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From the Harris County Sexually Oriented Enterprise Regulations
"Semi-nude" means "any state of dress which opaquely covers no more than a human buttock, anus, male genitalia, female genitalia or areola of a female breast."
Can anyone tell me what that means? I think it's English, but I'm not certain.
Wednesday Lagniappe
Those of you who stop reading the comments here when they degenerate into a serious discussion of the fine points of Texas constitutional, statutory and case law will have missed this ingenious bit from frequent commenter (and prosecutor) "Tarian."
"THE WONDERFUL WORLD OF MARK AND PJ"A One Act Play
Scene IA convenience store, daytime, the year 2021. PJ is calling 911.
PJ: Help, I've just been robbed at gunpoint!911: I'm sending the police. It could be a while.PJ: Can you please make sure to send some honest officers? I can't stand it their constant lying.911: Excuse me?PJ: Um, never mind. Just hurry up!
(An hour and a half later)Sgt: What seems to be the problem?PJ: A guy just robbed me at gunpoint! I can give you a description. He took everything in the safe!Sgt: Were there any other witnesses?PJ: I - I don't think so.Sgt: Well, I'm sorry, sir, but we can't really do anything with just your testimony. Eyewitness testimony is the least reliable form of evidence. Ever since Gov. Bennett signed the Biblical Evidence Act of 2019, we've needed at least 2 witnesses for everything.PJ: Are you kidding? The guy just stuck a gun in my face! Are we going back to stoning? That's in the Bible, too!Sgt: Just the facts, sir. Do you have any security cameras?PJ: No, I was using the system to upload something to YouTube.Sgt: What about DNA, do you think the guy left any?PJ: I doubt it. How would I know?Sgt: Sir, there's nothing I can -Robert Guest: Wait a minute, I'm a witness!Sgt: Huh?Guest: I was hiding behind the corn-nuts. I saw the whole thing!Sgt: Got lucky on that one. SCTexas! Get over here!Ofc. SCTexas: Sarge?Sgt: Get descriptions from both these guys and put it out on the radio. Then do a sweep of the area.
Ego
A Harris County prosecutor today (perennially gruff but a marshmallow on the inside) took umbrage at my public statements that until very recently I hadn't seen a Harris County prosecutor conduct a voir dire that was worth a damn. I invited him to tell me when he was picking a jury, and I'd come watch (then, of course, I'd blog it; I thought that went without saying).
He told me that he prayed to God that he would get a chance to try a case against me.
I'm flattered to be the object of his prayers, especially since I presume him to have much more important things (like a woman who likes perennially gruff marshmallows; or a job come January) that require his devout attention. And I welcome the attention.
In an even match (with facts that could go easily go either way) on a fair field (with an unbiased judge), the advocate is going to win who makes the fewest mistakes and best exploits his adversary's mistakes.
The Trick Question: Prosecutors' Questions Answered, and Answers Questioned
The discussion of prosecutors' pet jury selection question, the "One-Witness-Rule" question, continues. Prosecutor SC asks:
"People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors."Why? Why isn't this scenario the same as having a juror who would require DNA evidence to convict someone? Is that person qualified to be a juror as well?
Yes and yes. The juror who would require DNA evidence to convict someone, like the juror who would require more than one witness's testimony, is qualified to serve as a juror. It's up to you to strike these upstanding representatives of the community from the jury. Suck it up.
Then SC, moved by the spirit, asks:
"It's unfair to the potential juror who doesn't have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question."I don't like this notion that the average citizen is too stupid not to fall for simple question. That's a tad too elitist of a notion for a defense attorney, no?
More on the “One-Witness Rule” Trick Question in Jury Selection
Prosecutors respond to my post on the single-witness-rule voir dire question.
Seeking Justice says that it "sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law":
There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, "only upon testimony of more than one witness.
To the contrary, there are six thousand years of precedent for a single witness not being enough evidence to prove a criminal case. (See, for example, Deuteronomy 19:15-20.)
There is, however, nothing about the government's burden of proof, considered either theoretically or historically and legally, that requires a jury to accept any sort of proof as sufficient to prove the government's case. People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.
The Dubois, Wyoming Blawgers' Convention
When I learned that Hostis Civitas and MacLitigator were both spending July at Gerry Spence's Trial Lawyers College in Dubois, Wyoming (joining Underdog and In The Moment in the world of TLC-lawyer-written blawgs), I had hopes that one of them would find a way to blog from Thunderhead Ranch, becoming the first lawyer to do so.
I still hope to hear from Remy or Peter while they're at the Ranch, but it's too late for either of them to be first - Gerry Spence himself has started a blog.
Many people buy Gerry's books; many hang on his every pronouncement. His blog will be big in the way that his books are big. There's no reason to think that he'll waste his time writing about the water-cooler issues of the day, either - he's jumped right in, asking, "What if freedom is a myth?" and then "What do I mean by our slavery?" and then suggesting that "The way out" is "to abandon easy words... [to] search[] the width and breadth of our slavery, [to] struggle against the psychic chains and wince at the invisible lash at our backs."
The One-Witness Rule
One question that prosecutors in Harris County are overly fond of asking jurors is this:
If we only present one witness, but based on that witness's testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?
The prosecutors then gleefully challenge, for cause, all of the jurors who say "no."
It is (the courts have held) a legitimate commitment question - because in order to serve on the jury, the jurors must be able to commit to convicting if they find the accused guilty beyond a reasonable doubt - but it's only a legitimate commitment question on paper.
The problem with the question in the courtroom is that it's hard for most people to assume something that they don't think is possible.
The question requires a juror to assume that the State can prove its case to her beyond a reasonable doubt with a single witness. Many jurors can't see themselves believing a single witness beyond a reasonable doubt (there's Biblical precedent). Asking those jurors the "one-witness rule" question (there is no "one-witness rule) is unfair because it's asking them to believe something that they consider impossible.
Untitled 8
John Wesley Hall brings to our attention a n ew article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).
Professor Zacharias focuses on what he calls Professor Monroe H. Freedman's "most interesting illustration" of circumstances in which zealous representation might "require a lawyer to make a false statement to a court or a third person, or to engage in other conduct involving dishonesty, fraud, deceit, or misrepresentation."
The illustration to which Professor Zacharias refers:
Suppose a judge routinely calls criminal-defense lawyers to the bench prior to trial and says "Let's move this along. Did he do it or didn't he?"
Now, this is the sort of thing a civil judge like Carolyn Marks Johnson might do. Otherwise it is (as Professor Zacharias recognizes) an unlikely situation.
Another Odd Victory
Today a Harris County jury gave my 26-year-old client six years in prison for stealing $780,000 worth of material from his employer, 3M. The prosecutor's last plea offer was 15 years. Six years is not the longest prison sentence I've ever considered a win, but it's not the shortest.
We've filed a notice of appeal - I am certain that the evidence that the complainant owned the property was insufficient as a matter of law; this ought to get us a reversal-and-rendition. If he isn't able to make bond on appeal, or if I'm wrong about the reversal, I expect that he'll probably serve six months to a year in prison before being paroled.
One Double Strike
I just compared notes with the prosecutor on my trial case. In picking a jury of 12 out of a panel of 65, exercising 10 peremptory challenges each, we made one double strike.
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