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.

The wisdom of a seven-year-old

Yesterday my oldest daughter was off from school because of Columbus Day. Now, I've never understood why Columbus Day was even a holiday in the first place. Maybe it's because I'm from the South. Or maybe it's because I'm Irish. I don't know. It never seemed holiday material in the first place.

I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.

But I digress...

Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.

I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.

My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.

Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.

We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.

As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.

As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.

My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).

Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.

If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.

Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.

You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.

Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.

Today on candid camera...

I guess sometimes the ol' eyes in the sky work to the benefit of the folks getting arrested.



Angela Horton, who was relieved of her duties as a police officer for the City of Houston, said she regrets hitting a suspect in the face while he was handcuffed. Ms. Horton's attorney said she let her emotions get to her when she slugged the suspect in full view of the camera in a news helicopter. Of course, she also wants us to know that  police officers must make split-second decisions out on the street.

I'm not sure that hitting a defenseless man in the face is one of those decisions.

Now for anyone who doesn't think police officers succumb to high levels of adrenaline following a chase, think again. For anyone who doesn't think that suspects are beaten by police, think again.

Judges, juries and prosecutors don't want to believe that the boys (and girls) in blue ever cross the line in doing their jobs. Judges, juries and prosecutors are wrong. It's just that most of the time it happens off camera. And if there's no video -- no one believes the defendant.

We are trained from a young age to trust the police. And, no matter what anyone on the panel says, jurors are going to give more credibility to the word of a police officer than to your client. We all know it. But we play the charade that something's that been burned into someone's brain can be erased by the judge saying a few words.

No one should be shocked by what Officer Horton did that night. We should only be shocked that someone got it on camera.

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.

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?