Peeing in the pool

"Well I just can't believe you bunch of ignoramuses just voted to find that piece of shit defendant not guilty! Would y'all have voted the same way if I told you all the stuff the judge said I couldn't? Do y'all want to know just what this little SOB has done in the past?"

Okay, that's probably not how it goes down. It's more subtle than that. The prosecutor, still bothered that a jury acquitted a defendant, wants them to know what a bad decision they actually made. He wants them to know that there's a whole lot of stuff that mean ol' judge wouldn't let him talk about. So he lets loose with a tasty morsel of two.

Problem?

You bet.

Why would he do that?

Because he knows that the jurors have family, friends, neighbors and co-workers. He knows those jurors are going to talk about the case once it's over. He knows those jurors are going to tell everyone to be wary because they won't be getting the whole story. In short, he's doing his best to poison a little bitty piece of that jury pool.

In Wednesday's Houston Chronicle, Houston appellate attorney Brian Wice fired a shot across the bow of the Harris County District Attorney's Office when he publicly castigated the prosecutors who decided to pee in the pool after a famed Houston doctor, Michael Brown, was acquitted of assaulting his wife. 

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about "the real Michael Brown." In a matter of moments, and over DeGuerin's objection, the prosecutor tainted the jury with the details surrounding Brown's plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown's character and reputation - the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Simply put, in my opinion the prosecutor's comments crossed the line on both a personal and professional level. A former high-ranking member of the Committee for Lawyer Discipline said she thought these remarks violated State Bar Disciplinary Rule 3.06, which prohibits any lawyer from making any post-verdict comments to a juror "calculated merely to harass or embarrass the juror or to influence his actions in future jury service." By informing the jury about evidence that was clearly inadmissible in a thinly veiled attempt to make the jury feel badly about its verdict, the prosecutor's comments were calculated to influence not just the 12 folks who had acquitted Brown, but any of their friends with whom they might share the prosecutor's remarks, and who might find themselves on juries in the future.

There is little doubt what the prosecutor was attempting to do - and what he was attempting to do was unethical. He was caught red-handed standing in the yellow end of the pool.

Mr. Wice could have called out the prosecutor by name - but he chose not to. He was upset about what happened after the verdict was read and he voiced his displeasure in an op/ed piece. He was not interested in humiliating or embarrassing a prosecutor.

But it didn't take long for Nathan Hennigan, our antagonist, to make himself known.

I am the "out of line" prosecutor. My name is Nathan Hennigan. Wice didn't want to call me by name, but I feel a necessity to respond, as most don't know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn't a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from "Who Framed Roger Rabbit." Uncanny. What happened in the jury room is as follows...Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.

It's a shame that Mr. Hennigan couldn't have shown the same class that Mr. Wice did. Instead of a reasoned defense of his actions, Mr. Hennigan chose to resort to name-calling. He couldn't defend his actions so he attacked those who spoke against him. Mr. Hennigan is a true believer and he has gulped down the koolaid on the 6th floor of the Harris County Criminal (In)justice Center.

My colleague, Murray Newman, weighed in on Mr. Wice's op/ed piece yesterday. I like Murray. He's a good guy. I'd buy him a beer (or even give him one of my home-brewed brown or English ales). But Murray still has a place in his heart for the DA's office. I think there are times he loses a little bit of perspective -- and this one of them.

Mr. Wice pointed out a problem that we have been dealing with for years. It's a practice that's been allowed to continue because we haven't stood up and fought to change it. Jury members are exposed to the bias of the state from the minute they enter the Jury Assembly Room. Bailiffs make comments that cast aspersions on the defense. Judges conduct a voir dire that, in some cases, comes right out of the prosecutor's manual.  The citizen accused is not called by his name during the proceedings, he is labeled as "the defendant" in an attempt to dehumanize him. And then prosecutors do their bit after the verdict.

It all adds up to chipping away at the very presumption of innocence -- the only presumption you are allowed to make in a criminal courtroom. I don't know if Mr. Hennigan had "malice aforethought" before he spoke to the jurors. I don't know Mr. Hennigan. From what I've been told he's a nice guy. And I'm sure he is.

But just because he's a nice guy doesn't mean that he didn't do anything wrong.

We're at such a disadvantage from the beginning that the last thing we can afford to do is to allow the state to poison the jury pool any further. That's what Mr. Hennigan did. And that's what we've got to stop.

See also:

"A sore loser" Simple Justice (Sept. 29, 2011)