DTCI: Well and truly tried

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Avery Seagrave Bobby J. Avery-Seagrave

They picked me. What were they thinking? As I sat in the “box” listening to voir dire from both the prosecution and defense, I reflected on the very slight likelihood of being chosen. While I was the 10th person called into the box for jury questioning, I thought my background as a defense trial attorney, coupled with the fact that my husband is a police officer, would be more than enough reason to be struck as a juror for a criminal murder trial. I thought wrong.

For the next five days (promised as only a three-day trial in the beginning), I was at the mercy of a Marion County Criminal Court as a juror. I arrived each morning as I was instructed, took breaks when the court permitted, and my day was over only when the court said it was. Even though I have experienced the rigors of trial from behind the defense counsel table in medical malpractice cases, this was a very different experience, not just because this was a criminal case, but also because I did not know what to expect. Unlike my own trial experiences, the witnesses were foreign to me, as were the exhibits and attorneys. I had not spent more than a year of my life working the case up to the point of trial with intimate knowledge of every aspect. In this instance, I knew nothing.

During the course of my five-day jury service, I gained priceless insight into the thought process of a jury. Certainly, the dynamic of a jury will differ due to the variety of personalities from jury to jury, but there were a good number of observations that I will take away from my experience and use in my practice.

First, do you know what happens to prospective jurors before we get to the attorneys? By the time we make it up to our assigned court in Marion County, we have already had a long, full morning consisting of fighting traffic, parking, going through security, standing in line to be checked in, finding a place to sit in a crowded room, trying to figure out how to complete paperwork on our laps without clipboards, waiting impatiently after paperwork is completed, watching a dull video about jury service, and then waiting some more until finally our names are called to go up to a particular court. As we form lines to go up to our assigned courtroom, the atmosphere is akin to a “lamb to slaughter.” Once we ride elevators up to our assigned court, we are directed to fill the courtroom. As we enter, everyone is staring at us. The jurors serving with me did not appreciate the way the attorneys stared as we filled the courtroom. They knew they were being sized up from the moment the attorneys first set eyes on them. Perhaps attorneys shouldn’t be so obvious.

Voir dire, however it is pronounced, is a great way to start planting seeds in the jury’s mind about the theme of your case. Following voir dire on our case, during our first break together, I was busy listening to all the conversations the jurors were having about the questions asked during voir dire. Even though some said a question was “dumb,” the question did evoke conversation among us as to its purpose. The defense asked us if we had seen the movie “Tangled,” but only two of us had. No more was pursued about the topic during voir dire, but back in the jury room, those of us who had seen the movie talked about how the lead female character used a skillet to hit the male character. The defense had succeeded in indirectly planting a mental image of a woman wielding a skillet, which was one of their defense theories.

Unfortunately, jury selection can also be the beginning of alienating members of the jury. Because jurors don’t know you, this is when we are getting a feel for the personalities of the attorneys. It goes without saying that attorneys should conduct themselves professionally while in front of the jury. However, an ounce of warmth can go a long way. While serving as a juror, I witnessed how an attorney eroded credibility with the jury when voir dire came across as a hostile cross-examination.

Obviously, attorneys understand that a juror has heard next to nothing about the case before the first witness is called, but do they understand what that really means and how opening argument is so critical to the rest of the trial?

As witnesses are called to testify, a juror, without a frame of reference, must process what each witness is saying and try to organize that information in relation to the rest of the case. As a juror, we have very little time to digest what each witness is saying before another witness is called. Because there is a limited amount of information that a person who has been summoned to sit as a juror can – or is willing to – absorb, a lot of details are simply lost by the average juror. Most are trying to be attentive, but even the most attentive juror is picking up only the main facts.

For instance, in our case, we did not know there was any significance to the victim’s picture appearing on his credit card. We listened to several witnesses talking about stolen items, but the details about the credit card were lost on most of us. To our jury this very small detail turned out to be incredibly important to bolstering the credibility of several witnesses.

Because the jury doesn’t know what details are most important to deliberations, but the attorney does, counsel must let a jury know in the opening statement to listen for something in particular. Give the jury a clear roadmap for the case. Weaving important facts into a story format helps us understand what we will hear and why it will be important. The most compelling opening argument came from the prosecution in our case because they told a logical story and weaved in pieces of evidence.

During the presentation of evidence, I was surprised by the extent the jury would speculate about matters that were either not allowed in evidence or inadequately explained. I suppose it is human nature to fill a void. I guess the question to attorneys is whether the void is better filled with the actual evidence, which may be slightly prejudicial, or with jury speculation, which might be worse.

I was reminded how important cross-examination is to the defense during my jury service. Jurors promise to wait to hear all the evidence before they decide, but many are really close to making up their minds before the case is turned over to defense. It is imperative that the defense make some points on cross-examination. When impeaching with prior inconsistent statements, bear in mind the jury does not know what the witness said before in a deposition unless you read it to us or have the witness read it. Also, do not misquote or take out of context prior testimony, because you will lose a lot of credibility with a jury. Our jury discovered this when there was an attempt at impeachment of a witness about a description of a gun. The attorney was leading us to believe the witness was actually describing a real gun in her prior statement, whereas her testimony at trial she could not. However, in the context of her prior statement, she was describing the appearance of a tattoo of a gun. To say the least, the jury was annoyed by this trickery.

A jury likes it when you help clarify issues that we have brought up during our questioning. Our jury asked an unusually large number of questions. From my own experience, I felt pressured to write questions quickly as the bailiff hovered and everyone stared, which is why some of our questions may not make sense or be very legible. If you get a feel for what information a juror would like clarified, please follow up our questions with your own so we can better understand the case. You will gain a few brownie points in the process.

Publishing an exhibit to the jury as you are covering the material is very important. In our case, a lot of pictures were discussed during testimony, but a lot of them were not published to the jury for us to see at that moment. Many times we would have taken away a lot more information if we had been able to view some of the photos at the time they were discussed with a witness. Use of electronic viewing equipment across the room failed to provide most of us with a vantage point to see the details. A blanket question as to whether the jurors can see won’t elicit a response as to whether they can see the details being discussed. If the details are important, enlarge the photos into big boards. As a juror, I appreciated the use of the boards during witness examination and closing argument.

Closing argument was an exceptionally welcome sight to this juror on the fifth day of trial. While we were all tired and ready for the whole thing to be over, we were drawn into both sides’ closing arguments. Both pulled the evidence together for us with their own theme. I observed during my time as a juror that there is a very fine line between effective use of a theme and being corny. Make sure you know where that line is because once the theme turns to the ridiculous, it has lost its effectiveness to hold the story together.

One other thing I grew to appreciate as a juror was an attorney pointing out to the judge that we needed a break. Jurors are intimidated by the judge and are hesitant to voice needs. The court went for long stretches of time without a break. We were hungry, thirsty, and needed a bathroom break. We stared at counsel table and watched as the attorneys and the defendant freely took sips of water. We were very jealous. This reminds me of a lesson one of my partners imparted to me during trial: we were not going to drink any water at the defense table, because the jury didn’t have the same opportunity and access to water. At the time, I didn’t really understand the importance of that rule until my experience as a juror. (Bob, you were right.)

The jury’s observations of counsels’ tables were not limited to whether the attorneys were drinking water or taking notes. More than I ever thought possible, jurors are watching us and judging our every move. We were noticing minute details about your appearance like a tie that is uneven, a flipped-up collar, or even how a hem line appears to be unraveling. If attorneys look tired or are throwing exhibits at opposing counsel, we jurors notice. After we notice all this, we don’t keep it to ourselves. We go back to the jury room and talk about it. At times I felt like I was back in junior high school with the number of insulting comments I heard coming out of my fellow jurors’ mouths. My only tip about this is that you really don’t want to know everything a jury talks about.

I think one fact that you must impress upon your next jury is that their individual opinion is important to the deliberations of the whole. There is a tremendous amount of peer pressure in a jury room during deliberations. At one point during our deliberations, one juror, who was annoyed by the fact it was after 5 p.m. on a Friday night, wanted to put to a vote whether we would allow time to view a gas station video, since only three jurors wanted to see it. This juror was quite animated while voicing frustration toward the three deliberating jurors. While this remonstrance was ineffective and we watched the video anyway, I could easily see how jurors would feel under pressure to go along with everyone.

Finally, I would like to thank the attorneys who, for whatever reason, held back the impulse to strike me from this jury. This was an enriching experience to my trial work. I would also like to think my presence on the jury helped the deliberations, because the jury was less intimidated by the process and more engaged. The jurors felt more comfortable submitting questions, because I was breaking the ice by submitting them. They also liked having someone who could help them read the jury instructions. After the trial, I heard several of my colleagues joke about my presence creating “a jury of one.” However, my respect for the jury trial process was such that I was committed to helping everyone feel comfortable sharing their opinions, even if they were not the same as my own. I think a lot of trial lawyers would feel the same way. So the next time you happen to call a lawyer into the box, hold back the impulse to strike simply because she is a lawyer.•

Ms. Avery-Seagrave is an associate in the Indianapolis firm of Zeigler Cohen & Koch and is a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.


  • our duty
    I have never had jury duty. I have often wondered what it would be like to do my duty one day. Thanks for enlighten me on your experience as a juror. Why can't jurors have water like the attorneys? I would think that the courts would want the juror complete attention on the case not thinking when will I get to have a sip of water too? A person on trial life is on the line. I think it's important to treat the juror much better then that would get better results. There would be less mistakes.
    I taught Spec.Ed.Preschoolers I can see how showing the pictures while telling the story can be helpful to the jury memory. That trick goes back to preschool. I hope the attorney's heard you loud and clear on that trick.
    Now to the restroom breaks again that goes to complete attention on the case. I am an adult if I have to go and have no clue when I will be allowed to use the restroom I can bet you I'll be wondering when will they ever stop so I can use the restroom. That is a sure thing I'll be wondering off over a restroom urge. Poeple think about if you were in that so called box. If your thirsty or gotta go to the restroom are you going to pay 100% attention on the case? I bet not! So why not treat them as you would want to be treated? Oh that goes to bringing God in the courts. Do onto others.....Hmmm think about it. Thanks, Teresa M.

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.