I’ve been working on a number of post-conviction motions these days and I get to do a fair amount of armchair quarterbacking.  I know appellate lawyers like to think that they know what’s up, they could do this stuff better than that silly, flashy trial lawyer.  I like to think I’m above that when I have my post-conviction hat on.  After all, I’ve tried a case or two back in the day and I know what it’s like to be asked a question by the judge, a question you totally did not expect, and have to answer it right then in an instant.  No time to look it up, no fastcase on your iphone. Just “Ms. Seddiq, well. . . ” and all eyes are on you thinking “Come on, you’re the hot shit trial lawyer. You MUST know the answer.” And, sometimes you get it wrong.  Most appellate and post-conviction lawyers have never felt that pressure.  They’ve got a deadline months and months out. They have the time and the luxury to think things through, mull it over, talk to friends and colleagues.  So I get it, trial lawyers.  I really do.  But when I read some trial transcripts my heart sinks and I wonder what on earth the lawyer was thinking.

My biggest beef these days is with the lack of participation by counsel during jury selection.  In New York, we got to voire dire the jury. It was fabulous. The jury knew you, knew your client and knew your case.  You got to educate them, speak to them one on one. While you couldn’t always be certain that you didn’t get loonies on the jury (and I have stories about that) you got to get a pretty good feel for them.  That’s not the case in Maryland where the judge conducts voire dire, asks seven questions, and counsel just sort of stands there and nods.  I’ve recently read transcripts where people have come to the judge and said “my mother was shot” and the judge says “can you put that aside and be fair and impartial?” and the potential juror answers “yes” and then the juror sits down.  No follow up by defense counsel.  Maybe not even a skeptical look (it’s a transcript so I couldn’t really tell).  In this particular case, the prosecution made a Batson challenge, saying that the defense was systematically removing white men from the jury (cause you know how the Man be trying to keep them down).  The Court asked defense counsel why he removed the three white men from the jury.  He couldn’t give an answer because he hadn’t a clue about any of them.  The judge didn’t sustain the challenge, but warned defense counsel that he would be watching if any more white men were removed – by the way, the defendant was black.

I know it’s not the norm to participate in jury selection. But people, do it.  Let the judge shut you up. Let the judge tell you that it’s not in your province to ask questions of the jurors who will decide your client’s fate.  Why are you so afraid that the judge will not like you, will tell you you’re a dumb poopy head for trying to protect your client’s rights?  Your client, that person standing next to you – he is entitled to a jury that will be fair, impartial and unbiased.  If all you know is that potential juror lives on Oak Lane that probably won’t help you get there.   And then us armchair quarterbacks will have no choice but to lament the state of affairs today and continue to be convinced we’d be better trial lawyers than you.