Wednesday, July 21, 2010

There's raising the bar, and then there's raising the bar

Those of us on the "dark" side (i.e. defense bar) are taught to lower the jury's expectations as to our case and raise their expectations for the prosecutor's case. The object is to make your leap as low as possible while making the state jump through a high hoop in order to get a conviction.

Someone might want to let Donald Briskman down in Alabama know about that after he raised the bar just about as high as he could for his own client - former Oakland Raider quarterback JaMarcus Russell.
"We fully expect he will be exonerated from these charges. That's exactly how I feel. I've had an opportunity within the last week to get some additional information which bolsters my feeling that he's ultimately going to be acquitted." -- Donald Briskman
It's one thing to say that you believe the evidence will show that your client wasn't guilty or that the evidence doesn't support the charges -- it's quite another thing to inform the world that you expect your client to be exonerated. And might I remind my fellow counselor that there's a world of difference between being acquitted and being exonerated. Being acquitted means raising enough reasonable doubt to convince a jury to find your client not guilty; being exonerated means proving your client didn't do what the prosecutor said he did -- it means assuming the burden of proof.

Maybe Mr. Briskman was stricken by mike-in-face disease and just couldn't control what came out after leaving the courtroom. As less than a third of his practice is devoted to criminal defense, maybe he just didn't realize what a blunder he was making. In the civil courthouse both sides carry the burden of proof; one side meets it and the other doesn't.  Over in the strange world of the criminal justice system, on the other hand, only the prosecutor carries a burden and we win if he can't meet it.

Mr. Russell, who has joined Ryan Leaf at the top of the list of the NFL's biggest draft busts is facing a felony charge of possession of codeine.

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