As you can imagine from the past posts, when my client testified, he wasn't going to get any slack. (No offers of tissues, delays for lunch, how are yous - none of that mess that might help him with the jury.) {I'll find for another blog where the judge admonishes him that she & P didn't want to socialize with him.}
So, he's on the stand & testifying. He had already testified for 28 pages. P objects as she did frequently (sorry - didn't throw me off) & client begins to answer. Unlike other witnesses, judge admonishes him in front of the jury: When the lawyer stands up, that means you're not supposed to answer and I'm supposed to rule before you answer the question. [Of course, I had already told him that but that is not the point - this had already happened several times & I was civil about it but the judge - without a request or further objection from P, jumps Client. Ridiculous but expected.]
I ask to respond & the judge tells us to approach. Guess she figures what I'm about to launch into about HER behavior because it needs to be clear to the jury what she is pulling. P, sensing what is coming, makes up some real BS & says, before we even start talking at the bench, {remember to think in a whiny voice}: He's making faces at the jury as you're talking up here. [Don't know what she is talking about - judge hasn't started to talk yet.] Court: Mr. Gilbert. I see you're shaking your head. It's improper for you to shake your head. If you're indicating your feelings about something, that's improper. So please don't communicate through any gestures. Thank you.
WHAT?!!! He is shaking his head denying the false accusation that P is making. I swear, this was crazy.
We finish talking about her stupid objection which she whines about having been partly answered [okay - he already got jumped for that] when the judge asks if she wants a ruling, and then the judge gives her the correct ruling (using the wrong word)- DENIED.
I then state: Also, I'm going to object to you admonishing my client in front of the jury. What do you think the judge says? Not sorry, or you are right or anything you might expect but: You had an opportunity to object after she asked me to do that. First off, she didn't ask but I couldn't remember so I say, I had an opportunity to object?! I didn't know you were going to admonish him in front of the jury. I've never had a Judge do that. I thought you would tell him at a break. She remarks about how she always does that - LAWYERS - ARE YOU OBJECTING TO THIS?! and I say - I'd object. Thank you. {Do you love how I threw in her phrase thank you?! I had had enough of this trial. The judge was getting the respect she deserved - NONE.}
I'll stop here because this was BIG, folks. And, it was not true to my knowledge. Why would Client make faces at his jury?! He wanted a not guilty. Guess I should have asked if he stuck his tongue out, or winked, or what. It wasn't like he got admonished for shaking his head during someone else's testimony - but during his own.
Unbelievable.
Monday, March 30, 2009
Thursday, March 26, 2009
Team court & prosecutrix v. me - trial fun FIVE
You may remember that the State doesn't want me to get into the fact that the 19 y.o. c/w has accused multiple people of all kinds of deviance against her & that she was caught in a situation when she was 12, leading to a touching accusation against Client. After not being believed (wonder why), she upped the ante to full blown sex when questioned about her sexuality by her mother (Client's best friend & sister.)
State has a motion in limine that I not talk about prior accusations (limine means I have to approach the bench before I do such naughtiness) & their circumstances. But, remember that I baited PNDL who deserves no number aka prosecutrix - hereinout P into putting the video in (which should have come in ANYWAY because almost every word of it was Brady (contradicting) to her current testimony in court.
The video has the prior allegations in it so I (dumbly, apparently) think the limine crap is out the window. ME: When your mom asked you when you were 12 about sexual contact, she accused you of having sex with a boy, didn't she? . . . P: [whining loudly so the jury can hear our bench conference] That's a violation of the motion in limine. ME: [YIKES - even I don't do that] No, it's not. It's on the video. (I really didn't think about it because the info was already in evidence through that video & I had already asked her once about it.) [Judge has the jury quote retired which means taken out to the jury room cuz she is about to light into me & I guess she figures she is so excited about the opportunity she won't be able to keep her voice low, and she knows me - I'll complaint ON THE RECORD about such.]
Court:...I thought there was a motion in limine on that. I can't [imagine disgust] imagine [doesn't have much imagination, does she?] why you did not approach the bench first. ME: [uh, I'm likely a bit nervous. In 20 years, I've never been held in contempt & I'm thinking that is about to change. Contempt means jail and/or fine.] I asked her about this on direct. She denied it the first time. Then we put the video in, and it's in the video. P: Your recollection of the video -- there's no accusations on the video. [REMEMBER - she wouldn't give me a copy & she had had it forever. I had notes from watching a few times but it is hard when you don't have the video and/or a transcript. I think most of us defense lawyers would call it, besides Brady violation, a good faith effort - meaning we really did think it was on there. I KNEW it was. I got a copy of the video after it was put in evidence the day before - funny she objected to that & the judge told her it was in evidence.... Talk about DDDUUUUHHHH!]
ME: Well, that's incorrect, because specifically she said, I remember it was around my birthday , and that we had a party or something and my mom thought I was having sex. And that is on the video, from my notes. And I did ask her about that on cross, before, And now she just changed her testimony. P: I object. She hadn't changed anything. [IS SHE FREAKING KIDDING? IF c/w is talking, the girl is lying & we all know you can't remember your lies!!!! I can you believe I'm still being shocked by such BS at this point?!] ...
Court: [Court reporter], I'm going to ask you read back the last question before the jury. {Obviously best since P & I can't agree on anything} P: I would say that's both a misstatement of the evidence , as the video -- ... I'm referring to the question. It's both a violation of the motion in limine, and it's as well, as misstatement of the evidence, or assuming facts that are not in evidence. Court (to me): You'll need to queue up the video. I'll need to see where you say it is on the video, Mssssssss. Hhhheeeennnlllleeeey. (imagine her saying my name like she's gonna get my butt now! (Remember before the court got upset because I questioned the veracity of P - court doesn't HESITATE to make me prove myself!)
I queue up the State's long (about 1 hour) video of which I only had notes & here is the difference: SHE SAID: Mom thought I was having sex. I told her I wasn't. WHAT I SAID: She accused you of having sex. DUH - excuse the hell out of me but that was pretty damn good for just notes.
Court: Well, it seems to me, clearly, on the videotape, she says my mom thought I was having sex, & I told her I wasn't. (turning to me because I was just about as close to right as could be & she is p.o.'d that she ain't gonna hearing the clanging of the cell behind my back) Court: Part of the problem is, you rephrase things to put them in the light most favorable to the case, Ms. Henley. So it doesn't all come down the way that it appears in the State's evidence. Bring the jury out. What? No apology? No nothing. OH HELL NO - NOW I'VE GOT SOMETHING TO SAY
ME: I would like to state on the record, I did not get a copy of this video until very late. I don't have a transcript. I'm doing this in good faith. And I would also object to her stating in front of the jury that I violated a motion in limine.
Court (to P): I wouldn't be so self righteous in light of fact that it appears there's some Brady material that hasn't been turned over to the defense. (Obviously P was prising around huffing & puffing) and I don't understand why you would want the jury to know you had a motion in limine. What's the point of having a motion in limine if you're going to tell them that?
DID I HEAR THAT RIGHT? Hm, so I decide to push a little more because now P is rattled. She is mad, she is shaking & she is out-of-control. No one has ever talked to her like this. Hmph. ME: She's striking over my should because she's accusing me of something wrong.
Uh, oh - you can almost see the judge remembering that I'm there & just made a point which she does not like at all. Court: Well, there was a motion in limine. You should have come to the bench. Both lawyers should have come to the bench. So I don't feel that either side has clean hands throughout this trial. [ARE YOU READY?! HERE SHE GOES:} I'm really disappointed about the way this case is being tried. [SHE IS?!!!!! What about my client who is being railroaded?! But, she is starting to see that I might know what I am doing. She instructs that the jury be brought in & advises P): Don't strike at the defendant over the lawyer's shoulder. (WOW! Of course my request that the jury be instructed to disregard is denied with a ridiculous admonishment that I should have approached [about evidence that is put in via the video by the State?! Duh, okay.])
That's it for today folks except one last lovely excerpt when I approach to ask if I can ask c/w what she was doing that made her mother ask her if she was having sex & P says it isn't relevant (she loves that nothing objection), ME: I guess at this point, you're not going to let it in any way because you're not letting in any prior accusations against any other people." (Do I sound like I'm tired of it?!) HA HA HA
Until next time . . .
State has a motion in limine that I not talk about prior accusations (limine means I have to approach the bench before I do such naughtiness) & their circumstances. But, remember that I baited PNDL who deserves no number aka prosecutrix - hereinout P into putting the video in (which should have come in ANYWAY because almost every word of it was Brady (contradicting) to her current testimony in court.
The video has the prior allegations in it so I (dumbly, apparently) think the limine crap is out the window. ME: When your mom asked you when you were 12 about sexual contact, she accused you of having sex with a boy, didn't she? . . . P: [whining loudly so the jury can hear our bench conference] That's a violation of the motion in limine. ME: [YIKES - even I don't do that] No, it's not. It's on the video. (I really didn't think about it because the info was already in evidence through that video & I had already asked her once about it.) [Judge has the jury quote retired which means taken out to the jury room cuz she is about to light into me & I guess she figures she is so excited about the opportunity she won't be able to keep her voice low, and she knows me - I'll complaint ON THE RECORD about such.]
Court:...I thought there was a motion in limine on that. I can't [imagine disgust] imagine [doesn't have much imagination, does she?] why you did not approach the bench first. ME: [uh, I'm likely a bit nervous. In 20 years, I've never been held in contempt & I'm thinking that is about to change. Contempt means jail and/or fine.] I asked her about this on direct. She denied it the first time. Then we put the video in, and it's in the video. P: Your recollection of the video -- there's no accusations on the video. [REMEMBER - she wouldn't give me a copy & she had had it forever. I had notes from watching a few times but it is hard when you don't have the video and/or a transcript. I think most of us defense lawyers would call it, besides Brady violation, a good faith effort - meaning we really did think it was on there. I KNEW it was. I got a copy of the video after it was put in evidence the day before - funny she objected to that & the judge told her it was in evidence.... Talk about DDDUUUUHHHH!]
ME: Well, that's incorrect, because specifically she said, I remember it was around my birthday , and that we had a party or something and my mom thought I was having sex. And that is on the video, from my notes. And I did ask her about that on cross, before, And now she just changed her testimony. P: I object. She hadn't changed anything. [IS SHE FREAKING KIDDING? IF c/w is talking, the girl is lying & we all know you can't remember your lies!!!! I can you believe I'm still being shocked by such BS at this point?!] ...
Court: [Court reporter], I'm going to ask you read back the last question before the jury. {Obviously best since P & I can't agree on anything} P: I would say that's both a misstatement of the evidence , as the video -- ... I'm referring to the question. It's both a violation of the motion in limine, and it's as well, as misstatement of the evidence, or assuming facts that are not in evidence. Court (to me): You'll need to queue up the video. I'll need to see where you say it is on the video, Mssssssss. Hhhheeeennnlllleeeey. (imagine her saying my name like she's gonna get my butt now! (Remember before the court got upset because I questioned the veracity of P - court doesn't HESITATE to make me prove myself!)
I queue up the State's long (about 1 hour) video of which I only had notes & here is the difference: SHE SAID: Mom thought I was having sex. I told her I wasn't. WHAT I SAID: She accused you of having sex. DUH - excuse the hell out of me but that was pretty damn good for just notes.
Court: Well, it seems to me, clearly, on the videotape, she says my mom thought I was having sex, & I told her I wasn't. (turning to me because I was just about as close to right as could be & she is p.o.'d that she ain't gonna hearing the clanging of the cell behind my back) Court: Part of the problem is, you rephrase things to put them in the light most favorable to the case, Ms. Henley. So it doesn't all come down the way that it appears in the State's evidence. Bring the jury out. What? No apology? No nothing. OH HELL NO - NOW I'VE GOT SOMETHING TO SAY
ME: I would like to state on the record, I did not get a copy of this video until very late. I don't have a transcript. I'm doing this in good faith. And I would also object to her stating in front of the jury that I violated a motion in limine.
Court (to P): I wouldn't be so self righteous in light of fact that it appears there's some Brady material that hasn't been turned over to the defense. (Obviously P was prising around huffing & puffing) and I don't understand why you would want the jury to know you had a motion in limine. What's the point of having a motion in limine if you're going to tell them that?
DID I HEAR THAT RIGHT? Hm, so I decide to push a little more because now P is rattled. She is mad, she is shaking & she is out-of-control. No one has ever talked to her like this. Hmph. ME: She's striking over my should because she's accusing me of something wrong.
Uh, oh - you can almost see the judge remembering that I'm there & just made a point which she does not like at all. Court: Well, there was a motion in limine. You should have come to the bench. Both lawyers should have come to the bench. So I don't feel that either side has clean hands throughout this trial. [ARE YOU READY?! HERE SHE GOES:} I'm really disappointed about the way this case is being tried. [SHE IS?!!!!! What about my client who is being railroaded?! But, she is starting to see that I might know what I am doing. She instructs that the jury be brought in & advises P): Don't strike at the defendant over the lawyer's shoulder. (WOW! Of course my request that the jury be instructed to disregard is denied with a ridiculous admonishment that I should have approached [about evidence that is put in via the video by the State?! Duh, okay.])
That's it for today folks except one last lovely excerpt when I approach to ask if I can ask c/w what she was doing that made her mother ask her if she was having sex & P says it isn't relevant (she loves that nothing objection), ME: I guess at this point, you're not going to let it in any way because you're not letting in any prior accusations against any other people." (Do I sound like I'm tired of it?!) HA HA HA
Until next time . . .
Tuesday, March 24, 2009
Team court & prosecutrix v. me - trial fun IV
Welcome back! Let me first explain the term "Brady". In my blogs - it is about evidence which tends to impeach the complainant or to make it seem like she is not telling the truth. (It means much more than that - but just that for here.) That is for my non-lawyer friends who like to read my rants.
Remember I asked for Brady. I begged for it. I was admonished about my self righteous attitude because of my demands. I asked for PNDL1 (see prior blogs) & others to listen to the testimony because sometimes, you can just smell a rat. This courtroom smelled badly!
So, I'm getting ready to call the c/w back to the stand to set her up for the takedown. If my lawyer friends can believe this, a Children's Assessment Center (CAC) cop actually took & KEPT handwritten notes of his & the current prosecutrix on the case meeting with the c/w (complaining witness) mother! And I did ask I always do - asked for them to be preserved & turned over. (Course, I had asked & asked & asked . . . for Brady - got squat.)
I get hung up a lot when I write, don't I?! My memory causes me to get angry. This was NOT a good, fair battle.
Anyway, prosecutrix (PNDL not worthy of a number) keeps looking down her uppity nose at me & telling the Court in her snitty, shitty way how she has no Brady when I tell the Court I want to bring up that damn past stuff I keep trying to bring up all trial. (I can hear the breath of disgust now.)
Court: You keep talking about the mother... ME: I have to ask [c/w], first, & then I'll ask the mother. (We have to have the liar, uh, c/w deny before we can impeach with another witness.) Court: You have a good faith basis for believing that [mother] on numerous times, asked her daughter [c/w] if she had been sexually abused and she denied it? (Notice - my integrity is being questioned after Court got perturbed when I wanted to put prosecutrix on the stand, under oath. Oh, well. I am what they consider a scum-sucking bottom dwelling criminal defense lawyer - especially when they get CAUGHT RED-HANDED!!!!!)
ME: Yes, Your Honor (so sweeeettt) based on the notes from this officer when he interviewed her, which has not been disclosed to me. That's Brady. (Imagine me hmphing and prissing around the courtroom - I do tend to get a little uppity myself when I am lied to, disbelieved, & treated like trash - but I have proof - I am RIGHT!) Prosecutrix: (in a sweet, give me chill bumps, little girl voice): It's Brady that mom asked her if she had ever been abused? (Me: DUUUUUHHHHHH. As if she is saying she is so cute that we should expect her blonde butt to be dumb - that's what I thought when I said): And she was, Judge, and she did not outcry.
Court: That's cross examination material. That's Brady. I'm going to ask it be revealed to the defendant. little ms liar prosecutrix: She's had it for two days (leaving out that I've been asking for it for a year!) Court: Is there anything else like that that's a serious point? That's a pretty serious point. That's classic Brady material. And you apparently were present when she discussed that. (I had already told the court SHE WAS, and she admitted it.) [At this point, the Court gets on her a little - and I say]: There a lot of this, Judge. This is why again, I keep askiing for the prosecutors' notes. Because I firmly believe there are a lot of these kinds of things, based on the stuff I'm getting on these notes, which I didn't get until after he testifed (and I reserved my cross - which means I got the notes I asked for all year at the LAST possible second.)
I'll make this a short one & stop with that. You would think at this point - after catching the little liar in a big one, that my word would be gold & I'd be on easy street for the rest of the trial. But you be thinking WRONG. Are you kidding?! This judge is all about the conviction.
Ms. PNDL - do you remember this trial? Would you like to start 'splaining now? You can't, can you - because it was nothing but a railroad attempt. Luckily, even as I was beginning to get sick, I was not going to let this man down. I was not going to let them win. I fought hard. Stay tuned.
Remember I asked for Brady. I begged for it. I was admonished about my self righteous attitude because of my demands. I asked for PNDL1 (see prior blogs) & others to listen to the testimony because sometimes, you can just smell a rat. This courtroom smelled badly!
So, I'm getting ready to call the c/w back to the stand to set her up for the takedown. If my lawyer friends can believe this, a Children's Assessment Center (CAC) cop actually took & KEPT handwritten notes of his & the current prosecutrix on the case meeting with the c/w (complaining witness) mother! And I did ask I always do - asked for them to be preserved & turned over. (Course, I had asked & asked & asked . . . for Brady - got squat.)
I get hung up a lot when I write, don't I?! My memory causes me to get angry. This was NOT a good, fair battle.
Anyway, prosecutrix (PNDL not worthy of a number) keeps looking down her uppity nose at me & telling the Court in her snitty, shitty way how she has no Brady when I tell the Court I want to bring up that damn past stuff I keep trying to bring up all trial. (I can hear the breath of disgust now.)
Court: You keep talking about the mother... ME: I have to ask [c/w], first, & then I'll ask the mother. (We have to have the liar, uh, c/w deny before we can impeach with another witness.) Court: You have a good faith basis for believing that [mother] on numerous times, asked her daughter [c/w] if she had been sexually abused and she denied it? (Notice - my integrity is being questioned after Court got perturbed when I wanted to put prosecutrix on the stand, under oath. Oh, well. I am what they consider a scum-sucking bottom dwelling criminal defense lawyer - especially when they get CAUGHT RED-HANDED!!!!!)
ME: Yes, Your Honor (so sweeeettt) based on the notes from this officer when he interviewed her, which has not been disclosed to me. That's Brady. (Imagine me hmphing and prissing around the courtroom - I do tend to get a little uppity myself when I am lied to, disbelieved, & treated like trash - but I have proof - I am RIGHT!) Prosecutrix: (in a sweet, give me chill bumps, little girl voice): It's Brady that mom asked her if she had ever been abused? (Me: DUUUUUHHHHHH. As if she is saying she is so cute that we should expect her blonde butt to be dumb - that's what I thought when I said): And she was, Judge, and she did not outcry.
Court: That's cross examination material. That's Brady. I'm going to ask it be revealed to the defendant. little ms liar prosecutrix: She's had it for two days (leaving out that I've been asking for it for a year!) Court: Is there anything else like that that's a serious point? That's a pretty serious point. That's classic Brady material. And you apparently were present when she discussed that. (I had already told the court SHE WAS, and she admitted it.) [At this point, the Court gets on her a little - and I say]: There a lot of this, Judge. This is why again, I keep askiing for the prosecutors' notes. Because I firmly believe there are a lot of these kinds of things, based on the stuff I'm getting on these notes, which I didn't get until after he testifed (and I reserved my cross - which means I got the notes I asked for all year at the LAST possible second.)
I'll make this a short one & stop with that. You would think at this point - after catching the little liar in a big one, that my word would be gold & I'd be on easy street for the rest of the trial. But you be thinking WRONG. Are you kidding?! This judge is all about the conviction.
Ms. PNDL - do you remember this trial? Would you like to start 'splaining now? You can't, can you - because it was nothing but a railroad attempt. Luckily, even as I was beginning to get sick, I was not going to let this man down. I was not going to let them win. I fought hard. Stay tuned.
Sunday, March 22, 2009
Can't judge a trial by the news
I have tried cases, and I have watched trials, that were reported on and in the news - television and newspaper. What I have noticed every time, is that one cannot determine, as a juror can or should, what the verdict should be. The reporter comes in with their preconceived beliefs (which they have not promised to set aside and frequently don't), and they usually watch only parts (generally the quote exciting stuff), and they don't hear it all. Even if they watch final arguments, if it was a long trial or the judge restricts final argument (which happens frequently in Harris County), the lawyer may miss what is a key element for some people. But the jurors heard it - even if the reporter didn't.
In my arguments, I try to remember to tell the jury that if there is a point that is important to them, that I didn't mention in my argument, that does not mean it was/is not important. It means that either I forgot with all the things I am trying to remember, I am nervous and my nerves are affecting my memory, or that I did not realize the importance. But, they, as the independent judges who have heard all the evidence, are in the very best place to decide what is important and what is not, and to remember as they do this review of all the evidence - even that not mentioned - that the burden is on the State at every step of the way to prove the allegations beyond a reasonable doubt.
I could go on regarding argument and perhaps I will in the future but this blog is really about the news. If you are a lay person, and even us lawyers who tend to do this - don't judge a case (or the jurors' decision) based on the reports. Read about the case, be interested, but remember that you didn't hear it all. : )
Blog on . . .
(I will return to my trial blog - it just is time consuming so I'm taking a bit of a break.)
In my arguments, I try to remember to tell the jury that if there is a point that is important to them, that I didn't mention in my argument, that does not mean it was/is not important. It means that either I forgot with all the things I am trying to remember, I am nervous and my nerves are affecting my memory, or that I did not realize the importance. But, they, as the independent judges who have heard all the evidence, are in the very best place to decide what is important and what is not, and to remember as they do this review of all the evidence - even that not mentioned - that the burden is on the State at every step of the way to prove the allegations beyond a reasonable doubt.
I could go on regarding argument and perhaps I will in the future but this blog is really about the news. If you are a lay person, and even us lawyers who tend to do this - don't judge a case (or the jurors' decision) based on the reports. Read about the case, be interested, but remember that you didn't hear it all. : )
Blog on . . .
(I will return to my trial blog - it just is time consuming so I'm taking a bit of a break.)
Saturday, March 21, 2009
More to come re team court & prosecutrix v. me
Several people wrote to me on Facebook & said keep on - they are shy or Kennitra (sp - sorry) said that somehow the comments thing wasn't working for her.
Maybe one has to come to my actual blog to comment & they are trying to comment on Facebook. So, for Facebook readers, I THINK this is the connection: http://cynthiahenley.blogspot.com
Comments don't have to be positive. No need to kiss up. I'll post your comments as long as they are relevant & not about some of my typos or something stupid. : ) Say what you think. I will even post negative remarks (like one of my friends from OLD times concurred that I am a smartass - and she is right.)
I hope to do the next blog soon. (It really does take some time to read this record, laugh my butt off, get mad again at the ridiculous way Client's case was treated, laugh again that it didn't matter - we won in the long run, & then write it up & try to find the mistakes & listen to complaints from family members who feel they are being ignored.)
As a couple of people said to me, People need to KNOW what is going on at the courthouse. People need to know that citizens are NOT getting fair trials. People need to understand that even people with allegator skin have to FIGHT tooth & nail to protect clients.
Blog on, defend on, read on.
AND, if you get a jury summons - PLEASE GO! You know what is going on down there. Put a stop to it by participating in the system. : )
Maybe one has to come to my actual blog to comment & they are trying to comment on Facebook. So, for Facebook readers, I THINK this is the connection: http://cynthiahenley.blogspot.com
Comments don't have to be positive. No need to kiss up. I'll post your comments as long as they are relevant & not about some of my typos or something stupid. : ) Say what you think. I will even post negative remarks (like one of my friends from OLD times concurred that I am a smartass - and she is right.)
I hope to do the next blog soon. (It really does take some time to read this record, laugh my butt off, get mad again at the ridiculous way Client's case was treated, laugh again that it didn't matter - we won in the long run, & then write it up & try to find the mistakes & listen to complaints from family members who feel they are being ignored.)
As a couple of people said to me, People need to KNOW what is going on at the courthouse. People need to know that citizens are NOT getting fair trials. People need to understand that even people with allegator skin have to FIGHT tooth & nail to protect clients.
Blog on, defend on, read on.
AND, if you get a jury summons - PLEASE GO! You know what is going on down there. Put a stop to it by participating in the system. : )
Friday, March 20, 2009
Team court & prosecutrix v. me - trial fun no more?
So is anyone out there? Anyone reading my trial blog? Want to hear more of the story? Let me know (or I won't waste my time . . . )
Tuesday, March 17, 2009
Team court & prosecutrix v. me - trial fun III
Okay - since I am not getting any comments I'm going to leave details out of a chunk out - where I asked that 3 prosecutors be forced to watch the trial because they had talked to the complainant when they had the file and I knew that the complainant had told them a different version of events (because she had told so many that I knew about). This was denied, as was a request for their notes, as was a request that their notes be sealed and made a part of the record! (Court's response to me after their lawyer said that THEY (HA) would make a Brady assessment at the conclusion of the proceedings. What is that story about the fox watching the chickens?! Court: "Well, obviously, there is a real -- there is a real -- I'm sure the motives are sincere, Ms. Henley; but obviously you start asking for their work product mid trial, that raises all kinds of legal issues." She was not applying "real" to my motives - in fact, I remember some surliness in the part about how my motives were sincere. I can say this - THEY WERE, AND I WAS RIGHT as it turned out. AND, I had been asking for this stuff since before the trial.)
BTW, if you have been reading my blogs, PNDL1 was one of the prosecutors who I wanted to watch the trial and point out the lies that the complainant told from the stand, at least based on the lies that she told to each prosecutor.
[I think that maybe I am the reason that no one interviews complainants now until just before trial. I think they are finally getting that contradictions in statements - ESPECIALLY when the complainant is 18! - is BRADY. Read the case for crying out loud!]
Court's next cute move was to pity the complainant on the stand in front of the jury. Prosecutrix shows the complainant a school photo of when she was younger and for some reason this photo (none of the graphic testimony or other photos) makes her tear up so the prosecutor asks for a tissue. Court: "Yes, ma'am. Can you take a second? Are you okay?" [This was directed at the c/w who I think was practicing for cross because she had been so flat in effect until then, and cross was just a few questions away . . .]
I'm setting up the living situation and the State objects to the mention of a man. (Long story but suffice it to say that she feared her complainant had been naughty with more than her share already.) Prosecutrix: . . ."I think is irrelevant and is not probative and has - you know, it's prejudicial and its' confusing." [Hey - I saved you from the prior 9 lines of jibberish.]
Court: "Well - -" ME: "It's not confusing." Court: I have a hard time really understanding your defense, Ms. Henley. . . ." [That's because (1) she didn't listen and (2) she didn't read and (3) she didn't care and (4) I was hurting the State's case, dang it!]
Return from lunch break and again IN FRONT OF THE JURY before I begin questioning: Court (to the c/w): "Okay. Thank you. Did you get lunch?" LIAR [whoops, I meant c/w]: "No, ma'am. I called some friends to get class work." I FREAKIN SWEAR!!!! I think this had to be set up while I was out rounding up witnesses - don't you?! Court: "All right. Are you all right without lunch?" [WHAT? If she says no, are we going to take another 1.5 hours so she can eat? There's really no need because I'm just about to feed her own words to her so she might want to keep her stomach empty to minimize the hurl. . . HA!]
So, we get into nitty, gritty details. I want that video of the c/w (of which I do not have a copy) in evidence so bad. I finally, with impeachment line by line of what I could get, badger prosecutrix into offer it. YEAH!
Last bit - I complain about the State's notice of extraneous because it says stuff like "licked the anus", etc. Uses the word anus. When I start asking the c/w about it, she says she never said that. Big storm at the bench & prosecutrix admits that c/w said "butt" and she used the word "anus". ME: "I'm going to want to call the prosecutor to impeach her." Court: "Which prosecutor?" ME: "This one, who gave me the notice. I don't know if there is someone else who knew this or not." Court: "She just told you as an officer of the court. Are you saying that she is not a truth teller, and you want to cross-examine her?" [WELL,I'd at least like her under oath because I'd already found lie - okay, I'll be nice - misrepresentation after misrepresentation. . . REMEMBER THIS OFFICER OF THE COURT BIT BECAUSE MY INTEGRITY GETS CALLED OUT SEVERAL TIMES ABOUT QUESTIONS I ASK, THAT THE PROSECUTRIX AND COURT SAY I DIDN'T (matters for impeachment) BUT GUESS WHAT - THE RECORD SHOWED I DID.
I start trying to explain how I wanted to impeach the complainant with what the prosecutor gave me as extraneous. It's similar to all these kinds of case. Court: "Sorry. There has been so much here I'm afraid I didnt' quite follow it. Give it to me one more time, that last part." [Good thing I didn't really give IT to her.] After discussion . . . Court: ". . .I have never had a defense lawyer try to call a prosecutor to the stand, and that's what youre telling me you plan to do." [See how nice she is being. She is calling me innovative.] ME: "Well, Judge, I - -" Court: I'm just asking a simple yes or not, not a speech." [ME give a speech? Heck, she NEVER seems to understand one thing I explain, & I've tried plenty of cases.] Me: "Yes". [A few seconds later she begins referring the prosecutrix by her first name. Poor whiny thing.]
That's it for today, folks. Comments?
BTW, if you have been reading my blogs, PNDL1 was one of the prosecutors who I wanted to watch the trial and point out the lies that the complainant told from the stand, at least based on the lies that she told to each prosecutor.
[I think that maybe I am the reason that no one interviews complainants now until just before trial. I think they are finally getting that contradictions in statements - ESPECIALLY when the complainant is 18! - is BRADY. Read the case for crying out loud!]
Court's next cute move was to pity the complainant on the stand in front of the jury. Prosecutrix shows the complainant a school photo of when she was younger and for some reason this photo (none of the graphic testimony or other photos) makes her tear up so the prosecutor asks for a tissue. Court: "Yes, ma'am. Can you take a second? Are you okay?" [This was directed at the c/w who I think was practicing for cross because she had been so flat in effect until then, and cross was just a few questions away . . .]
I'm setting up the living situation and the State objects to the mention of a man. (Long story but suffice it to say that she feared her complainant had been naughty with more than her share already.) Prosecutrix: . . ."I think is irrelevant and is not probative and has - you know, it's prejudicial and its' confusing." [Hey - I saved you from the prior 9 lines of jibberish.]
Court: "Well - -" ME: "It's not confusing." Court: I have a hard time really understanding your defense, Ms. Henley. . . ." [That's because (1) she didn't listen and (2) she didn't read and (3) she didn't care and (4) I was hurting the State's case, dang it!]
Return from lunch break and again IN FRONT OF THE JURY before I begin questioning: Court (to the c/w): "Okay. Thank you. Did you get lunch?" LIAR [whoops, I meant c/w]: "No, ma'am. I called some friends to get class work." I FREAKIN SWEAR!!!! I think this had to be set up while I was out rounding up witnesses - don't you?! Court: "All right. Are you all right without lunch?" [WHAT? If she says no, are we going to take another 1.5 hours so she can eat? There's really no need because I'm just about to feed her own words to her so she might want to keep her stomach empty to minimize the hurl. . . HA!]
So, we get into nitty, gritty details. I want that video of the c/w (of which I do not have a copy) in evidence so bad. I finally, with impeachment line by line of what I could get, badger prosecutrix into offer it. YEAH!
Last bit - I complain about the State's notice of extraneous because it says stuff like "licked the anus", etc. Uses the word anus. When I start asking the c/w about it, she says she never said that. Big storm at the bench & prosecutrix admits that c/w said "butt" and she used the word "anus". ME: "I'm going to want to call the prosecutor to impeach her." Court: "Which prosecutor?" ME: "This one, who gave me the notice. I don't know if there is someone else who knew this or not." Court: "She just told you as an officer of the court. Are you saying that she is not a truth teller, and you want to cross-examine her?" [WELL,I'd at least like her under oath because I'd already found lie - okay, I'll be nice - misrepresentation after misrepresentation. . . REMEMBER THIS OFFICER OF THE COURT BIT BECAUSE MY INTEGRITY GETS CALLED OUT SEVERAL TIMES ABOUT QUESTIONS I ASK, THAT THE PROSECUTRIX AND COURT SAY I DIDN'T (matters for impeachment) BUT GUESS WHAT - THE RECORD SHOWED I DID.
I start trying to explain how I wanted to impeach the complainant with what the prosecutor gave me as extraneous. It's similar to all these kinds of case. Court: "Sorry. There has been so much here I'm afraid I didnt' quite follow it. Give it to me one more time, that last part." [Good thing I didn't really give IT to her.] After discussion . . . Court: ". . .I have never had a defense lawyer try to call a prosecutor to the stand, and that's what youre telling me you plan to do." [See how nice she is being. She is calling me innovative.] ME: "Well, Judge, I - -" Court: I'm just asking a simple yes or not, not a speech." [ME give a speech? Heck, she NEVER seems to understand one thing I explain, & I've tried plenty of cases.] Me: "Yes". [A few seconds later she begins referring the prosecutrix by her first name. Poor whiny thing.]
That's it for today, folks. Comments?
Monday, March 16, 2009
Team court & prosecutrix v. me - trial fun II
Okay I said I would start with the coaching on this blog so here ya go: Vol. III - p. 56 - The court: "The problem is, [prosecutrix], you were asking her [the supposed expert] about other cases and why do people do this . . . it's how you phrase it that's the problem. Prosecutrix: Okay. The court: Just to let you know. Prosecutrix: Thank you. (This was 11 lines in the record but it wasn't in front of the jury. I just let them have their fun. Shows bias on by the judge when it comes to appeal, especially as much as I had to put up with this kind of junk.)
Another bit - I hope any non-lawyer can appreciate that it is best if we truly believe in our clients and fear for their freedom - so this was outside of the jury's presence at the end of the first day of testimony. I had just argued that the State opened the door to let in something that should have been admitted anyway. Court disagreed (imagine that) and said Vol. III - page 185-86
"Can I make a suggestion to the lawyers: ME: Yes, Your Honor (and I didn't even choke!) Court: You know, it seems to me you-all are very emotionally involved in this case. long pause - OKAY, I remember that; it wasn't typed in the record.] I'm going to wait until you finish so you have time to listen to me. ME: I'm listening. (Apparently I was making notes for Trial Motion Day Two or something & not looking at her as she glared at me as she had all day.) Court: Can you look at me when I talk to you? (WHAT THE HELL?! Does she think I am her child?) ME: I'm sorry. (I think I did choke on that one.)
Court: You know, none of us were there. None of us were there. You don't know if the complainant is telling the truth [prosecutrix]; and you don't know if your client is telling the truth and if he did sexual things to her for years. So let's not assume as lawyers and a Judge [court reporter's capitalization - bet she's been admonished, too!] that somehow we have some -- some incredible insight that tells us that our position -- whether our position is right and whether our position is wrong. Those are tough cases, and I wouldn't assume that any of us know the truth. You know, that's what we're here to find out, because there is a certain righteousness, you know, that I see in this particular case, more from the Defense. [I didn't add the capital but HELL YES I'M RIGHTEOUS. What a fabulous compliment!!!!!]
In some trials I see it more from the State - it's righteous, my victim is telling the truth. And I think you're here, especially there is a lot of righteousness that your client has been wrongfully convicted. [WHAT? Does she know something I don't know? The trial just freaking started!!!!]
None of know that happened there. So let's not get too upset about anything. This is supposed to be a truth-finding mission [YES IT IS SO WHAT CAN'T I GET ANY EVIDENCE IN?????], and my job is to let in the evidence that will help the jury find the truth [if they can because it is being kept from them - OKAY - she didn't really say that - BUT, she meant it!] and keep evidence away [IF IT DEMONSTRATES HE IS NOT GUILTY - okay - she didn't say that, either.
Here is what she said:] if it is of little helpful or probative value, but highly prejudicial so they don't convict on the basis of some prejudice. [WELL -she knows the wording of the rule of law but I don't think they are goign to convict the complainant if I get my evidence IN, although they SHOULD have!]
Sometimes we all think we know what happened, and there's only two people here who know what happened." [EVEN THOUGH I LATER PUT ON AT LEAST 4 WITNESSES WHO WERE IN THE ROOM . . .]
Okay - what do you think my self-righteous behind said to that crap? Ready . . . . ME: "I agree with that, Judge. It's just that I want the jury to know the whole story and not just portions of it. " [HAHAHAHAHAHAHAHA] Well, she didn't laugh.
Court: "They get to hear the portions admissible under the rules of evidence. [Oh, that dang crap again.] That's the way it works. So, I'm sorry you don't like my rulings.
[Is she KIDDING? Don't like them?! At first I HATE them because they are WRONG but as this continues throughout the trial,at least I know it is a FREE TRIAL now . . . COME ON COMMENTERS = WHAT DOES THAT MEAN?]
That my job here. Is there anything else? ME: Not at this time, I don't believe, Judge. . . . . Boy - I had to get working on that Trial Motion Day Two for sure!!!
Ready for another day? HA!
Another bit - I hope any non-lawyer can appreciate that it is best if we truly believe in our clients and fear for their freedom - so this was outside of the jury's presence at the end of the first day of testimony. I had just argued that the State opened the door to let in something that should have been admitted anyway. Court disagreed (imagine that) and said Vol. III - page 185-86
"Can I make a suggestion to the lawyers: ME: Yes, Your Honor (and I didn't even choke!) Court: You know, it seems to me you-all are very emotionally involved in this case. long pause - OKAY, I remember that; it wasn't typed in the record.] I'm going to wait until you finish so you have time to listen to me. ME: I'm listening. (Apparently I was making notes for Trial Motion Day Two or something & not looking at her as she glared at me as she had all day.) Court: Can you look at me when I talk to you? (WHAT THE HELL?! Does she think I am her child?) ME: I'm sorry. (I think I did choke on that one.)
Court: You know, none of us were there. None of us were there. You don't know if the complainant is telling the truth [prosecutrix]; and you don't know if your client is telling the truth and if he did sexual things to her for years. So let's not assume as lawyers and a Judge [court reporter's capitalization - bet she's been admonished, too!] that somehow we have some -- some incredible insight that tells us that our position -- whether our position is right and whether our position is wrong. Those are tough cases, and I wouldn't assume that any of us know the truth. You know, that's what we're here to find out, because there is a certain righteousness, you know, that I see in this particular case, more from the Defense. [I didn't add the capital but HELL YES I'M RIGHTEOUS. What a fabulous compliment!!!!!]
In some trials I see it more from the State - it's righteous, my victim is telling the truth. And I think you're here, especially there is a lot of righteousness that your client has been wrongfully convicted. [WHAT? Does she know something I don't know? The trial just freaking started!!!!]
None of know that happened there. So let's not get too upset about anything. This is supposed to be a truth-finding mission [YES IT IS SO WHAT CAN'T I GET ANY EVIDENCE IN?????], and my job is to let in the evidence that will help the jury find the truth [if they can because it is being kept from them - OKAY - she didn't really say that - BUT, she meant it!] and keep evidence away [IF IT DEMONSTRATES HE IS NOT GUILTY - okay - she didn't say that, either.
Here is what she said:] if it is of little helpful or probative value, but highly prejudicial so they don't convict on the basis of some prejudice. [WELL -she knows the wording of the rule of law but I don't think they are goign to convict the complainant if I get my evidence IN, although they SHOULD have!]
Sometimes we all think we know what happened, and there's only two people here who know what happened." [EVEN THOUGH I LATER PUT ON AT LEAST 4 WITNESSES WHO WERE IN THE ROOM . . .]
Okay - what do you think my self-righteous behind said to that crap? Ready . . . . ME: "I agree with that, Judge. It's just that I want the jury to know the whole story and not just portions of it. " [HAHAHAHAHAHAHAHA] Well, she didn't laugh.
Court: "They get to hear the portions admissible under the rules of evidence. [Oh, that dang crap again.] That's the way it works. So, I'm sorry you don't like my rulings.
[Is she KIDDING? Don't like them?! At first I HATE them because they are WRONG but as this continues throughout the trial,at least I know it is a FREE TRIAL now . . . COME ON COMMENTERS = WHAT DOES THAT MEAN?]
That my job here. Is there anything else? ME: Not at this time, I don't believe, Judge. . . . . Boy - I had to get working on that Trial Motion Day Two for sure!!!
Ready for another day? HA!
Sunday, March 15, 2009
Team court & prosecutrix v. me - trial fun
In preparing for a sexual assault trial, I read an old record in which I tried a sexual assault case in 2004 in Harris County. My memory of the trial, and the record, are just a little different. My opinion is the same - the client did NOT get a fair trial. (Luckily, we got a hung jury and a subsequent dismissal.)
I'll spend a few of blogs talking about this case and record. To a trial lawyer, it is funny now because we know the outcome. It was not funny at the time, and I worried about Client's freedom. I truly believed him and in him. Maybe some non-lawyer types will read this & have an understanding of what citizens face in trying to get a fair trial (although it is a bit difficult to understand in portions & not in the totality.)
I appeared the week before to go over motions, including limine (keep stuff out of trial because irrelevant or prejudicial). Went over prosecutrix's motion first and then a couple of mine when the court announced something to the effect that my motions were taking too much time and my verbal explanations (between the interruptions from other cases and her telephone calls) were confusing. Well, okay.
We were set the following Monday for trial. We picked the jury on Friday, and Monday I come to court with a detailed "trial" motion with cites to cases and full explanations. Unfortunately for the court, I guess, I worked very hard trying to make my points crystal clear. The motion was 8 pages (including long paragraphs that were, uh, single spaced. I knew that if I double spaced them she would really freak out over the length and I certainly didn't want Client's freedom to get in the way of her clearing her docket.) The purpose of the motion was that when I was trying to verbally explain my theories on why Client was accused by his niece years after an alleged incident so I could get in the evidence I needed (which was somewhat controversial), I did not have someone who was listening and actually considering my offers. Making considered decisions based on the law and facts requires attention and understanding. Instead, I had someone trying to assist the State in keeping the jury in the fog about the truth. (This was their conclusion after the jury hung and we discussed what they didn't get to hear at trial.)
So for some of the quotes from the record:
Vol. II - pg 36: The court: "Ms. Henley, I want to work with you on your theory of the case; but you also have to follow the Rules of Evidence. And every time you want something in, I have to do a balancing test as to -- because the State's entitled to a fair trial here also, not just the Defense." (Okay, I did add the red but as it turned out, it seemed throughout the trial that it was only applicable to me. I think the court meant the State was entitled to introduce whatever it took to run Client over.)
I should have seen what was coming during trial when she made that comment before the testimony had begun and after only a couple of points on my trial motion.) (Multiple times throughout the trial I was admonished, "you're going to have to follow the rules of evidence, Ms. Henley." Well, I was but there were a couple of people - namely the prosecutrix and the court - who either didn't know the rules, didn't understand the rules, or didn't like that I knew them and how to use them properly and to Client's legal advantage.
Next blog begins with the court coaching the prosecutrix on how to keep me from getting evidence in. Nnnnoooo. Say it ain't so in these Harris County courts!
Enjoy. : ) I can now. So can Client.
I'll spend a few of blogs talking about this case and record. To a trial lawyer, it is funny now because we know the outcome. It was not funny at the time, and I worried about Client's freedom. I truly believed him and in him. Maybe some non-lawyer types will read this & have an understanding of what citizens face in trying to get a fair trial (although it is a bit difficult to understand in portions & not in the totality.)
I appeared the week before to go over motions, including limine (keep stuff out of trial because irrelevant or prejudicial). Went over prosecutrix's motion first and then a couple of mine when the court announced something to the effect that my motions were taking too much time and my verbal explanations (between the interruptions from other cases and her telephone calls) were confusing. Well, okay.
We were set the following Monday for trial. We picked the jury on Friday, and Monday I come to court with a detailed "trial" motion with cites to cases and full explanations. Unfortunately for the court, I guess, I worked very hard trying to make my points crystal clear. The motion was 8 pages (including long paragraphs that were, uh, single spaced. I knew that if I double spaced them she would really freak out over the length and I certainly didn't want Client's freedom to get in the way of her clearing her docket.) The purpose of the motion was that when I was trying to verbally explain my theories on why Client was accused by his niece years after an alleged incident so I could get in the evidence I needed (which was somewhat controversial), I did not have someone who was listening and actually considering my offers. Making considered decisions based on the law and facts requires attention and understanding. Instead, I had someone trying to assist the State in keeping the jury in the fog about the truth. (This was their conclusion after the jury hung and we discussed what they didn't get to hear at trial.)
So for some of the quotes from the record:
Vol. II - pg 36: The court: "Ms. Henley, I want to work with you on your theory of the case; but you also have to follow the Rules of Evidence. And every time you want something in, I have to do a balancing test as to -- because the State's entitled to a fair trial here also, not just the Defense." (Okay, I did add the red but as it turned out, it seemed throughout the trial that it was only applicable to me. I think the court meant the State was entitled to introduce whatever it took to run Client over.)
I should have seen what was coming during trial when she made that comment before the testimony had begun and after only a couple of points on my trial motion.) (Multiple times throughout the trial I was admonished, "you're going to have to follow the rules of evidence, Ms. Henley." Well, I was but there were a couple of people - namely the prosecutrix and the court - who either didn't know the rules, didn't understand the rules, or didn't like that I knew them and how to use them properly and to Client's legal advantage.
Right after we discuss trial motion number 14, in Vol. II - page 40: The court: ". . . Seems like we should have voir dired the jury on three weeks trial instead of one. The defendant objects to any testimony by any witness - thank you." (SERIOUSLY. Heck, testimony had not begun I had already exhausted her. Why didn't I think of that objection?! And, if you want the flavor of the entire trial, read the court's comments with a sweet, syrupy tone, and imagine being the subject of glaring eyes.) She even complained when, after 7 lines of record at a bench conference where we all whisper because the jury is . . . uh . . . just right THERE . . . when I was trying to again explain that I wanted a limiting instruction about the extraneous offenses - hello, I'm entitled to that - the court huffed to my 5'2" person trying to communicate up to that 10 foot tall bench (OKAY - it only feels that way - but it is at least a foot taller than me, as was the prosecutrix who had no problem leaning right over the top): court "I can't hear a word you're saying. This is going to be a looonnnngggggg trial." (Okay again, the court reporter doesn't drag out the word like it is said in disgust, that that is how it was said.)
Next blog begins with the court coaching the prosecutrix on how to keep me from getting evidence in. Nnnnoooo. Say it ain't so in these Harris County courts!
Enjoy. : ) I can now. So can Client.
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