From AHCL, talking about Harris County Republican DA candidate Pat Lykos:
At a recent political event, she refused to speak until after the representative of the Siegler campaign had gone first (even though that wasn't the agreed upon order). Apparently, she didn't want anyone to follow up after her speech and point out (yet again) that what she said lacked all substance.
Now, it's funny to see AHCL, who often talks suspiciously like a prosecutor, complaining about someone "refusing to speak until [the other side] had gone first." AHCL's analysis is correct, of course: Lykos's actions suggest that she didn't want anyone to have an opportunity to point out that what she said lacked all substance.
So why is it funny?
It's funny because in every criminal jury trial in Harris County the prosecution has the opportunity to "close fully" -- that is, to make his complete closing argument before defense counsel gets up to argue -- and then to rebut defense counsel's argument, responding to anything new she brought up. (In Federal court, the Government is required to close fully.) Yet Harris County prosecutors never do so.
Instead they usually "waive the right to open [final argument] and reserve the right to close", forcing counsel for the accused, who has no burden to prove, do, or say anything, to anticipate and respond to the prosecutor's arguments. (If a prosecutor does not waive the "right" to open final argument, he makes only a bare-bones argument before the defense argues.) In other words, Harris County prosecutors almost universally "refuse to speak until the other side has gone first."
(There is a heretofore untested argument that the Texas statute that allows the State to have the last word before the jury is unconstitutional. Procedural due process -- so the argument goes -- requires that the accused have notice of the prosecutor's argument and an opportunity to be heard in response.)
It's fair for AHCL to conclude that Pat Lykos won't go first because she doesn't want anyone to point out that her speech lacks substance.
It's equally fair for jurors in a criminal case to conclude that the prosecutor won't go first because he's trying to pull the wool over the jury's eyes.
This sort of gamesmanship may well have a place in politics -- that's not my area of expertise. It should find no place in the courtroom when a person's freedom or his life is on the line.
4 comments:
So how would one go about making the argument?
Let the D.A. close, get up and make your own closing, and then during the D.A.'s rebuttal that ventures away from anything you said, stand up and make the Due Process argument?
How would you tactfully do that unless you alerted the jury to it first? Hmm.
I'd do it first in a motion, then after the prosecutor has spoken I would rise and ask to respond.
And, incidentally, I'm in favor of alerting the jury to the tactic in voir dire. Let them tell the prosecutor that trial is not a game.
Mark,
I think you are comparing apples to oranges when you are talking about politics versus the Rules of Criminal Procedure. Of course, the D.A.s know that the most valuable thing that favors them in any criminal trial is the fact that they get to be the last ones to speak to the jury. It's a tremendous advantage.
But those are rules that are already set.
Both sides have rules that they have to follow, whether we like them or not. But once the rules have been set, you have to follow them.
What I was criticizing Lykos for was breaking the rules after they had been set.
There are "throw down" arguments that the defense can make during their close. One of the most often used is the "This is the last time I can talk. The State gets the final word. Please be thinking of what I would have said if I got to respond to what they said." Yada yada. Yes, I know that doesn't really work so well.
I think it is worth noting, however, that the defense gets the final word in voir dire (which I think is the MOST important portion of any trial). You have no idea how many times I was squirming in my seat wanting to respond to defense questions during voir dire.
I think all in all, it may not be the best system, but its the best one we've got.
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