In this post, I am returning to my “What Makes a Great Defender” series. Through these posts, I want to share the lessons I’ve learned in being a woman criminal defense attorney. I truly believe that women defenders have unique gifts and perspective on defending and the art of persuasion, and that it is through sharing our thoughts and our history that we can continue to build one another up in the profession.
In this series, I have previously addressed the skills of judgment (which I will return to in the future because its importance cannot be overstated) as well as heart. Now I want to turn to the invaluable lessons that experience gives you.
I know that it sounds obvious to trumpet the importance of experience, but it can be easy to take experience for granted, especially when we are some years into our careers. We have to remember that we are gaining new experiences no matter how many years we have been in the profession, and there are always new experiences to add into our arsenal and store for later use. Experience is not simply an issue of time in the trenches or age. Experience is what we gain when we are open to learning and willing to do something new so that we can tackle the same situation in the future. We all have to risk failing and making mistakes to learn.
Case in point, in a recent trial it was obvious at some point that we would not sit a jury from the first panel and that we would eventually require a second panel to sit the jury. Now when I was younger, I wouldn’t have paid attention to this fact. I would have continued to focus on each individual juror deciding if 1) I had a for cause challenge, and 2) if I did or did not want to exercise a peremptory challenge.
But, since I am a student of experience, I remembered the lessons learned from an earlier episode in my career involving the necessity of a second panel. In that previous experience, I had used all of my peremptory challenges during the first panel, so that, by the time we reached the second panel, I had no peremptory challenges, giving our side a sense of powerlessness affecting the final formation of the jury. Powerlessness in selecting a criminal jury is the kind of lessons that one never forgets. So, in this recent trial, when I realized that a second panel was inevitable based on elementary mathematics, I decided I would keep a few people that were otherwise not my favorite jurors but whom I could live with, but with the benefit of saving one peremptory challenge.
Fortunately for my client, the government lawyers had not retained the same lessons that I had and did in fact exhaust their peremptory challenges during the first panel. Although I only had the one peremptory challenge left, one was all I needed to make all the difference. By holding the power of the peremptory challenge I was able to keep a juror that was open to our theory of defense. The prosecution had successfully challenged all others jurors open to that theory from the first panel, but as they had no peremptory challenges left for the second panel, there was nothing they could do to keep this juror off the jury.
My client was acquitted at trial, and without question this juror was a powerful influence for our side. I truly believe that if it was not for that one juror that the client might not have been acquitted. And the one thing that made the difference was the experience to know to maintain a peremptory challenge at all cost.
Every day that we do this job is an opportunity to learn and gain more experience. And the lesson that you learn today may very well provide you the experience to make a call that walks your client out of jail.
Three previous posts that exemplify the “What Makes a Great Defender” series are here, here and from guest blogger Ellen Brotman
here. I want to invite anyone that reads this post and is a women defender to write a post on How to be a Great Defender and send it to me.