Friday, December 7, 2012

BECAUSE THEY CAN: Sure Enough of Themselves To Admit It Edition

It was a small thing in the middle of a big trial.

The defendant was on trial for murder.  The state's case was strong, but there were some issues that could derail it, so they were overreaching (and mostly getting away with it, of course).  

The witnesses who hadn't actually seen anything particularly relevant were done testifying.  The trained lookers with their bullshit forensics (A looked like B to me, so it's a match and I can't, even theoretically, be wrong about it) were finished.  Most of the irrelevant but highly prejudicial exhibits had been put before the jury.

Still, the defense was chipping away.

\Now the coroner was on the stand to tell the jury what nobody disputed: The guy was dead.  He'd been shot in the head.  That's what killed him.  Of course there were pictures.  (Here's the bullet hold.  Here's a close up of the bullet hole.  Here's a closer up of the bullet hole.  Here's the brain showing the bullet hole just in case you didn't imagine that the shot to the back of the head wouldn't enter the brain. Here's one with some extra gore just for fun.) 

Anyway, it was cross-examination.  A way into it the defendant's lawyer asked a question, not of any real consequence.  It's possible, that if the question were the start of a whole line of cross-examination there might, 6 or 8 questions later, be one that could elicit something legally objectionable.

Maybe. At least, if the question was to be the start of a whole line of cross-examination.  And even then only maybe.  And not for another 6 or 8 questions.  If then.

Jamison Koehler has a new post on the wisdom of not conducting cross examination when there's nothing to be gained by it.  This isn't about that.

Defense counsel's cross, of this witness and others, was well done.  He knew when not to do any cross.  He listened to the answers and did appropriate follow-up when necessary.  He knew not to ask one too many questions.  He knew how to get what he wanted and then shut up.

And he asked this question that wasn't the least objectionable and had no evident significance.

So the prosecutor objected.  To the altogether unobjectionable question.

Bench conference.  It went on far too long, because the prosecutor insisted that the judge rule his way.

Which the judge wouldn't do.  And then wouldn't do when the prosecutor said again that he should.  And wouldn't do it yet one more time.

Until the judge got exasperated.  The question, after all, was trivia by itself.  Maybe down the road.  Maybe.
THE JUDGE:  Why do you want to object to that?

THE PROSECUTOR: Because we can.
Really.  The prosecutor said that.  Not because it mattered.  Not because there was anything objectionable.  Not for strategic or tactical reasons.  Not even to help get a conviction.  None of that.

Power, plain and simple.  Because we're the State.  

Because We Can.

Law of Rule.


  1. Hey, Jeff--my sister sent me this link a couple of days ago. I assume you've seen it, but I'm sending it on to you just in case:


  2. Good to hear from you, Darwin.

    I did see it. Horrible story. I wish I could say it's just Texas. But of course it isn't. Thank your sister for passing it on.