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A Criminal Defense Lawyer Needs to Help the Jury Avoid Buyer’s Remorse

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So many legislators are hyper-sensitive against being voted out of office that they sign onto questionable legislation (often voluminous, as with the draconian PATRIOT Act) without fully reading the legislation (and its amendments) themselves, and without fully considering the adverse implications of doing so.

Similarly, many jurors — despite their oaths to render a verdict based only on the evidence and law as presented in the jury instructions — are very sensitive about the potential reaction of their friends and family to their case verdict, that they overlook the adverse impact on the party against whom the jury decides.

Consequently, a criminal defense lawyer’s role at trial is to persuade the jury not by lecturing and not be merely parroting back the evidence nor by merely challenging the accuracy of the evidence, but by making the jury feel discomfort about convicting. In Virginia, where convicting juries recommend the sentence, the criminal defense lawyer also needs to make the jury feel discomfort against sentencing too high. All of this is partly done by the criminal defense lawyer’s having immersed himself in the case, and thought through and felt the entire case and the adverse consequences of convicting the defendant and imposing a high sentence.

Nobody wants to feel buyer’s remorse, whether consumers, jurors, nor legislators. One of the most recent great examples of buyer’s remorse is the second-guessing by at least some leading senators after overriding President Obama’s veto of the Justice Against Sponsors of Terrorism Act (“JASTA”) (allowing private party lawsuits against foreign governments for certain terroristic acts). JASTA seriously weakens the Foreign Sovereign Immunities Act, and exposes the United States to beyond tit-for-tat international retaliation (for instance from Saudi Arabia) for going against the centuries-old, sensible international law and practice on sovereign immunity of foreign governments.

Curiously, some legislators claimed that the Obama Administration did not do enough to work with and sufficiently persuade Congress to reduce the adverse impact of JASTA. If legislators — each of whom have their own staffs and committee staffs (many of whom are particularly intelligent, well-educated, skilled and experienced) to advise on legislation — truly had a blindspot about JASTA’s adverse implications, then juries — who have no staffs and who often labor under information overload often with little or no jury experience and often little break between conclusion of evidence and deliberations — are at even greater risk of making the wrong decision unless assisted by the criminal defense lawyer towards the right decision for the defendant.

At least Congress gets a chance to try to fix JASTA, although I do not know how that can be done without simply repealing JASTA.

Jurors, though, only get one shot at making the right decision. Criminal defense lawyers need to make that clear to the jury, in encouraging the jury to take as much time as it needs with its deliberations, in emphasizing that the jury foreperson has no higher standing than the remaining jurors, and in encouraging the jurors to send out jury notes to the judge without relying on the approval nor editing of the foreperson.

It is ideal that a criminal defendant’s jury feel empowered to deliberate as long as necessary, to not be beholden to the jury foreperson, to consider the implications of its verdict on the defendant, and to feel emboldened against any favorable attacks on a defense-favorable verdict, by feeling good that the jury has followed the Constitution rather than following concerns about how their friends or family may react to the jury’s verdict.

The right criminal defense lawyer truly can make the difference between a favorable and unfavorable trial outcome, not only through case preparation, but by fully internalizing and well-executing the importance of the lawyer’s role in swaying the jury in the right direction.