MY FIRST AND LAST MURDER TRIAL
It’s January 4, 2019 and I am in Division 5 of the DeKalb County Superior Court, otherwise known as Judge Gregory Adam’s courtroom. I let the Deputies know I am a lawyer representing an accused person in a case and am here for the motions calendar. They instruct me to sit in the jury box. I do. As soon as I step in the jury box, a friend of mine, Jan Hankins, a Georgia Public Defender, says “I know you. What are you doing here?” She has that look on her face of seeing someone she knows but in the wrong setting. Things are out of context. She knows I am a plaintiff’s personal injury trial lawyer. She instantly computes that I have no Earthly business in a criminal motions hearing. I explain that I will be trying a murder trial with Mike Maloof, Jr. because I have always wanted to try a criminal case and in my 30 years of practicing law, I have never handled a criminal case. A mutual friend put Mike and me together and Mike welcomed my help. Jan’s response: “If trying a murder case is on your bucket list, you need a new list.”
It is true that in 30 years of practicing law I have never handled a criminal matter. I watch a lot of criminal trial shows on TV, though. Shouldn’t that qualify me a little bit? After all, I certainly know never to talk to the police or answer a single question they ask unless my lawyer is present. I know never to give the police consent to search my car. I know never to agree to take a sobriety test. I am armed with a lot of knowledge about the criminal justice system from this. So wouldn’t it be a neat chance to add to my plethora of TV criminal justice knowledge by trying a real murder case?
Truthfully, I wanted to grow as a trial lawyer, even at my advanced age of 55. I wanted to be in the arena. I wanted to know what it is like to stand with my client and face a jury who has the power to take away his liberty for the rest of his life. I wanted to insist on the State proving every element of every charge beyond a reasonable doubt. I wanted to argue my heart out and give an accused person the best possible chance to beat some overreaching prosecution. I don’t know why…but I wanted to experience that.
This is a unique experience for me. It is not only my first murder trial, but I am very confident it will be my last. With that in mind, I tried to jot down some notes as we approached our trial date, 1/14/2019. I thought it might help me remember the experience. I thought it might help my growth as a trial lawyer. Here are my thoughts.
12/28/18-first meeting with co-counsel Mike Maloof, Jr. A mutual friend, who is also a criminal defense attorney, put us together. Our mutual friend knew I wanted to try a criminal case and when he heard Mike had a murder trial coming up, he suggested to Mike that we meet and discuss. Mike’s office is very close to the DeKalb County Courthouse and right across the street from Decatur High School. He is in a suit but no tie on a Friday afternoon, because he had some court appearances this morning. He doesn’t yet have all of his Brady material or discovery from DeKalb Prosecution. We discuss motions he will file, Reveal the Deal (cute but actual name of the motion), Jackson-Denno, General Demurrer to the Indictment, and Motion to Rule the Felony Murder Statute Unconstitutional due to Vagueness. I learn what all of these mean. We rate our chances of success on each. We give each about a 5% chance of winning. It’s gonna be an uphill battle. Mike questions my sanity for wanting to do this, but welcomes whatever help I can give. I gather simply having a sounding board for a change is help enough. I repeat that I have never tried a criminal case. He doesn’t care. He likes my 30 years of trial experience.
1/3/19 (11 days before trial)- Did not sleep well. Constantly thinking of closing arguments about BOP. Remind myself I am 2nd chair. I don’t need to lose so much sleep. Mike’s got this. Amazing, though, how you so quickly become consumed in the case and doing your very best once you say I will represent you. All-consuming. All in (in the words of Dabbo Swinny).
Drafted Voir Dire and Requests to Charge today. So different than my usual V/D in civil cases. Really having to think like potential DeKalb jurors judging a murder case. Not used to this. I will handle the entire jury selection. It’s something I know I can contribute regardless of the fact that this is a criminal trial and not a civil trial. This will free up Mike to worry about the witnesses.
1/4/19-Motions hearing before Judge Gregory Adams. Deputies in the courtroom are extremely nice. Lawyers sit in the jury box. Inmates on the left of the courtroom, others (family members, folks out on bond) sit on right. There are at least 4 deputies in the courtroom at all times, one in full SWAT riot gear. Extremely imposing. Inmates are brought in. They are in the DeKalb Jail orange jumpsuits. When our case is called the Deputy escorts Hernandez to attorneys’ table. I meet him for first time. “Nice to meet you, Mr. Hernandez.” I hold out my hand to shake his and realize his cuffs won’t allow him to hold his arm out, so I reach out to his waist and grab his cuffed hand. He is nice, pleasant and respectful. He is thankful and appreciative of my help on the case (whatever that might be worth). It is quite obvious that someone has beaten the shit out of him in the DeKalb County jail. His left eye is full of blood and the area around that eye is black, reddish and swollen. His entire forehead is swollen from the beating. He refuses to disclose who did this to him. He refuses our offer for help to get him moved for protection.
Motions go as expected, lost every one. Judge Adams actually takes 10 minutes or so on our Unconstitutional motion and allows Mike to argue for a good 30 minutes without cutting him off. This is a good sign. Prosecution argues for all of 120 seconds. They know they got this. Judge even reads some of our case law! But in the end, denies the motion. We speak to our client again in the meeting room attached to the courtroom. This room has peeling paint on the wall and fallen paint chips all over the floor. I look in all corners to see if there are any hidden cameras. I can’t identity any, but I still worry about the security of attorney/client communications.
1/9/18-Met with client at the DeKalb County Jail today for a lengthy trial preparation session. First impression at the jail is that all of the DeKalb employees there are extremely nice and polite. Everyone. From officer at the metal detector to escort to Sgt. of the meeting area. As a DeKalb County resident this makes me happy. We meet Hernandez in the “yellow room.” Actually, a little cleaner, better kept than the meeting room attached to the courtroom. I look everywhere on ceiling, in corners, for cameras or recorders. I don’t see anything that looks like one. After 10-15 minutes or so, our client is escorted in in cuffs, orange inmate attire, no socks and slide-on sandals. Both of his eyes are now horribly black, apparently the blood has set in since his beating in the jail just before court on 1/4/19. The whites of his eyes are filled with blood. They look horrible and painful. Mike and I can’t decide whether the two black eyes are good for us or bad for us. Will they garner sympathy from a DeKalb jury? Or will the jury think it’s exactly what he deserves? We don’t know. And we won’t be conducting any focus group to gain a better idea. Client still refuses to tell us who did this to him. “That’s irrelevant,” he says. I worry what he will look like next time I see him. We spend several hours with him, going over every excruciating detail of what occurred in the incident we are trying next week. All things said, all movements made, all things seen. This is gonna be a tough trial. We know our only possible chance is to argue self-defense, that the decedent pulled a gun first on our client and our client simply defended himself. Problem is there is quite a bit of caselaw that says when a felony murder is involved, the defendant may not argue self-defense. That affirmative defense is simply not permitted. We start thinking of possible jury nullification. A longshot.
I go to Lawyers Club Fiction Book Club directly from the jail. I have a Chimay, one of my favorite beers. I felt guilty drinking it, wondering what my client is having for dinner.
1/11/19-Friday night dinner with my husband at Red Pepper Taqueria. Every sip of my margarita, every bite of guacamole, I wonder what my client is eating in jail. I can’t get the thought out of my head. I wonder if, now that I am experiencing what it is like representing an accused person who may be sentenced to the rest of his life in prison, will I always think like this for the rest of my life?
1/12/19-weekend prep. Texting with Mike re: ideas. One hour long call with Mike. Reading transcribed statements of eyewitness. Brainstorming.
1/14/19-Jury Selection-Long day of voir dire. 60 jurors called in the courtroom. Lots of folks want to talk about Black Lives Matter. I am shocked at the number of potential jurors who have spent more than one night in jail (7). I am also shocked by the number of jurors who own a gun and who have practiced shooting a handgun (29). Last shocker is the number of jurors who have been threatened with violence (21). One juror has been shot 3 times. Another juror overtook an armed robber who ordered him to get on his knees. He said there was no way he was going to get on his knees so he grabbed the guy’s gun. He is lucky to be alive. It is clear that many families have experienced some form of drug addiction. We finish early for the day, around 6:00 p.m. We will start back at 9:00 a.m. tomorrow. Judge Adams repeats this for emphasis: “We will start tomorrow at 9:00 a.m., 9:00 a.m., 9:00 a.m., 9:00 a.m.” Not kidding. He is a stickler for time and efficiency.
1/15/19-Jury Selection continues. Openings in the afternoon starting at 4:00 p.m.
Fireworks when client’s girlfriend appears with her counsel. State filed a request to force her to waive her 5th Amendment and testify at 4:30 p.m. today. State argues it is necessary b/c of t/c from Hernandez to girlfriend’s mother, from the DeKalb County Jail (all inmate telephone calls are recorded) and that Hernandez threatened her and now she is scared to testify. Girlfriend’s atty disputed that. He says girlfriend has been on the fence for about a year now about whether to testify, that the jail phone call did not scare her into refusing to testify. Lengthy argument based on the forfeiture for wrongdoing statute. OCGA § 24–8–804(b)(5). This is really only the first time when my civil experience has never touched upon this statute. I quickly research the statute and supporting case law while the prosecutor is arguing. I create an argument against. I argue the motion, primarily because while Mike is working on examinations, I have had a chance to research and gather my argument. Standard for granting is judge must find it is in the “public interest” to force a witness to waive her 5th Amendment right and force her to testify. State argues it needs her testimony to help prove its case. I argue helping the State prove its case is not a “public interest” to which this statute applies. Judge agrees. He finds no such showing and rules he will not force girlfriend to testify. We survived a close one.
1/16/19-Jury Note: “We just want to confirm there’s no way/chance our personal lives are in jeopardy.” Jury also wanted to confirm no way this is a death penalty case. Jury has already been talking about the case. “In conversing…” This occurs before even the first witness is called.
Moved for Mistrial. The jury has obviously been discussing the case and they are afraid for their safety, knowing this case involves a drug deal gone wrong and a shooting. There is no way we can get a fair trial now from this jury. I quickly pull up some case law but find nothing even close to a note like this from a jury. State suggested polling the jury. Judge denied polling and denied mistrial. We dig in.
Flurry of witnesses for the State: ballistics expert, medical examiner, Brookhaven Police officers, Detectives, cellphone extraction experts, and the other eyewitness to the incident (other than our own client).
Another attempt is made by the State in the afternoon to introduce statements by client’s girlfriend. Girlfriend is present with her attorney. They strongly object and indicate she would take the 5th Amendment. State convinces judge to force her to do that on the witness stand outside the presence of the jury. After about 4 questions, all to which she asserted her 5th Amendment right not to testify, Judge Adams calls the demonstration over, grants her attorney’s motion to quash the subpoena and excuses them from the courtroom They leave very quickly.
State wants to play the recorded police interview with my client. The Court had previously ordered the State to redact all references to our co-defendant, as a basis for denying co-defendant’s motion to sever the trials. State indicates it has redacted all such references. Produces a transcript of the audio-recording. In the first 5-6 pages, counsel for co-defendant finds a reference to her client, our co-defendant, in direct violation of the Court’s order and directly contradicting what the prosecutor had just represented to the court. More redactions are done to the typed transcript. State makes representation that the audio has no references to the co-Defendant. State begins playing the audio. Listening intently, and out comes the name of the co-defendant, in direct violation of the Court’s Order. Unbelievable!! Co-defendant’s counsel immediately moves for a mistrial and for severance. Jury removed from courtroom. Argument before the Court. State makes up all kinds of excuses. They “thought” they had redacted all references to the co-defendant. It was a bad “mistake.” Jury heard only the first name of co-defendant and that he was Ethiopian, so how much harm could it have caused? (Keep in mind that every day of the trial an entire village of Ethiopian family members and friends packed the courtroom, even bringing homemade treats to share with us during breaks). ADA actually argues that they redacted the typed transcript as ordered but that they didn’t understand that also meant to redact the audiotape the same way. Judge instructs her not to argue that again. Court grants renewed severance motion. Co-Defendant is taken back to jail and will not be in the courtroom tomorrow for the final day of witness testimony. Trial date will be set for him later (although I wonder whether he has a good argument that the State created the necessity of a mistrial, and, therefore, double jeopardy should attach to him.).
We also move for a mistrial. Severance at this point would be fundamentally unfair to our client. Suddenly, he is the only defendant in the courtroom, so jury must be thinking, he must be guilty, he’s the only one left. We also argue we had to share our strikes with co-defendant who had a different defense than we had, so unfair to us to be judged by a jury, half of which we didn’t want and didn’t strike. Judge doesn’t buy it and denies motion.
1/17/19- Fireworks in the Courtroom again. State again attempts to introduce the girlfriend’s statements against our client, even though we have at least 3 times successfully kept them out. Judge reverses himself on the basis the posture of the case has changed now that the co-defendant is out of the case. In argument I remind the Court that the State brought on the change in the posture of the case itself by violating the Court’s Order about redaction of our client’s audio statement, which I would consider contempt. Judge immediately about faces and agrees, saying “Ms. Clark, you are right, I had forgotten about the State violating my Order,” and rules the statements are out.
State whines. Calls the girlfriend’s lawyer a liar. Judge erupts. Judge instructs the State they are not to insult another lawyer again, especially one who is not in the courtroom to defend himself. Judge says that he (girlfriend’s lawyer) is an officer of the court just like the ADA and we are to presume he is telling the Court the truth. ADA continues to argue and whine. Judge cuts him off. ADA opens his mouth again. Judge yells “Sit down!!”( I cannot give this the proper emphasis that actually occurred in the Courtroom). Judge calls the Sheriff’s office in the Courthouse and requests 4 additional deputies come up to Courtroom 5D immediately. While waiting for the additional deputies, the Court instructs all lawyers that if any of us insult another lawyer again, he or she will be held in contempt, removed from the courtroom by one of these deputies and will spend the night in jail. Judge says he called for additional deputies so that one could take a lawyer in custody quickly without interrupting the trial. Judge makes every lawyer answer out loud on the record that we understand the Court’s instructions. Each lawyer responds “I understand, Your Honor.” No one is taken into custody that afternoon. I have never seen anything like this in my 30 years of practicing law in Georgia.
I spend the rest of the afternoon and evening creating a Powerpoint for Mike to use with his closing.
We rest without putting on any evidence. The jury has pretty much heard already what our client would testify to through his police interview. No need to put him on the stand.
Fastest charge conference in the history of charge conferences. Judge gives our justification charge over the objection of the State. We have a fighting chance.
Both closing arguments are delivered without a single objection.
The jury goes out. We renew our motions for mistrial, based on the jury’s fear for their own safety and the severance of our co-defendant mid-trial. Motions denied. The deputies remove my client from the Courtroom and take him to the holding cell. He is very sad.
My last email to my husband:
Well, jury is out.
The enormity that my client may spend the rest of his life in prison is hitting him.
The judge instructs the jury we will take a dinner break from 6:00 p.m. to 7:00 p.m. tonight. First thing the jury does in deliberations is send the judge a note: “May we delay dinner?”
Mike and I immediately analyze the tea leaves of the note. Is it a good sign or bad sign? We both conclude bad.
Jury has a verdict within an hour and a half. Five deputies are called into our courtroom for the delivery of the verdict. Two stand at the courtroom door, one stands at the bailiff’s chair, one stands at the jury box, and one stands directly behind me, almost touching me. His closeness is intimidating. It is obvious his job is to subdue our client in case of any movement by him in reaction to the verdict. The judge warns everyone in the courtroom not to react out loud to the verdict, “there will be no outbursts in my courtroom,” and that we are to remain seated at all times.
Foreperson reads the verdict. It is bad. Guilty on all counts.
Judge directs all attorneys to stand away from counsels’ tables so that the deputies my remove our client from the courtroom. They handcuff him at the table, help him to his feet, and escort him to the holding cell. He is bawling.
It is overwhelming. There is no joy in the courtroom. At least the ADAs do not high-five each other for their win. I don’t think I could have taken that.
One of the best experiences of this trial was to try a case in front of Judge Gregory Adams. I had tried a wrongful death declaratory judgment case in front of him several years ago, so I knew what to expect. To say Judge Adams is in complete control of his courtroom would be a massive understatement. I admire his presence. And there is no doubt in my mind that having him on the bench is so important to African American criminal defendants’ acceptance of the Court’s authority and rulings. It was a genuine pleasure trying a case before Judge Adams.
Classic statements by Judge Adams:
“Everyone in Division 5 eats lunch.”
“Is someone saying something? I hear a voice but I don’t see anyone standing in the Courtroom.” To an attorney who made an objection without standing.
“Is your microphone not working, because I don’t hear a question coming out of your mouth.” To an attorney taking to long to ask his next question of a witness.
“Ms. Clark, got your game face on?” To me when I was deep in thought. I probably was not smiling.
“You may walk aggressively to the door.” To the jurors at lunch break and at the end of the day.
“Come on in Ladies and Gentlemen, make yourselves comfortable, you may sit in any seat.”(over and over and over). To the jury every time they come out of the jury room into the jury box.
“Stand back.” To the prosecutor when the judge had obviously heard enough. It means the judge doesn’t want/need to hear another word.
“Sit down!” To the prosecutor who continued to argue with the judge after a ruling.
“Citizen, come on in.” To a family member who, for some reason, had taken off his shoes in the hallway, and who the deputy was telling to come into the courtroom.
“Do not consume any alcoholic beverages at lunchtime.” To the jurors.
“Thank you for your patience, thank you for having a positive attitude.” To the jurors every time they had to go into the jury room.
“Appreciate ya.” To the attorneys after any bench conference…it essentially means discussion over.
For my client to drink water, he must drink it out of a cup. He is not allowed to pour the water from a bottle into the cup. I must do that for him. He asks me, “Robin would you mind pouring me some water?” If he even attempts to touch the plastic water bottle, the deputy admonishes him.
After voir dire, the judge ordered both defendants to sit at counsel’s tables in leg braces. Not exactly shackles, but similar and the chains are covered in cotton fabric so that they do not make any noise. Curtains are placed around counsel’s tables so that the jury cannot see they are sitting in leg braces. When informed of this, I ask permission to play Goldilocks to sit in every seat in the jury box to make sure no juror can see the leg braces. I confirm they cannot. Judge says he orders this in case a fight breaks out, since we have only one armed deputy in the courtroom with us now (compared to 3 during voir dire). We are ordered NOT to stand when the jury enters so they cannot tell it is difficult for both defendants to move their feet. We still stand for the judge but he never leaves or enters the bench with the jury in the room.
Deputy admonishes my client when, during a break or first thing in the morning, he attempts to talk to his mother or sister who are in the gallery.
My client asks me to pass a note to his family. The note explains the reason why he is not wearing the blue shirt that his family brought him, because he has a blue blazer on and pants that don’t match the jacket, which he doesn’t like. He looks nice, though, and his black eyes are clearing up. Second note I give to his family from him asks his sister to call the jail about his book. He wants his book.
T/C to girlfriend’s mom from jail. He sounds desperate and sad. He is begging, pleading for girlfriend not to help the State. It is not threatening. It is just a plea. He mentions he is looking at life in prison, he may not ever see the streets again and State is trying to crucify him. He is sobbing. Very sad.
Sometimes defending an accused person really is about making the State prove every single element of every alleged crime as indicted and if you do that, you have insured your client received a fair trial. This is at the heart of an accused person’s 6th Amendment Constitutional rights and criminal defense lawyers protect the Constitution every day in this regard with very little thanks for their work.
Some of our criminal laws are simply too harsh, especially felony murder.
The charge to the jury in a criminal case virtually insures a conviction. They are so pro-prosecution, they virtually direct a verdict for the State. They need to be more balanced.
Most citizens believe any person who is being tried for a criminal offense must be guilty or he would not be in the courtroom being tried. This is a very difficult bias to overcome. I am not sure how to fix it, if it even can be fixed. But it is a devastating bias.
The defensive attribution bias is extremely strong against accused persons. I face this a lot in my civil trials, especially with severely injured clients. But it is prevalent in a criminal trial, too. Jurors refuse to be able to place themselves in your client’s shoes, even for a second. They think “that would never happen to me.” Or “I would never be wrongfully accused.” They have very little empathy for your client.
He who knows the Rules of Evidence has the upper hand (unless you are the State, and then you don’t really even need to know the Rules of Evidence to have the upper hand.
One of the most difficult things to do as a trial lawyer is to watch your client handcuffed in front of you, crying his eyes out, and taken off to prison for the rest of his life. You are not even allowed to touch him or hug him before they escort him away. This is brutal.
Despite its many flaws, many of which I have outlined above, our criminal justice system is still the best in the World. There is no smaller, more logical, relevant form of local government than a 12 person unanimous jury to decide a fellow citizen’s fate.
Robin Frazer Clark
January 22, 2019
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.
 My client’s name was not Hernandez, but I have changed his name for privacy purposes.