Saturday, September 26, 2009

Trial things that have been annoying me lately

1) Stupid arguments. Usually by prosecutors, sometimes by judges, and on occasion even by defense attorneys (but not this defense attorney, of course). I think we need to establish a new objection basis for trial attorneys. We need to be able to say, "I object to counsel's argument, your honor, on the grounds that it's just plain stupid." Like, for example, the prosecutor in the Todd Willingham case (the innocent but executed arson defendant I've written about before) who argued that Willingham must have killed his kids because he had previously tried to kill his kids by beating his wife when she was pregnant. He further argued that Willingham should be executed because he was clearly a devil worshiper because he had an Iron Maiden poster on his wall. The problem with these stupid arguments is that sometimes the emotional appeal of the arguments can be so strong, it can be hard to recognize the sheer stupidity.

2) "Whereupon a bench conference was held outside the hearing of the court reporter." There is no excuse, absolutely none, for anything that goes on in a courtroom not being recorded. Ever. Even if all parties remember to restate the discussion later on the record, that's really no good substitute for the original discussion which led to the ruling. And sadly, the parties don't always remember to make a record of that discussion later, which then leaves the defendant suffering later when he can't show the appellate court what his actual objection was. Along these same lines, the court reporter should record everything that is said in the courtroom, even the reading of the instructions to the jury, because you just never know when a judge will misspeak or something will happen that does need to be memorialized for an appeal.


Jeff Gamso said...

I have the transcript page from when a judge affirmed a defense objection to a prosecutor's cross-examination of a defense witness.

Apoplectic because, after all, that's not supposed to happen, the prosecutor burbled, "What? What's the basis for that ruling? What's wrong with my question?"

"It stinks," said the judge.

Completely nonplussed, the prosecutor blurted out the words that echo through the legal community to this day, and gave name to the event: "The stinky rule!"

Texas Moratorium Network said...

Sign the petition to Governor Rick Perry and the State of Texas to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas executed an innocent man.

S said...

Aren't those the real rules we want to follow in court? The Stupid Rule and the Stinky Rule.

Jeff Gamso said...

Yep. We love the Stinky Rule. Courts don't follow it much, though, I'm sorry to say.

Miss Conduct PDX said...

I've been lobbying for the "that's just plain boring" objection for years.

I've gotten lots of sympathy, but no positive rulings.

S said...

Believe me, Miss Conduct, as an appellate lawyer, I would LOVE it if you could get that "just plain boring" rule going!

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