When You Walk a Mile in Their Shoes

You may never serve on a jury, but suppose you did.

How would you feel—how would any of us feel—if we voted to convict someone innocent?

This person knows. In 2009, she voted to convict a 17-year-old boy for murder based on the testimony of one eyewitness. The witness and victim were friends, and they were in a car at the time, with the victim driving. They turned a corner and almost hit a pedestrian, which led to a confrontation that ended when the guy pulled a gun, shot the victim, and fled. At trial, the witness took the stand and identified the boy, and that was enough for her and nine other jurors in a state that only required ten of twelve to convict.

When she learned he was innocent, she signed an affidavit that helped free him after nearly ten years in prison. Here’s a local story about his exoneration.

Now when she thinks back to the trial, she sees things differently.

She remembers the boy sitting in court: slumped over, doodling on paper. Back then, she thought his body language seemed cavalier, like he knew he did it but didn’t care. Now she wonders about that, and she sees defeat and despair instead.

She remembers the eyewitness seemed so sure of his identification. Back then, she thought it made sense: If she had seen her friend get murdered, she’d remember who did it, too. Since then, she’s learned that eyewitnesses are often wrong, especially in times of stress and trauma. And yet by the time of trial, they may testify with total certainty.

Today, she wants to sit with the boy and tell him she’s sorry.

And she hopes she never has to be in that situation again.

But if it were me or my loved one, I’d want her on that jury.

New California Criminal Laws in 2018

We’ve already touched on four of them: Recreational pot. A ban-the-box law for employers. An overhauled sex-offender registry beginning in 2021. New rules for picking juries in civil and criminal cases.

Here are five more this week, with five more to come next week.

Lawyers can advise clients on cannabis. This is Assembly Bill 1159. It amended the Evidence Code to protect attorney-client privilege and confidentiality for legal services rendered in compliance with state and local law. The lawyer must also advise the client on the current conflict under federal law. Lawyers are already advising the cannabis industry, of course. But generally speaking, there’s no attorney-client privilege for legal services that are sought to help someone commit a crime or fraud. It’s the famous crime-fraud exception to the privilege. This law makes clear that, notwithstanding federal law, there’s no crime-fraud exception here just because it’s pot. The law also amended the Civil Code to support commercial cannabis activity that complies with state and local law.

You can seal your arrest record automatically if you weren’t charged or convicted. This is Senate Bill 393. It amended the Penal Code to permit most people who’ve been arrested but not charged or convicted (or whose convictions were overturned on appeal) to seal their arrest record. You may even be entitled to it as a matter of right in many cases; otherwise, you have to show that sealing your record would serve the interests of justice. Before this law, you couldn’t seal an arrest unless you proved your innocence, which is often difficult or impossible even when people did nothing wrong. But the law doesn’t apply if you could still be charged with something, so you must wait until the statute of limitations has run.

You don’t need to plead guilty to get drug treatment for simple possession. This is Assembly Bill 208. It amended the Penal Code to change a type of drug-treatment program we wrote about two weeks ago. The program used to be called deferred entry of judgment; now it’s called pretrial diversion. Before, you had to plead guilty and complete a program that ran 18 months to three years. If you completed the program, your case was dismissed, but if you didn’t, you’d be sentenced on your guilty plea. Now, you can plead not guilty, and the program runs only 12 to 18 months. But you have to waive your right to a jury trial, so if you don’t complete the program, you’ll go before a judge for trial.

The military diversion program includes misdemeanor DUI. Speaking of pretrial diversion, this is Senate Bill 725. It amended the Penal Code to extend a military diversion program to misdemeanor DUIs. This program enables a court to postpone a misdemeanor prosecution and place the defendant in a treatment program in which he may earn a dismissal if he is or was a member of the U.S. military and may be suffering from significant trauma or mental health problems as a result of his service. It wasn’t clear if the program included DUIs; two cases had decided it differently. This law resolves that it does. But it doesn’t guarantee diversion, and it doesn’t stop the DMV from taking your license.

It’s okay to enter a crosswalk during the countdown signal as long as you reach the other side before it ends. This is Assembly Bill 390. Before, you could only enter a crosswalk on a “walk” sign or symbol, and it was a crime (well, an infraction) to do it during the countdown. Who knew? So what if there’s no countdown, but the “don’t walk” sign or symbol is flashing? You’re not supposed to enter the crosswalk.

 

Impaneling a Jury of Your Peers

Do you have a civil or criminal case that’s heading to trial?

Starting next year, California will have new rules for picking a jury in both types of cases.

First, the rules for criminal cases. This is Assembly Bill 1541. It brings jury selection in criminal trials more in line with the procedure for civil trials.

The process will still begin like before. The court will question the jury pool to see if anyone knows the parties or witnesses or otherwise holds a bias that will keep them from being fair and impartial. The court may also agree to ask additional questions that the lawyers have submitted in advance. Then the lawyers will get their crack at it, though the court can set reasonable limits on their questions.

The new emphasis, however, will be on giving lawyers more time and room to question the pool and follow up on the answers. The court can still set limits, but they can’t be arbitrary, inflexible, or unreasonable. In setting those limits, moreover, the court must consider the complexity of the case and even the amount of time the lawyers want. It should allow them to follow up on the court’s questions as well as their own, and it shouldn’t screen their questions beforehand unless they’re really trying to indoctrinate the jury.

Next, the rules for civil cases. This is Senate Bill 658. It makes fewer changes to existing procedure but also puts greater emphasis on letting the lawyers conduct voir dire.

How will the courts apply these rules in practice?

That’s where the rubber meets the road.

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