Triple Juries: Quite a Trial

by Donna Pendergast

As every prosecutor or defense attorney knows there is nothing in the criminal trial arena more stressful than a murder trial. Unlike other types of cases, in a murder trial a life has been taken, and the stakes don't get any higher. For both sides, you have one chance to get it right. There are no "do overs," and it is up to the attorneys to see that justice is done. For the prosecution, a failure to adequately address an issue that the jury later finds to be significant or a miscalculation on how the evidence should be presented to a jury, and a person who has committed a heinous crime can go free. For a defense attorney, their clients' freedom rests in their hands. For both sides, this means that extensive pretrial preparation is necessary to make sure you know your case inside out before you ever enter a courtroom.

Murder trial preparation for a prosecutor can be exhausting. Speaking from 24 years of experience, hundreds and, on occasion, thousands of hours may be required in advance of trial to read all of the police and evidence reports, research and analyze issues, consult experts, develop trial strategy, and prepare for the issues that the defense will likely raise. All of that must occur before a prosecutor ever begins to prepare a theme for trial or draft an opening argument that will effectively explain the issues in the case and lay a road map for what the prosecutor expects to prove to the jury. A prosecutor must also be prepared to summarize their case effectively for a jury in a closing argument. Preparation for a great closing argument begins during pretrial strategizing and continues throughout the entire trial.

Now, imagine having to do that same preparation for multiple juries--yes, multiple juries. It is not unusual for a prosecutor to encounter a situation where multiple trials or multiple juries are necessary in one case to protect the constitutional rights of a criminal defendant. This situation usually arises when a criminal defendant has made a statement to the police in which he implicates a co-defendant in some manner. Under the theory that a co-defendant has a motive to implicate others in an effort to make himself or herself look better at the expense of others, case law precludes using a defendant's out-of-court statement against other defendants in trial in most circumstances. This means that certain testimony can only be heard by a jury considering the culpability of a specific defendant who made the statement.

When the situation occurs that certain statements or testimony is only allowable against one defendant, the judge has to make a decision on whether he will hold multiple trials, or have two or more juries in one trial. A court often opts to use multiple juries in one case in the interest of saving time and sparing the witnesses the inconvenience of having to testify multiple times in multiple trials. Sparing a victim's family from having to go through the rigors of a trial multiple times is also an important consideration.

I have tried multiple two-jury cases. A two-jury trial is a logistical nightmare for a court and courtroom staff. Arrangements have to be made for dual courtroom seating and dual jury room accommodations in courtrooms designed for one jury. Courtroom security for multiple juries has to be addressed, and the court has to make legal determinations on what evidence can be heard by which jury in advance of the trial. Trying to keep it all straight is a difficult task for the judge, courtroom staff and the attorneys involved. Because of the complexity of the preparation required, if more than two juries are required, a judge will usually opt to do multiple trials with one or two juries in each.

In most jurisdictions, having three juries going at the same time is never even contemplated. Trying to make arrangements to accommodate three juries and keep rulings straight as to which jury can hear which evidence is an almost insurmountable task with three juries. However, on rare occasion in large jurisdictions like Wayne County, Michigan, which services the City of Detroit, a three-jury trial will take place.

I have tried one case with three juries going at the same time. Trust me; it's enough to make your head spin. Imagine having to prepare multiple opening and closing arguments and then having to argue the cases one after another to separate juries while keeping the facts straight on each and remembering not to mention what they can't hear. Since the prosecutor carries the burden of proof in a case, they are allowed a rebuttal argument after the defendant's closing argument. With a triple-jury case, that means the prosecutor gives six closing arguments in total, three initial closings, and three rebuttals--quite a feat even for someone who loves to talk, like myself.

My experience trying a case with a triple jury came in a Detroit homicide case. Three men were doing work rehabbing an vacant house for its owner. They decided to rob and murder the homeowner when he came by to check on their progress. When the homeowner arrived, he was beaten with two-by-fours and shovels, and was ultimately shot. His body was disposed of in a Dumpster that was at the curb for the next day's garbage pick up. His body would never be recovered at the city dump, despite a week-long search by detectives. The amount of garbage brought into the dump every day made finding the body almost impossible.

In the case, all three defendants made statements exculpating themselves and inculpating the other two defendants. That meant that either we needed separate trials or each defendant needed a separate jury when we got to the part of the trial where the defendant's respective statements were introduced as evidence. A "no body" case is a difficult trial to begin with. When the judge decided to do a triple jury trial, I thought to myself, "It doesn't get much more difficult than this."

I was wrong.

In a twist straight from a movie, the detective in charge of the case was arrested the night before the trial started. The allegations were that he solicited a prostitute while in a city car. The police department had no replacement to send over so I was stuck sitting at the table alone in court with no officer to coordinate witnesses and assist me during a triple-jury trial. I was forced to handle everything from procuring witnesses from the hallway to testify, to lugging the packaged two-by-fours and shovels that were evidence in the trial back and forth between the courtroom and my office. I remember grumbling to myself one day, "I'm not Superwoman," but I got through it, and all three defendants were eventually convicted.

I have had some complex and exhausting cases in my life. Out of all of those experiences, the triple-jury case remains the most physically exhausting. In every sense of the word, it was quite a trial.

Statements made in this post are my own and do not reflect the views opinion of position of the Michigan Attorney General or the Michigan Department of Attorney General.