Twice this year I've asked a jury for prison time, and twice they've come back with probation. I'd like to break that streak, and I'm trying two probation-eligible defendants this month.

I'd appreciate any tips y'all have on taking a borderline case from probation to prison: voir dire tactics, trial themes, closing arguments, etc.

TIA!

If you're working that hard for probation, have you checked your plea offers lately?

What are the offenses you have tried?

What type of case is the upcoming case? Different theories and arguments will depend upon what type of case it is.

One thing that you will certainly want to look at is the defendant's prior criminal record and bad acts. You need to know the details of every bad thing the defendant has ever done.

For example, a felony DWI defendant with no prior felonies is probation eligible. However, I find that many of them have several public intoxication convictions in addition to their prior two misdemeanor convictions. Often, when you get the offense reports, you will learn that the defendant was driving or passed out behind the wheel of a car when he was charged with public intoxication and that some officer just decided to let him slide with the public intoxication charge. In that scenario, you can argue that the defendant has risked the lives of citizens by driving drunk however many times your evidence shows.

I also look for things that will aggravate the jury. For example a misdemeanor assault may not look like a big deal on the criminal history. However, if the facts show that the defendant had his pregnant girlfriend down on the ground kicking her in the stomach, that is likely to land him in prison.

Sometimes pure volume can push the case in your favor. A jury may decide that a probation eligible defendant with 20 prior misdemeanor convictions just doesn't merit probation. This is particularly true if you can show that the defendant violated a prior misdemeanor probation.

The main thing is don't just settle for getting a certified copy of a prior conviction. A cold judgment doesn't have near the value of the testimony of the girlfriend who was kicked or a citizen who reported the defendant on a prior DWI after he saw him run a school bus off of the road. If the defendant has ever been on probation, check all of the chronos. You will be amazed at how much the probation will let slide without filing a violation report. Those technical violations that the defense belittles don't set so well with the average juror who thinks that a guy getting a second chance should follow all of the rules.

Good luck.

Beck: We're small enough that the boss makes all the offers; I just try 'em.

Greg: Both of the cases I've already tried were assaults on a public servant. In the first, an angry momma slugged a school nurse. The second was a TYC assault on a correctional officer.

Sammy: Thanks for the ideas on priors and not settling for using a certified judgment. In the case I'm preparing Momma and Daughter broke into Daddy's house and pistol whipped Daddy's live-in girlfriend, then stole her purse. If I can get around the "she-got-what-she-deserved" defense, Daughter was on probation for misdemenaor assault at the time. I'll see if I can round up the victim; I was already planning on having the probation office testify.

Whenever you are using a prior offense/conviction, it is always sweet to put on the victim of that offense, in addition to the certified J&S. If the victim is unavailable, the investigating officer can sometimes help, particularly if it was a violent offense.

I basically like to show a jury that a D has had sufficient chances at rehab and spurned them. The more folks you can parade across the stand that can help the jury determine what kind of probationer the D would be the better.

Often, I will put on several officers or other community leaders and ask the reputation questions if D has a bad rep. Often, I find that defense attorneys don't follow the golden cross rule, and will ask the witness what they base their opinion on. Generally a big mistake.

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If I can get around the "she-got-what-she-deserved" defense

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Based on those facts, don't forget the "it's a family dispute and we don't want to get involved" defense, either.

Just tell the jury that an "argument" is a family dispute. The argument may end in a "push", "slap" or a "door slam". That's understandable, no one argues like family! In fact, you could tell the jury that you might acquite if it was a basic argument, you can't think of many families that haven't argued, slammed doors, or even pushed each other.

Argue that this was Robbery, a CRIMINAL act, breaking into the house, pistol whipping a (hopefully she's the shrinking violet type) person.

A great argument I heard once was that the defendant knew that he would have resistance in the robbery, given that he knew the victim was the same size as the defendant, so that is why he brought the knife, to have the 'edge' in case it got physical.

Maybe the two planned to rob the victim from the beginning, and went together for additional strength, or the gun for the intimidation value of it - to see the terrified look in the victims eyes.

Just tell the jury that, even though some family members deserve what they get(I have a few wild relatives), maybe a push or a door slam, no one deserves to be 'pistol whipped'. Let the jury feel the weight of the pistol, and slam it on the jury rail for the full effect of the pistol whipping, the jury will cringe, especially the chicks!

Good luck.

Whatever you do, don't refer to that old blues song that I've referred to here before, famous in the Memphis region in the early 60s: "Your husband's been cheatin' on us!"
The jury might want to slam a pistol down on the victim's head too.

During voir dire, be sure to ask: who is not certain they could, in the proper case, sentence a woman to 20 years in prison for robbery.

Make it clear that a "proper case" does not mean a case where the def. has a prior final felony conviction, because the law jacks those cases up to 1st deg. felonies. Therefore, who could, in the proper case, where a defendant does not have a prior final fel. conviction, give 20 years inside?

Then ask the question in reverse: who is certain they could, in the proper case, give 20 years for a robbery?

You might want to ask these questions row by row, and make sure everyone answers it one way or the other. Then get all those who could not, in the proper case, give the max, struck for cause.

In final argument, suggest to the jury that in determining a proper sentence, the proper place to start is in the middle of the sentence range: 10 years TDC. This would be a middling sentence for a run-of-the-mill case, as determined by the legis. which set the penalty range.

Then argue that the jury should move down the scale if there are mitigating factors, and up the scale if there are aggravating factors.

I usually draw a line on an easel, marking one end with 2 and the other with a 20, and starting with a line in the middle at 10.

Then ask, "What are mitigating factors, ladies & gentlemen? How about a plea of Guilty--that is a major mitagating factor--but that didn't happen here." Go thru each possible mitigating factor, and then point out: that is not true here.

Point out that while a plea of NG is not an aggravating factor, a plea of guilty is mitigating, and there should be some real difference in penalties between those who accept responsibility for their actions and those who say: prove it!--and you do.

Then go thru the list of aggravating factors that do apply.

Remind them they all swore they could give the max sentence in the proper case, and ask them for a certain number of years.

Always be straight with the jury. If there are real mitigating factors, you should address those, and give a realistic idea about how much weight they should carry. Don't ask for more than would be just. You want the jury to believe you are being honest with them.

One of my favorite weed out questions is that I will ask a panel whether they are punishment or rehabilitation oriented jurors in a hypothetical case of the same type as on trial. If I have time, I go one by one and ask them.

I also ask them to pick one, because if you do not, invariably, some jurors will say both apply to them (i.e. they are both punishment and rehab oriented). I ask them to be true to themselves and tell me what their focus is up front.

Since I began doing this, I have only lost 2 felony cases, and have only received probation on two occasions.

I want folks on my juries who don't beleive in excuses for serious felonious conduct. I don't put school teachers or engineers on juries, because of my past experiences with jurors of these professions. Doesn't mean they are all bad, of course, just my preference.

I always make sure to go through the "Steps to Getting Probation Revoked" to show what it truly takes to get somebody revoked. I like to use an easel and a pad of paper. It's low tech, but the jurors will watch and pay attention as you write. You can do this during voir dire, by calling a probation officer, by crossing a defense witness (who promises to help the defendant if he is given probation), etc. The steps are:
1. Defendant gets caught (point out how often criminals don't get caught)
2. Probation officer decides to file violation report w/ DA's office
3. DA's Office has to decide to file an MTR
4. Judge has to decide to issue capias
5. Defendant must be found and arrested
6. State must prove the violation at a trial against the defendant and his attorney
7. Judge must decide to revoke as opposed to modify the probation or do nothing
8. Judge can sentence defendant from minimum up to whatever number the jury sets as exposure

Whatever you do, don't let the defense attorney leave the jury with the impression that if the defendant just reports late 1 time or fails to do a single hour of community service on time that he will automatically get the sentence that was probated. Not only will that give the jury a false sense of security in the probation system, but it is flat out misleading. Probation is a good option where appropriate, but the jury should be able to see it for what it is, warts and all.

Jeff,

Thanks for this I intend to use it next time (and every time after) I get a probation "eligible" defendant.

What great ideas! Thank you all

Ward Casey, God bless his soul, used to say, "Lots of folks need killin' but nobody needs to be robbed."