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THE DARK SIDE: Appeal to what is best in jurors

By: David Ziemer, [email protected]//April 25, 2012//

THE DARK SIDE: Appeal to what is best in jurors

By: David Ziemer, [email protected]//April 25, 2012//

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Many years ago, a former Alabama congressman told me the following story:

He was campaigning for Richard Nixon in Alabama in 1968 and Nixon wanted some advice on how to appeal to voters who might otherwise vote for Alabama Gov. George Wallace, who also was running for president that year.

Here’s what the congressman told Nixon: “There are two ways to get the votes of Alabamans. You can appeal to what’s worst in them, which is what Gov. Wallace does; or, you can appeal to what’s best in them, which is what you do.”

I always liked that story. And I always figured that what is true of Alabamans is true of all people, including jurors.

Accordingly, I’ve always aspired to appeal to what is best in jurors rather than what is worst in them.

Now, I know what you’re thinking: “That’s easy for you to say.”

I know, I’m a defense attorney. I realize it’s easier to appeal to what’s best in jurors when you represent the defense. It’s a lot harder to do that if you are a prosecutor representing the Socialist States of America or the Socialist State of Wisconsin.

Imagine, for example, that you are trying a case in federal court and the charge is felon in possession of a firearm. An element of the charge is the possession affected interstate commerce. But the defendant was arrested with the firearm in his own home. The only connection to interstate commerce is the firearm was manufactured out of state, and thus, must have traveled across a state line at some point.

The jury instructions will inform the jury that is all that is required for the possession years later to “affect interstate commerce” and no significant argument is required on the prosecutor’s part to convince the jury the element was met.

Nevertheless, the jury instruction is a lie, and everyone in the courtroom knows it. How could an attorney obtain a conviction based on what he knows is a lie, without necessarily debasing himself and necessarily appealing to that which is basest in the jurors before him?

It is no different from a politician today who appeals to voters by promising to create phony-baloney “green jobs” and combat nonexistent “climate change.”

In contrast, it is ennobling for an attorney to represent a defendant facing a federal gun charge or for a politician to tell voters the truth about jobs and the climate.

Unfortunately, the government usually wins those federal gun cases. But that is not surprising; Wallace won Alabama’s electoral votes in 1968, too, despite Nixon’s best efforts to appeal to the voters’ better natures.


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