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Mack Arnold
Jennifer&Mark Bennett
Don R. Cantrell
Christopher L. Carlson
Arnold S. Cohn
Paul J. Coselli
Jerald D. Crow
Logan Dietz
J.Gordon Dees
RickG. DeToto
Danny Easterling
Ami MichelleFeltovich
Richard Frankoff
Allen J. Guidry
Stephen H. Halpert
Thomas M.Henderson
Paul A. Kubosh
Kenneth E. McCoy
David D. Mitcham
Richard L. Moore
Tad A. Nelson
Wendell A. Odom, Jr.
Michael H. Pham
Thomas A. Radosevich
EarlS. Spielman
James T. Stafford
Charles Stanfield
William H. Van Buren
Joseph R. Willie"
W.Troy McKinney
StanleyG. Schneider
Kevin D.Fine
Shawna L. Reagin
Bo Hopmann
Jonathan Munier
Grant Scheiner
Robb Fickman
Dean Blumrosen
Todd Dupont"
Doug Murphy
Tucker Graves
Paul St. John
Katherine Scardino
Gerardo Montalvo
Steven Owsley
Earl Musick
JoAnn Musick
Feroz Merchant
Melissa Martin
Russell Webb
Vivian King
Wayne Hill
James Randall Smith
David Fleischer
Robert Eutsler
AlexG. Azzo
The Kahn Law Firm
Jay W. Burnett
Juanita Barner
Rand Mintzer
Robert K. Loper
Sarah V. Wood
5Winning Worriors
9 HCCLA's 2004Holidoy Porty

Wendell A, Odom, Jr.
Robert Fickmon
Vice President
Mark Bennett
David Kiatta
Patrick McConn
Past President
Stanley G, Schneider
Tom Berg
Sean Buckley
Neal Davis
Nicole DeBorde
Todd DuPont II
Rosa Eliodes
Ami Michelle Feltovich
Richard FronkoPP
Don Gerson
Randall Kallinen
Melissa Martin
Marjorie Meyers
JoAnne Musick
James StaPPord
Charles StanPield
Jim Sullivan
We have atendency to want to sum things up at the end of the year, reflecting on its triumphs and
1971 2003
C. Anthony friloux disappointments and perhaps clOSing out the balance sheet on debts owed and paid. Unfortunately, my
Stuart Kinard
memory no longer perrnits much revisiting of the past. so we'll focus instead on the future,
George Luquette
Morvin D. Teague
Dick DeGuerin
Next year will bring many new features to The Defender. "Perversions," which illuminate some of the more
W,B. House, Jr, ludicrous abuses of power at the appellate court level, has been on hiatus but will be back in full force,
David R, Bires
The number of intellectually dishonest, factually distmted opinions issuing from just our two local courts of
Woody Densen
appeal provides more fodder on aregular basis than we have space.
Will Gray
Edward A, Mallett
Carolyn Garcia
In addition to riding herd on the appellate courts, we plan to begin exposing those egregious examples
Jock B, Zimmerman
of judicial misconduct that trial lawyers encounter on an almost daily basis down at the Crirninal Justice
Cly de Williams
Center, Judges that refuse to follow black-letter law, mistreat lawyers and citizens accuselj, unabashedly
Robert Pelton
Candelaria Elizondo cater to the prosecution, revoke bonds unreasonably, refuse to appoint lawyers to defendants on bond, etc.
Allen C. Isbell
-- no longer will they be able to flourish under the conspiracy of silence that has shielded thern for so long,
David Mitcham
We encourage all who witness such injustice to report it. and urge prosecutors not to wait until ajudge is
Jim f. Lavine
Rick Bross
convicted to become concerned about bad behavior on the bench.
Mary E, Conn
Kent A. SchoPPer
Let's keep fighting the good fight. The Defender wishes you all ahappy holiday season and success, good
Don Cogdell
health and the best of luck throughout the new year.
Jim Skelton
George J. Pornham
Garland 0, Mci nnis
Keep those cards and letters coming.
Robert A. Moen
lloyd Oliver
Donny Easterling Shawna L. Reagin
Richard FrankaPP
Wayne Hill
Katherine Scardino and Allen Isbell demonstrated absolutely
amazing advocacy by winning a life sentence for their capital client
in State v. Baskin, tried in August 2005 in the 338th District Court.
The State presented 37 extraneous offenses at punishment, two of
which were for murder. Dr. Jerome Brown and Dr. Gabriel Tan
testified as to mental retardation, which the jury rejected, but then
apparently did consider in mitigation. Gina Vitale handled the
mitigation investigation and did her usual wonderful job. Out of 25
capital murder cases in her career, Katherine has gotten life or better
on all but 2. Congratulations to a great team for a great result!
Steven Halpert had fun getting a "Not Guilty" for his DWI client
in CCCL # 13 in August, despite the denial of two good motions to
suppress; Steve credits having the record of Lewis Dickson's earlier
cross-examination of this same officer, who seems to have a problem
getting his microphone to work along with his video camera.
Keeping up the fine DWI work, Chris Samuelson heard the sweetest
two words in CCCL #9, on August 18,2005, after only 10 minutes
of deliberation.
Earlier that week, Chris helped out Tad Nelson by sending Jim
Medley to assist him in a Galveston DWI trial . Jim's testimony
regarding the standardized field sobriety tests saved the day and Tad
won a 9-minute "Not Guilty." Way to go, guys.
Wayne Hill won a reversal and new trial for the trial court's refusal
to allow the accused to proceed pro se, in Kombudo v. State, 148
S.w.2d 547 (Tex.App. -- Houston [14t11 Dist.] 2004), upheld on
remand in an unpublished opinion issued November 8, even after
the CCA granted the State's PDR and ordered the lower court to
consider tl1e State's rather disingenuous "estoppel" claim. Good
work, Wayne.
Despite some highly distasteful prosecutorial shenanigans, Roxie
Roll fought her way to a "Not Guilty" in a misdemeanor assault case
down in Fort Bend County, during the dog days of August.
Continuing the late summer momentum, Jim Medley puUed
another DWI "not guilty" out of the hat, even though his client ran
three red lights, was almost hit by an 18-wheeler, had all four clues
on the one-Ieg- stand and all eight clues on the walk-and-turn.
Alvin Nunnery and Michelle Beck achieved a "Not Guilty" In
another highly-publ.icized murder trial where their client in.itially
blamed the shooting on her young son. Alvin and Michelle skillfuHy
reminded the jury that her subsequent actions in no way detracted
from her right to defend herself against the complaint's attack.
ExceUent lawyering.
Nipping another domestic violence case in the bud, Mark Bennett
prevailed in CCCL #3, when the State proved neither household nor
violence nor assault.
Tyler Flood did a great job a "Not Guilty" on two counts
of assault in CCCL #7, according to second-chair Sarah Wood. The
investigating deputy was so shaken up after Tyler's cross-examination
that he tripped and fell flat on Ius face as he left the witness stand.
Tyler continued to "knock 'em dead" [or at least down] with a "Not
Guilty" on a DWI in CCCL #7, when tile officer almost fell down
himself giving instructions for the one-leg-stand.
A jury took only 16 minutes to reward Kathryn Kelber with a
"Not Guilty" in yet another family violence case, thanks in part
to sloppiness on the part of Humble PD [but thanks mostly to
Kathryn's stellar defense].
Randall Kallinen and David Kiatta closed out the summer by
\vinnmg an "Interference with Public Duties" case in CCCL #4,
filed after the petite young female questioned tl1e police beating and
Taser-ing of her friend.
Chuck Stanfield started a whole string of victories with a "Not
Guilty" on a no-test DWI in Ft. Bend county court #1 on September
7, a "Not Guilty" on a no-test DWI in Harris County CCCL #10 on
October 12, and a motion to suppress carried \vith trial in
CCCL #2 on November 10, 2005. Keep up the great work, Chuck!
Proving once again that he is the parole wizard, Bill Habern
obtained release for Lora Lee Zaionitz, who was serving a capital life
sentence. It may have helped her case when her co-defendant phoned
her before his execution to apologize for getting her involved when
she had nothing to do with the killing.
After three days in trial, Troy McKinney won a dismissal in a DWl
case by suppressing the breath test and conducting an intensive
cross-examination of the HPD officer. Troy's exposure of the state's
failure to operate the Intoxilyzer 5000 according to manufacturer's
guidelines was subsequently featured in a Houston Chronicle article.
A 9-day murder trial that included four days of deliberation ended
with the jury hung 9-3 in favor of "Not Guilty" for Shawna Reagin's
client in the 248th District Court. On the date retrial was to begin,
he pled guilty to aggravated assault and to his separate bond jumping
case, for five years concurrent in TDCJ-ID.
Mike Ramsey and Kent Schaffer had an order of acquittal entered
by federal Judge Lynn Hughes, several years after a jury verdict of
guilty in the Vita Pro / TDCJ case, apparently due to the inability of
the court reporter to ever produce a record suitable for appeal.
A 5-1 deadlock in favor of the defense won Tom Radosevich a
dismissal in a DWl case in CCCL #11 on September 12,2005. His
client must complete a victim impact panel. Tom reportedly put on
a first-class voir dire.
Our revered President, WendeU Odom, won a "Not Guilty" from
the jury in a sexual assault case tried in the 337th District Court, on
facts involving hot tubs and other fun stuff.
Joseph R. WUlie & Associates heard "Not Guilty" foUO\ving only
20 minutes of deliberation, after a 2-day trial on possession of ecstasy
in the 268th District Court of Ft. Bend County.
Jim Leitner got a great result in a murder trial in the 177th District
Court when the jury found his client guilty of the lesser-included
offense of aggravated assault and assessed punishment at seven years
imprisonment. The lowest pretrial offer was for 35 years. Good job,
In one of those increasingly rare appeUate victories, Clay Conrad
garnered a reversal in a published opinion, Flores v. State, 172 S.W.3d
742 (Tex.App. -- Houston [14th Dist.] 2005). Issue was the denial of
a motion to suppress after coerced consent to search.
Richard Frankoff battled an incomprehensible murder prosecution
and conviction stemming from an 18-year-old client's car accident by
convincing the jury to recommend probation, in face of the State's
plea for a 20-year sentence.
Licensed less than a year at the time, Jimmy Ardoin won his second
DWl "Not Guilty," despite bad facts [client leaving a strip club,
driving erratically] and bad evidentiary rulings. Definitely a rising
star here.
Eric Hagstette bid a fond farewelJ to the defense bar by snagging
a "Not Guilty"in a murder case in the 184th District Court on
October 7, 2005. We'U miss you, Eric!
The same Brazoria County prosecutor who suffered a 10-minute
"Not Guilty" at Tom Stickler's hands on a habitual DWl earlier in
the year took another in 8 minutes on October 11, this time on a
possession of dangerous drugs case where the piUs were seized from
the defendant's lap. Next time, the jury may not even leave the
On facts straight from a Movie of the Week, Kelly Case pulJed a
manslaughter conviction with a 2-year sentence out of a Galveston
murder prosecution. Client was a 71-year-old, one-legged, bedridden,
blind, morbidly obese, diabetic, dialysis patient who shot and killed
his mentaUy-retarded, adopted daughter/caretaker during one of
what had become fairly frequent and increasingly severe beatings.
Tad Nelson and Mack Arnold served the Galveston D.A.'s office
with two "Not Guilty" verdicts in 25 minutes, after a week and a
half of highly-charged, dramatic testimony in a trial for aggravated
sexual assault of a child and sexual performance of a child. These cases
involved a dad being drug through divorce dirt and a custody battle
by a vindictive ex-wife - good save, guys.
Jay W. Burnett worked some magic on behalf of a client charged
v.rith 2 aggravated and 1 non-aggravated robberies in the 176th
District Court by getting the prosecution to agree to 12 years TDCJ-
ID, \vitl1 agreement not to fue an additional 4 aggravated and 4 non-
aggravated robberies, most of which were captured on \rideo.
Congratulations to David Breston who got a "Not Guilty" on an
indecency with a child by contact case in the 263rd District Court on
October 26, 2005.
M.ichael Lamson likewise heard a two-word verdict on a felony theft
case in the 184th District Court on October 25, 2005 .
Also in the 184th, David Cunningham persuaded a jury to award
his client a 10-year probated sentence, with a $10,000.00 fine, for a
wild home invasion where the complainant was a well-armed Bandido
holding $20K and 55 pounds of weed. David's client was shot 7
times and the Bandido was shot through the vocal cords.
Brazoria County was dealt another blow late in October when Jeff
Purvis walked his client charged with possession of 3 pounds of
marijuana. Even better, the prosecutor had sworn before trial that
he would quit law and go to dental school if he lost the case. Also,
one of the jurors offered the defendant a job. What a happy ending
for everyone.
Hattie Mason hung the jury in an aggravated assault trial in
the 180th District Court on November 8, follmving which the
prosecutor lowered the plea offer from 40 years to 5 and her client
graciously accepted.
Dale Paschall and John Armstrong won a "Not Guilty" for their
minor client charged with DWI after blowing a .08 and a .092, in the
CCCL #3. Dale used Jim Booker as his expert.
DavidFleisherand NormSilvermanprevailed in ano-test , no accident
D\VI in CCCL #14, where the client had aliegedly almost hit a cop
making another DWI arrest; David got ali FSTs suppressed - this was
his first trial.
OnAugust 18,Chris Samuelsongot a"NotGuilty" verdict on atota.l-
refusa.! DWIin CCCL#9, and foUowed thatwith another "NotGuilty"
in CCCL#6 on October26,in a case with four HPD DWI Task Force
offICers. Leslie Johnson ofhis office had aDWIdismissed in CCCL#12
foUowing hercross examinationofthe arresting offIcer.
to rue the day they joined the Good Guys: Assawt dismissed after voir
dire in CCCL #6 when Judge Standley would not aliow the State to
amend pleadings; another assault dismissed day oftria.! in same court a
fewweeks later;aggravatedassawtin 174threducedto Class Cdisorderly
conduct on the day oftrial, a.!ong with d.ismissa.! ofpossession case in
same transaction; two separate aggravated assawt w/deadly weapon
cases dismissed in 263rd;JoAnnsuccessfully petitioned to have ajuvenile
sex offender excused from further registration and had records ofprior
registration deleted; and Earl got a forgery dismissed in Nacogdoches
Countyafter he proved his client was avictim ofidentity theft.
Kudos to Danny Easterling for saving an innocent person from
conviction on mistaken eyewitness identification. But for Danny's
own thorough research that revea.!ed a rock-solid alibi, a young man's
promising future wowd have ended with a wrongful theft conviction.
DannyandMarkYanisa.!so wonareversa.! inthe FirstCourtof Appea.!s,
due to the tria.! court's den.ial ofa motion to suppress: Mark Leonard
Praterv. State, No. 01-04-00862-CR,delivered October27,2005.
Jim Sullivan's dedication and perseverance likewise prevented an
innocent man from being erroneously convicted offorgery in the 185th
District Court. After many attempts to focus the prosecutor on the
obvious weaknesses in the case, Jim was able to obtain hospita.l records
that proved his client could not have been the person who tried to cash
thestolen check,despite the teller's ID,whereupontheStategrudgingly
dismissed. Thatsame day, Jim gotanotherdismissal on domestic assault
case setfor tria.! in CCCL#2.Greatwork,Jim.
Mike Charlton and Gerald Bierbaum worked wonders in winning a
new penaJty phase hearing for death row inmate Virgil Martinez, from
the federa.! districtcourtin Ga.!veston, due to tria.! counsel 's [present-day
Brazoria D.A. Jeri Yenne] failure to investigate his 30 years ofuntreated
epilepsy and resultant psychoses and refusa.! to present any of that
mental health evidence at pun.ishment, nor indeed, to present anything
resemblingapun.ishmentcase at ali.
Another victory on the capital litigation front was claimed by Morris
MoonoftheTexas DefenderServicein Ex ParteRodneyReed,No.WR-
50,961-03,when they won the right to return to state court in Bastrop
County toJitigate a Brady claim regarding the State's failure to disclose
evidence that someone other than Mr. Reed killed the complainant.
Morris shares the credit with Kathryn Kase, Bryce Benjet and Jared
Tyler. Good luck.
Likewise, Roy Greenwood of Austin and Jay W. Burnett gained
another incremental success [the only true measure in capita.! writ
work] in the ongoing saga ofEx Parte Graves when the Fifth Circuit
Is it Deep Throat? TropiC oP Cancer? Hustler?
. ..-
ordered another round oforal argument on a Brady issue, set for
December 6, 2005, in Austin. Roy and Jay have fought valiantly
foryears toundothedamagedone by deficientwritrepresentation
at the statelevel.
Overlooked in the last issue was Karen Barney's "Not Guilty"
in an AggravatedSexual Assault trial in the 183rd District Court,
madeevensweeterby beingbeforea"prosecutor'shelper"visiting
judgewho will follow no law that might help thedefense.Way to
go, Karen!
Chris Tritioo got a "Not Guilty" on a DWT in CCCL #1 on
November 16,2005.
Alvin Nunnery and Layton Duer's client cheated death \vith
a post-jury selection plea on November 17, 2005. Their team
included JJ Gradoni and Gerry Byington. According to
Danalynn Recer at GRACE, this was the last potential death
penalty trial for Harris COlUlty this year, which is an excellent way
tostartthe holidayseason.
CORRECTION: In the last issue's Winning Warriors column,
GRACE was erroneously identified as "Gulf Coast Regional
Advocacy Center." GRACE actually stands for "Gulf Regional
Advocacy Center."We apologize for the mistake.
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"Assuring (/ Designa/ed Dril 'er"
~ HCCLA's 2004Holidoy Porty

When I was handed a new bar card, I thought the highest, in-
deed almost the only, function of the criminal defense lawyer was to
try cases. More accurately, to engage the Crown in pitched battles
in courtrooms where witnesses were lined up and fired on cue, like
artillery-pieces. When the smoke cleared, I (and my client) would be
left standing, or so I tll0ught. All else was peripheral at best. This was
my conception of the only proper role for the defense lawyer.
ing in my legal education prepared me to eimer confirm or dispel
tlus notion.
Despite centuries of experience with the transparently adversarial
Anglo-American system ofjustice, there is a paucity oftheory to guide
those who would try cases.
That this lacuna goes unrecognized does
not make it any less so. This essay argues mat great military think-
ers articulate theories of conflict mat contain vital lessons for me
trial lawyer.
A general theory of contlict should discover the fundamental rules
that govern any type of competit.ive enterprise, including litigation.
Let's see what some thinkers, ancient and modern, have to say.
Carl von Clausewitz (1780-1831) was a Prussian nobleman who
tought in the Napoleonic wars. His most important work, On War,3
remains the Western world's most-studied treatise on conflict. Its in-
tluence extends beyond the Western nations, and beyond tile military
We might sec what advice he otfers the trial lawyer.
CI:lUsewitz is regarded wim some reason as the prophet and ad -
vocate of total war. Clausewitz defines war as an "act of force to
compel our enemy to do our will."6 The
proper aim of warfare is nothing less
than the "destruction of the enemy's
forces," which means that those forces
are to be "put in such a condition that
they can no longer carryon the fight ."7
If mis is the proper aim of warf.1re,
Clausewitz holds mat the only allowable
means is combat.
And disputes are to be
decided, not by maneuvering and skir-
mishing, not by feints, but by me battle.
The battle is the sine qua non of tile decision. Let's listen to
What is tile battle? It is a struggle by tile main force . .. it is a
struggle for real victory, waged wim all available strengm.
. .. [S]ince the essence of war is fighting, :md since the battle
is the fight of the main force, the battle must always be consid-
ered as the true center of gravity (schwcrpunkt) of tile war. 10
. . . [T]he very concept of war will permit us to make the
following unequivocal statements:
1. Destruction of tile enemy forces is tile overriding principle
of war, and, so far as positive action is concerned, the prin
cipal way to achieve our object.
2. Suchdestruction offorces can usually be accomplished only
by fighting.
3. Onlymajorengagementsinvolvingali forces lead to major
success .
4. Thegreatestsuccesses are obtained where all engagements
coalesce intoonegreat battle ...11[Emphasis in original).
Itis clear thatClausewitz envisions conflict as the meetingofthe
main forces ofthe opponents in decisive battles. He plainly advises
that the "decisive point" must be identified, and the main strength
ofthe attack be concentrated there.
A1tllough Clausewitz does al-
battle can accomplish an objective, e.g. tocause the enemyto aban-
don a position,13 and that possible engagements sometimes have to
be taken as seriously by the enemy as real ones,14 he sternly rejects
and deception
as legitimate meansofwagingwar.
Clausewitz does not disdain to use such tactics outofa sense of
honor or fair play; it is rather that conflict is simply unimaginable
withoutbattle and slaughter:
Kind-hearted people might ofcourse tlunk there was some in-
genious way to disarm or defeat an enemy without too much
bloodshed,andmightimagine tlutthis is thetruegoaloftlK art
ofwar. Pleasant as it sounds, it is a fallacy tllat must be exposed
We are not interested in generals who win victories without
AlthoughClausewitzhimselfnotesthesimilarityofwarfare toliti-
gation,19 he has no patience for some ofthe tactics recognized by
the experienced trial lawyer, such as surprise and dcception.
readingofOrt War also gives thestrongimpression that Clausewitz
would notapprove ofour pleading a case. He ofali people would
advise the beginning lawyer to prepare assiduously for trial, marshal
a1l available resources, and then charge straight up the courthouse
steps, to engage in aU-consuming courtroom battles in which the
goal is "destruction oftheenemy'sforces" in head-oncollisions.
Pick ajury,slug it outwith the prosecutor and may the best man
win. Most prosecutors think like Clausewitz, and try their cases ac-
cordingly.Should defense lawyers?
Sun Tzu was a Chinese general
and military tlunker who is generally
thought to have lived in tlle fifth cen-
tury B.C.
His The Art of Wal..22 was
written as a guide to Chinese military
leaders. It has been read in East Asia
GREAT WALL OF CHINA since itwas written,and has been avail-
able in Russian for centuries, but only
in 1905was ittranslated intoEnglish. As is thecase with Clausewitz,
it is also widely applied in areas removed from militarymatters.
SunTzu differssharply from Clausewitz in his prescription oftlle
meansof conflict:
...togainahundredvictories in ahundred battlesis nottlle
To subjugate the enemy's army without doing battle is tlle
highestof excellence. 24
But he is no shrinking violet when fighting
must be done;25 most ofThe Art ofWar and
in particular Chapter VII ("Armed Struggle")
is aboutpreparations for and conductofbattle.
He treats battle as only one ofmanyoptions to
be employed in conflict, indeed, as a last resort
rather than as invariably necessary to resolve
conflict. Notonly do the two thinkers disagree
on the necessity of battle; they also differ on
where the battle is to be fought. Clausewitzre-
quires that the commander concentrate all his
forces where the enemy is thestrongest, in ordertoprovoke adeci-
sive battle.SunTzu would have us dotheopposite.
To be certain to take what you attack, attack where the en-
To be certain ofsafety when defending, defend where the
He is telling trial lawyers to focus on tlle weak
points of the prosecution's case, not neces-
He istellingtriol
sarily the strong ones. Ifthe witness's iden-
tification is strong, focus on his cred- lawyerstoPocuson
ibility. If you can't attack the search,
theweakpointsoP the
attack the factors of possession.
If the
evidence of guilt is overwhelming, work prosecution'scose,
on pun.ishment issues. If you don't have
an expert, use the prosecutor's expert to
help you. strongones.
Thereis no"damn-the-torpedoes"headlong
rush to victory. SunTzu instructs us thatwe must
first concentrate on defense, i.e., make ourselves invul-
nerable toattack, before ourselves attacking:
In ancient times, those skilled in warfare made themselves
invincible and then waited for theenemy to become vulner-
able ....
Those skilled in defense hide themselves in tile most secret
recesses oftlle Earth;
ThoseskiUed in attackflash forth from the highestreachesof
theHeavens ....
Therefore, they are able to protect memselves and achieve
Never does he advise engagingin tactics other tllan battleoutof
a position ofweakness, nor does he suggest tllatdeception can sub-
stitute for preparation.The emphasis is always on fmt Limiting your
ownvulnerability,and thenexploitingthe opponent's.
Inyetanotherarea germaneto the trial lawyer, thatoftlle role of
stratagem, surprise and deception, Sun Tzu strongly disagrees wim
Clausewitz. Recall that the Prussian rejected the use ofdeception,
not outofanysense ofhonor or fair play, but because he could not
imagine conflictwitilOut it. Butfor SunTzu,secrecyand theability
to dissemble are virtues; deception is notmerelya useful stratagem;
conflictis deception:
Warfare is theWay ofdeception.
Therefore, if able, appear unable; if active,
It is soPe to soy thot
appear not active; if near, appear far; if far,
were Sun Tzu 0 dePense
appear near.
lowyer, he would not
If they have advantage, entice them; if
approve oP the passoge they are confused, take them; if they are
substantial, prepare for them; if they are
oP ony reciprocal
strong, avoid them; if they are angry, dis-
discovery statute. turb them
It is safe to say that were Sun Tzu a defense law-
yer, he would not approve of the passage of any reciprocal discov-
ery statute. Pervading the entire work are the value of secrecy and
the worth of dissembling. In practical terms, for the trial lawyer this
means not letting the prosecution know any more about our case
than we have to. A prosecutor who knows nothing about our defense
knows neither where to attack our case, nor how to make his case safe
from attack.
The place of battle must not be made known to the enemy.
If it is not known, then the enemy must prepare to defend
many places.
If he prepares to defend many places, then the forces will be
few in number.
Therefore, if he prepares to defend the front, the back will
be weak.
If he prepares to defend the back, the front will be weak.
If he prepares to defend the left, the right wiJl be weak.
If he prepares to defend the right, the left wiJ .1 be weak.
If he prepares to defend everywhere, everywhere wiJl be
weak 30
Substitute "the prosecutor" for "the enemy" in the above pas-
sage, and see how relevant it is to our practice. If we give away our
defense(s), either by loose lips or as required by any applicable dis-
covery ruJes, we will always lose this advantage. The prosecutor who
knows nothing about our intended defense can be kept off balance.
To try a case or plead it? Sun Tzu would have no problem with
pleading a case that should be pled:
One who knows when he can fight, and when he cannot
fight, wiU be victorious
His definition of "victory" is obviously situational and is corre-
spondingly less rigid than is that ofClausewitz, for whom, as we have
seen, victory in each conflict is not less than "destruction of the en-
emy's forces."
An important distinction must be made here. Sun Tzu is not say- that one must know when he will win, and then fight; and when
he will lose, and then surrender. \life do not always have to choose
between battle and capitulation. One can know when not to fight
and stilJ be victorious. To put it anotller way, Sun Tzu is telling us
that there is also victory in knowing when not to take a case to trial.
And which experienced defense lawyer would disagree? Sometimes
pleading a case for 20 years imprisonment is a victory- but onJy if
done by one who "knows when he can figJlt, and when he cannot
fight. "
Sun Tzu is telling the trial lawyer that victory can be achieved,
many times and in many different ways, without a courtroom battle.
Indeed, by his rules, the greatest victories are achieved outside the
True excellence is to plan secretly, to move surreptitiously, to
foil the enemy's intentions and balk his schemes, so dut at last
the day may be won without shedding a drop of blood 32
Suppress evidence, discover an informant's identity, make a pre-
sentation to a grand jury, dig up a witness's criminal record. The
experienced lawyer knows that dismissals so obtained are greater vic-
tories than acquittals after trials. Trial lawyers like to try cases, but
our clients prefer not to be tried at all.
Keep your client out of court. Win witll0ut fighting the Clausewit-
zian battle if you can. "To subjugate the prosecutor without doing
battle is the highest of excellence." That's Sun Tzu's advice.
Miyamoto Musashi (1584-1645) was the great Japanese wan-
dering Samurai and master of Kenjutsu. His Book of Five RingJ33 is
primarily a treatise on swordsmanship, but it has been reprinted in
various languages and is studied as a general approach to conflict.
One of his principles in particular has relevance for the trial lawyer.
M usashi held tlla t
"To become the enemy" means to dlink yourself into the
enemy's position.
Musashi wants us to perform a kind of tllOught experiment.
To prepare to fight tlle prosecutor in
court, the lawyer should ask himself, How
would I try this case if I were the prosecu-
tor? Sit down and do some hard thinking:
"become the prosecutor." Imagine yourself
as tlle opposing lawyer, going through each
element of tlle case and each witness. Write
the prosecutor's opening statement in your
mind. What is tlle prosecutor's theory of
guilt? What will he ask each witness to prove?
How will he lay the evidentiary toundations?
How will he meet your objections? Defense
lawyers that have former careers as prosecu-
tors may have an advantage here, but any law-
yer with experience can, given some dl0Ught,
put himself in tlle place of his opponent and anticipate his moves.
This will confer an advantage when the trial is underway.
America's most influential military th.inker3
was an Air Force
colonel, John Boyd (1927-1997). As a fighter pilot in Korea, he
noticed that while the Soviet MiG-IS was superior to the very similar
American F-86 in acceleration, climbing, altitude and turning radius,
the Jatter consistently outfought the MiG. Some of this difference
could be explained by pilot training and experience, but Boyd sus-
pected material causes as well.
(Top: U.S.A.F. F-86; Bottom: Soviet Air Force MiG-iS).
Boyd applied the laws of thermodynamics to the problem and
wrote equations that, for the first time, made the way aircraft were
designed and flown a quantitative science. This he called the "En-
ergy-Maneuverability Theory" of aircraft performance. His most
fundamental discovery indicated that while the MiG-iS appeared
better in the ways that traditionally measured the performance of
fighting aircraft, the F-86 could change its direction quicker than the
MiG. In other words, the F-86 pilot could act and react quicker than
his adversary, giving him a decisive advantage in combat. The lesson
Boyd discerned was that all else being equal, the pilot with the more
maneuverable aircraft would live to fight another day.
Boyd expanded his discovery into a general theory and prepared an
oral briefing for military officers called "Patterns of Conflict. "36 The
heart of the briefmg was his articulation of the now-famous "OODA
Loop": Observe, Orient, Decide, Act. This idea was the first explicit
recognition in the history of military thought that time itselfwas cen-
tral to conflict. More precisely, Boyd showed that conflict is a strug-
gle to control the tempo of battle. Who can more quickly observe the
situation, orient himself, decide what to do, and take timely action,
disorients his opponent and wins. Boyd saw that maneuverability was
as important to great armies in the fIeld as it was to individual duel-
ing pilots.
This time-based theory of conflict was adopted by Army
and Marine Corps tacticians, and directed the disposition of coalition
forces in both Iraq wars
Boyd's theory has been applied on the battlefield and in business,39
but I am most interested in its application for the defense lawyer.
It seems to me that we are frequently guilty of letting the prosecu-
tion dictate the pace of a criminal case. Think of the typical situation.
By the time we make our first appearance in court, the prosecutor has
prepared a file in which there is an offense report and, frequently, wit-
ness statements. The police report itself represents an LIwestigation in
which witnesses have been interviewed and their statements filtered
by Government agents. Our new client may have already been inter-
viewed and his statement recorded. A search may have been conduct-
ed and incriminating records or tangible items seized. Some of these
items may have already been sent to Government labs for analysis.
There is a list of the client's prior convictions. There may already be
publicity which has broadcast only the prosecution's version ofevents.
In contrast, the defense lawyer will usually have had no opportunity
to do any work by the first setting, and is in the unenviable position of
being, in Boyd's terms, behind the prosecutor's OODA Loop.
A lawyer unversed in conflict theory may succumb to tile tempta-
tion to "reset the case and see if the offer gets better." And when he
arrives at the arraignment setting having done nothing in the interim,
the prosecutor has discovered his client's out-of-state criminal record,
or has found more victims, or has dug up extraneouses, or has other-
wise compounded the defendant's problems. There is every reason for
the offer to get worse.
How would Col. Boyd advise us) He would tell us to "get inside
the prosecution's OODA Loop."
There is often some advantage to be gained from putting in con-
siderable effort early in the case. Prosecutors seem to be used to the
feeling of being ahead of tile defense in time, and any indication that
they are falling behind upsets them. They become disconcerted when
it dawns on them that tile defense knows more about one of meir
witnesses than tlley do, or when some legal research shows they have
an admissibility problem they haven't yet considered, or when the
defense otherwise demonstrates that it is pulling ahead.
We can investigate the prosecutor's witnesses before they even know
who ours are, or even whether we have witnesses. A prosaic enough
example is one that I observed years ago: A burglary was committed
in which tllere was only one eyewitness, who was not the homeown-
er. The witness made a positive identification because he knew the
defendant from the neighborhood .
(There was no other evidence such
as recovered property or a confes-
sion.) The name and date of birth
of the witness were in the oftense
report. The defense lawyer quickly
investigated the \vitness's criminal
record, discovered three trips to
the pen for admissible crimes,40
and subpoenaed the pen packets
from TDCJ, By the next setting,
the defense lawyer was able to lay
the witness's three pen packets on the table next to the State's file.
The offer went down.
If you have a search or arrest warrant that is vulnerable, why not
file a motion to suppress and a memorandum as early as possible? Al -
though you are giving advance notice of your defense, the State can't
patch tllingS up, because the inquiry is limited to tile four corners
of the warrant or affi davit
! They may cut their ofter or even dismiss
the case.
Go to the scene and get photos early. Prosecutors do this on the
eve of trial, if at all. Sometimes your investigation will yield evidence
that contradicts tile prosecutor's witnesses, but in any event, YOll arc
demonstrating tllat you are working the case harder than the pros-
ecutor. As Boyd would say, you are getting inside his OODA loop.
Traditional legal education in Anlerica, even in courses where liti-
gation skiUs are stressed, fails to equip lawyers with the. theoretical
tools to consider litigation as a specialized case of conflict. Texts on
warfare by great military thinkers offer general theories of conflict to
guide action in any competitive field ofendeavor. These works can be
profitably meditated upon by trial lawyers seeking guidance in solv-
ing the problems presented by litigation.
- . , ,
_:......::. '- J r---._tl', _-..0_' J ... _" __
I I'd lay moneyit was yours, too,when you started practicing. Certainlyit is
the imageoffered by popularbooks, films and television.
2 One possible exception is Francis Wellman's The ArtofCross-Examination
Vtnn Kriege (1832), published posthumously. See also Clausewitz, Prin-
ciplesofWar( 1812).
4 Numerous translations and interpretations exist. See, e.g., von Ghyczy,
Tiha,Christopher Bassford,and Bolkovon Oetinger, Clausewitzon Strat-
egy: Inspiration andInsightfrom a Master Strategi.rt (Wiley, 2001). Also,
Mr. JackWelch of General Electric has quotedClausewitzas an inspiration
in interviews.
5 Clausewitzwasdoubtlessinfluenced b)' theeffectsofthe new industrializa-
tion on war. He was even more influenced by seeing firsthand post-revo-
lutionary France at war. This was the first instance in modern European
historyofa nation totally committed toJ nationalistic war, and it shocked
aristocratic military practitioners. Clallsewitzwitnessed the French humili-
ation oftheproud Prussian military tradition,and was himselfcaptured.
60"War, Book I, Chapteri.
7 [,ii.
9 [V,ix.
II IV,xi. Dozensof similarstatementspermeatethe entire work.
12 Ill,xi.
13 I, ii.
14 Ill,i.
15 III,ix.
16 Ill,x.
17 I, i.
18 IV, xi .
20 Jn thisdiscussion I donot,by rderringtosuchconceptsas"surprise" and
"deception,"contemplateoradvocate theuscofunethical orillegal means.
I instead refertolegitimatetactical decisions thattrial lawyersare required
tomake on behalfofrheirclients.
21 Heis therefore a contemporaryofthe founding ofthe Roman Republic,
the Greek wars against Persia, and the lives ofConnlCius and Buddha. As
hewas writing, Malachi was writingin Judah.
22 Ping-Fa, (c. 500 B.C.).
23 On a recent trip to a large bookstore, I noted no fewer than eleven sepa-
rate editions for sale. There are also a numberofapplications in business.
See,e.g., Krause, Donald, The ArtofWarfOI' Exec"t'.es ( Perigee Trade,
24 The ArtofWm', ChapterIII.
25 And neither am l. Readers ofthis essay may conclude that it is an apol-
ogy for pleading clients guilty or dodging trials. On the contrary, it is an
application ofconflict theory to trials, and to alternatives totrials. Ifyou
must try a case, and many times you must, by all means try it, but try it
26 VI.
27 See, eg., Chavez v. State, 769 S.W.2d 284 (Tex.App.--Houston lIst
Dist.] 1989, pet. rerd);Menchaeov. State,901 S.W.2d 640(Tex.App.--
EI Paso 1995,pet. ref'd); UnitedStatesv. Ortega Reyna, 148 F.3d 540
(5th Cir. 1995).
28 IV. There is a parallel here with Clausewitz, who always discusses defense
before movingontoattackin OnWar. ButSunTzuexpressestheconcept
as an integral partofhis theory.
29 I. Seealso V.
30Vl. Accord.Alfrcd ThayerMahan,The Infl"enctofSea Power IIpon History,
1660-1783(1890) , ChapterXI,especially n. 10.
31 1Il.
32 [V.
33 Go RinNo Sho, (1645). I t was writtenafew weeks beforeMusashi'sdeath.
It is sometimes translated as "Bookofthe Five Elements."
34 Book ofFive Rit'8s,"The FireBook."
35 InsosayingI donotneglectCommanderAlfredThayerMahan, USN,the
"pen and ink sailor" whose books and articles revolutionized the world's
36 Unfortunately Boyd never sat down to write a book ofprinciples, as did
Sun Tzu, Musashi and Clausewitz. What is known about his thinking
comes from adistillation ofhis oral briefings, productsofhis design theo-
ries, unpublished papers,and the recollectionsofhiscolleagues.
37 Sun Tzu knew this 2,500 years ago. See The ArtofWar, Chapter Vl at
38 Boyd contributcd much more than this. At various times in his career,
he was America's greatest fighter pilot, premier air combatinstructor, de-
signer ofits most effective aircraft, most penetrating military strategist,
and sharpest thorn in the side ofthe Pentagon. He also connibuted to
epistemology (Destr"ction and Creation [[ 976]) . See generally, Coram,
Robert. Boyd: The Fighter Pilot Who Changed the ArtofWar. New York:
Little, Brown, 2002.
39Sec Richards.Chet. CertainTo Win: TheStrategyOfJohn Boyd, AppliedTo
Business. Philadelphia: Xlibris Corporation,2004.
40 SeeTheusv. State,845 S.W.2d 874 (Tex. Crim. App. 1992)(en bane).
41 Jonesv. State,833S.W.2d 118(Tex.Crim.App. [992),cert.denied, 507
U.S. 92[, [[3S.Ct. 1285,122 L.Ed.2d 678 ([993); Hankins v. State,
[32SW.3d 380(Tex. Crim. App. 2004).
GRACE notes
In the last year, the Gulf Region Advocacy Center (GRACE)
launched its Harris County Capital Pretrial Project, which provides
free pre-trial preparation to indigent capital defendants . GRACE
is a charity founded in 2002 to provide representation at the trial
level to indigent capital defendants.
Funded by Equal Justice Works, the Sisters of Charity and indi-
vidual donations, the Pretrial Project is designed to close the gap
in support services left by the lack of a public defender office. In
most jurisdictions, capital defense attorneys work in teams and are
supported by research attorneys, paralegals and in-house investiga-
tors and mitigation specialists. An individual appointment system,
such as that in Harris County, funds only the top of the ticket
- the attorneys who go to court if there is a trial - without provid-
ing the support. GRACE uses a system that has proven to be ex-
tremely successful in other jurisdictions, focusing heavily on behind
the scenes tasks such as record collection, legal research and client
development. We have already worked with a number of capital
defense teams in Harris County who have brought their capital
cases to successful conclusions.
Our free services are divided into four basic categories: 1) mo-
tions practice - both case-specific and systemic; 2) scorched -earth
records collection; 3) case management; 4 ) client development .
Case-specific motions practice speaks for itself. Of course, it
means researching and drafting motions which address legal points
unique to your case, above and beyond the standard motions
which are filed in all capital cases. While all criminal defense at-
torneys practicing in Harris County could probably come up \vith
a limitless list of systemic injustices, systemic litigation can be a
time-consuming and expensive task. Going through thousands of
cases to pull out the documents necessary to conduct a hearing
into discrimination in the selection of grand jurors, for instance, is
impossible without an army of free interns, but these challenges can
Competency & sanity assessment; DWl
(SFST Instructor); eyewitness factors; risk!
dangerousness; voir dire; malingering;
personal injury; child custody
[[9[4- Astoria Blvd., Suite 4-90, Houston, TX 77089
Ph: 28[-4-81-5715
Fax: 28[-922-5903
win cases.
By relying upon the energy, enthusiasm and free labor of young
attorneys and interns, we take a "scorched earth," approach to re-
cord collection and investigation, going far beyond what is typically
possible the budget provided to solo practitioners for hiring
mitigation specialists and investigators. For instance, we do com-
plete cOillthouse records checks on every name that appears on any
document in a given case, this includes a search ofstate, county and
federal court files for criminal, civil, traffic, family law, property,
bankruptcy, marriage and other records.
High volume capital trial offices in other jurisdictions have de-
veloped case management techniques for organizing the thousands
of documents that can be generated in a case into useable data for
motions, exhibits and trial notebooks. The availability of cheap and
free labor through GRACE makes it possi ble not only to collect
more and different kinds of documents than ever before, but also
allows us to index, digest and process documents in much greater
detail, to generate theory memos, investigation plans, timelines,
suggested pretrial motions, and trial notebooks. a larger team often fosters better dient/attorney com-
munications, as clients can get visited more often and may respond
differently to different approaches. This can lead to increased will -
ingness to discuss uncomfortable issues necessary for developing a
mitigation case or investigating culpability, and often makes clients
more responsive to possible plea deals: clients who feel confident
about the quality of representation are more willing to recognize
that their case may simply nOt be winnable at trial. This is another
example of how trained, volunteer interns can make an invaluable
contribution, by accomplishing tasks too time-consuming for ap-
pointed attorneys.
Of course, this is just a brief overview of what we can do. The
bottom line is that we are here to heip you win cases! If you have
any questions at all, please contact me at (713) 869-4722 or I look forward to meeting and working with
402 Maio, 2nd Floor (713) 526-6282
Houstoo, Texas 77002
The Science ond Art oP Jury Selection
, __ - I .... __ .....
A. Introduction
Jury selection is an art. And, as with all art, beauty is in the eye
of the beholder. Although not everyone can be a Fred Astaire on the
dance floor, there are effective and ineffective ways to conduct one of
the most important, if not the most important, phases of a trial. The
secret is to do it right while being "yourself." If you are not yourself,
it will show and you will come across as a charlatan. The purpose of
this part of the article is to give you some ideas on how I conduct voir
dire in order to help you find what works for you. As a result, I have
written this portion in the first person.
When I begin voir dire, I have three goals in mind. First, I want
to endear myself and, through me, my client to the prospective ju-
rors. Second, I want to influence their mind-set and perspective so
they wiU: (a) hold the government to its burden of proof; and (b)
fmd my client not guilty. Finally, I want to eliminate those individuals
whose mind-set I carmot mold and whose perspective I carmot guide.
In preparing for voir dire, I literally sit down and figure out what
areas will be fodder for strikes for cause. Generally speaking, those
areas include, the concept that the defendant has no burden or proof,
whether the defense puts on a case, whether the defendant will testify,
whether a police officer is given more credence simply because he is a
police officer, whether the prospective juror would be influenced sim-
ply by the nature of the offense, and whether the prospective juror can
consider the fuU range of punishment, i.e., probation. Thought must
also be given to the specific characteristic of the offense charged. Will
there be a child-witness? Is the State relying solely on one witness? Is
there a defensive issue, such as self-defense?
What foUows are a few tips on effective voir dire examination
and an outline of the topics I attempt to cover in my trials. The topics
discussed in tl1e outline are not always in the order they are presented
below. Otten times, the nature of a particular offense or time con-
straints set by the court will dictate a different order of presentation.
Additionally, not aU the topics discussed below are necessarily used
in every case. I have included the topics I discuss in most cases and I
have set them in the order I generally use at trial. I have also included
sample questions I use in DWI cases, eyewitness identification cases,
and sexual assault of a child cases, as weU as some questions I ask re-
garding punishment.
For purposes of this article, I have included a "script," as it were,
to give you an idea of what I say and how I say it. The script, of
course, is not always the same. I have also included commentary in
order to allow you to better understand why I present the topic in
the fashions discussed. This outline is, by no means, all inclusive and
should not be used as an actual script. Remember, tl1e most important
aspect of presenting your case to the jury is your ability to be yourself
in telling your story. Find what works for you and discard the rest. I
hope this wilJ give you some good ideas for your next trial.
B. Tips for Effective Voir Dire
1. Have a Theory and a Theme
Trying a case \vithout a theory and a theme is like driving across the
country witl10ut a road map. Sometimes the shotgun approach works,
but that is more a product of dumb-luck than it is of good lawyering.
What is your case about? What is a phrase you can repeat time and
again throughout the trial of your case? One way to develop your
theory is to write down, in 25 words or less and using the relevant ele-
ments of the offense and any defenses, what the case is all about. For
example, in a murder case involving self-defense, your theory might
look something like this: "My client is not guilty of murder because
the bully he shot attacked him with a knife, he had no place to run,
and he had no choice but to shoot or be killed. The way I developed
this theory was by using the poignant words in the case: murder, self-
defense, my client, not guilty, bully, shooting, attack, knife, escape,
and choices.
A theme, on the other hand, is the "battle cry" for your case.
In coming up with a theme, replace legal terminology with com-
mon English. For example, self-defense becomes "the bully needed
killing;" duress becomes "desperate and out of options;" the lack of
crin1inal intent becomes "a tragic accident;" and no scheme to defraud
becomes "all the cards were on the table." You can also use trilogies in
your theme. For example, in a case where the authorities arrested the
wrong man, your theme might be: "Client was in the wrong place,
at the wrong time, with the wrong people, but the police got the
wrong man." In a DWI case, your theme might be: "Client is awk-
ward, clumsy, and uncoordinated, but he was not intoxicated." In a
mistaken eyewitness identification case, your theme might be: "faUible
memories and faulty police procedures led to a false identification."
The act ofdeveloping a theory and a theme is a significant part of
trial preparation. It helps you clarifY the issues and directs you atten-
tion to the strengths and weaknesses of both your case and the State's
case. Once you have developed a tl1eory and a "battle cry" to repeat
and inject at every opportunity, you will have a clear and direct road
map ofwhere your case is headed and how to get to the result you
desire. Most importantly, you will be able to convey that road map
tothejury. Withoutthe map, you and thejurorsare prone togetting
2. Identifythe"HotTopics"forJurySelection
Whatare areas in yourcasethatprovidefertile ground for strikes
for cause? Itis importantto identifY these areas in advance and pre-
pareyouroutlinein away thatdeals with themeffectively. InaDWl,
such areas may include, for example:breathtest refusals, thecredibil-
ity ofpoliceofficers, theconsumptionofalcohol,andintoxicationas
opposedtoconsumption.Inasexual assault of achildcase,suchareas
may include:the nature ofthe offense, the fact yourclient was even
charged with the offense, credibility ofachild-witness, and availabil-
ity ofphysical evidence.All cases share some common areas, such as
the FifthAmendment, the State's burden ofproof, and whether any
panelist has been affected by orbeen a victim ofthe type ofoffense
charged.IdentifYtheareasin yourcase thatwillgive rise toastrikefor
cause soyoucan remove these unfavorable jurors.
3. BeYourself(It'sOkayto beNervous)
The number one rule is be yourself. It is absolutely imperative
thatyou find whatworks for you and run with it. There are as many
styles in conductingvoirdire as there are lawyers. Theworstmistake
you can makeinfrontofthepanelis topretendto be somethingyou
are not. Ifyou are notgenuine,it will show and your clientwill pay
the consequences. It is perfectly alright to simply be honest. One of
the first things I doin juryselection is gethonestwith the panel. If!
am nervous,which Iam always, Itell them Iam nervous.IfIam ner-
vous, butin agood mood,I tell themso and I tell them the reason I
am inagoodmood:thesunis out,we areinJudgeSO-N-SO'scourt,
we appreciated their responses to the prosecutor's questions. Often
times, before juryselection begins, I will go into the restroom and
look at myselfin the mirrorand see myselfas a fallible human being
who is abouttosimplydothe best he can andtrytorealize thatis all
I cando.
4. Call theState"TheState"
Jury selection is about creating a group. The members ofthe
groupare my client, the jury, the judge, andme.The prosecution is
never welcome in my group,unless ofcourse theycare toadmittheir
mistake in prosecutingmy innocentclient.AI; such,itis importantto
personalize and humanizeyourside while depersonalizingand dehu-
manizingthe prosecution. I dothis by referringtotheprosecutorsas
"theprosecution," "theState,"or"thegovernment," even ifI know
the prosecutors on the case. Calling them by name only humanizes
t11em and personalizes them to the jury. IfI do notparticularly care
for the prosecutor, I may even call him orher"theassistant prosecu-
tor," as ifhe or she was nota real prosecutor. Thejury rarely knows
the difference and the prosecutors will not know what to do. What
are theygoingtodo?" Objection,yourHonor.I'man assistant D.A.,
notan assistantprosecutor?"Thenyou could justkeep calling the as-
sistantprosecutorsthe restofthe trial.
5. CallYourClientbyHisFirstName
Always call yourclient by his first name. In federal court,where
thingsare moreformal,simplyrefertohimand BILLSMITH,rather
thanjustBILL. Never, never, nevercall yourclient"thedefendant."
Heis notadefendant .Heis notsome cause number. Heis ahuman
beingwho hasa name and his name is BILLSMITH. Ifyou do not
treat him like a human being, the jury will never relate to him as a
human being.Hewill remainafaceless defendantin asystem ofcause
6. DressLikea Lawyer,Nota Shyster
Wear a conservative suit. I usually wear a blue suit, white slUrt.
and red tie.Thesubliminal message is thatIam patriotic. Mygoal is
look like a prosecutor, a boy scout, a good, red-blooded American
boy.Avoid, at a'u costs, wearing a double breasted suit. People view
lawyers in double breasted suits as shysters ortooslick.Additionally,
leave theRolexonthe nightstand,alongwithanyotherjewelry. Fan-
cy watches, bracelets, and rings are for shysters and slicksters. These
same rules apply to yourclient and yourwitnesses. Everyone should
dress conservatively. They should not, however, over-dress. Ifyour
clientrarely, ifever,wears asuit,donotputlUm inone.Iusually have
myclients wear khaki pants,a lightcolored, button-down shirt,and
permy loafers. Ifyou have the opportunity to select the juryon one
day and start testimony on a separate day, wear a light colored suit
and subtle tie for juryselection. These will be muchless intimidating
and will allow you to appear non-threateningto the members ofthe
7.AskQuestions- Don'tGivea Speech
In conducting voir dire, our natural tendency is to educate the
panelonthevariousaspectsof ourcase bygivingaspeech.Juryselec-
tion, however, is a time to learn from the jurors, not the otherway
around. You can educate them justas effectively by askingquestions
abouttheir thoughtsand feelings onthe law oragiven setofcircllm-
stances as YOll can delivering a speech.What is more, you will learn
somethingaboutwhat makes each panelistti ck, ifyou ask questions.
If yougiveaspeech,youlearnabsolutelynothing.It is quitealrightto
explain therules.Butdosowithan eye towardgettingt11eir feedback
asopposed to convincing them ofyourway oflookingat the law or
r . .
8. ConcentrateonThosein the"HotSeat"
The"hotseat"is anyseatsubjecttobeingimpaneled onthejury.
Inafelony, it is the first 24panelists. Inamisdemeanor, it is the first
12panelists.Keep trackofthose panelistsin t11e "hotseat" who may
be subject to a challenge ofcause. Forevery panelist who is subject
to astrike, add anotherseat to the "hotseat" list. Donotwaist time
on those folks outside this zone, unless, ofcourse, theycan give you
good feedback and help you educate the otherpanelists .Finally, ask
questions ofeveryone in the "hot seat." Ifyou do not ask mem a
question,you carmotlearn anythingaboutmemo
9. Loop,Loop,Loop
Looping is avery powerful tool in ourarsenal. Itis the method
by which you getthe panelists todiscuss eachother'sanswers and to
educate each otheron me topics you discuss. By looping, you learn
more abouta greater numberofpeople in a shorter period oftime,
than simply questioning one prospective juror per subject. Looping
can be accomplished by askingquestionssuch as: "Howmany ofyou
agree [ordisagree] wimwhatMr. Jurorsaid?,""Ms . Venire,whatdo
you think [or feel] about what Mr. Juror said?," "Mr. Panelist, what
are your thoughts [or feelings] about what Ms. Venire said?" Notice
that you can ask what I call "think" or "feel" questions. Generally
speaking, men are thinkers and women are feelers. Tbis is not always
the case, though, so be careful. Ask thinkers, "What to you think
about ..." and feelers, "How do you feel about ... ". If you ask
an engineer how he feels, you will not get a good response because
he will have difficulty expressing his opinions in terms of feelings.
Likewise, feelers bave difficulty expressing their opinions in terms of
logic or thought processes. (Tbinkers = the pieces of the puzzle fit
together. Feelers = witb the pieces together, the puzzle is pretty. It is
all the same puzzle, though.)
10. Dealing with the Mouthy Pest and the Church Mouse
On almost every panel, there is one prospective juror who likes
to bear himself talk. Sometimes he is favorable to you and sometimes
not. Eitber way, there will come a point during jury selection wbere
you will need to shut him down. If he is favorable, tbe danger of
letting him go on and on is that you now bave someone few people
want to hear from, again and again, as tbe poster-boy for your cause.
You do not want other members of tbe panel turning a deaf ear to
the merits of your case because it is coming from this self-appointed
delegate for the entire panel. On the otber hand, the obvious danger
of someone who views the merits of your case through differently
shaded lenses, is that he will poison the panel. Of course, this panelist
could do the same thing to the State as the latter panelist could do to
you. In either event, be polite. You can say to such a panelist, "Hold
that thought. I'll get back to you in just a moment [like, when hell
freezes over]" or "I appreciate you raising your hand, but I need to
hear from Mr. Juror right now." You can even ask permission. "Mr.
Juror, tbank you for your candor, can I get back to you in a moment?
I need to hear from Ms. Venire right now."
On the other end of tile spectrum, mere is the church mouse.
There is always a prospective juror who will not talk or will not be
candid. People are overly qLliet or less than candid because they fear
being stigmatized, meir feelings conflict wim their self-perception,
or they want to avoid the issue rather than confront it. The best ap-
proach is one of empathy. Try telling the panelist, "I sense some hesi-
tation in your answer. It is absolutely alright to have hesitations or
reservations; I just need to know if you do." Alternatively, you could
tell the panelist, "I sense that you may be a little nervous. I'm nervous
too. It's perfectly alright to be nervous." With Jess than candid panel-
ists you could ask them, "Have you ever held a different view on this
subject?" Another way to ask mis same question is, "Tell me what you
tbink another view on this subject might be?"
C. Jury Selection Outline
My name is Ktvin Fine. I'm from Lubbock, Texas. So, ifI sound like
I talk a little funny, you know I come by it honestly. I'm also a little
bit nervous. So, if I sound nervou)' up here talking to ya'll, let me
assure you, it's because I am nervous. I always get nervous standing
up in front of people and talking. I'm also nervous because I have
BILL SMITH'S life in my hands for the next few days. BILL, stand
up. [Walk over to Client and put your hand on his shoulder.]' Ladies
and gentlemen, this is BILL SMITH. It's BILL'S life I have in my
hands. And ifI make a mistake or do something wrong or do some-
thing that makes you mad, it's BILL that pays the price, not me. And
that makes me very nervous.
Comment: The trial of a case depends, to a large extent, on group
dynamics. What I want to accomplish in the courtroom is a group
composed of the jury, my client, me and, witb a little luck, tbe judge.
In this one short paragraph I have taken a large step in that direction.
I have introduced and bumanized myself (I am from Lubbock, but I
practice, for the most part, in Houston) . I have introduced and hu-
manized my client. I have let the panel know it is okay to be nervous
(they are nervous, too, even if they will not admit it). And I have let
them know this is a serious matter, at least to my client and me. The
reason I tell me panel I am nervous is two-fold. First, I really am ner-
vous and telling them so actually helps calm my nerves and begins my
own mental process of connecting with me jurors. The other reason
is that I use tbe opportunity to humanize my client and begin the
process of getting the jurors to be in "my group."
How many ofyou have heard the phrase, your word is your bond
(fa man is only as good as his word?"
I'm going to count on you to live by that principle throughout this
This is a time to say exactly what ~ t think and tell us exactly how
you feel. It is not a time for polite reservation about your feelings or
opinions. There are no wrong answers.
A trial by jzwy is one of our most precious privileges.
How many ofyou knew that we are one ofonly seven countries in the
world that have trial)' when someone is accused ofa crime?
How abolltthatwe are one ofonlyfourcountrieswhere itis a trial
I believe itis both a privilege and a duty to serve on ajury. Some
people wantto serve, othersdo not. Ifyou don'tgetto serve ordon't
havetoserve, dependingonyourpointofview, Ihopeto atleastmake
Comment: Noticethatmyquestionis "Howmanyofyou have heard
..?" as opposed to "Haveyou heard ..?" Thefirst question asks for
numbers in a group and lets the individual panelists feel more com-
fortable about raising their hands.The latter question, even ifasked
oftheentirepanel,is aquestionaddressed to an individual and leaves
openthe possibiJitythattheirs mightbe theonlyhand goingup. You
will getagreaterresponse toquestionsaddressed in wordsconnoting
a group as opposed to connoting an individual. Also, the first ques-
tion outofthe box is one likely todrawa response from most, ifnot
all, the panelists. The idea is to get them involved in the discussion
[Ask them to keep theirhands raised.]
criminalshave too manyrights?
too manycriminalsgetoff on technicalities?
the lawyer'sjobistogethisclientoff?
Knowing how you feel, how am I going to make sure BILL gets a
fair trial?
[Getresponses from atleast three (3)panelists.]
One wayI can makesureBILLgetsafairtrialisto educateyou on the
law. AsIsaid, Ihopethisjuryselectionprocesswillatleastbe alearning
Let's Change the Qy.estion: How many of you feel
the citizensof the StateofTexashavetoo manyrights?
too manycitizensareprotectedby ourconstitution?
too manycitizensgetto havelawyersrepresentthem incourt?
[Make themsayhea citizen.}
The phrases biasandprejudice"and "fairandimpartial"have a
negative connotation in oursociety. Butin ourjllstice system, they
have specific legal meanings. As wego through this process, what
we're really talkingabout is notwhetheryou have a bias or preju-
dice oryou can befairandimpartial, in the traditionalsense, but
whetheryou can be neutral. None ofus can be neutralallthe time.
WhatI'm tryingtofind outis whethercertain aspectsof the law or
thistype of case makesthisone of those timesyou cal1notbe neutral.
D. PINKELEPHANT(Alternative)
Analternative to this method is askingthe panelto close theireyes
andimagineapinkelephant.Askthem to visualizeitsears, whether
theirelephanthastusks, whetherthe tipsof the earsare white, black
orpink.71Jen ask them to open theireyes. Tell them thatforthe next
30seconds, no matter what they do, do not picture their elephant
in their mind. Getfeed back on whether they are able to block the
thoughtfrom their mind and why itis so difficult. Then explain
thatwhatyou are trying to find outis whether they have a pink
elephant"regardingsome aspectofthe law orthistype of case. Every
timeyoufindsomeone who maybe acandidateforastrikeforcause
on a particularsubject, ask them whether the subject is a pink el-
Comment: Byexplainingthewordsbias,prejudice,fair, and impartial
in this way, I have given the jurors permission to openly admit they
have a bias orprejudiceorthattheycannotbe fair and impartial. All
we have done is change thewords used to express the legal justifica-
tion for a challenge for cause. So often in our business,it is simply a
matterof semanticsin persuadingthejudgeorjurytoourside.
Always geta copy ofthe court's charge before jury selection begins.
You should already have this in your file or trial notebook. Ifnot,
obtain a copy from court personnel. In Houston it is the court re-
[Holding the charge up so everyone can see it.} The 12 ofyou
who are chosen to sit on the jurywill begiven instructionsformJudge
50- N-SOregardingthe law thatappliesto this case. Judge50-N-SOis
thejudgeofthe law andhe setsoutallthe lawyou willuse inrendering
Comment: This is an absolute must. By gettingacopy ofthe charge
and showing the panelists as you discuss the fundamental principles
contained in the charge,you let them know thatwhatyou are saying
is comingdirectly from the judgeand thatyou are notputtingsome
type ofspin on the information. This also helps you bound with the
judge, at least in the eyes ofthe panelists, and starts the process of
making thejudgea memberofthegroupyou are creating.
Asajuror, you, too, have extraordinarypower. Judge 50-N-SOis, as I
said, thejudgeofthe law. He willmakerulingson objections- I willbe
objecting atcertain times. You can counton thatandI hope thatdoes
notoffend anyone. I wouldn'tbe doing myjob if I didn't. You, on the
otherhand, willbejudgesof thefacts, both individuallyandcollectively.
No oneisgoingto beable togoback afteryou havemadeadecision and
question orreverse whatyou decide thefactsare.
AndJudge SO- N-SOtellsyou thatrighthere [Pointto the appropriate
paragraph.]where itsays ('yOtl arethe exclusivejudgesofthefacts....
How manyofyouhavereadthe book orseen the movie, '70KillaMock-
ingbird?"Rememberhow Atticuspleaded with thejuryto do the right
thing?Rememberhow everyone knew whattherightthingto do was?
Butlvhathappenedto Tom Robinson?
Couldanyonegoback andchangewhatthejurydecided?
That'show muchpoweryouhaveasajuror.
Comment: Notice that I call the Judge by name several times. I do
this because it shows both familiarity with and respect for the Judge
in frontofthepanel.I fmd thejudgeslike itas well. Mterall, theyare
elected officials and the more times you repeat their name, the more
likely the panelists are toremember it. I do this throughoutmy jury
selection. Saying "theCourt"or"theJudge"soundsimpersonal. By
calling the Judge by name, I am further making him a part ofthe
group.With the prosecution, however, I always refer to them as "the
State"or"theGovernment"or"theprosecution."At times,Iwill use
the term "assistant prosecutors" - (as ifthey were not real prosecu-
tors).Thisis akindofslantontheprosecutorsandtheyusuallydonot
knowhowtoreact.Whatare theygoingtodo,object? I neveruse the
term "DistrictAttorney"or"D.A."or"AssistantD.A."Manypeople
lookup to the position ofdistrictattorneyand theirassistants.
Oneof the instructionsJudge SO-N-SOwillgiveyou is thatyou cannot
considercertain things in this case as evidence of BILL'sguilt. He will
also instructyou thatifyou hearone of the otherjurorsbringitup, you
are to tellthe otherjurornotto discuss thatmatter. Inotherwords, that
you areto shutthemdown, iftheybringupthesubject.
WhatI needto knowis whetheryou can do that. Areyou the type ofper-
son who willstandtheirground,because itistherightthingto do, orare
you the type ofperson who will go alongtogetalong?"
Comment: This topic ofdiscussion gives individual jurors permis-
sion tostand theirground and lets them know they have permission
from the courttodoso.
Om ofthe instructionsJudge SO-N-SOwillgiveyou is on thepresump-
tionof innocence.
How many ofyou, when you walked in and saw BILL sitting there,
thoughtto yourself, Iwonderwhathe did?" (Maybe you were looking
atme wonderingwhatI did.) [This usually gets a laugh, especially if
your client is wearing asuit. But, as with aU humor, it must be used
sparinglyand is notappropriate in certain cases orin front ofcertain
I thinkitisperfectlynormalto walkinhere withthatquestion on your
mind.Butdo you see how thatisthepresumption ofguiltas opposed to
Mr.Juror, whatdoes thepresumptionofinnocencemeantoyou?
Thatis exactlyright. A lawprofessorcouldnothavesaiditbetter. Let's
showyou whatJudge SO-N-SOinstructionssay. [Readit to the panel.]
All persons are presumed innocent, and no person may be
convicted ofan offense unless each element ofthe offense is
provedbeyondareasonabledoubt.Thefact thataperson has
been arrested,confined,orindictedfor, orotherwisecharged
with the offense gives rise to no inference ofguilt at his/ her
Comment: I am ofthe school ofthought that a person learns best
byseeingand hearingwhatis presented.Thus,I use blowup exhibits
to instill in the panelists the fimdamental principles in our criminal
justicesystem. Thelaw included in all criminal jurycharges contains
legal concepts that are great for the defense and ofwhich the jury
needs agood workingknowledge. Timeand again,I see lawyers pass
overdiscussingtheselegal conceptsand the jurylaterlistening to the
case with the idea the State's burden is nothing more than a "gut-
check." We know, because the experts tell us, jurors come to court
with preconceived notions, such as the idea thatthe defendant must
have done something or we would not be here, the idea that both
sides have to prove something, thatthe jury is there to put together
all the pieces and come to aconclusion as to what actually occurred,
andthatin reachingthatconclusion,thejurorsaresupposed to"keep
score," for lack ofa better word, to determine who wins. Part of
ourjobduringjuryselection is to redirect theirthinking.Oneofthe
mosteffective ways todothis is byeducating them onthelaw thatis
already there.
How manyofyou wantthe defense to puton a case? That is, to call
witnesses to the stand and, perhaps, even call the citizen accttSed to the
What if the assistant prosecutors called all of their witnesses and said to
Judge SO-N-SO, ''l\&rest, your Honor.)) Do you expect us to call witnesses
after that? [If so, the panelist may be subject to a challenge for cause
based on his or her inability to follow the law.]
Iflve didn't call any witnesses, what affect might that have on your de-
liberations in the jury room?
Ifyou deliberated and found that you had a doubt, based on reason, as
to a citizen accused's guilt, would the fact that the defense didn't put on
a case weigh in to your deliberations?
Ifso, how would that weigh in to your deliberations?
lfthat fact is something you would consider, are you saying that this is a
point about which you cannot be neutral? (are YOtt saying this might be
a pink elephant for you?)
Is there anything I could say to get you to be neutral?
Is there anything the assistant prosecutors could say to get you to be neu-
How about Judge SO- N-SO, is there anything he could say?
What if he told you, in order to sit on this jury, you have to be neutral,
would thatget you to be neutral? [Thisis thelock-in question for your
challenge for cause.]
Let me show you the instruction }ttdge SO- N-SO will give you. [Read it
to thepanel.]
The law does not require a defendant to pr01'Je his innocence or prodttce
any evidence at all. The presumption of innocence alone is mfficient to
acquit the defendant, unless the jurors are satisfied beyond a reasonable
doubt ofthe defendant's guilt after careful and impartial consideration
ofall the evidence in the case.
Notice the instruction repeats that the accused is preSttmed innocent.
Also notice that this instruction tells you how high the State's burden is.
It says the State must satiifY you beyond a reasonable doubt. ))And we're
going to talk about that next.
But first, let me go back to what Mr. Juror said. How many ofyou feel
like Mr. Juror - that you cannot be neutral on the issue of the accused
having no burden? [This exposes other panelists who are subject to
a strike for cause or, ifthe challenge is denied because they recant,
should, perhaps, be struckusing aperemptory.]
Let's talk about how high the State's burden really is. In our justice sys-
tem, we have five (5) levels or burdens)) of proof [Show chart to the
(5) Beyond all
Reasonable Doubt.
How high should the
government's burden
be before they take
away yourliberty?
(4) ClearandConvincingEvi-
dence. How high should the
government's burden be before
they take away yourchild?
(3) Preponderance ofthe Evidence.
How high should the government's
burden be before they take away all of
(2) Probable Cause. How high should the
your home and rifle through your chest-of-
(1) ReasonableSuspicion. Howhighshould thegovernment'sbur-
den be before theystopyou and interruptyourday?
Mrs. Jurist, how high should the government's burden be before they stop
you and interrupt your day? [Askatleasttllree (3)panelistsandrecord
the adjectives theyuse.]
That'.r called "reasonable suspicion.)) It is the level of proof the govern-
ment or the State of Texas must meet before they stop you and interrupt
your day.
Mlc Panelist, how high should the government's burden be before they
come into your home and rifle through your chest-oI-drawers? [Ask at
least three (3)panelistsand record the adjectives theyuse.]
That's called "probable cause.)) That is the level of proof the govemment
or the State of Texas must meet before they come into your own home
and rifle through your personal belongings. It is also the level of proof
they must meet before they arrest you and accuse you of committing an
Ms. Vernireperson, holP high should the government's burden be before,
say, the I.R.S., seizes all ofyour money and all ofyour property and ac-
cuses you of owing taxes? (1 have no idea what the actual burden is in
fighting with the I.R.S., but jurors can relate to this.) [Ask at least
three (3) panelists and record theadjectives theyuse .]
That's called "preponderance ofthe evidence. ))1t's the level ofproofneces-
sary to take away your assets.
Mrs. Prospective J1/ror, how high should the government's b1/rden be be-
fore they take Mrs. Jurist's own children away from her and call her a
bad mother? (1 trytoask this question byreferringtosomeoneonthe
panelwhois a mother. Noonewants tocall awomana bad mother.)
[Ask at least three (3) panelistsand record the adjectives they use.]
Ibis is called clear and convincing C1lidence. It's the lC1let ofproof the government must meet
before they come into your home and take your own children away from you.
Lastly, Mr. Venireman, how high should the government's burden be before they take away some-
one's liberty - or, in Texas, their very life? [Askat least three (3)panelistsand record theadjec-
tives they use.]
Comment:A thorough explanation of"proofbeyond a reasonable doubt" is vital in every
criminal trial. A thoroughexplanation andasolid understandingoftheburdenlays the foun-
dation for getting the jurors to view the case from the vantage pointofasking whether the
Statehasprovenitscaseas opposedtoaskingwhetherthedefendanthasdemonstratedhis in-
nocence.A large partofthatfoundation is makingsurethejurorsunderstand thesubstantial
burdentheState has.AfterGeesa, (citationsomitted),jurorsnowdefinefor themselveswhat
"proofbeyond areasonabledoubt"means.Whetherthis is positive ornegative is debatable.
Thedeletionofalegaldefinition,though,doesopenthedoorfor us todefmeitas highas we
possibly can.Withoutacomparisonof"proofbeyond areasonabledoubt" totheotherbur-
densinourjusticesystem,though,thejurorshavenoreferencepointforareal understanding
ofthe significanthurdletheStatemustovercome toobtainaconviction.
So, what happens ifyou are not convinced beyond a reasonable doubt?
Judge SO-N-SO has a specific instruction to you in this regard. [Hold up the jurycharge and
pointtothe relevantportion,then read tothem the last blowup.]
"Unlessyou sofmd beyondareasonabledoubt,orifyou have "A"reasonabledoubt
thereof,you will acquitthedefendantand say byyourverdict'NOTGUILTY.'"
Ifyou have a doubt, based on reason, what has Judge 50- N -SO instructed you to do? [Ask at least
three (3)panelists.]
What does all this mean? Boiled down to its simplest terms, it means you have to be convinced
beyond all doubt, based on reason, before you can return a guilty verdict. You may think he might
beguilty. You may think he is probably guilty. But ifthere is any doubt, whatsoC1lel, that is reason-
able, then you MUST say notguilty.
Cell 512-302-4274
Phone 512-847-8199
Wim berley, Texas
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bettercommunicationwith prosecutorsand thejudiciary.
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advocacy skillsand knowledge.
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system for indigentpersons chargedwith criminal offenses.
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