Anatomy of a Self-Defense Trial Part 5

Closing Arguments Through Verdict

  

The Michael Drejka trial was short and concise — just two and a half days of arguments and testimony. Even though it moved quickly, it had all the features of any trial that any criminal defendant would expect: pre-trial hearings, jury selection, opening statements, the prosecutor’s witnesses, judgment of acquittal, the defense’s case (we’ve covered each of these in our series Anatomy of a Self-Defense Trial). Next comes the charge conference, closing arguments, and the jury deliberations.

Don West, National Trial Counsel for CCW Safe, and I watched most of the Drejka trial as it streamed on CourtTV. If you’re interested in watching a self-defense trial unfold, you can visit the YouTube archives of Law & Crime Network (It would only take about 16 hours). We’ve been using the Drejka case to help describe the phases of a self-defense trial. You may know this as the parking lot shooter case where Michael Drejka shot Markis McGlockton after McGlockton violently shoved him to the ground to end a heated verbal argument over a disabled parking spot. Full disclosure, I volunteered to play a minor role during jury selection in this case.

Last week, we explored the primary trial phase: the presentation of witnesses by, first the prosecutors, then the defendants. Today we’ll follow closing arguments through to the verdict.

Before the closing arguments happen, however, there is usually a charge conference. “There will be a meeting with the judge where there’s an agreement on which instructions are to be read,” Don West says. “Each side can propose individual instructions that may not be contained within what are called the “standard instructions.” If there are disagreements and objections, then the judge can rule. Ultimately there are a set of instructions that each side knows will be the ones read to the jury.” In the Drejka case, before closing arguments, the judge instructed the jury after the terms were nailed down. This allows the lawyers to tailor their closing arguments to fit the instructions provided to the jury. 

Don West drew an important distinction between opening statements and closing arguments. In opening statements, lawyers aren’t permitted to argue the case; it’s more as though they describe for the jury what they expect will be argued in the case. It’s a road map to the trial. In closing arguments, Don says, “Lawyers are allowed to argue their case and implore any reasonable inference to be drawn from the evidence to the jury. They can argue how certain evidence should be viewed by the jury, the meaning of it, and  how they should put it in context. An effective argument ties some of the evidence into some aspect of the jury instructions.”

Closing arguments are frequently longer and more comprehensive than opening statements. I’ve seen them last several hours. Sometimes the judge sets a time limit on arguments, sometimes there are no time constraints. In Drejka, both sides argued for roughly an hour and a half.

Just as with opening statements and trial testimony, the prosecution goes first as they have the burden to prove the case. After the defense presents, the prosecutors then  have the opportunity for a rebuttal argument, and that will be the last argument the jury hears before the judge formally charges the jury and sends them out to deliberate.

It’s a strange time during trial, when the jury is out. Generally, the parties must stay at or near the courthouse so they can appear quickly in the case of a verdict or a jury question. There’s nothing more for the lawyers to do other than to wring their hands and hope they’ve done everything possible to advocate for their client. The accused must wait in limbo for the jury to decide their fate. No one knows how long it will take. Don West says he’s seen deliberations last just a few minutes and he endured one agonizing wait that lasted six days.

Sometimes the jury will ask a question, and that always causes a flurry of activity while the lawyers confer to agree upon an answer (and to try devine some indication on which way the jury is leaning). In Drejka, the jury asked for a clarification regarding the meaning of “reasonable doubt,” which is the core of any criminal defense case.

In just about every jurisdiction, the jury must reach a unanimous verdict in a criminal case, and usually they do. But sometimes they have to report to the judge that they cannot all agree — a hung jury. When this happens the judge may issue an Allen Charge, essentially demanding the jury try harder. This happened in the Gyrell Lee case that we’ve written about, and an hour later, the jury delivered a reluctant guilty verdict (two of the jurors cried). It also happened in the first Michael Dunn trial, but after further deliberations, the jury could not come to a verdict on the primary charge, and the judge ultimately declared a mistrial. Soon, we’ll be exploring the Alexander Weiss case which has resulted in two hung juries.   

Don West says, “In some cases, the goal of a criminal trial is to get a conviction to a lesser charge than what’s been filed — that it wasn’t a robbery; it was a theft. Or it wasn’t a burglary; it was a trespass. But in a self-defense case, it’s typically all or nothing. The claim of self-defense, the law of self-defense applies to the main charge and all lesser charges. So in my experience, more than any other kind of criminal case, the person sitting in the defendant’s chair faces what may very well be life in prison versus not guilty across the board.”

The Drejka jury began deliberations on a Friday afternoon, and the judge read the verdict at about 10:45 that night. Michael Drejka was guilty of manslaughter (the maximum charge) for the shooting of Markis McGlockton.  A little over a month later, the judge would sentence him to 20 years. Drejka’s lawyer’s have said they will appeal, but that’s another discussion for another day.

The lesson for the concealed carrier is that the legal defense for a homicide case is an all or nothing proposition.  Don West says, “You’re going to make a split second decision in self-defense. And you’re either justified or not, and it’s going to take perhaps a year or longer to get to trial. It’s going to take multiple pre-trial hearings, and then this whole trial process we discussed to get to a handful of people who are going to, over the course of a few to several hours, make the ultimate determination of whether or not your use of deadly force was justified.”

---