It’s over.

All the preparations, drafting of motions, strategizing and the battle of the trial itself. over.

You give your last “all” in your closing argument, deal with the opposition’s summation and live through the judge’s Final Charge to the jury, ready for any legal issues which arise there.

And then…

…the jury goes out to deliberate. And all life seems to stop.

This Boston criminal lawyer has been there more times than he can count. It never gets easier.

” ‘easier’? How can it be difficult? Unless the jurors have a question, you have nothing to do until they reach a decision.”

Yes, and that is the problem. There is nothing else that you can do. What you did was done. What you did not do was not done. Decisions were made both prior to and in the heat of the trial. Were they the correct ones? At this point, you can question and re-question yourself, but there is nothing you can do about it.

Except wait.

There is nothing else that you can do except maybe help your client and his loved ones through the wait. After all, you were just the advocate. Your client’s freedom is at stake. Depending on what that jury does, the life he knew may now be history.

That is, if you are on the defense side.

I have been on the other side too. Though it was long ago, I remember it well, from rape to drugs to murder. The perspective was different from what I was to find as defense counsel.

A prosecutor tends to become “holier than thou” through years in the trenches. There is an indoctrination that takes place. Perhaps there is a live victim in the case and the prosecutor hopefully will try to help that person through the wait. But the pending verdict is more personal than that. After all, as far as the prosecutor is concerned, her side of the argument is, almost by definition, the right side. Therefore, if the jury acquits the defendant, then they simply did not listen. They were careless. The prosecutor, understand, just fought the “good fight”. The only question is whether the jury will uphold its part of the bargain and see things the same way. The “real” way. The way the world works unless one is fooled by those tricky defense attorneys.

The possible loss is painful if it comes. Mostly, it makes the prosecutor angry. After all, “What was wrong with these people?”

For the defense attorney, if he is any good, the issues surrounding jury deliberation are different. If there is a loss, the defense lawyer is not plagued by anger. It is more sadness. It feels like a more personal vote of “no confidence”. The worst has happened. The human being he was charged to try and save was lost. Sure, there are also argument to prepare should a conviction come. Sentencing arguments. Notices of Appeal. But while that jury is out deliberating, it might as well by the lawyer’s fate in their hands. That is what it feels like.

If the verdict is an acqittal, then the prosecutor feels that the jury failed the citizenry. If it is a conviction, then the defense attorney struggles with having failed his client. That is how it feels…at least for me.

I have been lucky. I have had to face defeat at trial only twice through my many years as a criminal defense attorney. Perhaps it is because I care so much. Or maybe I have been lucky. I don’t know. However, I can tell you that after 27 years of criminal jury trials, on both sides, the waiting does not get easier. It does not matter how good a job I feel I have done. As far as I am concerned, the verdict will tell the tale if I did good enough.

“Sam, you know…some people are guilty and their cases are lost causes.”

True. And most of those cases plead out. However, tough cases can often be won. Strong cases can lose. I have seen both happen. It comes down to my talents and skills to make the difference if a case goes to trial.

Unrealistic? I am sure that it is. But I take my oath seriously. And the truth is that despite what the “common knowledge” is out there, the prosecution is not always the “way, the light and the truth” as much as it likes to feel it is. And, yes, injustices happen.

Don’t get me wrong. I do not minimize the private little hell my client is going through during the deliberation. If I do lose, I will be crushed for a bit. But it is the client who will pay the price. I am aware of that. Painfully aware of that.

It does not make it any easier.

“Why are you telling us this, Sam?”

Because, frankly, it is something you should consider when choosing a criminal defense attorney. As I have told you many times, you want someone who is experienced and with whom you feel comfortable. Part of that is that you want someone who cares about the case.

I have seen and heard of cases where the defense attorney did not put very much thought into the matter. It is my opinion that if you have a lawyer who really truly cares…then that cannot happen. The lawyer should be incapable of it.

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