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For the Defense: Eliminating Jurors Who Favor the Prosecution

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Professor Laurence M. Rose and Mark Eiglarsh

Professor Laurence M. Rose, Director of the Litigation Skills Program, with Mark Eiglarsh. (Photo: Catharine Skipp/Miami Law) Full-Size Photo

Mark Eiglarsh wants to win his cases in voir dire.

In the course of one entertaining hour, the former Miami-Dade prosecutor told a gathering of attorneys at Miami Law how he goes about picking a jury capable of delivering the five-minute "not guilty."

"I believe jury selection is the single most important part of the trial," Eiglarsh said. "Do I want a fair and impartial jury? Do you think that is what the prosecutor wants? I want one that is going to say two words – not one."

Eiglarsh, who has been in private practice since 1996, was a lecturer at the recent "Public Defender College 2012" at Miami Law. The "college" provided training to lawyers who have agreed to take on pro bono misdemeanor cases through the office of Public Defender Carlos J. Martinez, a Miami Law alum. Co-hosted by Miami Law's Litigation Skills Program, the curriculum included not only training but lectures and discussions.

"I'm thrilled that UM Law brought together a spectacular training team for the pro bono attorneys," said Martinez, JD '90. "It's this type of public/private sector and university community collaboration that's helping us navigate through difficult economic times in our justice system."

Eiglarsh, a criminal defense attorney who has tried more than 130 jury trials, wants to eliminate jurors who might favor the prosecution. Most importantly, he wants a jury who can believe in the presumption of innocence even though the defendant has been arrested and the state has brought a case.

"I tell them, 'I don't believe you.' When you drive by someone being arrested on the side of the road, your first thought is not, 'There is an innocent man.'"

In court, he went on, "I stand him up and touch him and ask, 'Does he look like someone who would do what they are alleging?' I show that I'm not afraid of him."

He reminded the attorneys that they have to get the jury talking, and then carefully watch the jurors' reactions to what other jurors are saying: "Are they leaning toward or away? Are they nodding or raising their eyebrows?"

"I want to get some trial experience," said Ryan Zagare, a commercial litigator who attended the two-day college. "It's a great introduction and substantial coverage on some of the issues we will be facing."

"This is great," said Erica Fisher, a Miami attorney. "It's very informative and all the speakers have great experience to draw from. We take pro bono cases so the training is valuable – I have zero training."


Mark Eiglarsh

Former Miami-Dade prosecutor Mark Eiglarsh lecturing at Public Defender College 2012. (Photo: Catharine Skipp/Miami Law) Full-Size Photo

Miami Law alumna Sarah Wood Borak, JD '05

Miami Law alumna Sarah Wood Borak, JD '05, at the Public Defender College. (Photo: Catharine Skipp/Miami Law) Full-Size Photo