Calling Fouls As We See Them

Imagine a demonstrative map of the state of California with “San Francisco” appearing at the bottom, “Los Angeles” appearing somewhere in the middle, and an outline of the state of Nevada with a dollar sign where Las Vegas is located to the east. Next, picture a prosecutor arguing, “if you can figure out this is California, despite the errors in locations of our largest cities, then you understand reasonable doubt and how the state can win despite errors in its proof.” That is essentially what the state argued in closing statements in People v. Otero, Case NO. GO45246 (Cal. 4th App. Oct. 29, 2012).

 Similarly, imagine an eight piece jigsaw puzzle of Abraham Lincoln with two pieces missing, and a judge advising the jury that if it can determine that this is President Lincoln, they understand the state’s burden is not to prove a defendant’s guilt beyond all doubt. That is how a court in New York explained reasonable doubt. People v. Wilds, 141 A.D.3d 395 (N.Y. App. Div. 1988).

 The problem with these examples is, of course, the oversimplification of this constitutional protection and the analogy of the state’s burden of proof to an evening parlor game. Reasonable doubt is not about guessing whether the state has proven its case; e.g. “what state is this?” or “who is this president?” Rather, it is about holding the prosecution to its burden of removing all doubt that causes a reasonable person to hesitate before concluding another human being is guilty of a crime and should be punished.

 The larger point here is that defense lawyers must be ever vigilant of attempts by well-intentioned prosecutors to persuade jurors by methods that prejudice our clients in violation of the rules of law or procedure. No doubt the jury arguments used inOtero and Wilds circulated throughout the respective district attorneys’ offices and were employed in scores of trials. How many defense counsel in those trials failed to object and protect their clients’ rights to have the jury properly understand the state’s burden?

 In the recent United States Supreme Court case of Smith v. Cain, 132 S.Ct. 627 (2012), the current District Attorney of New Orleans wrote in his response to Smith’s cert petition that “[t]he previous administration had a policy of keeping away as much information as possible from the defense attorney.” Smith was identified by a single witness as the shooter of five people and convicted of five counts of murder. The state had not disclosed that on the day of the shootings, the witness told detectives he could not identify anyone as the shooter. How many young prosecutors in New Orleans took this office practice to mean it was acceptable to hide Brady information? How many wrongful or tainted convictions were obtained as a result of this practice? We will never know.

 The Supreme Court has observed that prosecutors may deliver hard blows, but not foul ones. The bottom line is that, unlike in basketball, defense lawyers cannot wait for the calls to be made; we must be vigilant to recognize, identify and preserve any perceived fouls against the system and our clients.

 Until next time,


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