Putting your client in a pullover sweater and having him speak like Liberace is not effective trial advocacy

Excellent trial advocacy requires thoughtful preparation. Careful construction. The art of advocacy is the art of persuasion through telling your story. Here is an example of what NOT to do.

For those of you following the case from Jacksonville: here is the video of Michael Dunn testifying in his own defense at his murder trial.

Pedantic. Disjointed. Meandering. Sad that all this time to prepare to testify for your client’s life, and that’s all you could come up with for this jury.

The attorney fumbled over the questions, as if he wrote an outline out that morning over his cereal. His line of questioning was poorly organized, his questions too wordy and confusing (not to mention continually leading), and his tone and tempo were flat and uncompelling.

Dunn’s answers were curt, erudite, and seemed to surprise the attorney at times (once he asked Dunn what the word “incredulous” meant, asking him to define it “for my own ignorance”). The defense story was lost in the jumble of questions.

He was emotionless – Dunn did not show a bit of emotion until an entire hour into his testimony. He expressed a very fake air of sheepishness – as if would somehow he could make people think he was a meek little man being picked in by “thugs” (his word, not mine).

In my opinion, he will be convicted – he was not convincing that he acted in self-defense. Sadly, may very well have.

I guess preparing the client for testifying was not on the trial prep to-do list. If poor advocacy was a recognized issue for ineffective assistance of counsel, this would be ground 1. After all, if your client defended his own life with a gun, the least you could do would be to defend it with excellence in advocacy.

Touchdown for the presumption of innocence

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Nice to know that the presumption of innocence wants to get back in the game. You know, that’s the old rule of law that says you are presumed to be not guilty of committing a crime until the government actually proves that you did. The rule that says a criminal case is to be proved beyond and to the exclusion of every reasonable doubt in a court of law.

Florida State University quarterback Jameis Winston has been in the spotlight lately. That’s the best way I can describe his predicament. He’s not formally accused, charged, or arrested, and really not under any active investigation. There is just a two-sided story, and talk of witness intimidation and a bungled investigation.

What we read on the internet and hear on talk radio is a fierce defense of Winston. People attacking the credibility of the accuser. People criticizing law enforcement for even investigating such a “weak case.” People demanding that the case be closed immediately. Wishes of luck for Jameis – and the Seminoles.

That’s because they like him. And they need him.

I am a native Tallahassean and an FSU alum. Yes, I am happy to presume my team’s QB is innocent. That, and because he has spent the last several months in the limelight in a likable, humble, champion-like way. We naturally gravitate to personalities like his. We naturally want to disbelieve anything bad about people who are important to us.

But I am also a criminal defense attorney and criminal law professor. I naturally presume everyone innocent until I know what can and cannot be proved against that person. Even if Jameis wore a uniform that had orange in it (God forbid!), I would still give him every benefit of the doubt until the solid, indisputable facts were made known. You see, that’s because I presume someone to be innocent whether I like them or not. Sadly, I often worry if the jurors in my trial cases hold that same belief. Some of my clients are not all that likable. I worry about whether jurors will give a fair shake when they don’t know and could care less about my defendant.

Now, compare and contrast the mood regarding Winston with the immediate outcry against Jerry Sandusky. Everyone was ready to hang Sandusky from the minute the story broke. Both situations involve allegations of very serious crimes. Both situations involve allegations from the past, that had been investigated and closed.

So what’s the difference? Creepy-looking old retired coach versus dashing young quarterback (who happens to be a Heisman candidate and the apparent savior of the FSU offense)? If FSU was 4-7 right now, would everyone be as quick to defend Jameis? What if Winston was just an average student with no notoriety? What if he just a nobody?

It’s not just this situation. There are so many other cases that we read and hear about, where someone is accused of a bad crime. Cases where we hear a name or see a booking photo along with just a sprinkling of accusations, and our minds seem to want to immediately convict.

When did we turn our back on the presumption of innocence? When did we lose touch with the most basic of concepts in our justice system? Why do we apply it so selectively?

Maybe we lost touch because we have never been accused of a crime (strange how quickly my clients recall the presumption of innocence when they get into a pickle). Maybe we forget about it when it is easy for us to demonize someone we don’t like, or who we find to be creepy. Maybe we force ourselves not to think about it so that we can enjoy the slow pre-trial roasting of the accused on TV and as fodder for conversation with our friends. Misery loves company, you know. And the less liked you are, the quicker people will think you’re guilty.

It is far past time for us to huddle up with our teammate, the presumption of innocence. Get him off the bench. Put him back in the game where he belongs. Our team – our justice system – will win if we just put the ball in his hands. We must believe in the presumption of innocence, and let the system work the right way. Just about any one of us could be called to serve on a jury one day. Our duty as citizens and jurors is to presume a defendant innocent until proven guilty – whether we like that defendant or not. It is the only way the system will work for all of us.

Take a moment to think about your position on the Jameis Winston situation, especially if you are an FSU fan. Think about how you have analyzed what you know about the case. Think of the arguments you have made on Winston’s behalf, that he’s innocent. Think about how much – and why – you want to see the allegations go away, and the case be closed.

Then ask yourself these questions: shouldn’t I feel that way in every criminal case? Shouldn’t I presume everyone to be innocent, and wait for the case to fully play out before I make a final judgment? If it were me or someone I care about who was accused of something, wouldn’t I want everyone to think of me as innocent? If we immediately cast guilt on every individual who is investigated, won’t our system fail?

Did you say yes to all of those questions? Touchdown! Score one for the presumption of innocence.

In the mayhem of a murder trial, we can find justice

I have had the unfortunate experience of seeing the dashcam video of the murders of Officer Jeffrey Kocab and Officer David Curtis. Nauseating, irrefutable, this case presents the defense with an unwinnable scenario: not one, but two murders of law enforcement officers captured on video. The killer will undoubtedly be convicted in a case that may set the record for the fastest conviction in Tampa’s history. In the swirl of publicity that envelopes this murder trial, we as a community must never lose focus of the justice system that Officer Kocab and Officer Curtis served – the justice system for which they gave their lives.

This disturbing case teaches us as a society that justice must be allowed its slow and cumbersome course, and that we need to trust that the justice system works. Only when we are assured that justice has been served, can we be at peace with the verdict and with the sentence.

As a criminal defense attorney, I worry about the dark tone of vengeance and bloodthirst I read in public comments posted in response to news stories about this case, and most criminal cases. I worry because those members of the public may one day be members of a jury, a jury so filled with blind hatred that it may convict a defendant at any cost, even if that defendant is innocent.

Even innocent people charged with crimes they did not commit face conviction by a jury blinded by vengeance. As a society, only our belief that people have the right to a fair trial before an untainted pool of jurors reaffirms our faith in the justice system, a faith that I hope is stronger than our bloodlust for revenge.

The trial of the alleged murderer Dontae Morris begs for a sober moment in Tampa Bay. There are not enough words to describe the incredible loss that Officer Kocab’s and Officer Curtis’ families, friends, and countless fellow law enforcement offers have suffered and will continue to suffer even after this trial is over.

If there is any comfort for the victims, we as a community should reaffirm our commitment to the justice system these officers served with their lives. They deserve justice, and not the senseless street-side killing their fellow officers fight to protect us from every day.

Only when we respect the justice system that these two officers honored with their lives, will justice truly be served. When we are called to duty to serve on a jury to judge our peers, we should serve with the same honor that these two officers served.

Then, and only then, will we know that the judicial process has worked, because we have helped it work. Then and only then, when the ultimate penalty is imposed, can we collectively rest with a clean conscience. Then and only then, can we find justice in the mayhem of a murder trial.

Why does a case take so long to go to trial?

Joe Bodiford’s commentary on a 3-year old DUI case pending in Tampa, in a TBO.com article.

Joseph Bodiford, an adjunct professor at Stetson University’s College of Law, said it is unusual but not unheard of for DUI manslaughter cases to take years to go to trial.

“The vast majority of DUI manslaughter cases has more forensic evidence than murder cases,” said Bodiford, who is also a criminal defense lawyer in Tampa. “There’s layer after layer. Even one deposition leads into an investigation and then that leads to finding an expert witness. It’s complex.”

. . .
Bodiford, the Stetson law professor, said it is not surprising both the prosecution and defense have so much groundwork to complete before Moye’s case goes to trial.

“Most likely they have a ton of expert witnesses,” he said. “Then you have the blood draw, and if part of the defense is some kind of vehicle malfunction, that has to be looked at, too. When vehicles are involved, there’s always some issue that comes out.”

. . .

Bodiford said he feels the lawyers and judge are making sure all angles are covered.

“In complex forensic cases such as this, judges want to take time to do it right and do it once,” Bodiford said. “That outweighs the push for judgment. The vox populi doesn’t want to hear it, but the defense has the right to a fair trial. It’s unpopular because two people are dead and there’s a guy who hasn’t been brought to trial for three years.”

SCOTUS rules that remaining silent is NOT an invocation of the RIGHT to remain silent – and can be used against you a trial!

Today, June 17, the U.S. Supreme Court issued its opinion in Salinas v. Texas.  The gist of the opinion is that not saying anything is not an invocation of the right to remain silent guaranteed under the 5th Amendment.  Yes, you read that correctly.  It says that someone being questioned by police has to say the magic words, and actually take the formal action of invoking the right.  This case says that a prosecutor can then actually comment on the silence in court!!

It is clear that once a person is arrested and the police start an interrogation, the Miranda warnings are (supposed to be) given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court . . .  ”  The Supreme Court has previously held that if a defendant elects not to testify at the trial, the prosecutor comment on that silence – the silence at trial, in the courtroom.  This case says that the out-of-court silence can be used against the defendant in trial.

In an opinion by Justices Alito, Scalia, and Thomas, the SCUTOS did not tell us specifically (see below) whether or not the prosecutor can use silence outside the courtroom as evidence of guilt.  The Court said a defendant who remained silent during police questioning and did not “formally” invoke the 5th Amendment right to remain silent, would in turn allow prosecutors to offer commentary to the jury on that silence in court.  This decision now put the burden on the individual to invoke, not the government to not use the silence.  That part of the decision is most troublesome.  As the dissent notes, in the circumstances of the case, it was clear that the defendant was invoking his right to remain silent. . . by being silent.  This is going to be particularly problematic for persons who who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol.  They may be trying to exercise a right, only to have their silence be argued to a jury; I can hear it now:  “this defendant had an opportunity right then and there to tell the officers his side of the story, and didn’t.”  Oh, boy, at the can of worms this is going to open.

As one commentator has said:

Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination. And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial.  This is a lousy ruling. . . . This is a bad day for the Bill of Rights.

What say you: Gov. Rick Scott signs bill to speed up executions in Florida

How do you feel about this?  Doesn’t really shorten the appeal process, or the post-conviction procedure.  Apparently kicks in to speed any clemency review and then sign the death warrant no later than 30 days after, and execute no more than 6 months after that.  So long as the appeal process is complete, I see no legal reason for the delay in carrying out the sentence.

via Gov. Rick Scott signs bill to speed up executions in Florida | Tampa Bay Times.