In the Charlottesville Circuit Court trial of Commonwealth v. George Huguely, the Court started today with 18 members of the jury panel of 27 having already been picked. They needed 9 more. On the numbers, you might think they’d do it in about half a day. But trials don’t proceed in a uniform way, and the last jurors weren’t selected until about 6:15 PM. Judge Hogshire actually selected 28; I hear that one of the first days’ choices had a travel issue — a trip planned that she didn’t know if she could reschedule. When she left the jury box, she had said that she would try to reschedule, and so she was allowed to remain on the panel. But clearly it was still a problem, and when Judge Hogshire got to the end of today with an extra juror qualified, it became easy to say, “Don’t bother to reschedule. We’ll put someone else in that spot.”
The next item of business is for the entire group of 28 to come in tomorrow; the one with the travel problem will be excused, and the parties will exercise their peremptory challenges — six to each side. The prosecution will strike one, then the defense will strike one. And back and forth until it is all done and we are down to 15. Three of these will be alternates, but they won’t be chosen until the very end, just before deliberations begin. I had earlier said in some press interview that I thought that the judge would want to make the strikes tonight, so that they wouldn’t have to call all 28 people back down to court tomorrow; I forgot that the jurors who were chosen Monday weren’t around Tuesday evening when the process had ended.
So after those peremptories are taken — which shouldn’t take more than about 30 minutes, tops — the attorneys will begin opening statements. An opening statement is not an argument (or at least it isn’t supposed to be an argument). An opening statement is just supposed to be a description of what the evidence is expected to be; the attorneys aren’t supposed to say, “and here is my detailed argument about why he is guilty/not guilty of premeditated first degree murder.” There should be, implicitly or explicitly, the phrase “the evidence will show” at the beginning of each sentence.
The practical problem is that you have to give the jury some idea of why these facts matter. Jurors piece together the case based on what they think the pieces are supposed to look like. Imagine that you are doing a jigsaw puzzle — don’t you look at the picture of the puzzle on the front of the box as you are trying to figure out where the pieces go? You have to have some kind of framework into which to fit these facts. So what the prosecutor will usually do is to say something like, “Ladies and gentlemen, in this case the Commonwealth has to prove that George Huguely intended to kill Yeardley Love. We expect that at the end of the case, the judge will instruct you that this intention — this premeditation — doesn’t have to have been a conscious thought for very long. Even a split second will do — just long enough to think to yourself, ‘I’m going to kill her.’ And here are the facts that we expect that you will hear that will tell you that he DID intend to kill her.” And then the prosecutor would go into his list of facts. When he sits down, the defense lawyer will do the same — “The judge will instruct you… here are the facts that show he did NOT premeditate.”
So although the attorneys are only supposed to talk about what the evidence will be, they have to at least tell the jury why those facts are even relevant. The issue of law has to at least be mentioned. You just can’t dwell on it in an opening, as you will in the closing.
Both sides will give a thorough opening — research shows that by the end of opening statements, about 80% of the jurors have at least some opinion on the case, and you don’t want the jurors to form opinions without you having taken the best shot that you can at influencing that opinion. But by about 11 AM at the latest, the presentation of evidence should begin.
I am frequently asked, “How can they possibly have a trial that takes two full weeks?” And other people have asked, “How are they going to get done in two weeks?” Flip sides of the same coin.
If you break down all of the things that have to happen to get this trial done in two weeks, it is possible, but definitely not certain, that two weeks will have been a good estimate. We will have probably about 3 days of testimony from police officers at the scene, forensic evidence technicians, and medical experts talking about how Yeardley Love died. There will apparently be testimony of e-mails taken from the computers of George Huguely and Yeardley Love. And the Commonwealth will play George Huguely’s statement, which I understand is about 5 hours long. So let’s figure that we’ll have 4 full days of testimony from the prosecution, and that we’ll finish the prosecution’s case at the end of Monday. Again, I have no idea if that likely, because I haven’t seen the evidence. But the lawyers and the judge all think that two weeks may be enough, and that is the assumption that is driving this train. But if the prosecution evidence takes longer, that’s just too bad. The evidence will take as long as it needs to.
So if George Huguely puts on evidence, it might start next Tuesday. We have been led to believe that one of the arguments that the defense will make is that Yeardley Love’s death was unexpected because she had other medical conditions that made a blow that would not normally be life-threatening into an injury that killed her. It has been suggested that there will be medical testimony that her use of alcohol and Adderall may have had unusual physiological or toxicological effects. This would not be a complete defense; if the jury believed that theory, they might only convict of manslaughter. But that defense evidence, or any other defense evidence, might run next Tuesday. If the Huguely defense team decides that the way that George Huguely presented in his police statement was acceptable, they might decide that there is no reason to put George on the witness stand to testify. Of course, in our system the defense is under no obligation to present any evidence, the defense doesn’t have to prove anything if the prosecution’s evidence is weak on some point, and the defendant himself never has to testify.
As a criminal defense lawyer, I always want to try to see if I can present my defense without my client having to testify. First, if the defendant testifies, he will be cross-examined live and in front of the jury. He may look a lot worse live and in front of the jury than he did on his taped statement. Second, jurors are predisposed to believe that what the defendant says is a lie, unless the defense can prove it to be true. That’s exactly contrary to the Constitutional principle that the defense has no burden to prove anything, but it is the reality. Jurors are extremely skeptical of the defendant, and of anything he might say. So if the taped statement is OK for the defense, and if there is nothing else that only George Huguely could testify to, the better choice may be to NOT have him testify.
Either way, let’s assume that next Tuesday is used by the defense. Again, they may actually have two or three days of testimony lined up; if so, then finishing by the end of Friday simply won’t happen. But let’s assume that they keep on this schedule, heading toward the trial being over Friday evening. So after a day of defense evidence, on Wednesday, the prosecution can offer any rebuttal evidence. Once both sides have rested, the attorneys and the judge will have to prepare the jury instructions. In most cases, they would already have prepared them and would already have argued about them with the judge, so it is unlikely that there will be a long delay to argue about the instructions on Wednesday. So it might be reasonable, under this scenario, to think that the case could be argued to the jury on Wednesday afternoon. The jury would likely then start deliberating. The late J. Harry Michael, United States District Court judge, had a rule of thumb that juries would deliberate about one hour for each day of testimony. If we have had 5 or 6 days of testimony, expect jury deliberations of 5 to 6 hours. That sounds like we’re going to expect a verdict on late Wednesday or some time Thursday.
It seems highly likely that George Huguely will be found guilty of some felony, so there will then be a sentencing hearing. If the guilty verdict is returned early enough on Thursday, the sentencing hearing might start on Thursday.
In Virginia, the jury recommends the sentence in a sentencing hearing that is separate from the trial on guilt or innocence. The prosecution can present two kinds of evidence — the defendant’s criminal record, and “victim impact” testimony from Yeardley Love’s family. George Huguely has only some misdemeanor and traffic offenses on his record, so that won’t take long. How the prosecution decides to present victim impact testimony, though, is a potentially very tough decision. There is no question that the Love family has grieved greatly, and that they feel intense pain from the loss of their loved one. There is a temptation in these cases for the victims to let their raw emotions spill out, but that can be a two-edged sword. I have been in cases where the victim impact testimony went over the top, and alienated jurors and judges. Family members want to talk about a lot of things that are not proper victim impact testimony, and they don’t understand that this is NOT the family’s opportunity to pour out their hearts. They can only pour out a small part of their hearts. That is tough to control, for both the prosecutor and the judge.
Once the prosecution evidence is in, the defense has the right to present anything it wants in the way of mitigating evidence. If he did not testify at the trial on guilt, George Huguely might testify now to talk about how he felt about Yeardley Love, how remorseful he is, what thoughts he has had since, and lessons he has learned. There might be some evidence from family and friends to humanize him; juries don’t mind locking up monsters, but they have qualms about locking up the nice kid down the street. And then the prosecution has the right to offer limited rebuttal evidence. If we are on the above schedule, the jury would get the case to decide sentencing by midday Friday, and they would be able to render a decision that evening.
Now, this is not offered as a prediction — just as a possible scenario. It is probably pretty close to what the judge and the lawyers were thinking when they developed the schedule that they did. If the prosecution’s evidence bogs down and is taking too long, look for the possibility that the judge might have the trial go until 7 PM. It is not likely that the trial would continue on Saturday; too many people have other commitments, and that would be a last resort only. If deliberations run long on the second Friday, it is possible that the judge could bring jurors back on Saturday in an effort to get the case over before the three-day President’s Day weekend.
So over the coming days and weeks, see whether the trial is meeting the schedule that I have outlined above. If the prosecution isn’t finished with its case by Monday evening, the schedule could be in trouble.
I won’t be in the courtroom very much over the next week or so, so if you want instant analysis and the play-by-play, read the papers, watch TV, or look at their articles on line. I’ll offer some thoughts on principles of law and procedures. WVIR’s coverage is here.
