Here’s a little Thursday afternoon regalito for my fellow Texas Criminal Defense lawyers:
Often the State will lie behind the log in closing arguments, waiving its “right” to open the argument and saving all of its arguments for after the defense has made its argument. (For the laypeople reading this: when the State does this it means the prosecutor doesn’t have enough faith in his case to subject it to rebuttal; he is afraid of the flaws in his case and would rather play games than subject it to scrutiny.)
The statute giving the State the ability to open and close the argument, Texas Code of Criminal Procedure article 36.07, applies only to jury trials. In non-jury proceedings, the order of arguments is within the court’s discretion. See Cherry v. State, 488 S.W.2d 744 (Tex. Crim. App. 1973), except that the Defendant gets to open and close the argument on motions he has filed. Tex. Code Crim. Proc. art. 28.02. So there is no statutory basis for the State to sandbag the defense in non-jury cases.
Even in jury cases, however, there’s an argument that the State should not get the last word: procedural due process. The Due Process Clause requires a defendant to have notice and an opportunity to be heard. If the State gets to reserve its entire argument for after the Defense has had its last opportunity to speak, the defendant is getting neither notice nor the opportunity to be heard.
Attached is a little motion that I filed before a sentencing hearing asking for the opportunity to respond to the State’s arguments. The judge in that case granted the motion, allowing me to respond to all of the State’s arguments, and I got a favorable outcome for the client.