about your alleged or actual actions. One meeting with Jon Katz will likely convince you of his devotion to your cause and his total capability to defend you excellently. Call 703-383-11oo or email us at info@BeatTheProsecution.com, to secure your free in-person initial confidential consultation with Jon. Usually Jon can meet with you within a business day of your contacting us.