Team court & prosecutrix v. me - trial fun VII - ITS BACK!

So let's begin with the - SURPRISE - extraneous witness of which there was no mention in the file or anywhere, & I had NO idea about - because her two sisters were had been interviewed & said they would testify on behalf of the defense. (She was away or unavailable to me for some reason.)

Of course the extraneous will be admitted - I mean - duh, Cynthia. Okay, so I have to deal. So, I ask the basis of the offer of the extraneous, and the basis of the admission, & you would think -to use my 7th grade history teacher's favorite phrase,

I must be talking Swahili or something?

No one seems to think that (1) P has to show a basis for admission or (2) the judge has to limit the jury's consideration to THAT basis. All they know is that the dang thing is coming in - so just sit down. (Well, you know that ain't happening! My client is already at the train station being railroaded to the best of the teams' ability.)

ME: I'm asking again that the State be required to state the basis of the admission, and that the jury be -- The Court: The basis of WHAT? ME: Of the admission of the extraneous. And that the jury be instructed, just regarding the admission of the extraneous. They will be instructed that they can consider the extraneous against the allegations - - the allegations of the complainant against my client to determine the relationship. And the third-party extraneous goes to the extraneous by the complainant. And I'm asking - It's going to be confusing. (Of course I recognize this immediately as I had been dealing with 2 people who do not know, or at least understand, the law. I was right - especially during THIS trial. EVERYTHING I was legally entitled to seemed to confuse.)

The Court: Yesterday we discussed the wording on the instruction you wanted me to read. And I understood you have no objection. Are you now objecting to the wording in the instruction?

ME: NO, I NEVER said I had no objection. I specifically asked that the instruction be limited to the purpose for which THIS prosecutor offers it. (BTW, folks, I am right on the law. They just didn't have a clue the basis for admission because it should NOT have been admitted. It served no purpose in this case but to inflame the minds of the jurors - which is not a reason to admit it.)

The Court: . . .Right? I understand. You made that objection. Is that still your objection this morning? ME: The Court has NOT required the State to provide a specific reason for offering this. The Court: ... That request is denied. (unbelievable - she gets to offer inadmissible evidence without even trying to explain other than the jury can use it to convict him because he is a bad man - essentially).

The Court then proceeds to read the entire limiting instruction (which has a bunch of confusing stuff that has ZERO to do with the trial.) Of course when asked for objections from P, she says no objections. (All she knows is that somehow she has slipped this in & she doesn't want to blow it now!) When asked for my objection- Me: Yes, I object to providing any wording that has to do with any purpose other than what the State is offering it for. The Court: I think it could come in possibly under more than one of these. So I am going to read them all. So your objection is overruled. ME: Identity? Motive? (Remember this is his niece. Obviously she knows him & if he sexually assaulted her, well, the motive is clear. Can you tell how ludicrous this is all getting?! What the State wants, the State gets.)

The Court: I'm going to read them all and the jury can decide whether -- thank you. (See - she doesn't even know what the jury is supposed to be deciding about the inadmissible extraneous. But she gives that well known thank you, as I heard so many times in this farce of a trial.

Then there is conversation between The Court & P in which they decide that well, identity isn't really an issue so the judge can take that out. It's okay. (I hope you are laughing. It was such a joke. I just shook my head & wondered where I was. Surely I was having a horrible nightmare. Sad thing is - my client was having the exact same nightmare & his freedom was at stake. This was serious stuff.)

P then proceeds to put on the extraneous complainant. Remember PNDL1 and the other liar, I mean prosecutor who I wanted to have testify & was denied - they come into court & P announces that they want to watch the testimony. Of course, I object, and guess what - MIRACLE of all miracles - it is sustained. (That was easy - I didn't really get anything & now she can say - see - I granted some of your objections . . . )

I'll stop now because I want you all to know that there was NO WAY the extraneous was admissible in this case for any legitimate reason. It was a lie, but more important to this - it simply had no law under which it was arguably admissible! That is why P could not said why she was offering & that is why the judge didn't know what to do with the limiting instruction - because it did not fit any excuse of admission.

Until next time - remember to go when called upon to serve on the jury. (Just try not to smell that skunk the judges let these prosecutors throw in the box, and then instruct you to ignore.)

And adopt a pet - don't buy one. There are too many babies needing homes out in the world. : )

Update regarding communication with children

I have to say after I posted my last blog, the next day I awoke to find a most lovely note from my 20 year-old daughter. It made me feel warm all over, and reminded me that even when we think they are so selfish, they are listening and paying attention so treat your children with love and as much kindness as you can muster (as they roll their eyes, huff, and complain incessantly.) The letter says:

Dear Mom,

I greatly appreciate you taking me and Shelby on this trip. I have had so much fun! I know this trip was planned mainly for me, and the beluga experience was amazing. I have also had a great time spending time with you and Shelby. I'm glad we were able to do this because we have not be able to spend time like this together in a whil and I would love to do it alot more. Than you so much again for this experience and having so much fun with us.

Love always,

Taylor

Can you see me crying? I share this because so many times we don't hear anything but the bad, but the happiness is in there. It is just harder to get out when they are teenagers (or young teens.)

I love both of my daughters with all my heart, and I would definitely take a bullet or a disease if it potentially saved them.

Kiss & hug your children, even when you disgust them. : )

Communicating with your children, communicating with juries

In the middle of spending a weekend with my children (ages 16 & 20), I am led to question my ability to communicate. I cannot get them to tell me about their favorite childhood memory, or even when I specify their favorite vacation, I get nothing. Asked about the thing they remember most about the house we lived at the longest (which had a pool & kids always around), they claim to remember nothing. When asked about what they remember about a specific vacation, nothing. (My oldest, who is the nicest to me, was busy deleting photos off her phone. My youngest rolls her eyes at everything that I say.)

I spend lots of $, I spend my time, I give my heart - what do I get in return - nothing.

So, I wonder what do we really get when we question potential jurors. I shared things with my children, trying to open them up. Made suggestions about various memories - because I know them - and yet I got nothing. Every once in a while I'd get an oh, yeah, I remember that.

Very scary. And these are my children who see me feel sad & supposedly don't want that. They have no agenda to hurt me - they just don't really care to have their thoughts or time interrupted.

So, what about jurors who are missing work - not getting paid OR paying someone to take care of the children they normally take care of. What are we getting from them? What agenda do the talkers come to us with? The silent folks (who can't wait to hang the next SOB?!)

I think of myself as a good communicator. I think of myself as one who can move mountains - convince others that I am correct - that there is reasonable doubt. Yet I can't convince my children that their ivory tower, silver spoon lives have anything worth sharing - apparently.

So who is sitting on my juries? (And given the positive outcomes, maybe I should just continue to be unable to communicate. Or maybe I was cutting all the youngsters off. I can't remember now. I can't remember anything right now.)

So, who do you THINK you are communicating with? (And how much have you spent to do it?!)

How Can You Defend Those People?!

Throughout my almost 21 years of representing people accused of criminal offenses, I have had people ask me how I can do it. (I am certain most, if not all lawyers are on the defense side of the criminal bar have heard this question many times.) I have many thoughts on this, and many reasons, but I want to share one with you from today.

Former DPS Trooper Damien Cauley who was assigned to the Montgomery County area decided that he should abuse the position that had been given to him (or earned, at least initially) by stealing. How did he do it?

According to the news reports, this man, in full uniform, and in his patrol car, would target illegal aliens and suspected intoxicated drivers for alleged traffic stops, and then he would steal from them. (Heck, the purported traffic violations were probably lies.)

What could they do? If they are illegal, they cannot complain (you don't need details-you understand), and if they were drinking, they could easily decide that having to pay a little money to the trooper was better than the alternative even if they were not guilty - being arrested, posting bond, hiring a lawyer, going to court - you know - what we call THE RIDE. (You might beat the rap but you can't beat the ride . . .)

So, what you will rarely hear from me is KUDOS to the Rangers & whoever decided to report this guy. KUDOS to the DA for following up and not just walking the case into a no-bill. KUDOS to the Ranger who testified essentially how this trooper was an embarassment - a black mark on all law enforcement. KUDOS to Judge Michael Mayes who sentenced this guy to the maximum for his offense. (He will serve 2 years, day for day - no parole, in state jail.)

But, let me add - it is guys like this and others with whose opinions I do not agree, with whose conclusions I do not agree, and for many other reasons (like protecting citizens against false accusations of other citizens) that I CAN DO WHAT I DO & sleep very easily at night. If it were not for me and the hundreds of other lawyers who do what I do, many of you could not sleep so easily at night. Think about it.

Volunteer to help change a child's life

Before I continue with the court & prosecutrix team blog, I wanted to blog a minute about volunteering. A few months ago I became a avid volunteer with the Boston Terrier Rescue of Greater Houston organization - I love animals & I enjoy helping those who cannot speak for themselves. I chose this organization because I think BTs are just the best dogs. I was being selfish in a way, because I get to be around or doing for animals I adore.

Yesterday, though, I enjoyed a different volunteerism. Harris County Criminal Lawyers Association received a request from Wendy Miller to help Big Brothers & Big Sisters, and the Houston Young Lawyers Association, by volunteering time to join kids who have an incarcerated parent at the Aquarium in downtown. I joined them & had charge of two very delightful boys. They shared their hairstyles (wanting me to feel how smooth they were), their dance techniques, their girlfriend "issues" (they were 8 & 12), & other talk. I shared photos of my husband & my dogs, and talked about futures with them. I was the only lawyer from HCCLA, but there were other lawyers there & the boys I had were so impressed that lawyers were there with them. I took their photos on my phone & let them check it out. They were careful and respectful.

I want to report that it was such an experience that I hope that many hidden boundaries were blurred for these boys who have had at least a semi bad start (by example of an incarcerated parent apparently - I did not ask & know no details) in life. I told their mother, when she came to get them, what great boys they were. She was very pleased and told me how hard she worked to show these kids the "right way." (She also had a daughter in another group there.)

So my blog is about - make a difference in a life. I spoke to the woman who runs BBBS & says they ask only for 4 hours per MONTH & they have far more requests than volunteers. (I know one of my charges has been waiting for 2 years!)

If you can't commit to that, then find another way like the 4 hours I spent on Saturday. It is rewarding, and I feel that there is a great possibility that I made a difference in these boys lives. I feel very positive. We all have so many blessings, despite any hardships we have endured, that we should share our time, at a minimum!

Finally, I want to thank Wendy Miller, a local lawyer. This woman is the most positive, giving person that I know. (I have never discussed with this with her but she is in a wheel chair & has been since at least law school to my knowledge. I tell you this because I want readers to understand the depth of my respect and awe of this woman.)

She volunteers constantly - arranging these opportunities, putting on talks to encourage lawyers to be mentors to children in court cases, etc. She goes around asking for money for the kids (which most of us hate to do) as well as giving her time to be at the events. She asks no more (and much less) than she gives. I am very proud to be able to call Wendy Miller a friend, and I hope that I can be more like her.

What is stopping you?

Team court & prosecutrix v. me - trial fun VI

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.

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 . . .