Hernandez Racial Slur Error 2016

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

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Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

  1. Make a timely and specific objection;
  2. Request and instruction to disregard if the objection is sustained; and
  3. Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial.  Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Vincent Bugliosi

Vincent Bugliosi’s Advice on Cross-Examination and Asking “Why”

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Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

Vincent BugliosiIn 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, ‘Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here’s what he had to say on the subject:

Even if I do not ask “why,” the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the “why” question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the “why” question and, as in some other situations, “save for final argument” the implications of the witness’ testimony, by that late point in the trial the witness’ reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The “why” question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn’t first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can’t go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the “why” question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the “why” question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

The Uncertainty of Criminal Trial

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This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction.  We were not defending the case, but I found it interesting, so I went to watch part of the trial.  While the defendant was not particularly likable, it didn’t seem to me that she was a criminal.  I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense.  But that’s the thing about trial.  I don’t get to sit on the jury.  It only matters what 12 citizens think about the case.  I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.

This case reminded me that there is always a risk in going to trial.  An inherent uncertainty.  Even when you feel pretty confident about your case.  Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily.  It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands.  Even more sobering, however, is the realization that at trial it’s only partly in your hands.  All we can do is prepare, prepare, prepare, and put forth our very best effort.

Fort Worth criminal trial lawyer

Be the German Shepherd, Not the Yipping Chihuahua

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Fort Worth criminal trial lawyerPROSECUTOR POST – Here is a helpful tip from a Texas prosecutor on Trial Advocacy in the criminal courtroom:

After years of practicing in criminal courts, I’ve seen numerous courtroom styles from criminal defense attorneys. One of the most prominent is the “grandstand” (a.k.a. Posturing). I would define the “grandstand” as attempted behavior exhibited by an attorney to establish dominance in the courtroom. Please note that word – attempted. From yelling to whining to stomping around and slamming things on counsel’s table, I’ve seen it all. Sometimes this behavior isn’t intentional but actual passionate investment, but more often than not I can see it’s a show for the client.

The client wants the bulldog lawyer in the courtroom. At least that’s what I hear. I think some of what I’m referencing is an attempt by these lawyers to be that bulldog by “grandstanding.” However, in my experience, these attorneys that “grandstand” in court, end up looking like the yipping chihuahua instead of the bulldog. And it’s funny to see the look on the defendant’s face when he realizes he’s hired the yipping chihuahua.

The more effective style I’ve seen is the old German Shepherd approach. The attorney that comes in and exudes that high level of comfort in the courtroom. He’s professional to everyone (including state’s counsel) and acts in a way that sends the message to his client – “yes, I’ve been here several times before.” Does he “grandstand?” No. He establishes dominance by respecting the balance b/w the defense, the state and the bench. Does he bark? Sometimes. But only when there’s cause. And when he barks everyone hears it and respects it.

Prosecutor Post: It’s Not Personal…Really.

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A Contribution From our Texas prosecutor friend:

I had a discussion with a defense attorney today about the dynamic relationships that develop between prosecutors and defense attorneys.  Relationships that, like it or not, become very intricate in the resolution of criminal cases.  This conversation started after we had finished watching a heated exchange between a different prosecutor and defense attorney.  He started by pointing out how there’s not much to gain by creating a hostile relationship with a prosecutor.  He described his fear of creating problems for future clients because of bad past relationship with a prosecutor.

I explained how prosecutors are aware of that fear and how our goal is to set aside the personal aspect of negotiations and not to punish a defendant on account of who he happened to hire as his defense attorney.  We try and look at the case and defendant separately from the attorney.  He agreed he didn’t feel most prosecutors seek to punish the unfortunate client of a defense attorney who recklessly handles business with the prosecution, but quickly added how subconsciously it might be an underlying factor when a prosecutor decides how he’s going to handle a case.  Again, I stressed we try not to behave that way, but then again, I can’t speak for every prosecutor.

Common sense tells you that honey attracts more bees than vinegar and that pissing someone off on a consistent basis might render less than preferable results when it comes to working something out with that person.  The personal aspect of dealing in an adversarial system is often too hard for some attorneys to set aside.  So, they take things personally.  Negotiations are bound to get heated when you deal with one party protecting something (in this case the liberty of their client) and the other trying to take it away.  And it should!  Criminal cases shouldn’t be taken lightly by either side, but passion doesn’t have to trump professionalism.

There’s not really a how-to on not taking it personal.  Just something you have to practice I suppose.

Depositions for Criminal Cases

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Depositions are most often used in civil cases.  But that doesn’t have to be the case.  Depositions can be quite effective in criminal cases as well, especially cases that have out-of-town witnesses, or others that may later become unavailable for trial.  The latest issue of The Champion, the newsletter of the National Association of Criminal Defense Lawyers (NACDL), has a good article about Taking an Effective Deposition in a Criminal Case.

Chapter 39 of the Texas Code of Criminal Procedure governs depositions for criminal cases in Texas.  That is the place to start if you think a deposition might be appropriate for your case.

*A note from past experience: If you are planning to take a deposition of a foreign national in another country, please be sure to research the host nation’s laws on depositions.  I almost messed that one up with a deposition I had to take in Okinawa.

Voir Dire in Texas

A Proper Voir Dire Question

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Voir Dire in TexasWhen conducting voir dire of prospective jurors (the venire panel), Texas law says that a lawyer cannot ask a “commitment question.” The Texas Court of Criminal Appeals defines a “commitment question” as

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: What factors are important in assessing the sentence in a [name your offense] case.”

Presiding Judge Keller penned the lone dissent.  She deems the question an improper commitment question.