Trial tactics and oh-so-easy lawyer-blaming

Scott Greenfield is very smart, very productive, and very opinionated.  His blog is one of the most important information and idea resources around.

He’s not always right, though he mostly is.

We’re having another disagreement, though he hasn’t been explicit.  Today he has a post on the untrustworthiness of this and that, mainly stuff that’s on the internet or specifically in blogs like this one.  Some of his thoughts in this post are probably prompted by a comment I made over on his blog which he screened out.

That comment pertained to another recent post of his dealing with a case in which the prosecution, as part of their closing argument in a murder case where the victim was a child, put on a dramatic display involving a birthday cake.  The defendants’ lawyer didn’t object to the display, and in affirming the conviction on appeal the appellate judges ruled that any issue presented by the birthday cake display had not been preserved for appellate review.

Greenfield and Gideon at a website called “Public Defender” used the incident to excoriate the defense attorney for not objecting and screwing up the clients’ chances on appeal. Scott went so far as to imply that the defense attorney had neither integrity nor honesty and failed to represent the client(s) zealously.

The gist of my comment (the one Scott wouldn’t post) was that he and Gideon were wrong.  I don’t know why that should rule out posting the comment, since the idea of having comments is to air this kind of thing out.  But, no matter.  There’s sort of a big disagreement here that couldn’t be properly dealt with in comments anyway.  So I thought I’d deal with it here.

In the first place, in almost every case an appellate court can overlook the so-called “preservation” requirement when they feel like it, meaning that when they refuse to consider an issue because it hasn’t been “preserved”, supposedly because trial counsel failed to object, the appellate judges are almost always being disingenuous.  That’s a far more important and significant problem than any purported screw up by trial counsel.

In the second place, it’s probably not a screw up, but you never know for sure.  Second guessing trial counsel is probably useless either way.

Think it through, says I.  Scenario one:

Trial counsel:

I object to this ridiculous birthday cake display!



Well, you certainly don’t have that issue for appeal now, do you?  And, what are the chances that the jury is going to find the defendant not-guilty of murder because the prosecution put on a maudlin display that was kept out by the judge anyway?

Scenario 2:

Trial counsel:

I object to this ridiculous birthday cake display!



Clients are convicted.  After all, the judge indicated that the “ridiculous” birthday cake display is only ridiculous in the mind of the slimy defense lawyer.  We jurors can feel confirmed in being emotionally moved by the very touching display by those dedicated public servants.

On appeal?  The objection “preserved” the issue for review, the appellate court decides the display was an improper appeal to juror’s emotions, but no consequences follow because the error was “harmless”, and the proof of the defendants’ guilt was “overwhelming”.

Of course you can object and move for a mistrial.  That will almost certainly be overruled/denied, but what if the judge agrees and says sustained and grants the mistrial?  The prosecution will try the defendants again in short order.  What kind of jury did counsel have at this trial?  We don’t know.  It might have been much better than usual, so that he was better off taking his chances with the jury he had than a “do-over” for the prosecution in front of another one.

Now, this is only part of the disagreement, and it’s the smaller part, dealing with how Scott or I or some other lawyer might try the case in terms of tactics and strategy.  Scott, I presume, would have objected and asked for a mistrial and preserved everything and so on, and maybe he would have won where the other guy would have lost but there’s no way of knowing that and I suspect to the contrary.  I objected very sparingly, if at all, at trials where I represented the disfavored litigant because for the most part it alienates the jury – which, realistically speaking is your only chance.


Trial counsel:

I object.  Cumulative.



What just happened?  In lawyer terms, I just won an objection.  Hooray.  But in what-does-this-do-for-your-client terms, the jury just saw you and the judge hiding something from them, flaunting your high-fallutin’ lawyer’s chatter.  They don’t have the foggiest idea what “cumulative” means, and they wouldn’t care, even if they did.

So when you go to give your closing argument, you’ve put a little distance between you and the jury, in a situation where you want the jury to identify with you and believe you.  And more than anything else, your client’s fate depends on that.

And that’s why you don’t object when you represent a criminal defendant.  Almost never.  Except when you really have to.

What’s the larger part of the disagreement?

Greenfield and some of his simpaticos, like Bennett, are way too fond of deriding other criminal defense lawyers.  And I don’t like that, because criminal defense lawyers are safe targets, everybody’s whipping boy.

We all know the story of defense lawyers who fall asleep at capital murder trials.  To most in the profession, this is unimaginable.  Trials are well-named:  they are grueling experiences, if you care about what you are doing.

But that sleeping lawyer is not the problem; the culture, the system that produced him is.  I’m going to stay focused on that culture and that system, and when the powers that be or anyone else goes against the easy target – the defense lawyer – I’m going to try to turn the focus back on them, where it belongs.

And I’m going to do that, even if the guilty party is – disappointingly – Scott Greenfield, who I otherwise admire and whose blog I enjoy and read almost daily.



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