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.

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:

"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.

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,

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.

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?

Visit msnbc.com for breaking news, world news, and news about the economy

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.

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.

Paying it forward

Yeah, that's right. I'm guilty. I admit it.

I have borrowed, alluded to and stolen from some of the best in the business. I liked Jeff Gamso's "Rule of Law" v. "Law of Rule" so much that I used it in a post about the aftermath of the fall of Muammar Gaddafi.

My basic outline for voir dire is a Frankenstein-esque document with bits and pieces that I appropriated from my Houston colleagues Todd Overstreet and Mark Bennett and the Jedi master himself, Robert Hirschhorn. My basic "playbook" I use in trial is full of ideas and concepts from Big D's David Burrows, Cowboy Lawyer (and TCDLA President) Gary Trichter and Mike McCollum.

That's the thing about criminal defense lawyers -- we're all on the same side. Each of us takes our duty to defend the Constitution very seriously and we know that working together and collaborating allows us to do it that much better. At our seminars we hear other lawyers talk to us about the strategies they used and which were successful and which weren't.

You don't see that same level of collaboration over in the civil courthouse. There everyone is chasing a fee and they protect their strategies and tactics like trade secrets. Giving up those secrets could cost you some clients, and some money, in the end.

Tort reform has made practice in the civil courts even more cut throat as the pool of potential clients dwindles due to the high barriers one must scale in order to collect a judgment.

Over in our corner of the world, reforming the penal code just means more clients as the legislature continues upon its quest to make everything illegal. There will never be a shortage of 4th Amendment issues. Confrontation problems will continue to rear their ugly heads. The police will still make pretextual stops and later try to rationalize why they pulled your client over in the first place.

So, if you see something here that might be useful, feel free to steal it and call it your own. Chances are it won't be the first time it was stolen.

Googling our brains

A new study indicates that the internet has changed the way we remember things. It appears that if we know we can access the information on the computer (or internet) that we have less ability to recall the actual information -- though we certainly can remember where to find it.

Sparrow says her movie trivia failure reminded her of a concept called transactive memory, proposed 30 years ago by her Ph.D. adviser Daniel Wegner. According to the theory, people divide the labor of remembering certain types of shared information. For example, a husband might rely on his wife to remember significant dates, while she relies on him to remember the names of distant friends and family—and this frees both from duplicating the memories in their own brains. Sparrow wondered if the Internet is filling this role for everyone, representing an enormous collective act of transactive memory.

To test this idea, Sparrow devised a series of offline experiments to catch people in the act of relying on future access to information—say, a Google search—rather than memorizing the information themselves. “I didn't want them to actually have access to the information but just think that they would,” she says. For the first set of experiments, which involved 106 Harvard undergraduates working on desktop computers, Sparrow tested whether people thought of the Internet as soon as they were posed true-false questions such as, “An ostrich's eye is bigger than its brain.” She employed a psychological method called a Stroop task. After the trivia questions were posed, various colored words would appear on the screen. When those words matched topics that people were already thinking about, they tended to react more slowly when asked to name the words' colors. And indeed, when the colored words were Internet-related, such as Google or Yahoo, the students answered more slowly, indicating that they were already considering going online for answers.

Then Sparrow played a trick on her subjects. She presented 40 different trivia statements to the students and had them type the factoids on the computer. She told half of the group in advance that the computer would save what they had written so they could see it later; she told the other half that the computer would erase it. Then all of the students were challenged to write down the statements from memory. Those who had been told that the computer would erase their notes had by far the best memory of the statements, as if their brains had made an emergency backup. Those who were expecting to retrieve the information later performed more poorly.

"Transactive memory" is the phenomenon that Dr. Daniel Wegner says he seems with long-term couples. According to his research, couples who have been together a long time tend to rely on each other to remember things. You can think these long-term couples as parallel computers. One partner might be best at remembering the day-to-day activities of life while the other partner is the "encyclopedia."

So the concept isn't new, but what does it mean?

Does "transactive memory" affect jurors? Is it something that we need to be aware of during jury selection? Are jurors more or less likely to go home and do their own research? Or is this all much ado about nothing?

Is the internet just our instant library? When we went to school we certainly didn't memorize everything we were taught. We memorized our alphabet and our multiplication tables as well as some rules in geometry. But what we really learned was how to find the answer to a problem. Dr. Roddy Roediger at Washington University in St. Louis doesn't find the results to be all that alarming.

The study is “convincing,” and “there is no doubt that our strategies are shifting in learning,” says Roddy Roediger, a psychologist at Washington University in St. Louis, Missouri. “Why remember something if I know I can look it up again? In some sense, with Google and other search engines, we can offload some of our memory demands onto machines.” But Roediger says this trend started long before the Internet. “When I was a student, many years ago, we consulted books and encyclopedias to write papers. Now students can do it at home on computers. Is that a bad thing? I don't think so.”

Said Dr. Sparrow:

"I don't think Google is making us stupid - we're just changing the way that we're remembering things... If you can find stuff online even while you're walking down the street these days, then the skill to have, the thing to remember, is where to go to find the information. It's just like it would be with people - the skill to have is to remember who to go see about [particular topics]."

Might this be a reason to request that jurors be allowed to take notes during trial? If we are better able to process where to find the information rather than remember the information, would it be a benefit for jurors to write down their thoughts and observations during trial, rather than try to remember what they saw and heard afterward?

Or would it prove more of a distraction? Would jurors spend so much time taking notes that they miss the essence of the testimony or evidence presented? Would jurors then rely on other people's notes back in the jury room during deliberations?

Just a little something to think about.

Judicial activism mucking up the works

As a general rule, judges in Texas stay out of plea negotiations and allow the attorneys for the state and the defense to work out cases as they see fit. In Galveston County, for instance, it was not uncommon for a person charged with a first DWI offense to receive an offer to plead guilty to obstruction of a highway on a typical "no test/no accident" case.

The plea deal allowed the prosecutor to clear a case off his docket and the defense attorney to look good to his client. There were, of course, variations of the deal. I once had a client who blew a .24 but could walk a straight line on video and hold an intelligent conversation with the arresting officers. The prosecutor offered my client probation on obstruction of a highway with the same conditions that would attach to a DWI probation. My client was quite happy with the deal and everyone walked away happy.

Harris County, on the other hand, believes that DWI cases should either be tried or dismissed. There are no plea offers for obstruction or reckless driving. As a result, more marginal DWI cases are tried in Harris County than on the island. There are also far more dismissed on the eve of trial.

Back in November the Republicans swept the county court benches in Galveston County. One of the judges, John Grady is a former probation officer, defense attorney and Brazoria County prosecutor. The other two judges, Barbara Roberts and Chris DuPuy both had little or no criminal experience at the time they took the bench. Of course, unlike Harris County, the county courts in Galveston handle both criminal and civil matters.

But now comes word that Judge Roberts has taken it upon herself to play sheriff when it comes to the prosecution of DWI cases in her court. It is now the policy of County Court No. 2 that no pleas to obstruction of a highway will be accepted on cases filed as DWIs.

Now I must digress a little bit. In Texas the offense of driving while intoxicated contains no lesser included offenses. In other words, there is nothing that  DWI charge can be "reduced" to - with the exception of prior DWI convictions being abandoned as part of the plea negotiations.

The proper role of a judge is to serve as a neutral arbiter to a legal dispute. The judge should allow the parties every opportunity to work the case out amongst themselves - be it a civil or criminal dispute. The only time the judge should be involved is if the parties come to an impasse and need someone to make a decision on which way to proceed.

There are any number of reasons a prosecutor might elect to offer a defendant in a DWI case the ability to plead to a different charge. A conviction for reckless driving or obstruction of a highway doesn't carry a $3,000 surcharge with it. A conviction for obstruction of a highway doesn't carry a license suspension, nor does it carry the same insurance consequences that a DWI conviction would. Maybe the case is marginal. Maybe the prosecutor is worried about the legality of the stop - or the roadside coordination exercises. Maybe the defendant's job is on the line if he's convicted of driving while intoxicated. Maybe no one wants to take a chance with six strangers in a box.

Whatever the case, the prosecutor and the defense attorney are in the best position to determine what the most optimal resolution of the case might be. The judge isn't privy to all the facts. The judge isn't privy to the circumstances surround the stop, the tests or the defendant.

A judge is under no obligation to accept a plea bargain -- and will tell the defendant so while admonishing him. But a judge who issues a blanket directive that certain pleas will not be accepted is not acting as a neutral arbiter. A judge who announces that no offer for less than 30 days in jail for a first DWI is not acting as a neutral arbiter.

Judges who act in such a manner are guilty of being doctrinaire. They are willfully blind to the reality that every case is different and a "one size only" policy doesn't work. But most of all, these judges are failing to uphold their duty to consider the entire range of punishment available for a given case.

Some of our jurists think they're the sheriff and some think they work for the judicial division of the local DA's office. Mostly they have forgotten that the courtroom over which they preside (temporarily) belongs to the people. And the people are the folks in the pews answering docket call every morning. The people are the ones entitled to trial by a jury of their peers.

Court limits comparison of burdens of proof

In order to obtain a conviction, the state must prove a person committed each and every element of a criminal offense beyond a reasonable doubt. Nothing new or earth-shattering there. It's one of the first concepts in criminal law that we are taught.

But what is beyond a reasonable doubt? There is no legal definition of the term in Texas. In fact, it's a bit like pornography -- the jurors will know when they see it.

The prosecutor likes to tell the jurors that proof beyond a reasonable doubt does not mean proof beyond all doubt. Fair enough. But where does that put the line?

We have a multitude of levels of proof. A police officer must have probable cause to arrest someone. There must be probable cause to support a warrant. A grand jury must find there is probable cause to believe the defendant committed a crime in order to vote to indict him.

Over at the civil courthouse money is awarded if a plaintiff can prove his claim by a preponderance of the evidence. The judge will even tell the jurors that a preponderance of the evidence just means more than 50%. A "feather's worth" of evidence can be enough to send a plaintiff out of the courthouse with a smile on his face or a frown.

Want some expert witness testimony to support your theory of the case? You'll need to prove that your witness is an expert by clear and convincing evidence. If the state wants to remove a child from a custodial parent, the state will need to make its case by clear and convincing evidence. Clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."

But what if the state wants to infringe upon the liberty of one of its citizens? Back in 1991, the Texas Court of Criminal Appeals decided how the term beyond a reasonable doubt was to be defined in Geesa v. State, 820 SW2d 154, 162 (Tex.Crim.App. 1991):

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This definition was cobbled together from the Texas Penal Code and the instructions given in the federal system. The CCA held that this definition was to be included in every criminal jury charge regardless of whether the defense requested it.

Nine years later the CCA decided that what it giveth, it can taketh away, too, as the judges held that the Geesa definition was serving only to confuse jurors. In Paulson v. State, 28 SW3d 570, 573 (Tex.Crim.App. 2000). 

So, what is a criminal defense attorney to do when there is no definition of the term of art by which a jury decides whether to brand someone as a criminal for life? You compare the various levels of proof. You "walk up" the levels of proof to demonstrate to the jurors how high the state's burden is. You compare preponderance of the evidence to clear and convincing evidence to beyond a reasonable doubt. You get the panel talking about what quantum of proof they would require in order to find someone guilty.

Unless the judge decides you don't get to. In Anderson v. State, No. 07-10-1039-CR (Tex.App.--Amarillo 2011), the Amarillo Court of Appeals decided that it is not a per se abuse of discretion if a trial judge does not permit a defense attorney to question the potential jurors about the differences in the burden of proof between a civil case and a criminal prosecution.

Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.

However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.

If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.

To fight or plea

While I was at the Harris County Criminal (In)justice Center this morning I ran into a colleague who used to have an office in the same building I'm in. He asked me if it was considered malpractice to plead out a client on a DWI case.

I told him no, I didn't think so, because sometimes the circumstances surrounding a case require you to negotiate a plea. For instance, suppose you have a client who picks up a DWI - but no one realizes there was a prior DWI conviction because it couldn't be confirmed at the time of the arrest. Now let's suppose it's a defensible case (not necessarily a winner, but a case that is winnable). Now what happens when the prosecutor offers your client a deal that doesn't take the prior conviction into account. What do you do?

If you believe that every DWI case should be fought to the bitter end, you run the risk that the prosecutor will uncover the prior conviction and muster his evidence to prove up the conviction at trial. Now, instead of time served and a fine, your client is looking at jail time or a long stretch on probation.

Were your client's interests served by refusing to entertain a plea offer? If you've increased your client's exposure without discussing the consequences with him - the answer is no. Entering into a plea might have been the best way to dispose of the case - but you refused even to consider it.

Throw in the DIVERT program (no matter how flawed) and there may be additional reasons to plead out that case rather than go to trial. If keeping that record clean is your client's most important concern then there are reasons to consider the program (just make sure your client is fully informed of both the benefits and risks of the program). Not allowing your client to make the decision whether to plead or go to trial is the worst mistake you can make.

Now, pleading out a DWI case on the first setting or before you've conducted any discovery is committing malpractice. The collateral consequences of a DWI conviction are too vast to plead out a client without investigating the case.

In our world, very little is black and white. We live in a world of grey. Always doing something or never doing something are equally harmful to our clients.

A tale of two sermons

On Friday night the church my wife and girls attend put on a play about the crucifixion. My oldest daughter was in the play and she recruited my wife and youngest daughter to participate. The little drama was good and left everyone feeling a bit better I think.

Then the preacher sat down on the steps to the stage with the lights dimmed and started talking in a matter-of-fact voice. He was telling everyone what a downer Good Friday was. He never stood up while he spoke. He just kept hammering at what a bummer it was that it was Good Friday. Everyone left the building in a down mood.

Sunday, though, was a different story. He was walking around all jumpy (like he'd had five or six cups of coffee). His gestures were exaggerated. He sounded almost out of breath from excitement while talking. It was a wonderful day. Everything is born anew. Be happy. Today is the first day of the rest of your life. The room was happy and the people walked out into the sunlight in a much more festive mood.

Two different messages on two different days effecting two different moods - all by the same person.

He accomplished it through his voice, his gestures, his mannerisms and his clothes. On Friday night he spoke slowly and thoughtfully -- on Sunday it felt like he was winging it. On Friday every gesture spoke of weariness and depression -- on Sunday he gestured like a kid running toward the Christmas tree. On Friday he sat down while he spoke -- on Sunday he was all over the place. On Friday he wore a dark suit -- on Sunday he wore a white robe.

Both days, however, he held the attention of the audience in the palm of his hand.

Friday night's message was like the typical state's voir dire -- absolutely uninspiring. A prosecutor sets the tone when she says to the panel, "I know y'all are bummed out at having to be here today..." What kind of message does that send out to the jury? How enthused do you think the folks who sit on the jury are going to be?



I much prefer to thank the jurors for coming in and taking part in the most democratic of our democratic traditions.  I want a jury made up of folks who want to be there and who are eager to hear the evidence.

I'd much rather be delivering the Easter Sunday sermon than the Good Friday one. Wouldn't you?

Game theory, poker and trial strategy

When playing poker, is it better to bluff when you think your hand has a chance of winning or is it best to bluff when you think your hand stands no chance of winning?

In other words, do you shove your chips into the middle of the table with a pair of jacks or with nothing better than a ace-high?

According to game theory, the optimum bluffing strategy is to bluff when you have the weakest hand.

Chris "Jesus" Ferguson has a Ph.D. in computer science and relied on game 

theory in winning the 2000 World Series of Poker Main Event.

To see why, let's pretend we are playing one-card poker with a deck of an ace, a deuce and a trey (with the ace being the lowest card). When it's your turn to act you have the choice of betting or checking. Your opponent then has the choice of calling the bet, checking behind you or folding.

Logic dictates that you will alway bet when you have the trey. You know your opponent can't beat you because you have the highest card. If you don't bet and your opponent checks behind you, you win nothing. If you bet and your opponent folds then you win nothing. But, if you bet and your opponent calls the bet, you win his bet. The only way to make any money when holding a trey, then, is to bet first.

If you have the deuce there is an equal chance your opponent has a trey or an ace. If you bet with the deuce, you will win half the time and you will lose half the time. If you check with the deuce you are forced to fold your hand if your opponent bets. If your opponent holds the trey, he will bet. If he holds the ace, he will fold. The best play, then, if you hold the deuce is to check.

On the other hand, if you have an ace, you know you have the worst hand. If you don't bet, but your opponent bets you are forced to fold and lose nothing. If you bet and your opponent bets then you  lose the bet. But, if you bet and your opponent folds, then you win his bet.

Let's say, for instance, you hold the ace. Your opponent therefore holds either the trey or the deuce. If you bet and he holds the trey, your opponent will call your bet and win the hand. If you bet and he holds the deuce he will be forced to fold his hand because he can only beat a bluff. The best play, then, is to bet whenever you hold the ace - since the only way you can win the hand is if your opponent folds in the face of your bet.

By following this strategy you will win every time you hold the trey and half the time you hold either the deuce or the ace. Your opponent will be forced to fold whenever he holds the ace or deuce meaning you have a 2-to-1 chance of winning every hand when it's your turn to act first.

Whenever your opponent acts first and bets out you will call if you hold a trey or a deuce - since you can never win calling a bet with an ace. If your opponent checks you will bet if you hold an ace or a trey, since he can only call your bet if he has a trey.

Now that's all well and good, you say, but what on earth does that have to do with defending folks accused of committing crimes? Just imagine all of your cases could be sorted like cards. Some cases are strong, others are weak and the rest fall somewhere in the middle. What is the optimum strategy for defending these cases?

According to game theory you push the prosecutor to trial on your best cases. That forces the prosecutor to evaluate the case and should, in most instances, result in dismissals (or at the very least, reductions). But you already knew that.

What do you do with the bad cases and the cases that fall somewhere in the middle (the aces and deuces)? Based on our poker game example, you push the bad cases to trial as well and try to work out the rest. Why you might ask would you do such a thing?

You do it because it's the only way you're going to get a dismissal on the worst cases. If you push a case to trial then the prosecutors have to deal with witnesses, some of whom are reluctant or live out of town, and evidentiary issues. You never know what's going to happen. Maybe the prosecutor thinks twice about whether her case is a whale (a trey) or a dog (an ace).

You should win (or get dismissals) on your best cases. The only chance you have of winning your weak cases is to go to trial. If the case falls in the middle, however, you have to weigh the benefit or winning with the risk of losing. These are the "coin flip" cases that could go either way. These cases have to be "played for value."

If you think about it, you should already be doing this intuitively. We tell some clients their cases are slam dunks. We tell others that they have nothing to lose by going to trial. It's the ones in the middle that are the most difficult to handle.

***

For more information on Chris Ferguson, game theory and the World Series of Poker I recommend you check out Positively Fifth Street by James McManus.

Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:

Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.

I'm from the government and I'm here to help

Now we have a judge in Harris County who is concerned about the amount of time our clients miss from work or school as the result of appearing at court settings in criminal cases. At least that's the story going around.

In order to combat this problem, the Honorable Jay Karahan has decreed that there will only be three pre-trial settings in matters in his court: the initial appearance, a motions setting and a final setting either to plead the case or set it for trial. But will this "rocket docket" actually benefit our clients?

The answer is a resounding no.

Being required to make multiple appearances in court is an inconvenience for most of our clients. They have jobs. Or they're in school. Or they have family obligations. However, in some cases, multiple settings is the only way to obtain the evidence that is necessary to defend the case.

How long will it take to get that blood test result back? What about that lab report on that little rock in the floorboard? What about having to wait for an ALR hearing in a DWI case? How about obtaining maintenance records for a breath test machine?

Will the settings be 30 days apart? 45 days apart? 60 days apart?

Reducing the number of settings will benefit those attorneys who live by "churning and burning" their clients into quick pleas. No longer will they have to pretend to work a case to satisfy a client. Now they can scare their clients into pleading out by telling them that the case is bad and can't be won at trial.

The other result of the "rocket docket" will be more and more cases set on the trial docket. It takes time to prepare a case properly for trial, especially cases in which we're dealing with (pseudo)scientific evidence. It takes time to get an ALR hearing. It takes time to get lab results. It takes time to interview witnesses.

I can think of no reason a client in a criminal prosecution benefits by speeding up the docket - unless they're already in custody (in which case they aren't inconvenienced by multiple appearances). After all, every day that your client is out and about is a victory when you are up against the oppressive power of the state.

If the dockets have become unmanageable, maybe we should look to what's happening on the 6th floor at 1201 Franklin. Harris County District Attorney Pat Lykos operates her office using fear as a motivator. There are prosecutors who are scared to dismiss questionable cases out of fear of retribution by Ms. Lykos.

The "rocket docket" is not being implemented to benefit our clients. Nothing in the criminal courthouse is designed to benefit our clients. The purpose is to coerce more pleas and deprive more citizens of their right to a trial by jury of their peers.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.