Using humor in the courtroom

The other day I saw a blog post about the “8 worst courtroom jokes,” which is worth reading even though the author thinks there is little place in a courtroom for humor.

I respectfully disagree.  There is nothing inherently wrong when an attorney makes a joke in open court. It just has to be done carefully.

Obviously, this became a subject of debate after the defense attorney in the Zimmerman case began his opening argument with a “knock knock” joke (“Zimmerman who?”  “Okay, you are good for the jury.” da-dum) – a joke that was universally panned, even if it didn’t cost him the case.

If you are going to use humor in the courtroom, you have to be aware of the appropriateness of a joke in that situation, who is your audience, and how receptive will they be to that joke.

Beginning a speech with a joke is a long-standing tradition.  It can break the ice, get the audience in a receptive mood, and get them on your side.  And I have heard criminal defense attorneys say that “a smiling jury is good for the defense.”  So why aren’t defense attorneys taught to begin their opening statements with a joke?

We can start off with the fact that a defense attorney makes his or her opening statement after the prosecution.  The prosecutor gets to set a mood.  In a violent crime case, that mood will likely be emotional, sad and angry.

Clearing the atmosphere of this emotional state is a must for a defense attorney.  But it has to be done carefully.  The jury’s first impression at the beginning of the trial will often decide how they will view evidence from that point out.  If, after hearing opening statements they find themselves favoring one side, they will begin to look at each piece of evidence in terms of how it helps prove that side’s case.  Evidence that doesn’t fit that side’s theory of the case might be mentally doubted or discredited.

In this situation, the right joke could lighten the mood, diminish the state’s opening statement, and get the jurors in a more receptive state of mind.  But, the wrong joke could inflame a jury against the defense, and close their mind against it, because it may come across as an indication of the defendant’s lack of remorse or sympathy for the victim.  So tread carefully.  This is why most trial attorneys avoid jokes and instead begin their opening statement with an attempt to re-frame the narrative with the defense’s theory of the case.

Over the years, I have been in lots of courtrooms where the judge appreciates (or makes) a good joke.  That is the way some courtrooms are.  But not all courtrooms.  I have also seen judges snap at attorneys for minor transgressions.  For example, one time I saw a judge take down an attorney for referring to the parties pre-trial maneuvering as part of the “game” (“Counsel, this is not a game!”).   Attorneys have to be careful of each word they use in court, and be mindful of the reaction they might trigger with the wrong phrase or comment.

Another problem I find is that some trial attorneys lose their sense of perspective.  Because they deal with the worst side of people on a daily basis, they develop a form of gallows humor.  As a result, there is a tendency to make all sorts of inappropriate jokes that might get an appreciative audience from a fellow attorney (maybe),  but not from victims of crime or a jury panel.   The Zimmerman “knock knock” joke is the type of “joke” that might’ve gotten a laugh from the judge and prosecutor during a private conference in chambers, but was not appropriate in front of a jury.

Of course, when trying a case before a jury, one of an attorney’s main goals should be to try to get the jury to like you.  When done right, a joke can help in this area.  But when done wrong, a joke can truly backfire.  This was the cardinal sin of the Zimmerman “knock knock” joke – don’t zing your jury!

Simply stated, humor in the courtroom can be a valuable tool in an attorney’s arsenal, so long as he or she is always aware of his or her audience.

One of Drew Peterson’s attorneys is blogging about it during the trial

Joseph “The Shark” Lopez

Michael Miner of the Chicago Reader posted a blog entry that alerted me to the fact that one of Drew Peterson’s attorneys, Joseph “The Shark” Lopez, is writing a blog about the trial for the Chicago Sun-Times.

The fact that this attorney wants to publicize that he by the nickname “The Shark” and  dresses like he bought his clothes at Al Capone’s garage sale probably tells you all that you need to know about this man and his desperate need to put his ego before the best interests of his client.

But what about blogging your way through a trial? Is it ethical? Is it proper?

I am not aware of any ethical opinions regarding attorneys blogging while on trial.  Miner states in his piece that Lopez tried to trial-blog before during the “Family Secrets” trial, but that a federal judge told him to cut it out. But everything I know about the professional rules of conduct tells me that this is a big no-no.

First of all, writing the blog can be seen as an attempt to communicate “ex parte” to the jury. Although I am sure that the judge has instructed members of the jury to avoid news stories involving the Peterson trial, sometimes it can’t be avoided, and it can’t help to have one of the trial attorneys publishing his thoughts about the case on the internet and in newspapers. The Illinois Rules of Professional Conduct state that “A lawyer shall not seek to influence a juror” or “communicate ex parte with such person during the proceeding unless authorized to do so by court order” Rule 3.5. The Rules also state that “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.” Rule 3.6

On the other hand, Rule 3.6 does provide a few exceptions, including this: “Notwithstanding paragraph (a), a lawyer may state…information contained in a public record.”

It appears that Lopez is trying to walk a fine line between publicizing himself and complying with the rules by writing a very boring blog, merely stating what is in the public record, without much, if anything, in the nature of personal insight or insider information.

But here is a second problem with blogging your way through a murder trial — how is Mr. Lopez adequately preparing and concentrating on defending Mr. Peterson when he is also busy blogging? I have tried many jury trials, and I can tell you that it is an exhausting experience. Once on trial, there is never enough time to do everything that I want, no matter how well-prepared I am. My “lunch” period is spent racing to prepare new motions, correct jury instructions, or work on examination questions or re-write my closing argument, and after court, I will often be in my office near midnight getting ready for the next day’s testimony. It is a disservice to the client, in my opinion, to be spending any part of the day during a jury trial, doing anything that is unrelated to the practice of law. At the end of the trial, you want to be able to honestly state that you gave it your best shot. Not the best shot that you could while at the same time writing a blog post.

Second-guessing Zimmerman’s defense attorney

Now it is time for me to second-guess George Zimmerman’s defense attorney.

Was it a smart move for Zimmerman’s attorney to have put his client on the stand?

Knowing how it turned out, you might think it was good strategy.  Remember, it was a bond hearing.  Prior to the hearing, Zimmerman had no bond.  He was charged with second-degree murder, with the possibility of life imprisonment.  Usually in Florida, this is a no bail situation.  So, there was a good chance Zimmerman would remain in custody for the time being unless something dramatic happened.  And, at the end of the hearing, the judge did in fact grant Zimmerman a bond.

So Zimmerman’s defense attorney, Mark O’Mara, did a great job, right?

But did putting Zimmerman on the stand have anything to do with the judge’s ruling?

My reading of the judge’s decision to set a bond was that it was based on a few factors: (1) he felt that the facts of the case did not rise to second degree murder; (2) Zimmerman had no significant criminal background and there is not a significant likelihood that he will commit another violent offense while on bond; and (3) he was not a flight risk; particularly since he will be placed on home confinement as part of his bond.

Clearly, point (1) was the key.  The photograph of Zimmerman’s bloody head, plus the lack of strong evidence to show that Zimmerman intended to hurt Martin when he exited his vehicle, tend to indicate that this case will either resolve on a lesser charge such as manslaughter or reckless conduct or that Zimmerman will be found not guilty under Florida’s “stand your ground” statute.

But, did the statement help?  Unlikely, since the judge did not mention it in his ruling.

Did the statement hurt?  Yes.  Zimmerman has now stated that he is “sorry” that Martin died.  This admission can be read two ways and both of them are harmful to his defense: (1) he said that he is sorry which can be interpreted as an admission of fault; or (2) he made a limited and narrow “apology” for self-serving reasons but really is not apologetic about his actions and his refusal to accept blame is evidence that he is a sociopath.

Furthermore, his admission that he did not know if Martin was carrying a weapon at the time undercuts his defense of self-defense, which requires a reasonable believe that he was in jeopardy of death or great bodily harm.  As I said yesterday, his attorneys should breathe a sigh of relief that the prosecution didn’t ask any questions about that.

Worse, during cross-examination he provided answers about previous statements, which, if contradicted by police officers, can be used at trial as impeachment.

As I have indicated in my last blog post, it could have been a lot worse had the prosecutors done a better job of cross-examination.

The only positive (for the defense) that I see to come out of this is that by showing some empathy for the Martin family, Zimmerman may have helped himself in the court of public opinion, with potential jurors, and maybe with the Martin family.  However, my guess is that while his semi-apology will help with a certain percentage of the population, it will hurt with the majority.

So ultimately, I see the decision to put Zimmerman on the stand as a big mistake:  the defense took a big gamble for virtually no gain.  Just because they did not get burned does not make it a better decision.  Of course, it is easy for me to say; I am not the one sitting in shackles and facing being in jail for the next 12-24 months waiting for trial.

Putting Zimmerman on the stand was a reckless decision; and that is not the type of decision-making that is acceptable for an attorney when defending a client against a possible life sentence.

Second-guessing the Zimmerman prosecutor

As I am sure you are aware, last week, in an unusual move, George Zimmerman took the stand at his bond hearing and made the following statement:  “I wanted to say I am sorry for the loss of your son.  I did not know how old he was. I thought he was a bit younger than I am, and I did not know if he was armed or not.”

Because he took the stand, the prosecution was allowed some limited cross-examination related to the statement.  Zimmerman’s attorney’s should thank their lucky stars that the cross-examination was ineffectual because the prosecutors made a cardinal mistake: they didn’t listen to what he just said.

They crossed examined Zimmerman about why he was making an apology now, at the bond hearing, and not before.  They tried to get into things he said, or could’ve said but didn’t, on earlier occasions or during police questioning.  But the judge cut them off, because the questions weren’t limited to Zimmerman’s statement.

What I am about to say is truly “Monday morning quarterbacking” — actually Tuesday afternoon quarterbacking in this case — and is a little unfair, since this is based on reflection, not while in the courtroom, in the moment, with the knowledge that the hearing is being broadcast live throughout the world.  But you are reading this blog for my thoughts, not for fairness.

If I was the prosecutor…

Since the judge would only allow me to focus on Zimmerman’s statement, that is what I would have done:

First I would focus on the admission of being “sorry,” but only for the Martin’s loss:

-You say that you are sorry for the Martin’s loss of their son?

-Does that also mean that you are sorry for your actions that lead to the loss of their son?

There is good chance that the judge would cut me off with that question, but if not, I would try for this:

-Does that mean that you take responsibility for your actions that lead to the loss of their son, Trayvon Martin?

-Does your statement that you are sorry mean that you agree that your actions were preventable?

-Does your statement that you are sorry mean that you agree that your actions were wrong?

Or, I would see if I could guilt Zimmerman into expanding his “apology”:

-Since you do not apologize for your actions, does that mean that you don’t feel sorry for what you have done?

-Would you like to also tell the Martin family that you are sorry for confronting Trayvon while carrying a firearm?

And so on, with details, such does your statement mean that you regret following Mr. Martin?

Next, I would ask Zimmerman about why he felt it was important to explain about his mistake regarding Trayvon’s age.

But, really, all those questions would just be in the hopes of getting Zimmerman riled up, off his game, and defensive.  The real questioning would be about the last part of his statement, that “I did not know if he was armed or not.”

This is the statement that jumped out at me.

Remember, the only justification for Zimmerman’s use of deadly force is that he was defending himself because he had a reasonable belief that it was necessary to do so to prevent death or great bodily injury.

The Florida “stand your ground” statute states:

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

So when Zimmerman admitted that he did not know whether Martin was armed or not, he just shot a giant hole into his defense.

So, were I in the prosecutor’s position, I would have leapt at the chance to expand on that:

-Mr. Zimmerman, you said that you did not know if Mr. Martin was armed?

-In fact, you did not see Mr. Martin carry any weapons?

-You did not see him carry any object that could be used as a weapon?

-Mr. Martin did not display any weapon?

-Mr. Martin did not reach for any weapon?

-Mr. Martin did not tell you that he had a weapon?

-Mr. Martin did not threaten you with a weapon?

And so on.

If this line of questioning were allowed, it would have significantly damaged Zimmerman’s defense.

Next, second-guessing the defense attorney.

Melissa Calusinski’s Motion for New Trial Denied

Today Judge Daniel Shanes of Lake County, IL denied Melissa Calusinski’s attorney’s motion for a new trial.

In their Motion, her attorneys argued that Dr. Manny Montez, who testified for the prosecution, made false statements about his lack of board certification by the American Board of Pathology.  According to Ruth Fuller for the Chicago Tribune and Trib Local,

During his testimony in Melissa Calusinski’s trial in November, Dr. Manny Montez, who was consulted during the boy’s autopsy, said he was not certified by the American Board of Pathology because “I have not sat before the board for the test.”

According to records obtained through a subpoena, which was read in Lake County court Thursday, Montez took but did not pass the anatomic portion of the certification exam in September 2001. But he did not take a forensic sub-specialty portion of the exam.

Calusinski’s attorney, Paul DeLuca, said Montez was not being truthful when he said he had not sat for the exam, thus denying his client her right to a fair trial.

Prosecutors argued that Montez did not misrepresent his qualifications and that the outcome would have been the same even if the jury knew he failed the board test.

“He never claimed to be board-certified,” Assistant State’s Attorney Christen Bishop said. “He said, ‘I never sat for the test,’ singular. He didn’t lie. This fact would mean nothing to the jury.”

Montez, who has a contract to perform autopsies for the Lake County coroner, could not immediately be reached for comment…

Thursday, Judge Daniel Shanes agreed with the prosecution while denying the defense’s request for a new trial.

“I do not find that Dr. Montez lied,” Shanes said, adding he didn’t believe Montez’s testimony was enough to sway the outcome of the trial.

“This is a non-issue,” he said. “It would have had the effect of an insect hurtling itself down on an 18-wheeler while it is traveling down the highway. Shakespeare said it better when he entitled his play, ‘Much Ado About Nothing.’”

Montez performs “a significant amount” of autopsies for Lake County, Yancey said, and Montez has testified in several recent high-profile trials. According to court records, he charged the county $800 for two hours of testimony in the trial of Marni Yang, who was convicted of killing Rhoni Reuter while she was pregnant with the child of former Chicago Bears player Shaun Gayle.

The denial of post-trial motions is common, but it gives the parties an opportunity to present issues to the trial judge before the case is appealed to a higher court.

Calusinski’s lawyers have already indicated that they plan to appeal her conviction and sentence.

Witness error: How mind tricks can put the innocent behind bars

Witness error: How mind tricks can put the innocent behind bars.

Many criminal prosecutions rely heavily on eyewitness testimony.  Yet, as we have learned in recent years, many eyewitnesses are mistaken.  There are many reasons for this.  Yet, in Illinois, expert testimony as to the fallibility of eyewitnesses is frowned upon and rarely allowed.

The above link will take you to an NBC story about how faulty eyewitness testimony can lead to a wrongful conviction.

You can watch ‘Conviction,’ the story of Jon-Adrian Velazquez’s murder case, Sunday night at 8 p.m. ET/7 p.m. Central on ‘Dateline NBC’