Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Sal DiMasi Corruption Trial In Boston Federal Court Is Close To Going To Jury

We have been talking about juries and their deliberations. Sal DiMasi will be sitting in the hot seat as a Boston federal jury determines his fate next week. As you may have heard, the judge has handed down to the attorneys a draft of the jury instructions he intends to give when he charges the jury. It is the last chance for the attorneys to influence what the jury hears during the trial. Once they deliver their closing arguments, the judge charges the jury and it is all in the juror’s hands.

It is an uncomfortable place for a trial lawyer to be. Believe me, I have been there countless times. There is nothing more you can do…but wait, relive how things went and, most of all, guess what is on the jury’s collective mind.

What images did they take into the jury room? How much did they understand the law as the judge gave it. How much do you want them to have understood that law? Most of all, what perception of reality did the jury take back to that jury room with them?

And the last chance for the white collar crime attorneys to influence that sense of reality is the next 24 hours. The presiding judge, the Honorable Judge Wolf, has handed down potential jury instructions and has indicated that he will wait until the attorneys give their closing arguments (tomorrow) to finalize the instructions.

And then…the choice is the jury’s. The court has indicated that, “I’m going to instruct the jury that they have to consider each defendant, and they can choose to convict one of them, two of them, none of them, or all three.”

That much is clear. However, other issues with regard to the instructions are not so clear. For example, the defense lawyers want the court to tell the jurors that in order to convict DiMasi, they must find that he hatched a kickback scheme and directed payments to be made to associates in exchange for his help – a threshold that they say prosecutors have failed to prove.

Prosecutors, however, say they need to prove only that DiMasi was a willing and knowing participant in what they allege was a conspiracy to help a Burlington software company win state contracts in exchange for hundreds of thousands of dollars in kickbacks.

And so, while finalizing closing arguments, the fight for instructions has been on. The court heard argument from all sides today. While potential instructions have been handed down, nobody will know what the court will actually tell the jurors until he actually gives the charge.

And so, as the trial nears its end, the pressure is on the lawyers to find the right words in this final attempt to give the jury the most important thing which will effect the outcome of the trial.

Attorney Sam’s Take On The Analysis Of Evidence (Part 1 Of 2)

What is the most important thing that effects jurors when they are analyzing the events during a jury trial? Is the evidence the most important thing? What they saw? What they heard? Perhaps it is the law that the judge gives to the jury.

I have spent many years training law students and lesser experienced criminal and other trial attorneys on trial advocacy matters. I tell them that the most important thing to remember in jury trials in none of the above.

The thing that actually influences juries is the perceptionof the it all. Now, you may think that I am splitting hairs. I’m not.

Jurors are not generally lawyers. In fact, trial lawyers generally bounce other lawyers off of a jury panel as fast as possible. The reason is that, particularly if the lawyer has any trial experience, he or she knows this truth and will observe the trial in a way that regular jurors do not.

“Ok, so how do regular jurors observe a trial?”

Ahh, that, I am afraid, I will have to take another day to explain. We will end this week of blogs on that one.

To view the article upon which this blog is based, please go to http://www.boston.com/Boston/metrodesk/2011/06/lawyers-dimasi-case-pore-over-draft-judge-instructions-jury/R9Swg42SgOv8UFn0XkYccJ/index.html

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