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Call it the courtroom version of overtime. Several months ago, Dan Koukol wrapped up a three-month trial in which his client was one of two charged in connection with a 2004 home-invasion robbery. Koukol of the Law Office of Dan Koukol in Auburn, thought his work was done. It wasn’t. The judge asked him to come back for another argument. “The jury had been out for several days and they came back and asked a question,” he said. “The judge asked if it would be helpful to have the attorneys argue on just that point.” Each side got about 20 minutes to address whether the crime was premeditated � an issue the jury indicated with which it was struggling. Several hours later, the jury returned with guilty verdicts against the two co-defendants. People v. Perez-Gomez, 62044017 (Placer Co., Calif., Super. Ct.). The judge reopened arguments thanks to a new rule that went into effect in January in California. The Golden State is the latest to equip judges with the new rule in order to help juries reach a decision and prevent a deadlock. Arizona and Indiana also allow additional arguments, said Paula Hannaford-Agor, director of the Center for Jury Studies in Williamsburg, Va. SHIFTING THE BURDEN? While some judges and attorneys see this method as effective, others are raising concerns that it interferes with the jury process, as well as shifting the burden of proof. “It seems to me when there is reasonable doubt, the jury’s reaction is sometimes that they don’t have a unanimous verdict,” said Koukol, who raised objections over the rule, which had never been used before in Placer County. “It causes me concern that allowing multiple arguments may result in more verdicts, but I’m not sure that it results in more justice.” Daniel Clymo, who represented the other co-defendant, said the rule favors prosecutors. “The rule basically shifted the burden, gave them another chance to succeed,” said Clymo of the Clymo Law Firm in Sacramento. The prosecutor, Rick Opich, was out of the office last week and could not be reached for comment. But Judge J. Richard Couzens of Placer County Superior Court, the presiding judge in the case, said the rule can be helpful for both sides. “Questions may arise about the case or the facts, so it’s helpful to have another opportunity for the attorneys to refocus their thoughts,” he said. While the rule only went into effect in January, some judges have used it in the past because there was nothing prohibiting its use. Judge William Pounders of Los Angeles County Superior Court estimated that he has reopened arguments in about three cases a year during the past several years and approximately half of them have resulted in verdicts. Los Angeles Superior Court Judge Jacqueline Connor also said she has found the additional-arguments maneuver helpful for years as long as the jury agrees to it. “This is kind of along the lines of giving the attorneys a chance to respond to the exact question the jurors are asking,” she said. Patrick Paul, an associate in the Phoenix office of Snell & Wilmer who practices toxic tort defense, said the rule came up in only one case several years ago, when the judge reopened the argument because the jury was uncertain about an expert’s testimony. The jury reached a split verdict, but Paul said he would not be surprised if more judges started using the new rule. “I can see it as a vehicle that may be adopted by other jurisdictions across the country,” said Paul, past president of the Arizona Association of Defense Counsel. RESULTS-DRIVEN RULE? James Bell, an associate in Indianapolis’ Bingham McHale, said a judge used a rule in one of his murder cases, but the jury never reached the verdict. “It’s undermining the traditional process for a jury trial,” Bell said. “Whether that’s good or bad, I don’t know because in the only instance I dealt with it, it didn’t change the outcome.” But Bell said he can see why judges would use the method. “Judges are interested in results, and moving on to the next case,” he said. “It’s good for the system but it’s not always good for the parties.” Vesna Jaksic is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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