, , ,

i

I WINTER 2005

HARRIS COUNTY CRIMINAL LAWYERS' ASSOCIATION

Mack Arnold

Jennifer & Mark Bennett

Don R. Cantrell

Christopher L. Carlson

Arnold S. Cohn

Paul J. Coselli

Jerald D. Crow

Logan Dietz

J. Gordon Dees

Rick G. DeToto

Christopher Downey

Danny Easterling

Ami Michelle Feltovich

Richard Frankoff

Allen J. Guidry

Stephen H. Halpert

Thomas M. Henderson

Paul A. Kubosh

Scott Markowitz

Kenneth E. McCoy

David D. Mitcham

Richard L. Moore

Tad A. Nelson

Wendell A. Odom, Jr.

Anthony Osso

Michael H. Pham

Thomas A. Radosevich

Earl S. Spielman

James T. Stafford

Charles Stanfield

William H. Van Buren

Joseph R. Willie"

W. Troy McKinney

Stanley G. Schneider

Kevin D. Fine

Shawna L. Reagin

Bo Hopmann

Jonathan Munier

Grant Scheiner

Robb Fickman

Dean Blumrosen

Todd Dupont"

Doug Murphy

Tucker Graves

Paul St. John

Michael Pena

Katherine Scardino

Gerardo Montalvo

Steven Owsley

Earl Musick

JoAnn Musick

Feroz Merchant

Melissa Martin

Russell Webb

Vivian King

Wayne Hill

James Randall Smith

David Fleischer

Robert Eutsler

Alex G. Azzo

The Kahn Law Firm

Jay W. Burnett

Juanita Barner

Rand Mintzer

Casie Gotro

Robert K. Loper

Sarah V. Wood

David Jones

David Klatts

,

5 Winning Worriors 9 HCCLA's 2004 Holidoy Porty 10

THE DEFENDER 11: 3

HCCLA OFFICERS ~ 20042005

~~~~~~~~~ PRESIDENT

Wendell A, Odom, Jr.

PRESIDENT ELECT Robert Fickmon Vice President Mark Bennett Secretory David Kiatta Treasurer Patrick McConn Past President Stanley G,Schneider

BOARD OF DIRECTORS: Tom Berg Sean Buckley Neal Davis Nicole DeBorde Todd DuPont II Rosa Eliodes Ami Michelle Feltovich Richard FronkoPP Don Gerson Randall Kallinen Melissa Martin Marjorie Meyers JoAnne Musick James StaPPord Charles StanPield Jim Sullivan FROM THE EDITOR PAST PRESIDENTS:

We have a tendency to want to sum things up at the end of the year, reflecting on its triumphs and197 12003 C.Anthony friloux disappointments and perhaps clOSing out the balance sheet on debts owed and paid . Unfortunately, my Stuart Kinard memory no longer perrnits much revisiting of the past. so we'll focus instead on the future,George Luquette Morvin D. Teague Dick DeGuerin Next year will bring many new features to The Defender. "Perversions," which illuminate some of the more W,B. House, Jr, ludicrous abuses of power at the appellate court level, has been on hiatus but will be back in full force, David R, Bires The number of intellectually dishonest, factually distmted opinions issuing from just our two local courts ofWoody Densen

appeal provides more fodder on aregular basis than we have space.Will Gray Edward A, Mallett Carolyn Garcia In addition to riding herd on the appellate courts, we plan to begin exposing those egregious examplesJock B, Zimmerman of judicial misconduct that trial lawyers encounter on an almost daily basis down at the Crirninal JusticeCly de Williams Center, Judges that refuse to follow black-letter law, mistreat lawyers and citizens accuselj, unabashedlyRobert Pelton Candelaria Elizondo cater to the prosecution, revoke bonds unreasonably, refuse to appoint lawyers to defendants on bond, etc. Allen C. Isbell

-- no longer will they be able to flourish under the conspiracy of silence that has shielded thern for so long,David Mitcham We encourage all who witness such injustice to report it. and urge prosecutors not to wait until ajudge isJim f. Lavine Rick Bross convicted to become concerned about bad behavior on the bench. Mary E,Conn Kent A. SchoPPer Let's keep fighting the good fight. The Defender wishes you all ahappy holiday season and success, goodDon Cogdell health and the best of luck throughout the new year.Jim Skelton George J. Pornham Garland 0, Mcinnis Keep those cards and letters coming.Robert A. Moen lloyd Oliver Donny Easterling Shawna L. Reagin Richard FrankaPP hccladefender@aol.comWayne Hill

WARRIORS WHO HAVr ACHlrVrO SUCCrSS ON BEHALF OF THrlR CLlrNTS:

Katherine Scardino and Allen Isbell demonstrated absolutely amazing advocacy by winning a life sentence for their capital client in State v. Baskin, tried in August 2005 in the 338th District Court. The State presented 37 extraneous offenses at punishment, two of which were for murder. Dr. Jerome Brown and Dr. Gabriel Tan testified as to mental retardation, which the jury rejected, but then apparently did consider in mitigation. Gina Vitale handled the mitigation investigation and did her usual wonderful job. Out of 25 capital murder cases in her career, Katherine has gotten life or better on all but 2. Congratulations to a great team for a great result!

Steven Halpert had fun getting a "Not Guilty" for his DWI client in CCCL # 13 in August, despite the denial of two good motions to suppress; Steve credits having the record of Lewis Dickson's earlier cross-examination of this same officer, who seems to have a problem getting his microphone to work along with his video camera.

Keeping up the fine DWI work, Chris Samuelson heard the sweetest two words in CCCL #9, on August 18,2005, after only 10 minutes of deliberation.

Earlier that week, Chris helped out Tad Nelson by sending Jim Medley to assist him in a Galveston DWI trial . Jim's testimony regarding the standardized field sobriety tests saved the day and Tad won a 9-minute "Not Guilty." Way to go, guys.

Wayne Hill won a reversal and new trial for the trial court's refusal to allow the accused to proceed pro se, in Kombudo v. State, 148 S.w.2d 547 (Tex.App. -- Houston [14t11 Dist.] 2004), upheld on remand in an unpublished opinion issued November 8, even after the CCA granted the State's PDR and ordered the lower court to consider tl1e State's rather disingenuous "estoppel" claim. Good work, Wayne.

Despite some highly distasteful prosecutorial shenanigans, Roxie Roll fought her way to a "Not Guilty" in a misdemeanor assault case down in Fort Bend County, during the dog days of August.

Continuing the late summer momentum, Jim Medley puUed another DWI "not guilty" out of the hat, even though his client ran three red lights, was almost hit by an 18-wheeler, had all four clues on the one-Ieg- stand and all eight clues on the walk-and-turn.

Alvin Nunnery and Michelle Beck achieved a "Not Guilty" In another highly-publ.icized murder trial where their client in.itially blamed the shooting on her young son. Alvin and Michelle skillfuHy reminded the jury that her subsequent actions in no way detracted from her right to defend herself against the complaint's attack. ExceUent lawyering.

Nipping another domestic violence case in the bud, Mark Bennett prevailed in CCCL #3, when the State proved neither household nor violence nor assault.

Tyler Flood did a great job winn.ing a "Not Guilty" on two counts of assault in CCCL #7, according to second-chair Sarah Wood. The investigating deputy was so shaken up after Tyler's cross-examination that he tripped and fell flat on Ius face as he left the witness stand. Tyler continued to "knock 'em dead" [or at least down] with a "Not Guilty" on a DWI in CCCL #7, when tile officer almost fell down himself giving instructions for the one-leg-stand.

A jury took only 16 minutes to reward Kathryn Kelber with a "Not Guilty" in yet another family violence case, thanks in part to sloppiness on the part of Humble PD [but thanks mostly to Kathryn's stellar defense].

Randall Kallinen and David Kiatta closed out the summer by \vinnmg an "Interference with Public Duties" case in CCCL #4, filed after the petite young female questioned tl1e police beating and Taser-ing of her friend.

Chuck Stanfield started a whole string of victories with a "Not Guilty" on a no-test DWI in Ft. Bend county court #1 on September 7, a "Not Guilty" on a no-test DWI in Harris County CCCL #10 on October 12, and winn.ing a motion to suppress carried \vith trial in

THE DEFENDER * 5

CCCL #2 on November 10, 2005. Keep up the great work, Chuck!

Proving once again that he is the parole wizard, Bill Habern obtained release for Lora Lee Zaionitz, who was serving a capital life sentence. It may have helped her case when her co-defendant phoned her before his execution to apologize for getting her involved when she had nothing to do with the killing.

After three days in trial, Troy McKinney won a dismissal in a DWl case by suppressing the breath test and conducting an intensive cross-examination of the HPD officer. Troy's exposure of the state's failure to operate the Intoxilyzer 5000 according to manufacturer's guidelines was subsequently featured in a Houston Chronicle article .

A 9-day murder trial that included four days of deliberation ended with the jury hung 9-3 in favor of "Not Guilty" for Shawna Reagin's client in the 248th District Court. On the date retrial was to begin, he pled guilty to aggravated assault and to his separate bond jumping case, for five years concurrent in TDCJ-ID .

Mike Ramsey and Kent Schaffer had an order of acquittal entered by federal Judge Lynn Hughes, several years after a jury verdict of guilty in the Vita Pro / TDCJ case, apparently due to the inability of the court reporter to ever produce a record suitable for appeal.

A 5-1 deadlock in favor of the defense won Tom Radosevich a dismissal in a DWl case in CCCL #11 on September 12,2005. His client must complete a victim impact panel. Tom reportedly put on a first-class voir dire.

Our revered President, WendeU Odom, won a "Not Guilty" from the jury in a sexual assault case tried in the 337th District Court, on facts involving hot tubs and other fun stuff.

Joseph R. WUlie & Associates heard "Not Guilty" foUO\ving only 20 minutes of deliberation, after a 2-day trial on possession of ecstasy in the 268th District Court of Ft. Bend County.

Jim Leitner got a great result in a murder trial in the 177th District Court when the jury found his client guilty of the lesser-included offense of aggravated assault and assessed punishment at seven years imprisonment. The lowest pretrial offer was for 35 years . Good job, Jim!

In one of those increasingly rare appeUate victories, Clay Conrad garnered a reversal in a published opinion, Flores v. State, 172 S.W.3d 742 (Tex.App. -- Houston [14th Dist.] 2005). Issue was the denial of a motion to suppress after coerced consent to search.

Richard Frankoff battled an incomprehensible murder prosecution and conviction stemming from an 18-year-old client's car accident by convincing the jury to recommend probation, in face of the State's plea for a 20-year sentence.

Licensed less than a year at the time, Jimmy Ardoin won his second DWl "Not Guilty," despite bad facts [client leaving a strip club, driving erratically] and bad evidentiary rulings. Definitely a rising star here.

Eric Hagstette bid a fond farewelJ to the defense bar by snagging a "Not Guilty"in a murder case in the 184th District Court on October 7, 2005. We'U miss you, Eric!

The same Brazoria County prosecutor who suffered a 10-minute "Not Guilty" at Tom Stickler's hands on a habitual DWl earlier in the year took another in 8 minutes on October 11, this time on a possession of dangerous drugs case where the piUs were seized from the defendant's lap. Next time, the jury may not even leave the box.

On facts straight from a Movie of the Week, Kelly Case pulJed a manslaughter conviction with a 2-year sentence out of a Galveston murder prosecution. Client was a 71-year-old, one-legged, bedridden, blind, morbidly obese, diabetic, dialysis patient who shot and killed his mentaUy-retarded, adopted daughter/caretaker during one of what had become fairly frequent and increasingly severe beatings.

Tad Nelson and Mack Arnold served the Galveston D.A.'s office with two "Not Guilty" verdicts in 25 minutes, after a week and a half of highly-charged, dramatic testimony in a trial for aggravated sexual assault of a child and sexual performance of a child. These cases involved a dad being drug through divorce dirt and a custody battle by a vindictive ex-wife - good save, guys.

Jay W. Burnett worked some magic on behalf of a client charged v.rith 2 aggravated and 1 non-aggravated robberies in the 176th District Court by getting the prosecution to agree to 12 years TDCJID, \vitl1 agreement not to fue an additional 4 aggravated and 4 nonaggravated robberies, most of which were captured on \rideo.

Congratulations to David Breston who got a "Not Guilty" on an indecency with a child by contact case in the 263rd District Court on October 26, 2005.

M.ichael Lamson likewise heard a two-word verdict on a felony theft case in the 184th District Court on October 25, 2005 .

Also in the 184th, David Cunningham persuaded a jury to award his client a 10-year probated sentence, with a $10,000.00 fine, for a wild home invasion where the complainant was a well-armed Bandido holding $20K and 55 pounds of weed. David's client was shot 7 times and the Bandido was shot through the vocal cords.

Brazoria County was dealt another blow late in October when Jeff Purvis walked his client charged with possession of 3 pounds of marijuana . Even better, the prosecutor had sworn before trial that he would quit law and go to dental school if he lost the case . Also, one of the jurors offered the defendant a job. What a happy ending for everyone.

Hattie Mason hung the jury in an aggravated assault trial in the 180th District Court on November 8, follmving which the prosecutor lowered the plea offer from 40 years to 5 and her client graciously accepted.

Dale Paschall and John Armstrong won a "Not Guilty" for their minor client charged with DWI after blowing a .08 and a .092, in the CCCL #3. Dale used Jim Booker as his expert.

THE DEFENDER "* 6

David Fleisher and Norm Silverman prevailed in a no-test , no accident D\VI in CCCL #14, where the client had aliegedly almost hit a cop making another DWI arrest; David got ali FSTs suppressed - this was his first trial.

On August 18, Chris Samuelson got a "Not Guilty" verdict on a tota.lrefusa.! DWI in CCCL #9, and foUowed that with another "Not Guilty" in CCCL #6 on October 26, in a case with four HPD DWI Task Force offICers. Leslie Johnson of his office had a DWI dismissed in CCCL #12 foUowing her crossexamination of the arresting offIcer.

JoAnn Musick and Earl Musick continue causing prosecutors everywhere to rue the day they joined the Good Guys: Assawt dismissed after voir dire in CCCL #6 when Judge Standley would not aliow the State to amend pleadings; another assault dismissed day of tria.! in same court a few weeks later; aggravated assawt in 174th reduced to Class C disorderly conduct on the day of trial, a.!ong with d.ismissa.! of possession case in same transaction; two separate aggravated assawt w/deadly weapon cases dismissed in 263rd; JoAnn successfully petitioned to have a juvenile sex offender excused from further registration and had records of prior registration deleted; and Earl got a forgery dismissed in Nacogdoches County after he proved his client was a victim of identity theft.

Kudos to Danny Easterling for saving an innocent person from conviction on mistaken eyewitness identification. But for Danny's own thorough research that revea.!ed a rock-solid alibi, a young man's promising future wowd have ended with a wrongful theft conviction. Danny and Mark Yanis a.!so won a reversa.! in the First Court of Appea.!s, due to the tria.! court's den.ial of a motion to suppress: Mark Leonard Prater v. State, No. 0 1-04-00862-CR, delivered October 27, 2005.

Jim Sullivan's dedication and perseverance likewise prevented an

innocent man from being erroneously convicted of forgery in the 185th

District Court. After many attempts to focus the prosecutor on the

obvious weaknesses in the case, Jim was able to obtain hospita.l records

that proved his client could not have been the person who tried to cash

the stolen check, despite the teller's ID, whereupon the State grudgingly

dismissed. That same day, Jim got another dismissal on domestic assault

case set for tria.! in CCCL #2 . Great work, Jim.

Mike Charlton and Gerald Bierbaum worked wonders in winning a

new penaJty phase hearing for death row inmate Virgil Martinez, from

the federa.! district court in Ga.!veston, due to tria.! counsel 's [present-day

Brazoria D.A. Jeri Yenne] failure to investigate his 30 years of untreated

epilepsy and resultant psychoses and refusa.! to present any of that

mental health evidence at pun.ishment, nor indeed, to present anything

resembling a pun.ishment case at ali.

Another victory on the capital litigation front was claimed by Morris

Moon of the Texas Defender Service in Ex Parte Rodney Reed , No. WR50,961-03, when they won the right to return to state court in Bastrop

County to Jitigate a Brady claim regarding the State's failure to disclose

evidence that someone other than Mr. Reed killed the complainant.

Morris shares the credit with Kathryn Kase, Bryce Benjet and Jared

Tyler. Good luck.

Likewise, Roy Greenwood of Austin and Jay W. Burnett gained

another incremental success [the only true measure in capita.! writ

work] in the ongoing saga of Ex Parte Graves when the Fifth Circuit

[CONTINUED NEXT PAGE]

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CITY COUNClfS WORST NIGHTMAREI

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THURSDAYS AT 8:00 P.M.

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THE DEFENDER "* 7

. ..-

[CONTINUEO fROM PREVIOUS PAGE]

ordered another round of oral argument on a Brady issue, set for December 6, 2005, in Austin. Roy and Jay have fought valiantly for years to undo the damage done by deficient writ representation at the state level.

Overlooked in the last issue was Karen Barney's "Not Guilty" in an Aggravated Sexual Assault trial in the 183rd District Court, made even sweeter by being before a "prosecutor's helper" visiting judge who will follow no law that might help the defense . Way to go, Karen!

Chris Tritioo got a "Not Guilty" on a DWT in CCCL #1 on November 16, 2005 .

Alvin Nunnery and Layton Duer's client cheated death \vith a post-jury selection plea on November 17, 2005. Their team included JJ Gradoni and Gerry Byington. According to Danalynn Recer at GRACE, this was the last potential death penalty trial for Harris COlUlty this year, which is an excellent way to start the holiday season.

CORRECTION: In the last issue's Winning Warriors column, GRACE was erroneously identified as "Gulf Coast Regional Advocacy Center." GRACE actually stands for "Gulf Regional Advocacy Center." We apologize for the mistake.

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THE DEFENDER * 8

~==== HCCLA's 2004 Holidoy Porty

THE DEFENDER * a

THE ART O~ CRIMINAL DEFENSE

When I was handed a new bar card, I thought the highest, indeed almost the only, function of the criminal defense lawyer was to try cases. More accurately, to engage the Crown in pitched battles in courtrooms where witnesses were lined up and fired on cue, like artillery-pieces. When the smoke cleared, I (and my client) would be left standing, or so I tll0ught. All else was peripheral at best. This was my conception of the only proper role for the defense lawyer. l Noming in my legal education prepared me to eimer confirm or dispel tlus notion .

Despite centuries of experience with the transparently adversarial Anglo-American system ofjustice, there is a paucity oftheory to guide those who would try cases.2 That this lacuna goes unrecognized does not make it any less so. This essay argues mat great military thinkers articulate theories of conflict mat contain vital lessons for me trial lawyer.

A general theory of contlict should discover the fundamental rules that govern any type of competit.ive enterprise, including litigation. Let's see what some thinkers, ancient and modern, have to say.

I. CI..AUSEWlTZ'S THEORY OF THE BATILE Carl von Clausewitz (1780-1831) was a Prussian nobleman who

tought in the Napoleonic wars. His most important work, On War,3 remains the Western world's most-studied treatise on conflict. Its intluence extends beyond the Western nations, and beyond tile military profession.s We might sec what advice he otfers the trial lawyer.

CI:lUsewitz is regarded wim some reason as the prophet and ad vocate of total war. Clausewitz defines war as an "act of force to

THE DEFENDER * 10

CLAUSE\VlTZ

compel our enemy to do our will."6 The proper aim of warfare is nothing less than the "destruction of the enemy's forces," which means that those forces are to be "put in such a condition that they can no longer carryon the fight."7 If mis is the proper aim of warf.1re, Clausewitz holds mat the only allowable means is combat. 8 And disputes are to be decided, not by maneuvering and skir

mishing, not by feints, but by me battle. The battle is the sine qua non of tile decision. Let's listen to

Clausewitz:

What is tile battle? It is a struggle by tile main force . .. it is a struggle for real victory, waged wim all available strengm.9

. .. [S]ince the essence of war is fighting, :md since the battle is the fight of the main force, the battle must always be considered as the true center of gravity (schwcrpunkt) of tile war. 10

. . . [T]he very concept of war will permit us to make the following unequivocal statements:

1. Destruction of tile enemy forces is tile overriding principle of war, and, so far as positive action is concerned, the prin cipal way to achieve our object.

2. Such destruction of forces can usually be accomplished only by fighting.

3. Only major engagements involving ali forces lead to major success .

4. The greatest successes are obtained where all engagements coalesce into one great battle ... 11 [Emphasis in original).

It is clear that Clausewitz envisions conflict as the meeting of the main forces of the opponents in decisive battles. He plainly advises that the "decisive point" must be identified, and the main strength of the attack be concentrated there.n A1tllough Clausewitz does allow that at times, a demonstration of willingness and ability to fight a battle can accomplish an objective, e.g. to cause the enemy to abandon a position,13 and that possible engagements sometimes have to be taken as seriously by the enemy as real ones ,14 he sternly rejects surprise ls and deception l6 as legitimate means of waging war.

Clausewitz does not disdain to use such tactics out of a sense of honor or fair play; it is rather that conflict is simply unimaginable without battle and slaughter:

Kind-hearted people might of course tlunk there was some ingenious way to disarm or defeat an enemy without too much bloodshed, and might imagine tlut this is the true goal of tlK art of war. Pleasant as it sounds, it is a fallacy tllat must be exposed

17

We are not interested in generals who win victories without bloodshed I8

Although Clausewitz himself notes the similarity of warfare to litigation,19 he has no patience for some of the tactics recognized by the experienced trial lawyer, such as surprise and dcception. 2o Close reading of Ort War also gives the strong impression that Clausewitz would not approve of our pleading a case. He of ali people would advise the beginning lawyer to prepare assiduously for trial, marshal a1l available resources, and then charge straight up the courthouse steps, to engage in aU-consuming courtroom battles in which the goal is "destruction of the enemy's forces" in head-on collisions.

Pick a jury, slug it out with the prosecutor and may the best man win. Most prosecutors think like Clausewitz, and try their cases accordingly. Should defense lawyers?

II. SUN Tzu: M>\NEUVER AND DECEPTION

Sun Tzu was a Chinese general and military tlunker who is generally thought to have lived in tlle fifth century B.C.21 His The Art of Wal..22 was written as a guide to Chinese military leaders. It has been read in East Asia

GREAT WALL OF CHINA since it was written, and has been available in Russian for centuries, but only

in 1905 was it translated into English. As is the case with Clausewitz, it is also widely applied in areas removed from military matters. 23

Sun Tzu differs sharply from Clausewitz in his prescription of tlle means of conflict:

... to gain a hundred victories in a hundred battles is not tlle highest excellence.

To subjugate the enemy's army without doing battle is tlle highest of excellence.24

SUN Tzu

But he is no shrinking violet when fighting must be done;25 most of The Art of War and in particular Chapter VII ("Armed Struggle") is about preparations for and conduct of battle . He treats battle as only one of many options to be employed in conflict, indeed, as a last resort rather than as invariably necessary to resolve conflict. Not only do the two thinkers disagree on the necessity of battle; they also differ on where the battle is to be fought. Clausewitz requires that the commander concentrate all his

forces where the enemy is the strongest, in order to provoke a decisive battle. Sun Tzu would have us do the opposite.

To be certain to take what you attack, attack where the en

emy cannot defend.

To be certain of safety when defending, defend where the

enemy cannot attack 26

He is telling trial lawyers to focus on tlle weak points of the prosecution's case, not neces- He is telling triol sarily the strong ones. If the witness's iden

tification is strong, focus on his cred lawyers to Pocus on

ibility. If you can't attack the search, the weak points oP the attack the factors of possession. 27 If the evidence of guilt is overwhelming, work prosecution's cose, on pun.ishment issues. If you don't have not necessorily the an expert, use the prosecutor's expert to

help you. strong ones.

There is no "damn-the-torpedoes" headlong rush to victory. Sun Tzu instructs us that we must first concentrate on defense, i.e ., make ourselves invul nerable to attack, before ourselves attacking:

In ancient times, those skilled in warfare made themselves invincible and then waited for the enemy to become vulnerable ....

Those skilled in defense hide themselves in tile most secret recesses of tlle Earth;

Those skiUed in attack flash forth from the highest reaches of the Heavens ... .

Therefore, they are able to protect memselves and achieve complete victory.28

Never does he advise engaging in tactics other tllan battle out of a position of weakness, nor does he suggest tllat deception can substitute for preparation . The emphasis is always on fmt Limiting your own vulnerability, and then exploiting the opponent's.

In yet another area germane to the trial lawyer, that of tlle role of stratagem, surprise and deception, Sun Tzu strongly disagrees wim Clausewitz. Recall that the Prussian rejected the use of deception, not out of any sense of honor or fair play, but because he could not imagine conflict witilOut it. But for Sun Tzu, secrecy and the ability to dissemble are virtues; deception is not merely a useful stratagem; conflict is deception:

Warfare is the Way of deception.

THE DEFENDER *" 11

Therefore, if able, appear unable; if active,It is soPe to soy thot appear not active; if near, appear far; if far,

were Sun Tzu 0 dePense appear near. lowyer, he would not If they have advantage, entice them; if approve oP the passoge they are confused, take them; if they are

substantial, prepare for them; if they are oP ony reciprocal strong, avoid them; if they are angry, dis

discovery statute. turb them 29

It is safe to say that were Sun Tzu a defense lawyer, he would not approve of the passage of any reciprocal discovery statute. Pervading the entire work are the value of secrecy and the worth of dissembling. In practical terms, for the trial lawyer this means not letting the prosecution know any more about our case than we have to. A prosecutor who knows nothing about our defense knows neither where to attack our case, nor how to make his case safe from attack.

The place of battle must not be made known to the enemy.

If it is not known, then the enemy must prepare to defend many places.

If he prepares to defend many places, then the forces will be few in number.

Therefore, if he prepares to defend the front, the back will be weak.

If he prepares to defend the back, the front will be weak.

If he prepares to defend the left, the right wiJl be weak.

If he prepares to defend the right, the left wiJ .1 be weak.

If he prepares to defend everywhere, everywhere wiJl be weak 30

Substitute "the prosecutor" for "the enemy" in the above passage, and see how relevant it is to our practice. If we give away our defense(s), either by loose lips or as required by any applicable discovery ruJes, we will always lose this advantage. The prosecutor who knows nothing about our intended defense can be kept off balance.

To try a case or plead it? Sun Tzu would have no problem with pleading a case that should be pled:

One who knows when he can fight, and when he cannot fight, wiU be victorious 31

His definition of "victory" is obviously situational and is correspondingly less rigid than is that ofClausewitz, for whom, as we have seen, victory in each conflict is not less than "destruction of the enemy's forces."

An important distinction must be made here. Sun Tzu is not sayi.ng that one must know when he will win, and then fight; and when he will lose, and then surrender. \life do not always have to choose between battle and capitulation. One can know when not to fight and stilJ be victorious. To put it anotller way, Sun Tzu is telling us that there is also victory in knowing when not to take a case to trial.

THE DEFENDER *" 12

And which experienced defense lawyer would disagree? Sometimes pleading a case for 20 years imprisonment is a victory- but onJy if done by one who "knows when he can figJlt, and when he cannot fight. "

Sun Tzu is telling the trial lawyer that victory can be achieved, many times and in many different ways, without a courtroom battle. Indeed, by his rules, the greatest victories are achieved outside the courtroom:

True excellence is to plan secretly, to move surreptitiously, to foil the enemy's intentions and balk his schemes, so dut at last the day may be won without shedding a drop of blood 32

Suppress evidence, discover an informant's identity, make a presentation to a grand jury, dig up a witness's criminal record. The experienced lawyer knows that dismissals so obtained are greater victories than acquittals after trials. Trial lawyers like to try cases, but our clients prefer not to be tried at all.

Keep your client out ofcourt. Win witll0ut fighting the Clausewitzian battle if you can. "To subjugate the prosecutor without doing battle is the highest of excellence." That's Sun Tzu's advice.

III. MUSASHI AND THE MIND OF THE OPPONENT Miyamoto Musashi (1584-1645) was the great Japanese wan

dering Samurai and master of Kenjutsu. His Book ofFive RingJ33 is primarily a treatise on swordsmanship, but it has been reprinted in various languages and is studied as a general approach to conflict. One of his principles in particular has relevance for the trial lawyer.

M usashi held tlla t

"To become the enemy" means to dlink yourself into the enemy's position.34

Musashi wants us to perform a kind of tllOught experiment. To prepare to fight tlle prosecutor in

court, the lawyer should ask himself, How would I try this case if I were the prosecutor? Sit down and do some hard thinking: "become the prosecutor." Imagine yourself as tlle opposing lawyer, going through each element of tlle case and each witness. Write the prosecutor's opening statement in your mind. What is tlle prosecutor's theory of guilt? What will he ask each witness to prove? How will he lay the evidentiary toundations? How will he meet your objections? Defense lawyers that have former careers as prosecutors may have an advantage here, but any lawyer with experience can, given some dl0Ught,

put himself in tlle place of his opponent and anticipate his moves. This will confer an advantage when the trial is underway.

IV. JOHN BoYD'S TIME-BASED THEORY OF CONFLICT America's most influential military th.inker35 was an Air Force

colonel, John Boyd (1927-1997). As a fighter pilot in Korea, he noticed that while the Soviet MiG-IS was superior to the very similar American F-86 in acceleration, climbing, altitude and turning radius, the Jatter consistently outfought the MiG. Some of this difference could be explained by pilot training and experience, but Boyd suspected material causes as well.

MUSHASHI

(Top: U.S.A.F. F-86; Bottom: Soviet Air Force MiG-iS).

Boyd applied the laws of thermodynamics to the problem and wrote equations that, for the first time, made the way aircraft were designed and flown a quantitative science. This he called the "Energy-Maneuverability Theory" of aircraft performance. His most fundamental discovery indicated that while the MiG-iS appeared better in the ways that traditionally measured the performance of fighting aircraft, the F-86 could change its direction quicker than the MiG. In other words, the F-86 pilot could act and react quicker than his adversary, giving him a decisive advantage in combat. The lesson Boyd discerned was that all else being equal, the pilot with the more maneuverable aircraft would live to fight another day.

Boyd expanded his discovery into a general theory and prepared an oral briefing for military officers called "Patterns of Conflict. "36 The heart of the briefmg was his articulation of the now-famous "OODA Loop": Observe, Orient, Decide, Act. This idea was the first explicit recognition in the history ofmilitary thought that time itselfwas central to conflict. More precisely, Boyd showed that conflict is a struggle to control the tempo of battle. Who can more quickly observe the situation, orient himself, decide what to do, and take timely action, disorients his opponent and wins. Boyd saw that maneuverability was as important to great armies in the fIeld as it was to individual dueling pilots. 37 This time-based theory of conflict was adopted by Army and Marine Corps tacticians, and directed the disposition of coalition forces in both Iraq warsa8

Boyd's theory has been applied on the battlefield and in business,39 but I am most interested in its application for the defense lawyer. It seems to me that we are frequently guilty of letting the prosecu

tion dictate the pace of a criminal case. Think of the typical situation. By the time we make our first appearance in court, the prosecutor has prepared a file in which there is an offense report and, frequently, witness statements. The police report itself represents an LIwestigation in which witnesses have been interviewed and their statements filtered by Government agents. Our new client may have already been interviewed and his statement recorded. A search may have been conducted and incriminating records or tangible items seized. Some of these items may have already been sent to Government labs for analysis. There is a list of the client's prior convictions. There may already be publicity which has broadcast only the prosecution's version ofevents. In contrast, the defense lawyer will usually have had no opportunity to do any work by the first setting, and is in the unenviable position of being, in Boyd's terms, behind the prosecutor's OODA Loop. A lawyer unversed in conflict theory may succumb to tile tempta

tion to "reset the case and see if the offer gets better." And when he arrives at the arraignment setting having done nothing in the interim, the prosecutor has discovered his client's out-of-state criminal record, or has found more victims, or has dug up extraneouses, or has otherwise compounded the defendant's problems. There is every reason for the offer to get worse.

How would Col. Boyd advise us) He would tell us to "get inside the prosecution's OODA Loop."

There is often some advantage to be gained from putting in considerable effort ea rly in the case. Prosecutors seem to be used to the feeling of being ahead of tile defense in time, and any indication that they are falling behind upsets them. They become disconcerted when it dawns on them that tile defense knows more about one of meir witnesses than tlley do, or when some legal research shows they have an admissibility problem they haven't yet considered, or when the defense otherwise demonstrates that it is pulling ahead.

We can investigate the prosecutor's witnesses before they even know who ours are, or even whether we have witnesses. A prosaic enough example is one that I observed years ago: A burglary was committed in which tllere was only one eyewitness, who was not the homeowner. The witness made a positive identification because he knew the

defendant from the neighborhood . (There was no other evidence such as recovered property or a confes sion.) The name and date of birth of the witness were in the oftense report. The defense lawyer quickly investigated the \vitness's criminal record, discovered three trips to the pen for admissible crimes,40 and subpoenaed the pen packets from TDCJ, By the next setting, the defense lawyer was able to lay

the witness's three pen packets on the table next to the State's file. The offer went down.

If you have a search or arrest warrant that is vulnerable, why not file a motion to suppress and a memorandum as early as possible? Al though you are giving advance notice of your defense, the State can't patch tllingS up, because the inquiry is limited to tile four corners of the warrant or affidavit 4 ! They may cut their ofter or even dismiss the case.

Go to the scene and get photos early. Prosecutors do this on the eve of trial, if at all. Sometimes your investigation will yield evidence that contradicts tile prosecutor's witnesses, but in any event, YOll arc demonstrating tllat you are working the case harder than the prosecutor. As Boyd would say, you are getting inside his OODA loop.

V. CONCLUSION Traditional legal education in Anlerica, even in courses where liti

gation skiUs are stressed, fails to equip lawyers with the. theoretical tools to consider litigation as a specialized case of conflict. Texts on warfare by great military thinkers offer general theories of conflict to guide action in any competitive field ofendeavor. These works can be profitably meditated upon by trial lawyers seeking guidance in solving the problems presented by litigation .

JOHN BoYD

THEDEFENDER '* 13

~ - . , ,

NOTES - , ~ _:......::. '- J r---._tl', _-..0_' J ... _" __

I I'd lay money it was yours, too, when you started practicing. Certainly it is the image offered by popular books, films and television .

2 One possible exception is Francis Wellman's The Art of Cross-Examination (1905).

Vtnn Kriege (1832), published posthumously. See also Clausewitz, Principles of War ( 1812).

4 Numerous translations and interpretations exist. See, e.g., von Ghyczy, Tiha, Christopher Bassford , and Bolko von Oetinger, Clausewitz on Strategy: Inspiration and Insight from a Master Strategi.rt (Wiley, 2001). Also, Mr. Jack Welch of General Electric has quoted Clausewitz as an inspiration in interviews.

5 Clausewitz was doubtless influenced b)' the effects of the new industrialization on war. He was even more influenced by seeing firsthand post-revolutionary France at war. This was the first instance in modern European history of a nation totally committed to J nationalistic war, and it shocked aristocratic military practitioners. Clallsewitz witnessed the French humiliation of the proud Prussian military tradition, and was himself captured.

60" War, Book I, Chapter i.

7 [, ii.

9 [V, ix.

101d.

II IV, xi. Dozens of similar statements permeate the entire work .

12 Ill, xi.

13 I, ii.

14 Ill, i.

15 III, ix.

16 Ill, x.

17 I, i.

18 IV, xi .

19V1, i.

20 Jn this discussion I do not, by rderring to such concepts as "surprise " and "deception," contemplate or advocate the usc of unethical or illegal means. I instead refer to legitimate tactical decisions that trial lawyers are required to make on behalf of rheir clients.

21 He is therefore a contemporary of the founding of the Roman Republic, the Greek wars against Persia, and the lives of ConnlCius and Buddha. As he was writing, Malachi was writing in Judah.

22 Ping-Fa, (c. 500 B.C.) .

23 On a recent trip to a large bookstore, I noted no fewer than eleven separate editions for sale. There are also a number of applications in business. See, e.g. , Krause, Donald, The Art of War fOI' Exec"t'.es (Perigee Trade, [995).

24 The Art of Wm', Chapter III.

25 And neither am l. Readers of this essay may conclude that it is an apology for pleading clients guilty or dodging trials. On the contrary, it is an application of conflict theory to trials, and to alternatives to trials. If you must try a case, and many times you must, by all means try it, but try it according to Sun Tzu's rules.

26 VI.

27 See, eg., Chavez v. State, 769 S.W.2d 284 (Tex.App.--Houston lIst Dist.] 1989, pet. rerd); Menchaeo v. State, 901 S.W.2d 640 (Tex.App.-EI Paso 1995, pet. ref'd); United States v. Ortega Reyna, 148 F.3d 540 (5th Cir. 1995).

28 IV. There is a parallel here with Clausewitz, who always discusses defense before moving on to attack in On War. But Sun Tzu expresses the concept as an integral part of his theory.

29 I. See also V.

30 Vl. Accord. Alfrcd Thayer Mahan, The Infl"enct ofSea Power IIpon History, 1660-1783 (1890) , Chapter XI, especially n. 10.

31 1Il.

32 [V.

33 Go Rin No Sho, (1645). I t was written a few weeks before Musashi's death. It is sometimes translated as "Book of the Five Elements."

34 Book of Five Rit'8s, "The Fire Book."

35 In so saying I do not neglect Commander Alfred Thayer Mahan, USN, the "pen and ink sailor" whose books and articles revolutionized the world's naVies.

36 Unfortunately Boyd never sat down to write a book of principles, as did Sun Tzu, Musashi and Clausewitz. What is known about his thinking comes from a distillation of his oral briefings, products of his design theories, unpublished papers, and the recollections of his colleagues.

37 Sun Tzu knew this 2,500 years ago. See The Art of War, Chapter Vl at end.

38 Boyd contributcd much more than this. At various times in his career, he was America's greatest fighter pilot, premier air combat instructor, designer of its most effective aircraft, most penetrating military strategist, and sharpest thorn in the side of the Pentagon. He also connibuted to epistemology (Destr"ction and Creation [[ 976]) . See generally, Coram, Robert. Boyd: The Fighter Pilot Who Changed the Art of War. New York: Little, Brown, 2002.

39 Sec Richards. Chet. Certain To Win: The Strategy OfJohn Boyd, Applied To Business. Philadelphia: Xlibris Corporation, 2004.

40 See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)(en bane) .

41 Jones v. State, 833 S.W.2d 118 (Tex. Crim. App. [992), cert. denied, 507 U.S. 92[, [[3 S.Ct. 1285,122 L.Ed.2d 678 ([993); Hankins v. State, [32 SW.3d 380 (Tex. Crim. App. 2004).

THE DEFENDER * 14

GRACE notes BY AIMEE SOLWAY AND DANALYNN RECER

INTRODUCING THE HARRIS COUNTY CAPITAL PRETRIAL PROJECT

In the last year, the Gulf Region Advocacy Center (GRACE) launched its Harris County Capital Pretrial Project, which provides free pre-trial preparation to indigent capital defendants . GRACE is a charity founded in 2002 to provide representation at the trial level to indigent capital defendants.

Funded by Equal Justice Works, the Sisters of Charity and individual donations, the Pretrial Project is designed to close the gap in support services left by the lack of a public defender office. In most jurisdictions, capital defense attorneys work in teams and are supported by research attorneys, paralegals and in-house investigators and mitigation specialists. An individual appointment system, such as that in Harris County, funds only the top of the ticket - the attorneys who go to court if there is a trial - without providing the support. GRACE uses a system that has proven to be extremely successful in other jurisdictions, focusing heavily on behind the scenes tasks such as record collection, legal research and client development. We have already worked with a number of capital defense teams in Harris County who have brought their capital cases to successful conclusions.

Our free services are divided into four basic categories: 1) motions practice - both case-specific and systemic; 2) scorched -earth records collection; 3) case management; 4 ) client development .

Case-specific motions practice speaks for itself. Of course, it means researching and drafting motions which address legal points unique to your case, above and beyond the standard motions which are filed in all capital cases. While all criminal defense attorneys practicing in Harris County could probably come up \vith a limitless list of systemic injustices, systemic litigation can be a time-consuming and expensive task. Going through thousands of cases to pull out the documents necessary to conduct a hearing into discrimination in the selection of grand jurors, for instance, is impossible without an army of free interns, but these challenges can

STEVE RUBENZER, PH.D., ABPP BOARD CERTIFI ED FORENSIC PSYCHO LOGIST

Competency & sanity assessment; DWl (SFST Instructor); eyewitness factors; risk! dangerousn ess; voir dire; malingering;

personal injury; child custody

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win cases. By relying upon the energy, enthusiasm and free labor of young

attorneys and interns, we take a "scorched earth," approach to record collection and investigation, going far beyond what is typically possible wi.th the budget provided to solo practitioners for hiring mitigation specialists and investigators. For instance, we do complete cOillthouse records checks on every name that appears on any document in a given case, this includes a search ofstate, county and federal court files for criminal, civil, traffic , family law, property, bankruptcy, marriage and other records.

High volume capital trial offices in other jurisdictions have developed case management techniques for organizing the thousands of documents that can be generated in a case into useable data for motions , exhibits and trial notebooks. The availability of cheap and free labor through GRACE makes it possi ble not only to collect more and different kinds of documents than ever before, but also allows us to index, digest and process documents in much greater detail, to generate theory memos, investigation plans, timelines, suggested pretrial motions, and trial notebooks.

H avi.ng a larger team often fosters better dient/attorney communications, as clients can get visited more often and may respond differently to different approaches. This can lead to increased will ingness to discuss uncomfortable issues necessary for developing a mitigation case or investigating culpability, and often makes clients more responsive to possible plea deals: clients who feel confident about the quality of representation are more willing to recognize that their case may simply nOt be winnable at trial. This is another example of how trained, volunteer interns can make an invaluable contribution, by accomplishing tasks too time-consuming for appointed attorneys.

Of course, this is just a brief overview of what we can do. The bottom line is that we are here to heip you win cases! If you have any questions at all, please contact me at (713) 869-4722 or aimee@graceiaw.org. I look forward to meeting and working with

MARK YANIS ApPELLATE LAWYER

402 Maio, 2nd Floor (713) 526-6282 Houstoo, Texas 77002 markyanis@gmail.com

THE DEFENDER "* 15

WINTER 2~DEFENDER

The Science ond Art oP Jury Selection BY KEVIN FINE

PART TWO: TH.EART , .~ __ - I .... __ .....

A. Introduction Jury selection is an art. And, as with all art, beauty is in the eye

of the beholder. Although not everyone can be a Fred Astaire on the dance floor, there are effective and ineffective ways to conduct one of the most important, if not the most important, phases of a trial. The secret is to do it right while being "yourself." If you are not yourself, it will show and you will come across as a charlatan. The purpose of this part of the article is to give you some ideas on how I conduct voir dire in order to help you find what works for you. As a result, I have written this portion in the first person.

When I begin voir dire, I have three goals in mind. First, I want to endear myself and, through me, my client to the prospective jurors. Second, I want to influence their mind-set and perspective so they wiU: (a) hold the government to its burden of proof; and (b) fmd my client not guilty. Finally, I want to eliminate those individuals whose mind-set I carmot mold and whose perspective I carmot guide . In preparing for voir dire, I literally sit down and figure out what areas will be fodder for strikes for cause . Generally speaking, those areas include, the concept that the defendant has no burden or proof, whether the defense puts on a case, whether the defendant will testify, whether a police officer is given more credence simply because he is a police officer, whether the prospective juror would be influenced simply by the nature of the offense, and whether the prospective juror can consider the fuU range of punishment, i.e., probation. Thought must also be given to the specific characteristic of the offense charged. Will there be a child-witness? Is the State relying solely on one witness? Is there a defensive issue, such as self-defense?

What foUows are a few tips on effective voir dire examination and an outline of the topics I attempt to cover in my trials. The topics discussed in tl1e outline are not always in the order they are presented below. Otten times, the nature of a particular offense or time constraints set by the court will dictate a different order of presentation. Additionally, not aU the topics discussed below are necessarily used in every case. I have included the topics I discuss in most cases and I have set them in the order I generally use at trial. I have also included sample questions I use in DWI cases, eyewitness identification cases, and sexual assault of a child cases, as weU as some questions I ask regarding punishment.

For purposes of this article, I have included a "script," as it were, to give you an idea of what I say and how I say it. The script, of course, is not always the same. I have also included commentary in

order to allow you to better understand why I present the topic in the fashions discussed. This outline is, by no means, all inclusive and should not be used as an actual script. Remember, tl1e most important aspect of presenting your case to the jury is your ability to be yourself in telling your story. Find what works for you and discard the rest. I hope this wilJ give you some good ideas for your next trial.

B. Tips for Effective Voir Dire 1. Have a Theory and a Theme

Trying a case \vithout a theory and a theme is like driving across the country witl10ut a road map. Sometimes the shotgun approach works, but that is more a product of dumb-luck than it is of good lawyering. What is your case about? What is a phrase you can repeat time and again throughout the trial of your case? One way to develop your theory is to write down, in 25 words or less and using the relevant ele ments of the offense and any defenses, what the case is all about. For example, in a murder case involving self-defense, your theory might look something like this : "My client is not guilty of murder because the bully he shot attacked him with a knife, he had no place to run, and he had no choice but to shoot or be killed. The way I developed this theory was by using the poignant words in the case: murder, selfdefense, my client, not guilty, bully, shooting, attack, knife, escape, and choices.

A theme, on the other hand, is the "battle cry" for your case . In coming up with a theme, replace legal terminology with common English. For example, self-defense becomes "the bully needed killing;" duress becomes "desperate and out of options;" the lack of crin1inal intent becomes "a tragic accident;" and no scheme to defraud becomes "all the cards were on the table." You can also use trilogies in your theme. For example, in a case where the authorities arrested the wrong man, your theme might be: "Client was in the wrong place, at the wrong time, with the wrong people, but the police got the wrong man." In a DWI case, your theme might be: "Client is awkward, clumsy, and uncoordinated, but he was not intoxicated." In a mistaken eyewitness identification case, your theme might be: "faUible memories and faulty police procedures led to a false identification."

The act ofdeveloping a theory and a theme is a significant part of trial preparation. It helps you clarifY the issues and directs you attention to the strengths and weaknesses of both your case and the State's case. Once you have developed a tl1eory and a "battle cry" to repeat and inject at every opportunity, you will have a clear and direct road

THE DEFENDER *" 16

map of where your case is headed and how to get to the result you desire. Most importantly, you will be able to convey that road map to the jury. Without the map, you and the jurors are prone to getting lost.

2. Identify the "Hot Topics" for Jury Selection What are areas in your case that provide fertile ground for strikes

for cause? It is important to identifY these areas in advance and prepare your outline in a way that deals with them effectively. In a DWl, such areas may include, for example: breath test refusals, the credibility of police officers, the consumption of alcohol, and intoxication as opposed to consumption . In a sexual assault of a child case, such areas may include: the nature of the offense, the fact your client was even charged with the offense, credibility of a child-witness, and availability of physical evidence. All cases share some common areas, such as the Fifth Amendment, the State's burden of proof, and whether any panelist has been affected by or been a victim of the type of offense charged . IdentifY the areas in your case that will give rise to a strike for cause so you can remove these unfavorable jurors.

3. Be Yourself (It's Okay to be Nervous) The number one rule is be yourself. It is absolutely imperative

that you find what works for you and run with it. There are as many styles in conducting voir dire as there are lawyers. The worst mistake you can make in front of the panel is to pretend to be something you are not. If you are not genuine, it will show and your client will pay the consequences. It is perfectly alright to simply be honest. One of the first things I do in jury selection is get honest with the panel. If! am nervous, which I am always, I tell them I am nervous . If I am nervous, but in a good mood, I tell them so and I tell them the reason I am in a good mood: the sun is out, we are in Judge SO-N-SO's court, we appreciated their responses to the prosecutor's questions. Often times, before jury selection begins, I will go into the restroom and look at myself in the mirror and see myself as a fallible human being who is about to simply do the best he can and try to realize that is all I can do.

4. Call the State "The State" Jury selection is about creating a group. The members of the

group are my client, the jury, the judge, and me. The prosecution is never welcome in my group, unless of course they care to admit their mistake in prosecuting my innocent client. AI; such, it is important to personalize and humanize your side while depersonalizing and dehumanizing the prosecution. I do this by referring to the prosecutors as "the prosecution," "the State," or "the government," even if I know the prosecutors on the case. Calling them by name only humanizes t11em and personalizes them to the jury. If I do not particularly care for the prosecutor, I may even call him or her "the assistant prosecutor," as if he or she was not a real prosecutor. The jury rarely knows the difference and the prosecutors will not know what to do. What are they going to do? " Objection, your Honor. I'm an assistant D.A., not an assistant prosecutor?" Then you could just keep calling the assistant prosecutors the rest of the trial.

5. Call Your Client by His First Name Always call your client by his first name. In federal court, where

things are more formal, simply refer to him and BILL SMITH, rather than just BILL. Never, never, never call your client "the defendant." He is not a defendant . He is not some cause number. He is a human being who has a name and his name is BILL SMITH. If you do not

treat him like a human being, the jury will never relate to him as a human being. He will remain a faceless defendant in a system of cause numbers.

6. Dress Like a Lawyer, Not a Shyster Wear a conservative suit. I usually wear a blue suit, white slUrt.

and red tie . The subliminal message is that I am patriotic. My goal is look like a prosecutor, a boy scout, a good , red-blooded American boy. Avoid, at a'u costs, wearing a double breasted suit. People view lawyers in double breasted suits as shysters or too slick. Additionally, leave the Rolex on the night stand, along with any other jewelry. Fancy watches, bracelets, and rings are for shysters and slicksters. These same rules apply to your client and your witnesses. Everyone should dress conservatively. They should not, however, over-dress. If your client rarely, if ever, wears a suit, do not put lUm in one . I usually have my clients wear khaki pants, a light colored, button-down shirt, and permy loafers. If you have the opportunity to select the jury on one day and start testimony on a separate day, wear a light colored suit and subtle tie for jury selection. These will be much less intimidating and will allow you to appear non-threatening to the members of the panel.

7. Ask Questions - Don't Give a Speech In conducting voir dire, our natural tendency is to educate the

panel on the various aspects of our case by giving a speech. Jury selection, however, is a time to learn from the jurors, not the other way around. You can educate them just as effectively by asking questions about their thoughts and feelings on the law or a given set of circllmstances as YOll can delivering a speech. What is more, you will learn something about what makes each panelist tick, if you ask questions. Ifyou give a speech, you learn absolutely nothing. It is quite alright to explain the rules. But do so with an eye toward getting t11eir feedback as opposed to convincing them of your way of looking at the law or the set of circumstances. r . .

~ IF YOU GIVE AS~EECH,.JOU L~ARN .. - ABSOLUTELY NOTHING

8. Concentrate on Those in the "Hot Seat" The " hot seat" is any seat subject to being impaneled on the jury.

In a felony, it is the first 24 panelists. In a misdemeanor, it is the first 12 panelists . Keep track of those panelists in t11e "hot seat" who may be subject to a challenge of cause. For every panelist who is subject to a strike, add another seat to the "hot seat" list. Do not waist time on those folks outside this zone, unless, of course, they can give you good feedback and help you educate the other panelists . Finally, ask questions of everyone in the "hot seat." If you do not ask mem a question, you carmot learn anything about memo

9. Loop, Loop, Loop Looping is a very powerful tool in our arsenal. It is the method

by which you get the panelists to discuss each other's answers and to

educate each other on me topics you discuss . By looping, you learn

more about a greater number of people in a shorter period of time,

than simply questioning one prospective juror per subject. Looping

can be accomplished by asking questions such as: "How many of you

agree [or disagree] wim what Mr. Juror said ?," "Ms . Venire , what do

THE DEFENDER *' 17

you think [or feel] about what Mr. Juror said?," "Mr. Panelist, what are your thoughts [or feelings] about what Ms. Venire said?" Notice that you can ask what I call "think" or "feel" questions. Generally speaking, men are thinkers and women are feelers. Tbis is not always the case, though, so be careful. Ask thinkers, "What to you think about ..." and feelers, "How do you feel about ... ". If you ask an engineer how he feels, you will not get a good response because he will have difficulty expressing his opinions in terms of feelings. Likewise, feelers bave difficulty expressing their opinions in terms of logic or thought processes. (Tbinkers = the pieces of the puzzle fit together. Feelers = witb the pieces together, the puzzle is pretty. It is all the same puzzle, though.)

10. Dealing with the Mouthy Pest and the Church Mouse On almost every panel, there is one prospective juror who likes

to bear himself talk. Sometimes he is favorable to you and sometimes not. Eitber way, there will come a point during jury selection wbere you will need to shut him down. If he is favorable, tbe danger of letting him go on and on is that you now bave someone few people want to hear from, again and again, as tbe poster-boy for your cause. You do not want other members of tbe panel turning a deaf ear to the merits of your case because it is coming from this self-appointed delegate for the entire panel. On the otber hand, the obvious danger of someone who views the merits of your case through differently shaded lenses, is that he will poison the panel. Of course, this panelist could do the same thing to the State as the latter panelist could do to you. In either event, be polite. You can say to such a panelist, "Hold that thought. I'll get back to you in just a moment [like, when hell freezes over]" or "I appreciate you raising your hand, but I need to hear from Mr. Juror right now." You can even ask permission. "Mr. Juror, tbank you for your candor, can I get back to you in a moment?

THE DEFENDER * 18

I need to hear from Ms. Venire right now." On the other end of tile spectrum, mere is the church mouse.

There is always a prospective juror who will not talk or will not be candid. People are overly qLliet or less than candid because they fear being stigmatized, meir feelings conflict wim their self-perception, or they want to avoid the issue rather than confront it. The best approach is one of empathy. Try telling the panelist, "I sense some hesitation in your answer. It is absolutely alright to have hesitations or reservations; I just need to know if you do ." Alternatively, you could tell the panelist, "I sense that you may be a little nervous. I'm nervous too. It's perfectly alright to be nervous." With Jess than candid panelists you could ask them, "Have you ever held a different view on this subject?" Another way to ask mis same question is, "Tell me what you tbink another view on this subject might be?"

C. Jury Selection Outline 1. INTRODUCTION

My name is Ktvin Fine. I'm from Lubbock, Texas. So, ifI sound like I talk a little funny, you know I come by it honestly. I'm also a little bit nervous. So, if I sound nervou)' up here talking to ya'll, let me assure you, it's because I am nervous. I always get nervous standing up in front of people and talking. I'm also nervous because I have BILL SMITH'S life in my hands for the next few days. BILL, stand up. [Walk over to Client and putyour hand on his shoulder.]' Ladies and gentlemen, this is BILL SMITH. It's BILL'S life I have in my hands. And if I make a mistake or do something wrong or do something that makes you mad, it's BILL that pays the price, not me. And that makes me very nervous.

Comment: The trial of a case depends, to a large extent, on group dynamics. What I want to accomplish in the courtroom is a group composed of the jury, my client, me and, witb a little luck, tbe judge. In this one short paragraph I have taken a large step in that direction. I have introduced and bumanized myself (I am from Lubbock, but I practice, for the most part, in Houston) . I have introduced and humanized my client. I have let the panel know it is okay to be nervous (they are nervous, too, even if they will not admit it). And I have let them know this is a serious matter, at least to my client and me. The reason I tell me panel I am nervous is two-fold. First, I really am nervous and telling them so actually helps calm my nerves and begins my own mental process of connecting with me jurors. The other reason is that I use tbe opportunity to humanize my client and begin the process of getting the jurors to be in "my group."

II. WORD IS YOUR BOND How many ofyou have heard the phrase, your word is your bond JJ or (fa man is only asgood as his word?"

I'm going to count on you to live by that principle throughout this trial.

This is a time to say exactly what yO~t think and tell us exactly how you feel. It is not a time for polite reservation about your feelings or opinions. There are no wrong answers.

A trial by jzwy is one ofour most precious privileges.

How many ofyou knew that we are one ofonly seven countries in the world that have trial)' when someone is accused ofa crime?

How abollt that we are one of only four countries where it is a trial by one's peers?

I believe it is both a privilege and a duty to serve on a jury. Some people want to serve, others do not. Ifyou don't get to serve or don 't have to serve, depending on your point ofview, I hope to at least make this a learning experience for you.

YOU WILL GET AGREATER RESPONSE TO QUESTIONS ADDRESSED IN WORDS CONNOTING AGROUP AS OPPOSED TO CONNOTING AN INDIVIDUAL. Comment: Notice that my question is "How many of you have heard . . ?" as opposed to "Have you heard .. ?" The first question asks for numbers in a group and lets the individual panelists feel more comfortable about raising their hands . The latter question, even if asked of the entire panel, is a question addressed to an individual and leaves open the possibiJity that theirs might be the only hand going up. You will get a greater response to questions addressed in words connoting a group as opposed to connoting an individual. Also, the first question out of the box is one likely to draw a response from most, if not all, the panelists. The idea is to get them involved in the discussion right away.

III. CHANGING PERSPECTIVE A. HOW MANY OF YOU FEEL CRlMINAlS ...

[Ask them to keep their hands raised .]

criminals have too many rights? too many criminalsget offon technicalities? the lawyer's job is to get his client off?

Knowing how you feel, how am I going to make sure BILL gets a

fair trial?

[Get responses from at least three (3) panelists.]

One way I can make sure BILLgets a fair trial is to educate you on the law. As I said, I hope this jury selection process will at least be a learning experience for you.

B. CHANGE QUESTION Let's Change the Qy.estion: How many of you feel

the citizens of the State of Texas have too many rights?

too many citizens are protected by our constitution?

too many citizensget to have lawyers represent them in court?

What is BILL?

[Make them say he a citizen.}

C. BIAS/PREJUDICE = NOT NEUTRAL FAIRjIMPARTw.. = NEUTRAL The phrases bias and prejudice" and "fair and impartial" have a negative connotation in our society. But in our jllstice system, they have specific legal meanings. As we go through this process, what we're really talking about is not whether you have a bias or prejudice or you can be fair and impartial, in the traditional sense, but

whether you can be neutral. None of us can be neutral all the time. What I'm trying to find out is whether certain aspects of the law or this type ofcase makes this one of those times you cal1not be neutral.

D. PINK ELEPHANT (Alternative) An alternative to this method is asking the panel to close their eyes and imagine a pink elephant. Ask them to visualize its ears, whether their elephant has tusks, whether the tips of the ears are white, black or pink. 71Jen ask them to open their eyes. Tell them that for the next 30 seconds, no matter what they do, do not picture their elephant in their mind. Get feed back on whether they are able to block the thought from their mind and why it is so difficult. Then explain that what you are trying to find out is whether they have a pink elephant" regarding some aspect of the law or this type ofcase. Every time you find someone who may be a candidate for a strike for cause on a particular subject, ask them whether the subject is a pink elephant for them .

Comment: By explaining the words bias, prejudice, fair, and impartial in this way, I have given the jurors permission to openly admit they have a bias or prejudice or that they cannot be fair and impartial. All we have done is change the words used to express the legal justification for a challenge for cause. So often in our business , it is simply a matter of semantics in persuading the judge or jury to our side.

V. JUDGE'S INSTRUCTIONS (SIDE WITH THE JUDGE) Always get a copy of the court's charge before jury selection begins. You should already have this in your file or trial notebook. If not, obtain a copy from court personnel. In Houston it is the court reporter.

[Holding the co~/rt's charge up so everyone can see it.} The 12 of you who are chosen to sit on the jury will be given instructions form Judge 50-N-SO regarding the law that applies to this case. Judge 50-N-SO is the judge of the law and he sets out all the law you will use in rendering your verdict.

Comment: This is an absolute must. By getting a copy of the charge and showing the panelists as you discuss the fundamental principles contained in the charge, you let them know that what you are saying is coming directly from the judge and that you are not putting some type of spin on the information. This also helps you bound with the judge, at least in the eyes of the panelists, and starts the process of making the judge a member of the group you are creating.

VI . EMPOWER JURY

"TO KILL A MOCKINGBIRD" As a juror, you, too, have extraordinary power. Judge 50-N-SO is, as I said, the judge of the law. He will make rulings on objections - I will be objecting at certain times. You can count on that and I hope that does not offend anyone. I wouldn't be doing my job if I didn't. You, on the other hand, will be judges of the facts, both individually and collectively. No one isgoing to be able to go back after you have made a decision and question or reverse what you decide the facts are.

AndJudge SO-N-SO tells you that right here [Point to the appropriate paragraph.] where it says ('yOtl are the exclusive judges of the facts . ...

How many ofyou have read the book or seen the movie, '70 Kill a Mock

ingbird?" Remember how Atticus pleaded with the jury to do the right thing? Remember how everyone knew what the right thing to do was?

But lvhat happened to Tom Robinson?

Could anyone go back and change what the jury decided?

That's how much power you have as a juror.

Comment: Notice that I call the Judge by name several times. I do this because it shows both familiarity with and respect for the Judge in front of the panel. I fmd the judges like it as well. Mter all, they are elected officials and the more times you repeat their name, the more likely the panelists are to remember it. I do this throughout my jury selection. Saying "the Court" or "the Judge" sounds impersonal. By calling the Judge by name, I am further making him a part of the group. With the prosecution, however, I always refer to them as "the State" or "the Government" or "the prosecution." At times, I will use the term "assistant prosecutors" - (as if they were not real prosecutors). This is a kind of slant on the prosecutors and they usually do not know how to react. What are they going to do, object? I never use the term "District Attorney" or "D.A." or "Assistant D.A." Many people look up to the position of district attorney and their assistants.

VIII. GO ALONG TO GET ALONG One of the instructions Judge SO-N-SO will give you is that you cannot consider certain things in this case as evidence ofBILL 's guilt. He will also instruct you that ifyou hear one of the other jurors bring it up, you are to tell the other juror not to discuss that matter. In other words, that you are to shut them down, if they bring up the subject.

What I need to know is whether you can do that. Are you the type ofperson who will stand their ground, because it is the right thing to do, or are you the type ofperson who will go along to get along?" Comment: This topic of discussion gives individual jurors permis-

THE DEFENDER * 20

sion to stand their ground and lets them know they have permission from the court to do so.

IX. PRESUMPTION OF INNOCENCE Om ofthe instructions Judge SO-N-SO will give you is on the presumption of innocence.

How many of you, when you walked in and saw BILL sitting there, thought to yourself, I wonder what he did?" (Maybe you were looking at me wondering what I did.) [This usually gets a laugh, especially if your client is wearing a suit. But, as with aU humor, it must be used sparingly and is not appropriate in certain cases or in front of certain panels.]

I think it is perfectly normal to walk in here with that question on your mind. But do you see how that is the presumption ofguilt as opposed to the presumption ofinnocence?

Mr. Juror, what does the presumption ofinnocence mean to you ?

That is exactly right. A law professor could not have said it better. Let's

show you what Judge SO-N-SO instructions say. [Read it to the panel.]

IAM OF THE SC PERSO"

AlA GAND HEARING W~

[EXHIBIT]

PRESUMPTION OF INNOCENCE

All persons are presumed innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his/ her trial.

Comment: I am of the school of thought that a person learns best by seeing and hearing what is presented. Thus, I use blowup exhibits to instill in the panelists the fimdamental principles in our criminal justice system. The law included in all criminal jury charges contains legal concepts that are great for the defense and of which the jury needs a good working knowledge. Time and again, I see lawyers pass over discussing these legal concepts and the jury later listening to the case with the idea the State's burden is nothing more than a "gutcheck." We know, because the experts tell us, jurors come to court with preconceived notions, such as the idea that the defendant must have done something or we would not be here, the idea that both sides have to prove something, that the jury is there to put together all the pieces and come to a conclusion as to what actually occurred, and that in reaching that conclusion, the jurors are supposed to "keep score," for lack of a better word, to determine who wins. Part of our job during jury selection is to redirect their thinking. One of the most effective ways to do this is by educating them on the law that is already there.

X. DEFENDANT HAS NO BURDEN How many of you want the defense to put on a case? That is, to call

witnesses to the stand and, perhaps, even call the citizen accttSed to the stand.

What if the assistant prosecutors called all of their witnesses and said to Judge SO-N-SO, ''l\& rest, your Honor.)) Do you expect us to call witnesses after that? [If so, the panelist may be subject to a challenge for cause based on his or her inability to follow the law.]

Iflve didn't call any witnesses, what affect might that have on your deliberations in the jury room?

Ifyou deliberated and found that you had a doubt, based on reason, as to a citizen accused's guilt, would the fact that the defense didn't put on a case weigh in to your deliberations?

Ifso, how would that weigh in to your deliberations?

lfthat fact is something you would consider, are you saying that this is a point about which you cannot be neutral? (are YOtt saying this might be a pink elephant for you?)

Is there anything I could say to get you to be neutral?

Is there anything the assistant prosecutors could say to get you to be neutral?

How about Judge SO-N-SO, is there anything he could say?

What if he told you, in order to sit on this jury, you have to be neutral, would thatget you to be neutral? [This is the lock-in question for your challenge for cause .]

Let me show you the instruction }ttdge SO-N-SO willgive you. [Read it to the panel.]

[EXHIBIT]

DEFENDANT HAS NO BURDEN OF PROOF

The law does not require a defendant to pr01'Je his innocence or prodttce any evidence at all. The presumption of innocence alone is mfficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt ofthe defendant's guilt after careful and impartial consideration ofall the evidence in the case.

Notice the instruction repeats that the accused is preSttmed innocent. Also notice that this instruction tells you how high the State's burden is. It says the State must satiifY you beyond a reasonable doubt. )) And we're going to talk about that next.

But first, let me go back to what Mr. Juror said. How many ofyou feel like Mr. Juror - that you cannot be neutral on the issue of the accused having no burden? [This exposes other panelists who are subject to a strike for cause or, if the challenge is denied because they recant, should, perhaps, be struck using a peremptory.]

Xl. STAIR STEP EXAMPLE Let's talk about how high the State's burden really is. In our justice system, we have five (5) levels or burdens)) ofproof [Show chart to the paneL]

[EXHIBIT] THE FIVE

BURDENS OF PROOF

(5) Beyond allSTAIR STEP EXAMPLE: ~ Reasonable Doubt.

How high should theWE HAVE FIVE LEVElS government's burden

OF "BURDENS" OF be before they take away your liberty?PROOF

(4) Clear and Convincing Evidence. How high should the government's burden be before they take away your child?

(3) Preponderance of the Evidence. How high should the government's burden be before they take away all of your money?

(2) Probable Cause. How high should the government's burden be before they come into your home and rifle through your chest-ofdrawers?

(1) Reasonable Suspicion. How high should the government's burden be before they stop you and interrupt your day?

Mrs. Jurist, how high should the government's burden be before they stop you and interrupt your day? [Ask at least tllree (3) panelists and record the adjectives they use.]

That'.r called "reasonable suspicion.)) It is the level of proof the government or the State of Texas must meet before they stop you and interrupt your day.

Mlc Panelist, how high should the government's burden be before they come into your home and rifle through your chest-oI-drawers? [Ask at least three (3) panelists and record the adjectives they use.]

That's called "probable cause.)) That is the level ofproof the govemment or the State of Texas must meet before they come into your own home and rifle through your personal belongings. It is also the level of proof they must meet before they arrest you and accuse you of committing an offense.

Ms. Vernireperson, holP high should the government's burden be before, say, the I.R.S., seizes all ofyour money and all ofyour property and accuses you of owing taxes? (1 have no idea what the actual burden is in fighting with the I.R.S., but jurors can relate to this.) [Ask at least three (3) panelists and record the adjectives they use .]

That's called "preponderance ofthe evidence. )) 1t's the level ofproofnecessary to take away your assets.

Mrs. Prospective J1/ror, how high should the government's b1/rden be before they take Mrs. Jurist's own children away from her and call her a bad mother? (1 try to ask this question by referring to someone on the panel who is a mother. No one wants to call a woman a bad mother.)

THE DEFENDER * 21

[Ask at least three (3) panelists and record the adjectives they use.]

Ibis is called clear and convincing C1lidence. It's the lC1let ofproof the government must meet before they come into your home and take your own children away from you.

Lastly, Mr. Venireman, how high should the government's burden be before they take away someone's liberty - or, in Texas, their very life? [Ask at least three (3) panelists and record the adjectives they use.]

Comment: A thorough explanation of "proof beyond a reasonable doubt" is vital in every criminal trial. A thorough explanation and a solid understanding of the burden lays the foundation for getting the jurors to view the case from the vantage point of asking whether the State has proven its case as opposed to asking whether the defendant has demonstrated his innocence . A large part of that foundation is making sure the jurors understand the substantial burden the State has . After Geesa, (citations omitted), jurors now define for themselves what "proof beyond a reasonable doubt" means. Whether this is positive or negative is debatable . The deletion of a legal definition, though, does open the door for us to defme it as high as we possibly can. Without a comparison of "proof beyond a reasonable doubt" to the other burdens in our justice system, though, the jurors have no reference point for a real understanding of the significant hurdle the State must overcome to obtain a conviction.

XII . "A" REASONABLE DOUBT

So, what happens ifyou are not convinced beyond a reasonable doubt?

Judge SO-N-SO has a specific instruction to you in this regard. [Hold up the jury charge and point to the relevant portion, then read to them the last blowup.]

[EXHIBIT]

... IF YOU HAVE "A"

REASONABLE DOUBT .. .

"Unless you so fmd beyond a reasonable doubt, or if you have "A" reasonable doubt thereof, you will acquit the defendant and say by your verdict 'NOT GUILTY.'"

Ifyou have a doubt, based on reason, what has Judge 50-N -SO instructed you to do? [Ask at least three (3) panelists.]

What does all this mean? Boiled down to its simplest terms, it means you have to be convinced beyond all doubt, based on reason, before you can return a guilty verdict. You may think he might beguilty. You may think he is probably guilty. But ifthere is any doubt, whatsoC1lel, that is reasonable, then you MUST say notguilty.

PART II CONTINUED NEXT ISSUE

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THE DEFENDER *: 22

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