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It's Never too Late to Repent, John and Johnny
Cameron Todd Willingham died at age 36. Convicted of capital murder in Corsicana, Texas in 1991 for the fire death of his three daughters, Willingham was executed in 2004.
The evidence against Willingham? A jailhouse snitch, Johnny Webb, who
According to the Court of Criminal Appeals opinion on direct appeal,
Johnny Webb, a State's witness, testified that appellant confessed to him that he committed the offense; that appellant explained in detail how he poured lighter fluid throughout the house, purposely burned one of the children, set the house on fire, fled, and refused to go back into the house to rescue the children.
Another inmate would have testified for the defense that he heard Webb telling another inmate that "he was hoping to get out-get time cut or something was supposed to happen with his lawyer in a couple of months," but Willingham's lawyers didn't lay the proper predicate to admit this evidence. The prosecutor, John Jackson, concedes that Webb, who suffered from PTSD and "mental impairment" was "an unreliable kind of guy" but claims to have seen no motive for him to lie. Yet after the trial he took the unusual step of asking the Board of Pardons and Paroles to parole Webb. He's lying to himself if he doesn't see the possibility of a prosecutor's favor as motive for a jailhouse snitch to lie. When Webb was told that an innocent man had been killed, he said, "Nothing can save me now;" David Grann, in his New Yorker article, relates:
Barrelscraping.
The Pat Lykos DA's Office has, in the last eight months, shown a marked tendency to act without calm deliberation. See the whale policy, the no-probation-for-illegal immigrants policy, the premature announcement of DIVERT, Pat Lykos calling two of her prosecutors "incompetent", and just about every story on Murray's blog.
I wrote here about the Office's desperate-seeming call for witnesses against Judge Jackson. Now I've learned that an investigator from The Office questioned Judge Jackson's barber about the allegations.
Jury Selection: Simple Rule 10: The Marathon Rule
I want to make it clear that I don't do foolish things like play beer pong or run marathons. But I draw inspiration from the foolish things that other people do. So the next Simple Rule for Better Jury Selection is The Marathon Rule, to wit:
Save something for the end.
There's the possibility that, while the game is still afoot, the court will try to artificially limit your time. If the judge doesn't limit your time, when you're conducting an organic scripted jury selection, you and the jury will at some point all just run out of steam. Endings are difficult to improvise.In the first situation, a little more than an "out" is called for. Have some lawyerly yes-or-no questions to toss into the mix in case a curmudgeonly judge starts grumbling while you're engaging the jury with open-ended questions. "Mr. Gonzalez says that he'll assume that Fred is guilty if Fred doesn't testify; that reminds me: how many of you have been witnesses in criminal cases?" or "Ms. Berg has told us that she is married to a police officer. How many of you have close relationships with cops?" Those are the kinds of questions that the judge is used to hearing lawyers ask, and they might buy you a little more time to ask questions that will actually do your client some good.
Jury Selection: Simple Rule 9: The Beer Pong Rule
The ball is always in play. If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.
So it is in jury selection, except that "the ball" is the conversation and "the table" is the case. Almost anything that any potential juror says can be hit back toward another juror.
Simple Rule 9, The Beer Pong Rule: The ball is always in play.
For example, Mr. Jones says that he thinks your client is guilty because she is charged with a crime. You could flinch, make a note, and try to move on, or you could hit the ball back:
"How many of you agree with Mr. Jones?"
"Who disagrees with Mr. Jones?"
"Ms. Smith, how do you feel about what Mr. Jones just said?""Ms. Leonard, Mr. Jones says that my client is guilty because he's charged. What are we doing here, then?"
Jury Selection: Simple Rule zero: One Rule to Rule Them All
Jury selection is not only-nor even mostly-about selecting (or deselecting) jurors.
If you use voir dire simply to find the jurors whom you want to strike, you're missing out on most of the value of jury selection.
These rules will help you anyway.
Want Revenge? Gain? Attention? Be a Witness!
The Harris County District Attorney's Office is looking for other people who allegedly may have been involved with Judge Donald Jackson.
Donna Hawkins, a spokeswoman for the Harris County District Attorney's Office, said investigators in the public integrity division want to know whether there are other people who have any knowledge of similar behavior in Jackson's court.
Someone in the Harris County District Attorney's Office should have been smart enough to ask for the appointment of a special prosecutor in this case. It is unseemly, at best, for the Office to investigate and prosecute a judge before whom it has in the past and may in the future prosecuted defendants.
Judge Jackson is fair and follows the law (this wouldn't be worthy of mention, but there are more than a few judges in this county about whom the same can't be said), which means that he has often made calls that displeased the State. Every court-trial acquittal, every granted motion to suppress, and every sustained defense objection at trial could come across as motive for the Harris County DA's Office to prosecute the judge.
To the New Blogger Asking for a Reciprocal Link
Thank you for your email complimenting my blog. You are free to link to it, and to quote me with attribution (including, I hope, a link). There are no quid pro quos here, though. I'll link to your blog if I think it's worth reading, but I'm not going to link to you just because you link to me.
If you don't think Defending People is worth linking to without the expectation of reciprocity, then by all means don't link to it. There is a secret society of law bloggers who link to other blogs (no matter how bad or irrelevant) in a cooperative effort to increase everyone's Google pagerank; it's called LexBlog. If you want links for nothing, I'm sure Kevin will be happy to help you.
If your compliments were sincere, please consider accepting some well-meant advice:
The blogosphere is not the yellow pages. Don't blog because it'll get you cases. Blog only because you love to write and have something to say.
Jury Selection: Simple Rule 8: The Shrink Rule
We lawyers are analytical creatures. The LSAT doesn't include a section of intuition puzzles. So Simple Rule 8 for Better Jury Selection is The Shrink (as in therapist) Rule:
Rule 8: How Do You Feel About That?
Jurors decide cases based on their guts, then look for intellectual reasons to support their emotional decisions. As a result of confirmation bias (h/t Dennis Elias of Litigation Strategies for the link), they might not see, might disregard, or might discount all facts that don't support their (gut) preconceptions.
If you want a really hard job, try to win your case beginning with the presentation of evidence. It's not always impossible, but it's not nearly as easy as using the evidence to confirm what they already believe.
Can you talk with (or to) the jury about ideas and things, and get them to reveal their emotions? Not likely (different parts of the brain). Can you talk with them about ideas and things, and influence their emotions? Sure, but it's an unnecessarily roundabout approach.
Jury Selection: Simple Rule 7: Improv Rule II
Rule 7, also from improvisational theatre:
Don't block.
In improv, blocking is when you take another actor's idea, and negate it:
"It sure is quiet here on the moon.""No, this is the bottom of the sea."
Your partner looks bad, and you've killed a scene. In improv, if your partner says you're on the moon, you're on the moon (and... ).
You may not like hearing them (see The Shrek Rule), but the jurors' ideas are their ideas, and are true to them. If a juror says something that makes you uncomfortable ("Anyone who doesn't testify must be guilty"), don't argue with it, deny it, or otherwise block it. Instead mentally stick "in my world," on the beginning, and deal with it as a sincerely held (at least at the moment of its revelation) belief. Then turn it to your advantage. "How many of you feel the same way? Do any of you feel differently? Why?" (Notice the difference in wording between the first and second question. Which do you think is intended to get more responses? Why?)
Jury Selection: Simple Rule 6: Improv Rule I
Rules 6 and 7 are timely, since they come from improvisational theatre and I just got back from four days of intensive improv training at BATS (I highly recommend the training).
Rule 6: No scripts.
I've written about voir dire scripts before. You're not going to get very much information if you walk the jury through your list of questions. If you have a list of questions, you're not ready for the unsettling answers.
More than a few times I've heard a potential juror tell a lawyer that the juror lost a family member to a drunk driver, to have the lawyer make a note on a piece of paper and move on to the next question. If someone tells you his brother was killed by a drunk driver, there is a correct response, and It's not written there in your list of voir dire questions.
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