Los Angeles Criminal Lawyer Blog

The Los Angeles Times recently reported on jury selection in the Dr. Conrad Murray case, the doctor that prosecutors are holding responsible for the death of 1980s pop star Michael Jackson. Murray is accused of manslaughter for providing Jackson with the sleep-related medications that he demanded.

Jury selection is one of the most important, yet least understood aspects of the jury trial process. Jury selection, aka "voir dire" (rough translation from Old English etymology "to say what is true"), is rarely depicted in television and movie legal dramas, possibly because it is not as sexy as, say, closing arguments or cross examination of witnesses who way-too-conveniently break down and reveal the real killer to a shocked courtroom. But even in this latter case of a witness breaking down and revealing the truth, if the defense has not succeeded in jury selection, the client may still be convicted. Some say that jury selection is the most important aspect of trial -- and when a crazy person somehow eludes the scrutiny of both sides and makes it onto the jury it retrospectively may be -- but, typically, jury selection is like the punt coverage team in football: it can't win you the game, but it can certainly lose you the game.

Jury selection begins with the judge ordering a pool of jurors to the courtroom. Depending on the expected length of the trial, the judge may order approximately 50 jurors for a simple case or around 200 jurors for a lengthy, complex trial. Jurors who will experience severe hardship by serving on the jury are then excused. The remaining jurors are then questioned by the judge to determine if they would be a fair and impartial juror, given their background, biases, etc. Those who are clearly biased toward one side or the other are then excused "for cause," although this only happens in an extreme case, where a juror says something like "I don't believe in judging anyone" or "I don't believe anyone but police officers."

Once the judge is done questioning the jurors, the attorneys for both the prosecution and the defense have their turn to question the potential jury panel. Each side can dismiss 10 potential jurors from the jury without stating a reason why, but only 10, thus these decisions must be made with extreme care. From a defense attorney's perspective, this questioning process is a high art. A good defense attorney is thinking not only about the biases and motives of each person, but also trying to determine, once all the evidence is heard and the panel retires to the jury room, how each individual on the jury will interact with the rest of the group, whether they are a leader who will think for themselves and stand up for their beliefs, or whether they are more of a sheep, who will be easily persuaded by the leaders in the room and go with the rest of the group despite any internal misgivings about the resulting groupthink. Because of the volume of information that must be simultaneously considered to make these decisions, an attorney must rely on instincts about people, experience both in and out of the courtroom, along with more scientific formulas about people, demographics, and profiling of every kind: racial, gender, religious, etc.

In the Dr. Murray case, the defense was reported to have asked the jury questions such as "what do you think of Michael Jackson?" and "do you think he was so childlike that he was incapable of making decisions?" to uncover any potential biases against in the jurors against the defense's anticipated arguments.

Interestingly and revealingly, the prosecutor queried "could you find a driver who runs a red light guilty of killing a pedestrian if that pedestrian was also not being safe because he stepped out in front of the car?" We should expect the prosecution's theory in the Conrad Murray case to mirror this logic.

An interesting application of the "felony murder" rule is taking shape after a San Juan Capistrano attempted armed robbery of a jewelry store. Four men suspected in a botched San Juan Capistrano jewelry heist were arraigned Friday on attempted robbery and felony murder charges. Alan Keith Hunter, 39 of Moreno Valley; George Anthony Boozer, 36 of Apple Valley; James Stephan Paschall, 41, and Eddie Allen Clark Jr., 27, both of Gardena, were each being held in lieu of $1-million bail in connection with the June 24 holdup attempt.

The interesting thing about this situation is that no one at the jewelry store was killed, and none of the perpetrators had anything to do with causing the deaths. Instead, the dead men were shot by jewelry store employees during the attempted robbery.

The story has been reported as occurring when Robert Avery entered Monaco Jewelers with co-perpetrator Desmond Brown. Avery is alleged to have grabbed the store manager and pointed a gun at him. At that point the owner of the store entered the scene, with a gun, with which he immediately shot Avery and then Brown as Brown allegedly ran towards him. Avery and Brown died at the scene. Clark entered the store with Brown but immediately fled after Brown was shot. Hunter and Boozer are alleged to have been the "lookouts," while Paschall was alleged to have been the getaway driver. If true, the crimes committed by Paschall (accomplice to robbery as the "wheel man"), Boozer (accomplice as lookout), Hunter (accomplice as lookout), and Clark (accomplice as co-robber), would all normally be able to be prosecuted as if they were the perpetrator, as advancing the crime of the perpetrator in California is prosecutable under the same laws as being a perpetrator. And it is for this reason, that because of what the perpetrators did, i.e. armed robbery, all of the lookouts, wheelmen, and other accomplices who were aware of what the perpetrators were going to do and helped them do it, that all of the accomplices can be charged with felonies. And since, if someone dies while you are committing a felony (and the death is related to the crime you are committing) you can be charged with murder. This means that all of the accomplishes can be charged with murder, even though it was the principal perpetrators themselves who died.

The policy behind the felony murder rule is obvious. The law intends to discourage people from committing felonies or helping people commit felonies by making them pay a heavy price for the consequences of their actions. However, even in the modern criminal justice system, in which defendants have fewer and fewer rights, there still exists justice to the extent that if a law seems unjust, it probably is, and thus there's probably a way to achieve justice for a person if you hire a good criminal defense attorney.

In a case such as the OC jewelry store robbery, the defendant should argue that they weren't the "principal" in the matter, and that they didn't know what the perpetrators were going to do or why they asked to be dropped off. Whether this is effective is dependent upon the skill of their attorneys in putting the distance between their client and the perpetrators, including an argument that they had no idea the perpetrators either had guns or were planning on robbing the jewelry store. This is always a difficult assertion to make, and it will need to be backed with other evidence, which could consist of the testimony from other witnesses that no one had any idea that Mr. __was carrying a gun, and/or that all 3 men who exited the car said they were running into the mall to by something. Whether it works or not, in the presence of a jury who wants revenge, is another question altogether.

The L.A. Times recently featured an article on the renewed debate over the "Three Strikes Law," documenting a recent case a person was sent to prison for life for committing petty theft.

Scott Andrew Hove was arrested on November 15, 2009 for petty theft after concealing in his jacket approximately $20 worth of wire and gloves used for his welding business and walking out of a Lake Elsinore Home Depot store. He was charged under the Three-Strikes Law, convicted at trial, and, on August 19, sentenced to life in prison by Riverside County Judge Albert Wojcik.

The "three strikes law" in California is a topic of widespread misunderstanding, even amongst the most educated people. First, people assume that it applies only to violent crimes, as it wouldn't make any sense to put someone in prison for the rest of their lives for stealing beer on three different occasions when they were 19 years old. This is only partially true. In fact, it is entirely possible to have never committed a violent crime, but to be sentenced to life in prison under the three-strikes law for walking out of a gas station with one un-paid-for can of beer at age 19.

Part of the reason for the widespread misconceptions about the three-strikes law is because is was election-marketed as applying only to violent offenders, both in 1993 and again in 2006 when it was on the ballot for reform. This is one of the drawbacks of modern political discourse, especially in our direct-democracy dystopia of California. People, even educated people, tend to believe a reader's digest summary version of each political debate, having learned by experience to fully trust or believe no one. They hear both sides, they hear the extreme arguments, assume the truth lies somewhere in the middle, and what gets lost are the details, i.e., the actual truth of the details of a law which is then implemented and applied in a way that would surprise and anger the people who thought they supported it.

Here is the truth about the three-strikes law. The word "strikes" is not wholly a baseball metaphor, as it refers to certain crimes in the Penal Code that have been designated as "strikes." Crimes, like the ones you would expect, such as murder, rape, inflicting great bodily injury, child molestation, etc., are obviously strikes. For many of these, life sentences are already mandated, however, so they are not particularly relevant to the day-to-day application of the law, as there are very few convicted murderers who will ever have the chance to re-offend outside of prison walls.

But other crimes are also designated "strikes," such as spray-painting gang-related graffiti or making a verbal threat to someone. And the law is not a three-strikes law, it is a TWO strikes law. If a person commits an offense designated a "strike" on two different occasions after they turn 16, then any other crime they commit, regardless of whether it is a strike or not, allows them to be sentenced to life in prison under the three strikes law. This was the case with the aforementioned Mr. Hove, who was arrested, tried and convicted of stealing just that $20 worth of Home Depot merchandise, yet found himself sentenced to life in prison because of his prior record.

The three-strikes law does not take all discretion away from prosecutors and judges, however, meaning that had Mr. Hove been sentenced in San Francisco Superior Court, instead of in Riverside County Superior Court (a.k.a. the "Fourth Reich"), he would probably be, at this moment, free to repay his debt to Home Depot and continue his welding business instead of being provided for the rest of his life by the taxpayers of California with shelter, health care, food, etc. Nonetheless, this is how the Three-Strikes law is all-too-often used, and is arguably not at all what the California electorate thought they were voting for.