The Real Story

Once the facts of our case are transmitted to the jury, how will their knowledge be transformed into caring and action for our client? While jurors observe and respect a lawyer's presentation of evidence and knowledge of the law, to what do they really respond? In short, it is the human event the Texas criminal defense lawyer creates in the courtroom, it's The Story.

The jury wants to hear a story. They have an appetite for it. Our story defines a cause that makes it different from all other stories. Our story defines where the fight will occur. Our story makes the result the right thing to do. The lawyer marshals the juror's feelings, as well as the facts, moving them to action on our client's behalf using the story.

Stories told in the present tense capture the imagination. For the teller to focus everyone's attention on her telling, she is personally involved and is speaking as one human to a group of fellow humans, not as a professional to amateur. The teller is putting her audience on equal footing as people actually experiencing this human event.

The story then doesn't belong to the teller alone, it belongs to the audience and the teller together who experience it simultaneously. The teller wants the story told to personally involve the listeners. Involving the listeners to this extent, they feel their active participation is necessary for the story to achieve its proper ending. The listener feels they are necessary for the story to proceed from moment-to-moment.

Telling a Better Story

The Story is the framework within which a jury evaluates our defense. Shouldn't the criminal defense lawyer learn to tell a better story? We arrogantly assume we know how to tell stories and our arrogance inhibits our learning. We told our children stories at bedtime, didn't we? As kids we sat around a campfire and told stories ("lies") to our buddies to impress them with how smart or virile we were. My guess? The stories we told our children and camping buddies all had elements common to great stories. But as lawyers we forgot how to tell a good one. Too much legal analysis, too much legal training.

Ira Glass is well known as a master story teller. Here he talks about the basic building blocks of a good story. His advice fits no matter what kind of story you need.



In short, Ira suggests developing your story with momentum and suspense. Imagine the story is a train leading to some destination. We don't need to reveal the destination - just yet. Tell the story while leading your listener down the path you want them to go. Additionally, Ira suggests "baiting" the story to create suspense. That is, raise questions that you answer later in the story (or during the trial). Lastly, the story must have a moment of reflection. This moment shows the story actually means something to somebody (the client). The client was wrongly accused, misunderstood, taken advantage of, and the like. The moment of refection gives your jury a reason to believe you and decide in your favor.

Story telling should be fun.  Brazos County criminal defense lawyers should have fun telling their client's story, giving their jury a context within which to obtain a favorable verdict. More on storying telling later.

My Twelve Special Jurors

My Twelve Special Jurors gave us a mistrial last night when they were unable to decide the issue of my client's guilt. The jury was hung 6 to 6 after about 3 1/2 hours of deliberation. My client was standing trial for possessing a firearm while being a convicted felon. After the trial the jurors gave us valuable insight into the weakness of the state's case.

This was the second time this case was tried to a jury. In 2002 my client was represented by out-of-town counsel, was convicted, and was sentenced to 13 years in the penitentiary. After a writ of habeas corpus was granted in 2006 on ineffective assistance of counsel, the case was remanded to the trial court and I was appointed to represent the accused.

After remand the state wanted to move the case. Consequently they offered to recommend time-served in exchange for my client's guilty plea. If accepted, my client would need only to check-in, then check-out of the county jail since he had over 4 years of flat time on the books. Remarkably, my client rejected the offer immediately. Many of my colleagues around the courthouse chuckled. "He's crazy," they said.

After trying the case the way it should have been the first time, the weakness of the state's case became clear. This was basically a one witness case with the arresting cop offering his bogus opinion my client was acting "suspiciously" and was trying to hide something after getting out of his car during a routine traffic stop. The video of the stop did not support this conclusion and the jury saw through it.

The problem was an alibi witness the defense called in the first trial. The state called him this week. This witness should never have been within a mile of the courthouse in 2002. There were too many problems with him that the defense could not explain. See Bennett's Chainsaw:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

Be that as it may, my client is ready to try the case again. It's my job to figure out how to win. After running the play twice we're confident 3 is the charm.

Another Week in the Saddle

I'm not eating right, sleeping right, or acting right this week. I must be in another jury trial. In fact, I am defending my client in state district court against the the government's allegation he knowingly possessed a firearm after having been convicted of a felony.

Jury selection was yesterday and was very challenging. The difficulty was finding a group of jurors who could give my client a fair trial already knowing he was a convicted felon. (I called them my Twelve Special Jurors) It only took one courageous member of the panel admitting their bias before a rash of folks said they would use the prior felony as an inference of guilt if they were not sure the state met their burden of proof beyond a reasonable doubt. We were successful in striking each one for cause.

The jury is composed of 10 women and 2 men. My Twelve Special Jurors. We begin the evidence this morning when I expect the state to call around three witnesses to prove their case-in-chief. When I'm feeling more like a normal human being again, I'll let you know how things turned out.

Phenomenology of Innocence

Confessions are devastating to the defense lawyer's case. I regularly watch my comrades in the defense bar battle over the admissibility of confessions. Most attacks upon confessions focus on either voluntariness or violations of Miranda and related state statutes.

The valuable work done in DNA exoneration cases utilized another strategy defense lawyers should consider - the false confession. Although a false confession is not necessarily inadmissible evidence, research in this area provides the criminal defense lawyer with ammunition to attack the weight given to such evidence. Dr. Saul Kassin argues that actually innocent people are apt to falsely confess because of their inherent trust in the criminal justice system. The following is an abstract from his recent research:

Recent DNA exonerations highlight the problems found in wrongful convictions, 15 to 25 percent of which contained confessions in evidence. I argue that actual innocence, and the phenomenology that accompanies it, harms people who stand accused of a crime across a sequence of pivotal decisions. The phenomenology of innocence may be rooted in a fundamental belief that the world, and it may also stem from of the "illusion of transparency," a tendency for people to overestimate the extent to which their true inner states are detectable to others. Either way, innocent suspects, naively believing that truth and justice will prevail, and that they have nothing to fear or hide, unwittingly put themselves at risk by failing to realize that they are suspects not witnesses; waving their Miranda rights to silence and to counsel; sacrificing the protection afforded by a full eyewitness lineup; agreeing to searches, examinations, and lie-detector tests that are used against them; protesting their innocence and thus unwittingly triggering highly confrontational interrogations; and by succumb to police pressures to confess in the expectation that ultimate exoneration is forthcoming. As the criminal justice system does not afford adequate safety nets (e.g., police, judges, juries, and others cannot sufficiently distinguish between truth and deception, true and false confessions, or accurate and erroneous eyewitnesses), it appears that innocence is an enemy of the innocent confessor.

Thanks to Dr. Karen Franklin who brought this interesting research to light here where she wrote about the recent Interrogations & Confessions Conference in El Paso, Texas. The conference covered a variety of topics of interest to the Texas criminal defense lawyer.

Trial Prep Recon

I've had a unique opportunity preparing for trial this week by observing the jury trial of my client's co-defendant here in Brazos County, Texas. I'm not talking about reading transcripts or reviewing newspaper accounts of the trial, but actually sitting in and watching the jury selection process, opening statements, and witness testimony.

My client was charged with another young man under Texas law with animal cruelty by torture. Under Texas law, torture is causing an animal unnecessary pain or suffering. The government alleged this person and my client planned and set out to torture a horse by hitting it with a mallet and cutting it's throat with a knife. The State's theory was the co-defendant actually cut the horse's throat causing its death. However, they also claimed my client was a party (accomplice) to this crime by encouraging or aiding the co-defendant and doing so with the intent the crime be committed. My client denied, from day one, he ever intended any animal be hurt. The testimony today backed his story.

The evidence so far came from two key witnesses. First, a roommate (RM-1) who allegedly heard my client and co-defendant "planning" this tragic crime. Second, another roommate (RM-2) who was with my client and co-defendant in the pasture when the horse was killed, who by the way did not hear anyone plan anything.

I observed RM-1 testify this morning. I was not impressed. He tended to minimize much of his involvement that night and minimized his extremely poor relationship with my client. This poor relationship gave him a very powerful motive to slant his testimony against my client. In fact, RM-1 and my client had been involved in several serious fist fights prior to this night - one in which my smaller client was on the ground being kicked by RM-1. RM-1 strategically omitted the seriousness of this altercation, but his omission was exposed during the testimony of RM-2 later in the day.

RM-2 was the best witness who testified so far. His testimony interjected energy into the case which had been lacking up to now. RM-2 testified that RM-1 was a problem in the past, abused alcohol regularly, and caused difficulties between RM-2 and his other friends. It seemed the State discredited it's case against my client by demonstrating bad blood between he and RM-1. Beyond this, RM-2's testimony described my client's great compassion and concern for the injured horse as they comforted it after the co-defendant had stabbed it several times.

I can't imagine the jury believed my client was an accomplice to this crime after hearing the emotional testimony of RM-2. I've been taking good notes and eye-balling these witnesses one-by-one. The testimony of these critical witnesses will appear prominently in my negotiations with the prosecutor once the current case is concluded.

Excluded Testimony Leads to Reversal

Dr. Karen Franklin reported here that an Illinois appeals court overturned a robbery conviction because the trial court did not allow expert testimony regarding the fallibility of eyewitness identification evidence. Mr. Walter Allen was sentenced to prison for a 2001 robbery-shooting. The robbery was committed by two men wearing "hoodies" who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter. Dr. Franklin stated further:

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

These cases are grist for the College Station criminal defense lawyer's mill. Earlier this summer we examined some important issues regarding eyewitness misidentification here and here. Traditionally, trial judges are given wide latitude when deciding whether to allow expert psychological testimony. In Texas courts, the foundational cases regarding the admissibility of expert testimony are Daubert v. Merrell Dow Pharmaceuticals and Kelly v. State. These cases say judges can exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant. Further, judges must determine whether the expert testimony might be helpful to the jury. In the Allen trial the court said no such careful scrutiny took place.

The aggressive criminal defense lawyer should develop expert testimony to discredit the testimony of eyewitnesses. Even in cases where lawyers are court appointed, motions requesting funds for expert assistance should be an integral part of the lawyer's motions practice. With cases like Mr. Allen's to back us up, even the denial of our request for funds can lead to a reversal.