On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.
Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.
After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.
In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.
In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.
Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.
Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.
On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.
The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.
The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.
The case was remanded for a new trial.
But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.
It is sometimes a very fine ledge we walk across.
Showing posts with label trial tactics. Show all posts
Showing posts with label trial tactics. Show all posts
Friday, November 16, 2018
Friday, January 19, 2018
Can acting in a client's best interest violate the 14th Amendment?
On Wednesday the US Supreme Court heard a case out of Louisiana that raised the question of whether or not a lawyer can tell a jury his client is guilty - over his client's wishes.
Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.
Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.
Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.
At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.
Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.
Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.
In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.
On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.
But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?
What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.
What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.
I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?
See also:
Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)
Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.
Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.
Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.
At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.
Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.
Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.
“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” - Justice Sonia SotomayorAt trial Mr. English repeatedly told the jury that Mr. McCoy was guilty of the murders. According to Mr. English, his goal was to get the jury to convict McCoy of the lesser charge of second-degree murder because he suffered from diminished mental capacity, thus sparing his life. Unfortunately for everyone involved, Mr. English was not up on the law in Louisiana (as if this should have surprised anyone). You see, in Louisiana you are only eligible for a diminished capacity defense if you have entered a plea of not guilty by reason of insanity. Oops.
In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.
On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.
But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?
What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.
What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.
I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?
See also:
Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)
Thursday, July 17, 2014
Bigfoot and jurors
One of my guilty pleasures is watching Finding Bigfoot on Sunday nights. If you haven't seen the show it's about four bigfoot "investigators" who travel across the country looking for evidence that bigfoots (or is that "bigfeet") exist.
The group's leader is named Matt. He's the head of the Bigfoot Research Organization. Another group member is Ranae who is a biologist. Cliff and Bobo are the other members of the team.
Being the scientist, Ranae is skeptical of the existence of bigfoot. Whenever the teams speaks to folks who say they have had encounters with a bigfoot, Ranae looks for some other explanation while the other members step all over themselves expressing how much they think whatever the person saw or heard was a bigfoot.
As I watched the other day I couldn't help but think of jury panels. Ideally the members of the jury panel would be skeptics. After all their job is to determine whether or not the prosecutor has proven his or her case beyond all reasonable doubt. That means they should treat trial like a scientist would treat an experiment - a chance to prove the hypothesis wrong.
After all that's what the scientific method is all about. You develop a hypothesis and design tests to disprove it. If, after conducting all of your experiments, the hypothesis hasn't been disproven, it stands to reason that it might be true.
But that's not how jurors seem to think. Most jurors don't understand what's behind the scientific method. They look at trial (and experiments) as a way of proving up a hypothesis. In other words, instead of forcing the prosecutor to prove each and every element (being skeptical of the charge), they force the defendant to disprove the state's theory. This backward approach means that instead of forcing the state to prove up each and every element of its case beyond all reasonable doubt that they are forcing the defendant to point out reasonable doubt as the case moves along.
And along with such a mindset comes a complete discounting of the presumption of innocence.
Just like the three members of the team who start off with the assumption that bigfoot is real, jurors who miss the point of the scientific method are looking out for any evidence that supports the state's theory of the case without applying the skepticism that is a hallmark of science.
Being the scientist, Ranae is skeptical of the existence of bigfoot. Whenever the teams speaks to folks who say they have had encounters with a bigfoot, Ranae looks for some other explanation while the other members step all over themselves expressing how much they think whatever the person saw or heard was a bigfoot.
As I watched the other day I couldn't help but think of jury panels. Ideally the members of the jury panel would be skeptics. After all their job is to determine whether or not the prosecutor has proven his or her case beyond all reasonable doubt. That means they should treat trial like a scientist would treat an experiment - a chance to prove the hypothesis wrong.
After all that's what the scientific method is all about. You develop a hypothesis and design tests to disprove it. If, after conducting all of your experiments, the hypothesis hasn't been disproven, it stands to reason that it might be true.
But that's not how jurors seem to think. Most jurors don't understand what's behind the scientific method. They look at trial (and experiments) as a way of proving up a hypothesis. In other words, instead of forcing the prosecutor to prove each and every element (being skeptical of the charge), they force the defendant to disprove the state's theory. This backward approach means that instead of forcing the state to prove up each and every element of its case beyond all reasonable doubt that they are forcing the defendant to point out reasonable doubt as the case moves along.
And along with such a mindset comes a complete discounting of the presumption of innocence.
Just like the three members of the team who start off with the assumption that bigfoot is real, jurors who miss the point of the scientific method are looking out for any evidence that supports the state's theory of the case without applying the skepticism that is a hallmark of science.
Monday, June 23, 2014
On picking your fights
I was in municipal court for a client fighting a traffic ticket in a Houston suburb last Thursday. The court wants defendants in the courtroom to answer an 8:00 a.m. docket call on trial settings. They also want attorneys to call in if they are going to be running more than a few minutes late.
There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.
Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.
In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.
The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.
The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.
The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.
Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.
Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.
My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to ablack-robed prosecutor judge but that this definitely wasn't it.
The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.
As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.
The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.
There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.
Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.
In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.
The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.
The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.
The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.
Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.
Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.
My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to a
The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.
As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.
The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.
Thursday, May 15, 2014
To bust or not to bust the panel
Today I have a question on tactics. I think I made the right choice the other day but, despite my best efforts, I keep questioning my decision.
We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.
My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.
There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.
The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.
One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.
During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?
I chose the latter.
During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.
After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?
The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.
As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.
But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.
Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?
We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.
My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.
There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.
The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.
One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.
During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?
I chose the latter.
During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.
After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?
The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.
As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.
But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.
Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?
Monday, April 1, 2013
Drawing a line
Adam Poole, a member of what we call the prosecution function, took issue the other day with my post regarding jury selection in my speeding case. Now, before I go any further, I want to say that I appreciate Mr. Poole's give-and-take in the comments section. I respect Mr. Poole for signing his name to his comments instead of doing it under the cloak of anonymity.
However, it doesn't mean that he's not wrong.
As a refresher, one of the questions I asked the panel was whether they would give the testimony of a police officer more credibility, not because of any specialized training or experience, but simply because he pins a badge to his uniform and carries a gun.
My view is that anyone who answers that question in the affirmative has indicated a bias toward the state and should be stricken for cause. Mr. Poole argues that the judge was correct in not striking the panelists.
Now, a juror is certainly permitted to give more weight to the testimony of an individual who has some type of specialized training or experience. It goes without saying that a juror can certainly give more credibility to the testimony of a doctor regarding a plaintiff's injuries than to a lay person with no medical training.
But that's not what we're talking about here.
In a criminal trial the defendant is presumed innocent unless the state is able to prove each and every element of the alleged offense beyond all reasonable doubt. Now let's take our speeding case as an example. We know that the officer who issued the ticket is going to testify. We can also presume that the defendant is going to testify as well. That being the case, if a juror is going to give the officer's testimony more credibility simply because he's a police officer, that presumption of innocence is out the window. And that's because if the juror says that he will give more weight to the officer's testimony before he's heard any evidence, he is not presuming that the defendant is innocent unless proven guilty. And that's the problem.
Now, in Mr. Poole's defense, in a great many cases the police officer didn't observe the actual commission of a criminal offense - the officer is investigating after the fact. If the officer isn't the main witness, then it matters less whether a juror is going to give his testimony more weight than someone else's because that juror will take into account the officer's role in the investigation.
But he's not getting off the hook that easy today. If he sees no problem in a prospective juror stating that he would give an officer's testimony more credibility simply because he wears a badge and carries a gun, where to we draw the line?
Feel free to stop me when I cross the line...
Would you be more inclined to believe a witness is lying because he's a police officer?
Would you give more credibility to the testimony of a man, simply because he's a man?
Would you give more credibility to the testimony of a nun, simply because she's a nun?
Would you give more credibility to the testimony of a left-handed person, simply because she's left-handed?
Would you give more credibility to the testimony of a protestant, simply because he's a protestant?
Would you give more credibility to the testimony of a person from up north, simply because she's from up north?
Would you give more credibility to the testimony of a UT graduate, simply because he graduated from UT?
Would you give more credibility to the testimony of a person over the age of 40, simply because she's over the age of 40?
Would you give more credibility to the testimony of a person with green eyes, simply because they're eyes are green?
Would you give more credibility to the testimony of a person without an Hispanic surname, simply because they don't have an Hispanic surname?
Would you give more credibility to the testimony of a white person, simply because they're white?
However, it doesn't mean that he's not wrong.
As a refresher, one of the questions I asked the panel was whether they would give the testimony of a police officer more credibility, not because of any specialized training or experience, but simply because he pins a badge to his uniform and carries a gun.
My view is that anyone who answers that question in the affirmative has indicated a bias toward the state and should be stricken for cause. Mr. Poole argues that the judge was correct in not striking the panelists.
Now, a juror is certainly permitted to give more weight to the testimony of an individual who has some type of specialized training or experience. It goes without saying that a juror can certainly give more credibility to the testimony of a doctor regarding a plaintiff's injuries than to a lay person with no medical training.
But that's not what we're talking about here.
In a criminal trial the defendant is presumed innocent unless the state is able to prove each and every element of the alleged offense beyond all reasonable doubt. Now let's take our speeding case as an example. We know that the officer who issued the ticket is going to testify. We can also presume that the defendant is going to testify as well. That being the case, if a juror is going to give the officer's testimony more credibility simply because he's a police officer, that presumption of innocence is out the window. And that's because if the juror says that he will give more weight to the officer's testimony before he's heard any evidence, he is not presuming that the defendant is innocent unless proven guilty. And that's the problem.
Now, in Mr. Poole's defense, in a great many cases the police officer didn't observe the actual commission of a criminal offense - the officer is investigating after the fact. If the officer isn't the main witness, then it matters less whether a juror is going to give his testimony more weight than someone else's because that juror will take into account the officer's role in the investigation.
But he's not getting off the hook that easy today. If he sees no problem in a prospective juror stating that he would give an officer's testimony more credibility simply because he wears a badge and carries a gun, where to we draw the line?
Feel free to stop me when I cross the line...
Would you be more inclined to believe a witness is lying because he's a police officer?
Would you give more credibility to the testimony of a man, simply because he's a man?
Would you give more credibility to the testimony of a nun, simply because she's a nun?
Would you give more credibility to the testimony of a left-handed person, simply because she's left-handed?
Would you give more credibility to the testimony of a protestant, simply because he's a protestant?
Would you give more credibility to the testimony of a person from up north, simply because she's from up north?
Would you give more credibility to the testimony of a UT graduate, simply because he graduated from UT?
Would you give more credibility to the testimony of a person over the age of 40, simply because she's over the age of 40?
Would you give more credibility to the testimony of a person with green eyes, simply because they're eyes are green?
Would you give more credibility to the testimony of a person without an Hispanic surname, simply because they don't have an Hispanic surname?
Would you give more credibility to the testimony of a white person, simply because they're white?
Friday, March 29, 2013
My house, my rules
The other day out in one of the small towns on the Petroleum Highway (SH 225), I had a client who drove trucks for a living who had gotten a speeding ticket while driving his pickup truck. For those of y'all who don't keep up with traffic laws, commercial truck drivers aren't eligible to get a ticket dismissed through what we like to call deferred disposition.
A deferred allows a motorist topay a fine post a bond and if he doesn't get another ticket within a certain number of days, the case is dismissed. For truck drivers the choices are plead it out or set it for trial.
And my client and I found ourselves in trial that day.
The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.
During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of thelynch mob jurors for cause as I could. After the prosecutor's rousing voir dire in which he didn't direct a single question to any member of the panel, I had little to go on. (In Texas you are entitled to a jury trial for any criminal offense - from speeding all the way up to murder).
My three questions were:
1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?
I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.
I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).
On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.
After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.
You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.
And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.
Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.
For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.
A deferred allows a motorist to
And my client and I found ourselves in trial that day.
The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.
During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of the
My three questions were:
1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?
I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.
I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).
On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.
After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.
You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.
And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.
Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.
For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.
Friday, March 8, 2013
Anyone interested in testifying?
All I can say is "Thank God for New York." Texas may be known as the Killing Fields for the number of inmates we murder year in and year out, but at least defendants in Texas courts don't get screwed the way those facing trial in New York do when it comes to jury instructions.
Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.
At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.
Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.
Sounds like you're damned if you do and you're damned if you don't up there.
The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.
You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.
I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.
One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.
Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.
He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.
So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.
Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.
Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.
At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.
Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest.
Interest/Lack of InterestYou may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.]
In other words, it's up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness. The defendant, alone, has a motive to lie. The jury s told that defendant, alone, is the only witness whose testimony is inherently biased.
Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.
Sounds like you're damned if you do and you're damned if you don't up there.
The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.
You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.
I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.
One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.
Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.
He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.
So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.
Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.
Friday, November 16, 2012
Assuming that was his real purpose
The other day I was in county court handling a client's DWI case. The judge was calling the trial docket and trying to figure out if anyone was going to trial that day. One by one came the requests for a continuance - and one by one they were granted. That is, until there were two cases left.
One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process ofguessing extrapolating the defendant's alcohol concentration at the time of driving.
I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.
I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.
Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.
First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.
Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.
So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.
One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process of
I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.
I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.
Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.
First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.
Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.
So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.
Thursday, September 13, 2012
Picking and choosing
"Yes, my witness was charged with forgery when she was nineteen years old. She pled guilty and was placed on probation. She did her time. But does that mean she's lying now?
"She made a mistake when she was a teenager. Who among us hasn't made a mistake when you were a teenager?
"But just because she made a mistake are we going to hold that against her and say that she can't be trusted to tell the truth?"Okay, it's not quite a word-for-word quote of a closing argument I heard yesterday. It's pretty close and it certainly captures the point the attorney was making.
I agree with the sentiment. Too often we look at a person's criminal history and we make a decision right then and there as to what kind of a person he or she is. Sometimes you're right and sometimes you're woefully wrong.
More importantly, however, is the fact that that conviction will stick with her for the rest of her life. She will always be a convicted criminal. She will always have that conviction for a crime of dishonesty. That is one thing that can never be undone.
It's a common problem for our clients. The prosecutor pulls the priors and, with only having read one version of what happened, discounts anything the defendant says. The prosecutor doesn't care about the defendant's account because she knows that he has had multiple run-ins with the law in the past.
So you might be surprised that the words above didn't come from the mouth of a defense attorney. They came from the mouth of the prosecutor. And the witness she was talking about was the complaining witness in a rape case.
So, even though that same prosecutor won't believe a word that comes out of your client's mouth because of his prior convictions, she'll beg a jury to disregard that forgery conviction and believe every word that comes out of the witness' mouth.
It's all just part of the game.
Friday, September 7, 2012
It all adds up to what?
Back when I was in school we spent quite a bit of time drilling our multiplication tables. We learned long division. There were no calculators allowed in the classroom. You didn't come across any touchy-feely word problems. The teachers' goals weren't to massage our egos and pump up our self-esteem and feelings of self-worth. The name of the game was mathematics.
Today, of course, we couldn't possibly allow our children to have to figure out how to multiply or divide on paper. None of that moving the decimal point to the left. Forget about carrying over. Today's generation was raised on computers and that's what they'll be using the rest of their lives. Pencils and paper - that's so yesterday.
Really?
The other day I was in a rush when I went to Staples to pick up some file boxes. I thought I was grabbing what I needed - until I got back to the office and realized I got the wrong size. So, the next day I headed back with my boxes and my receipt so I could exchange them for the right sized boxes.
I headed back to the corner of the store and found what I needed. Then it was back to the register.
The boxes I bought the day before were $18.99. I had my Staples' reward coupon and I ended up paying about $10. The boxes I meant to buy cost $19.99. I would owe a shade over a dollar (with tax).
Imagine my surprise when the cashier (or whatever they call them over there) told me I owed almost $10. I told him the boxes I was bringing back only cost a dollar less than what I had in hand. I told him to look at my receipt. I told him I shouldn't owe but a little more than a dollar.
He tried to explain how I owed $10. So I asked him about the coupon I used the day before. I asked him if it had just vanished into thin air. He kept trying to explain to me that I owed a lot more money for the boxes.
He had absolutely no clue as to what he was doing. He was so used to scanning items at the register that he had lost the ability to do the most rudimentary math. He had lost the ability to think logically. He looked at me like I didn't know what I was talking about.
Then it struck me how when we rely on an electronic device to do our math for us that we divorce ourselves from the numbers themselves. The numbers no longer represent sets of objects and relationships. They're just blips on a screen. And when we become dependent on those blips we somehow lose the ability to know how to deal with a curveball when it's thrown our way.
Learning multiplication tables and long division can be awfully hard. It can be awfully boring. In our short attention span culture it's just not the way we do things. Kids sometimes have a hard time grasping the concepts. They might get red marks on their papers.
But they might just learn that math is more than numbers.
And these folks are going to be in your jury panel the next time you stand up to begin your voir dire. Scary, huh?
UPDATE: I went back to Staples today after leaving the courthouse and the cashier manning the booth today knew exactly what to do. I walked out with my new boxes after paying $1.08 extra.
Today, of course, we couldn't possibly allow our children to have to figure out how to multiply or divide on paper. None of that moving the decimal point to the left. Forget about carrying over. Today's generation was raised on computers and that's what they'll be using the rest of their lives. Pencils and paper - that's so yesterday.
Really?
The other day I was in a rush when I went to Staples to pick up some file boxes. I thought I was grabbing what I needed - until I got back to the office and realized I got the wrong size. So, the next day I headed back with my boxes and my receipt so I could exchange them for the right sized boxes.
I headed back to the corner of the store and found what I needed. Then it was back to the register.
The boxes I bought the day before were $18.99. I had my Staples' reward coupon and I ended up paying about $10. The boxes I meant to buy cost $19.99. I would owe a shade over a dollar (with tax).
Imagine my surprise when the cashier (or whatever they call them over there) told me I owed almost $10. I told him the boxes I was bringing back only cost a dollar less than what I had in hand. I told him to look at my receipt. I told him I shouldn't owe but a little more than a dollar.
He tried to explain how I owed $10. So I asked him about the coupon I used the day before. I asked him if it had just vanished into thin air. He kept trying to explain to me that I owed a lot more money for the boxes.
He had absolutely no clue as to what he was doing. He was so used to scanning items at the register that he had lost the ability to do the most rudimentary math. He had lost the ability to think logically. He looked at me like I didn't know what I was talking about.
Then it struck me how when we rely on an electronic device to do our math for us that we divorce ourselves from the numbers themselves. The numbers no longer represent sets of objects and relationships. They're just blips on a screen. And when we become dependent on those blips we somehow lose the ability to know how to deal with a curveball when it's thrown our way.
Learning multiplication tables and long division can be awfully hard. It can be awfully boring. In our short attention span culture it's just not the way we do things. Kids sometimes have a hard time grasping the concepts. They might get red marks on their papers.
But they might just learn that math is more than numbers.
And these folks are going to be in your jury panel the next time you stand up to begin your voir dire. Scary, huh?
UPDATE: I went back to Staples today after leaving the courthouse and the cashier manning the booth today knew exactly what to do. I walked out with my new boxes after paying $1.08 extra.
Monday, August 20, 2012
A not so open-and-shut case
The other day I was down in the little town of Rosenberg to try a speeding case for a truck-driving client of mine. It seems he was clocked doing 54 in a 35. Since he had a commercial driver's license our only option was to try the case.
The judge wore a polo shirt over jeans with suspenders. No robe-wearing man was he. Since we were the only case set for trial he had to find a random way to pick 15 potential jurors from the 30 or so folks who turned up for jury duty. After he did that he told them that they were going to be listening to a speeding case and that they usually took no more than an hour to try - but that since the defendant had an attorney, it might take a little bit longer. Nice.
Then we were shuffled from council chambers to a tiny courtroom down the hall. The bench was in one corner. Six chairs were set against the wall to the judge's right for the jurors. Council tables were against the opposite wall and the panel was seating in the middle.
I didn't care too much for some of the folks in the first two rows (based on overhearing them talking to each other in council chambers), so I asked that the panel be shuffled. Instead of mixing up the cards for a truly random shuffle, the court divided the panel into five groups of three jurors and rearranged the three folks in each group. Then they moved the last group up to third. So, the two people I didn't want in the first two rows were still in the first two rows. Nice.
The officer actually brought his LIDAR unit to court (that never happens in Houston). I got to play around with it a little bit.
Now being that there is no published court opinion stating that LIDAR has been proven to be reliable science, I decided to ask for a Kelly hearing to determine the admissibility of the evidence. I was banking on the city prosecutor not bringing in an expert - just assuming the evidence would come in.
I asked the officer if he was familiar with the scientific principle behind LIDAR. He said he wasn't. I asked him if he could explain how the device determined a car's speed based on pulses of light. He couldn't. I asked him if he knew what calculations the device made in determining the speed. He hadn't a clue. I asked him if, other than the device's self-check, he had calibrated his unit before his shift. He said he didn't think it needed calibration and that he wasn't sure if it had ever been calibrated. I asked him if the device had ever had to be repaired. He said he didn't know. All he knew about the device was what he learned in an eight-hour course on how to use it.
Naturally the judge allowed the evidence to come in.
It didn't matter in the end. After deliberating for over an hour (that's right, six reasonably intelligent adults deliberated over a traffic ticket for more than an hour), the jury came back with a two-word verdict. My client was happy. The prosecutor was apoplectic.
My client and I both shook the officer's hand and wished him well. Then my client went to shake the prosecutor's hand. She refused to shake it. Instead she went on a tirade about what a bad driver he was and that he was lucky he hadn't hurt anybody and that he should know better than to drive 20 miles per hour over the speed limit.
Her reaction alone made my day.
I talked to a couple of jurors afterward and they told me the prosecutor gave them all a dirty look after the judge read the verdict. They also said that they had doubts about the reliability of the LIDAR device because the officer knew nothing about how it worked or if it had ever been calibrated. They also said they had received speeding tickets in the past but didn't think it was possible to beat them in court.
The lesson, of course, is that even a case that looks open-and-shut can be won - provided you find an issue that resonates with your jury.
The judge wore a polo shirt over jeans with suspenders. No robe-wearing man was he. Since we were the only case set for trial he had to find a random way to pick 15 potential jurors from the 30 or so folks who turned up for jury duty. After he did that he told them that they were going to be listening to a speeding case and that they usually took no more than an hour to try - but that since the defendant had an attorney, it might take a little bit longer. Nice.
Then we were shuffled from council chambers to a tiny courtroom down the hall. The bench was in one corner. Six chairs were set against the wall to the judge's right for the jurors. Council tables were against the opposite wall and the panel was seating in the middle.
I didn't care too much for some of the folks in the first two rows (based on overhearing them talking to each other in council chambers), so I asked that the panel be shuffled. Instead of mixing up the cards for a truly random shuffle, the court divided the panel into five groups of three jurors and rearranged the three folks in each group. Then they moved the last group up to third. So, the two people I didn't want in the first two rows were still in the first two rows. Nice.
The officer actually brought his LIDAR unit to court (that never happens in Houston). I got to play around with it a little bit.
Now being that there is no published court opinion stating that LIDAR has been proven to be reliable science, I decided to ask for a Kelly hearing to determine the admissibility of the evidence. I was banking on the city prosecutor not bringing in an expert - just assuming the evidence would come in.
Click here for the opinion from Hall v. State, 297 SW3d 294 (Tex.Crim.App. 2009).The admissibility of LIDAR has only been taken up one time (where it was rejected by the Court of Criminal Appeals) because most cases involving LIDAR are in municipal and JP courts and most folks who get speeding tickets either take defensive driving or request deferred disposition. Due to the prohibitive cost involved, no one is going to appeal a traffic ticket case all the way up the ladder. The only way an appeals court will hear a case involving LIDAR is if the officer's use of LIDAR was the basis of the stop and the driver was arrested for driving while intoxicated, possession of a controlled substance or some other serious crime.
I asked the officer if he was familiar with the scientific principle behind LIDAR. He said he wasn't. I asked him if he could explain how the device determined a car's speed based on pulses of light. He couldn't. I asked him if he knew what calculations the device made in determining the speed. He hadn't a clue. I asked him if, other than the device's self-check, he had calibrated his unit before his shift. He said he didn't think it needed calibration and that he wasn't sure if it had ever been calibrated. I asked him if the device had ever had to be repaired. He said he didn't know. All he knew about the device was what he learned in an eight-hour course on how to use it.
Naturally the judge allowed the evidence to come in.
It didn't matter in the end. After deliberating for over an hour (that's right, six reasonably intelligent adults deliberated over a traffic ticket for more than an hour), the jury came back with a two-word verdict. My client was happy. The prosecutor was apoplectic.
My client and I both shook the officer's hand and wished him well. Then my client went to shake the prosecutor's hand. She refused to shake it. Instead she went on a tirade about what a bad driver he was and that he was lucky he hadn't hurt anybody and that he should know better than to drive 20 miles per hour over the speed limit.
Her reaction alone made my day.
I talked to a couple of jurors afterward and they told me the prosecutor gave them all a dirty look after the judge read the verdict. They also said that they had doubts about the reliability of the LIDAR device because the officer knew nothing about how it worked or if it had ever been calibrated. They also said they had received speeding tickets in the past but didn't think it was possible to beat them in court.
The lesson, of course, is that even a case that looks open-and-shut can be won - provided you find an issue that resonates with your jury.
Friday, July 13, 2012
Causation or correlation?
So here I am heading home from the office the other day listening to All Things Considered on the radio and there's this story about Kenya trying to fight the scourge of HIV by encouraging men to get circumcised. The reporter quoted a scientific study that the rate of HIV infection in uncircumcised men was substantially higher that the rate for men who were circumcised.
Well, that got me to thinking. This link between circumcision and HIV infection rates - is it an example of causation or correlation?
In other words, does getting circumcised reduce one's risk of getting infected by HIV, or is there something else at work? Is it because uncircumcised men have riskier sex practices? Is it because circumcised men are practicing safer sex?
The literature appears to be all over the place. Of course since the World Health Organization (WHO) jumped on board the circumcision train money has poured into Africa to fund circumcision programs. But there is still precious little hard evidence that circumcision has anything to do with HIV prevention.
Adding to my skepticism that there is no causal relation between the two are activists in Europe and the United States attempting to ban the procedure on newborns. If circumcision really prevented HIV infections, why would anyone be campaigning against it?
Now I'm no doctor and I am not going to sit here and pretend that I have some vast store of knowledge about the transmission of infectious disease or the human reproductive system. But I do think this issue is a perfect example of the causation v. correlation puzzle we run into in the courtroom.
The police coordination exercises the police use on the roadside to determine whether they're going to arrest a motorist for driving while intoxicated have everything to do with correlation, not causation. The studies used to provide a modicum of "scientific heft" to the roadside exercises all speak of correlations between levels of intoxication and performance on the exercises. Not one of them show evidence of causation.
The distinction is important. Let's say you're watching your favorite team play in a crucial game (sport and team not important). All season long whenever you've worn a certain shirt or cap or drank a certain beer or ate a certain sandwich, your team came through. Your actions did not cause your team to prevail. There was no causal link between your shirt (or your cap or beer or sandwich) and your team's performance. There was just a correlation - when you wore your shirt, your team just happened to win.
On the other hand, if it's dark out when you're driving home you turn on your headlights - as does everyone else out on the road. The lack of light caused you to turn on your headlights. There is a causal connection between nighttime driving and headlight use.
We can draw correlations between all sorts of statistics but just because you can draw a correlation between two observations doesn't mean that one caused the other. Your lucky socks won't help you win that poker game tonight, but your skill in reading the other players and their cards will.
Just because a motorist exhibits certain clues or signs or behaviors when walking up and down a straight line, doesn't mean that alcohol caused his performance. There are plenty of other factors that are not taken into account by the officer asking you to perform the exercise. And while the so-called validation studies may have drawn correlations to intoxication and performance on the roadside exercises, the studies did not make any causal connections.
The prosecutor will try to make it look like there is a causal connection between intoxication and performance, it's your job to point out to the jury the difference between causation and correlation.
Well, that got me to thinking. This link between circumcision and HIV infection rates - is it an example of causation or correlation?
In other words, does getting circumcised reduce one's risk of getting infected by HIV, or is there something else at work? Is it because uncircumcised men have riskier sex practices? Is it because circumcised men are practicing safer sex?
The literature appears to be all over the place. Of course since the World Health Organization (WHO) jumped on board the circumcision train money has poured into Africa to fund circumcision programs. But there is still precious little hard evidence that circumcision has anything to do with HIV prevention.
Adding to my skepticism that there is no causal relation between the two are activists in Europe and the United States attempting to ban the procedure on newborns. If circumcision really prevented HIV infections, why would anyone be campaigning against it?
Now I'm no doctor and I am not going to sit here and pretend that I have some vast store of knowledge about the transmission of infectious disease or the human reproductive system. But I do think this issue is a perfect example of the causation v. correlation puzzle we run into in the courtroom.
The police coordination exercises the police use on the roadside to determine whether they're going to arrest a motorist for driving while intoxicated have everything to do with correlation, not causation. The studies used to provide a modicum of "scientific heft" to the roadside exercises all speak of correlations between levels of intoxication and performance on the exercises. Not one of them show evidence of causation.
The distinction is important. Let's say you're watching your favorite team play in a crucial game (sport and team not important). All season long whenever you've worn a certain shirt or cap or drank a certain beer or ate a certain sandwich, your team came through. Your actions did not cause your team to prevail. There was no causal link between your shirt (or your cap or beer or sandwich) and your team's performance. There was just a correlation - when you wore your shirt, your team just happened to win.
On the other hand, if it's dark out when you're driving home you turn on your headlights - as does everyone else out on the road. The lack of light caused you to turn on your headlights. There is a causal connection between nighttime driving and headlight use.
We can draw correlations between all sorts of statistics but just because you can draw a correlation between two observations doesn't mean that one caused the other. Your lucky socks won't help you win that poker game tonight, but your skill in reading the other players and their cards will.
Just because a motorist exhibits certain clues or signs or behaviors when walking up and down a straight line, doesn't mean that alcohol caused his performance. There are plenty of other factors that are not taken into account by the officer asking you to perform the exercise. And while the so-called validation studies may have drawn correlations to intoxication and performance on the roadside exercises, the studies did not make any causal connections.
The prosecutor will try to make it look like there is a causal connection between intoxication and performance, it's your job to point out to the jury the difference between causation and correlation.
Saturday, June 23, 2012
Just whose interest do you represent?
Joe Amendola said he would "die of a heart attack" if Jerry Sandusky, 68, was found not guilty of 48 counts of abusing 10 boys over 15 years.Ours is not an easy task. People call us because they are in trouble and need help. Some are wrongfully accused, others just want to get through the ordeal with as little pain as possible.
Television portrays a lie. All of Perry Mason's clients were innocent. They were victims of circumstance and Mr. Mason was able to force the real killer to reveal himself. Ben Matlock defended one or two folks who actually did the deed.
We walk into court with the knowledge that most of our clients are guilty and it's our job to defend that person as vigorously as possible. Is there a suppression issue? Inconsistent stories from witnesses? Does the officer have a skeleton in his closet? Can we conjure enough reasonable doubt for a jury to give a two-word verdict? Is the state's offer so unreasonable that we think a jury will give less?
All through the process our duty is to our client. Not to ourselves. It's not about press conferences and quotes in the newspaper. It's not about trending on Twitter. It's not about becoming a celebrity lawyer. It's about our client.
Everything you do in a case has to be done with the client's best interest in mind. And sometimes that means keeping your damn mouth shut when someone shoves a microphone in front of your face. Sometimes that means telling your client to keep his mouth shut when someone asks him a question.
It certainly doesn't mean letting your client answer questions on national television about showering with young boys. I can't think of any circumstance in which I would allow a client to do that. When Jerry Sandusky answered that question he admitted being a creep. There was no going back after that interview. There was nothing anyone could say to repair the damage.
Mr. Sandusky's attorney, Joe Amendola, could serve as an example of what not to do when defending a man charged with sexually abusing young boys. Mr. Amendola seemed to be more concerned about seeing his name in print than he was with doing his utmost to limit the damage to Mr. Sandusky.
And just what in the hell was Mr. Amendola thinking when he told reporters that he would be shocked if Mr. Sandusky was acquitted? Sure, we've all thought it. We've all gone to trial with a case that we knew we would lose - but we don't get up and tell the world about it. What Mr. Amendola did was inexcusable.
Joseph Amendola, Sandusky's lead defense attorney, said in a press conference the trial was like climbing Mt. Everest, and "obviously we didn't make it."
Amendola said they expected the guilty verdict, and said he wished he had had more time to prepare for the trial and review all the evidence.
"I think most of you would have agreed with me that if someone said last November that if we had a trial in early June, that you would have agreed its not very likely at all," he said. "And here are, with a trail that has now concluded and its still the later time in June."
So Mr. Amendola wasn't ready for trial. Had he spent too much time trying to get his name in lights? Was he too busy making sure photographers got his best side and reporters his best quotes? Has he never heard of a motion for continuance. His client was out on bond and certainly was in no hurry to go to trial.
Of course it isn't Mr. Amendola's fault. He didn't commit any of the acts. He had to deal with what his client handed him. And he did a piss poor job of it.
Might we even question if going to trial was in Mr. Sandusky's best interest? What was the offer on the table? I wager to say that unless he walked he wasn't going to beat the offer. Maybe it was life in prison either way, I don't know. But a plea certainly wouldn't have made Mr. Amendola a media star.
Maybe it was all an elaborate ruse. Maybe the goal all along was to set up an appeal based on ineffective representation. All of the comments to the media. Allowing the interview on national television. Complaining that he wasn't ready for trial.
Maybe the lesson of all this is to remember to ask a prospective attorney if he's in this for you or for him.
Wednesday, June 20, 2012
An economy of words
"No one on this planet, much less in Harris County, should be convicted of a felony, with as weak as the evidence is in this case. "And with those words, my colleague, Todd Dupont, obtained a not guilty verdict in a drug case in Harris County last week.
Quite ballsy to sit down after one sentence. A lot of time to ask yourself if you did the right thing.
There is no more succinct way to tell the jury that the state hasn't proven its case, however. In that one sentence, Mr. Dupont wrapped up the essence of both the presumption of innocence and the burden of proof. That one sentence was more powerful than the most eloquent 30-minute speech to a jury could ever have been.
The beauty in the close is not what was said, but what wasn't said.
Of course you can't get up every trial, give a one-sentence close and expect your client to shake your hand on the way out of the courtroom. It's got to be the right case with the right (lack of) facts with the right jury.
The question to be asked might be just how much weight does closing argument even have with a jury. We're taught that some cases are decided with jury selection - that by the time you deliver your opening, the jury has already made up its mind. Never forget that despite the eloquent and passionate speech Atticus Finch gave in that sweltering Alabama courtroom, his client, Tom, was convicted of a crime he didn't commit.
Friday, January 20, 2012
Proving a negative
In a comment to a recent post ("A little shifting of the burden"), Adam Poole referenced a provision of the Texas Code of Criminal Procedure that states a judge shall submit the question of the defendant's guilt or innocence to the jury prior to final argument (Art. 37.07(2)(a)).
He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.
In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."
As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.
Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.
But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?
And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.
If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.
But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.
The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.
When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.
Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.
Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.
He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.
In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."
As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.
Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.
But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?
And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.
If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.
But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.
The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.
When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.
Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.
Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.
Tuesday, January 10, 2012
A little shifting of the burden
My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.
Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.
So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.
In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.
The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.
But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.
The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:
There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.
But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.
Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.
If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.
Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.
So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.
In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.
The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.
But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.
The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:
"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?
There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.
But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.
Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.
If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.
Monday, December 12, 2011
What else could have gone wrong?
Yes, Ronald Ray, the state does bear the burden of proving your client guilty beyond all reasonable doubt. You are correct, sir, in your assertion that your client is presumed innocent unless the prosecution can meet its burden.
But to have your client convicted of an armed robbery while he was behind bars as a guest of Harris County is beyond comprehension. As Mark Bennett wrote,
Mr. Ray never bothered to investigate his client's case. A simple check of the District Clerk's website would have indicated that his client had been in jail at the time of the alleged offense. Hell, your client could have told you he was in jail.
It's shameful that your client's father is the one who found out his son was incarcerated at the very moment that someone else claimed he was robbing a store.
My colleague, Jackie Carpenter, has her own take on the matter. She even included a photograph of Mr. Ray and "Rev." Johnny Jeremiah. For those of you who don't practice in Harris County, the "good reverend" is quite the notorious case runner. I don't know how much the family paid Mr. Ray - and I don't know how much Mr. Ray paid Mr. Jeremiah for the referral - but it was hardly worth it now, was it?
After an agreed motion for new trial was granted and the charges dropped by the state, State District Judge Mark Kent Ellis told everyone present that he was dismayed by what had happened.
Your client did something. Otherwise he wouldn't be sitting at that table with you in front of the judge. Whether you like it or not you've got to overcome that presumption. To base your entire trial strategy on the presumption of innocence is, at best, naive and, at worst, incompetent.
But to have your client convicted of an armed robbery while he was behind bars as a guest of Harris County is beyond comprehension. As Mark Bennett wrote,
This is what generally happens when the defense relies on the presumption of innocence: the government proves the defendant guilty. So unfair!And that's exactly what happened.
Mr. Ray never bothered to investigate his client's case. A simple check of the District Clerk's website would have indicated that his client had been in jail at the time of the alleged offense. Hell, your client could have told you he was in jail.
It's shameful that your client's father is the one who found out his son was incarcerated at the very moment that someone else claimed he was robbing a store.
My colleague, Jackie Carpenter, has her own take on the matter. She even included a photograph of Mr. Ray and "Rev." Johnny Jeremiah. For those of you who don't practice in Harris County, the "good reverend" is quite the notorious case runner. I don't know how much the family paid Mr. Ray - and I don't know how much Mr. Ray paid Mr. Jeremiah for the referral - but it was hardly worth it now, was it?
After an agreed motion for new trial was granted and the charges dropped by the state, State District Judge Mark Kent Ellis told everyone present that he was dismayed by what had happened.
"It boggles the mind that neither side knew about this during trial," Ellis said. "Both sides in this case were spectacularly incompetent."It doesn't matter what the prospective jurors tell you during voir dire. It doesn't matter when they nod their heads when the judge tells them that the defendant is innocent and that he has no burden of proof. Forget about the jury instruction that tells the jurors the presumption of innocence alone is enough to acquit the defendant.
Your client did something. Otherwise he wouldn't be sitting at that table with you in front of the judge. Whether you like it or not you've got to overcome that presumption. To base your entire trial strategy on the presumption of innocence is, at best, naive and, at worst, incompetent.
Wednesday, November 16, 2011
Excuse me while I extract my foot from my mouth
What on earth was Joe Amendola thinking? Why would he consent to having his client, Jerry Sandusky, be interviewed by Bob Costas on NBC?
The best advice to give a client after they've been arrested is to keep their mouths shut about the incident and talk to no one but their attorney. The worst thing a client can do is talk to the press on the record.
Of course he's going to proclaim his innocence. That's a given. And, if that's where it had stopped, Mr. Sandusky might have been okay. But what Mr. Sandusky did was dig himself a deeper hole. After Mr. Costas asked him if he was guilty of the allegations against him:
His admissions to "horsing around," showering with and touching young boys on their legs are damning in a case in which he is charged with sexually abusing children. The pregnant pause after Mr. Costas asked if he was attracted to young boys will surely come back to haunt Mr. Sandusky in the future.
I understand that he didn't have much choice but to admit showering with young boys since that's what was reported by then-graduate assistant Mike McQueary. But why was he answering any of these questions in the first place? Every one of those answers is a statement that can later be used at trial
Mr. Sandusky doesn't come across very well. The interview did nothing to enhance his image in the media.
All Mr. Sandusky did was box himself into a story. His admissions are damaging. Mr. Sandusky would have been much better served had his attorney prepared a written statement for Mr. Sandusky to read to the media. A written statement that contained no admissions of questionable conduct. A written statement that Mr. Sandusky would have no more to say until trial. A written statement that all questions were to be referred to Mr. Amendola.
Now Mr. Sandusky, and Mr. Amendola, have to live with what was said.
The best advice to give a client after they've been arrested is to keep their mouths shut about the incident and talk to no one but their attorney. The worst thing a client can do is talk to the press on the record.
Of course he's going to proclaim his innocence. That's a given. And, if that's where it had stopped, Mr. Sandusky might have been okay. But what Mr. Sandusky did was dig himself a deeper hole. After Mr. Costas asked him if he was guilty of the allegations against him:
“I have done some of those things,” Sandusky said. “I have horsed around with kids. I have showered after workouts. I have hugged them and I have touched their leg without intent of sexual contact.”
Then came a back and forth after Costas asked him there was anything he now wishes he had not done.
Sandusky: Well, in retrospect, I shouldn’t have showered with those kids. And, so …
Costas: That’s it?
Sandusky: Yeah, that’s what hits me the most.
Costas: Are you a pedophile?
Sandusky: No.
Costas: Are you sexually attracted to young boys, to under age boys?
Sandusky: Am I sexually attracted to underage boys?
(There was a nearly two-second pause)
Sandusky: Sexually attracted, no, I, I enjoy young people. I, I love to be around them. I, I, but no I’m not sexually attracted to young boys.
His admissions to "horsing around," showering with and touching young boys on their legs are damning in a case in which he is charged with sexually abusing children. The pregnant pause after Mr. Costas asked if he was attracted to young boys will surely come back to haunt Mr. Sandusky in the future.
I understand that he didn't have much choice but to admit showering with young boys since that's what was reported by then-graduate assistant Mike McQueary. But why was he answering any of these questions in the first place? Every one of those answers is a statement that can later be used at trial
Mr. Sandusky doesn't come across very well. The interview did nothing to enhance his image in the media.
All Mr. Sandusky did was box himself into a story. His admissions are damaging. Mr. Sandusky would have been much better served had his attorney prepared a written statement for Mr. Sandusky to read to the media. A written statement that contained no admissions of questionable conduct. A written statement that Mr. Sandusky would have no more to say until trial. A written statement that all questions were to be referred to Mr. Amendola.
Now Mr. Sandusky, and Mr. Amendola, have to live with what was said.
Monday, November 7, 2011
A master and his craft
The other day I was stuck in the Harris County Criminal (In)justice Center a bit longer than anticipated. There was a trial going on in the 232nd - a young man was charged with murdering another young man. The young man was convicted. The punishment hearing happened to be going on the day I was in there.
The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.
His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.
He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.
He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.
It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.
But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.
Mr. Moncriffe's client was sentenced to 10 years in prison.
That's ten years of asking yourself if there was anything else you could have done.
UPDATE:
I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.
The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.
His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.
He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.
He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.
It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.
But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.
Mr. Moncriffe's client was sentenced to 10 years in prison.
That's ten years of asking yourself if there was anything else you could have done.
UPDATE:
I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.
Subscribe to:
Posts (Atom)