The Trick Question: Prosecutors’ Questions Answered, and Answers Questioned


The discussion of prosecutors’ pet jury selection question, the “One-Witness-Rule” question, continues. Prosecutor SC asks:

“People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.”

Why? Why isn’t this scenario the same as having a juror who would require DNA evidence to convict someone? Is that person qualified to be a juror as well?

Yes and yes. The juror who would require DNA evidence to convict someone, like the juror who would require more than one witness’s testimony, is qualified to serve as a juror. It’s up to you to strike these upstanding representatives of the community from the jury. Suck it up.

Then SC, moved by the spirit, asks:

“It’s unfair to the potential juror who doesn’t have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question.”

I don’t like this notion that the average citizen is too stupid not to fall for simple question. That’s a tad too elitist of a notion for a defense attorney, no?

No. I don’t think defense lawyers have to pretend that everyone is equally equipped to deal with the world, but I’m not calling anyone stupid. Our jurors, you may have noticed, haven’t been to law school; they’re not involved in trades like ours that require the exercise of rhetorical skills. In an arena in which they’ve already been told that only yes-or-no answers are called for, they’re asked a question that requires the acceptance of a false premise.

Tarian jumps in:

Mark, you’re wrong about the law on this.

The law does not require medical or scientific evidence to support a conviction. Rodriguez v. State, 819 S.W.2d 871 (Tex.Crim.App. 1991)

Prospective jurors are challengeable for cause if they require a particular type of evidence the law does not require to convict. Garza v. State, 18 S.W.3d 813 (Tex.App. – Fort Worth 2000, pet. ref’d.); Robinson v. State, 985 S.W.2d 584 (Tex.App. – Texarkana 1998 pet. ref’d.)

The one-witness questions go hand in hand with this. Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App. 1995); Lee v. State 206 S.W.3d 620 (Tex.Crim.App. 2006).

The question has been clarified, limited, and accepted in its current, most common form by our courts of appeals. There is nothing tricky or unfair about it.

Ah, the law. While I’m glad to see my esteemed colleague, the author Tarian, making an effort at reading the law, I would humbly suggest that his understanding of the subject might benefit from reading the cases he has cited, rather than just their headnotes.

The law doesn’t require any particular sort of evidence to support a conviction, but a juror may. This is the difference between legal sufficiency and factual sufficiency.

Garza says what Tarian says it says — “a potential juror who could not believe a witness simply for the fact of being a child would properly be excused for cause” — but only in dicta (the only use of the word “cause” in the body, rather than the headnotes, of the case), and that based on two cases that don’t even say what Garza says they say.

Robinson, on the other hand, is a Texarkana case. Legal scholars still argue over whether Texarkana is Texas or Arkansas.

Both Robinson and Garza came before Standefer and the Texas “commitment question” jurisprudence.

A juror can be committed to convicting if he believes the evidence beyond a reasonable doubt. He can’t be committed to believing any sort of evidence beyond a reasonable doubt.

Anywhere but in Texarkana, a Texas juror is free to define reasonable doubt to require more than one witness, or to require medical testimony or DNA. That is, in fact, why the “one-witness-rule” question is phrased as it is. Read Lee, which Tarian cited:

If these jurors were challenged for cause simply because they needed more than one witness to convict, then they were invalidly challenged for cause. If they were challenged for cause because they could not convict based upon one witness whom they believed beyond a reasonable doubt, and whose testimony proved every element of the indictment beyond a reasonable doubt, then they were validly challenged for cause.

Also take a look at Castillo, which Tarian cited (apparently without reading, or at least without understanding):

Unless reasonable doubt is a fixed point-unless, in other words, the law requires a jury to convict whenever presented with legally sufficient evidence-a venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law. If the State does not want that venireman on the jury, it is obliged to use one of its statutorily allotted peremptory challenges to remove him.

That’s the heart of the matter: the ability of each juror to decide what “beyond a reasonable doubt” means to her.

The “one-witness-rule” jury selection question looks good, as I wrote at first, on paper; Texas’s courts have approved it in a very specific form. That the question in this form is used by prosecutors to trick potential jurors into disqualifying themselves should be beyond question in light of Harris County prosecutors’ misunderstanding of the requirements to serve as a juror and their avowed desire to remove from the jury anyone who doesn’t share their wide-eyed credulity.

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0 responses to “The Trick Question: Prosecutors’ Questions Answered, and Answers Questioned”

  1. At a meeting a couple of years ago, Los Angeles District Attorney said jurors were hard to deal with because of shows such as CSI which raised their expectations of evidence in criminal matters. Managing juries is quite difficult, because of the knowledge, lifestyle, religious backgroudn, experiences and other unknowns of each potential person.

  2. HOW, exactly, is a juror qualified to serve on a case if he says he has to have DNA evidence to convict?

  3. I am not a lawyer, never been to law school yada yada. Just a normal ‘citizen’.

    Forgive the ignorance, but why does the State/Prosecution even get jury strikes in the first place?

    From the outside looking in, I understand the defense getting strikes because they want to make sure the defendant gets a ‘jury of their peers’ and gets a jury most apt to give their client a “fair” trial.

    I don’t see how the prosecution striking jurors furthers the defendants rights in any way. *shrug*

  4. Boy, the editing on that post is screwed up. I’ll have to fix it when I have my main computer up and running.

    SC, it’s more accurate to say that a juror is not disqualified only because he has to have DNA evidence to convict; read Castillo and get back to me.

  5. Trafficnerd:

    Come down to jury duty sometime and take a look at the people we get to choose from and you will quickly see why the State gets strikes. The purpose of jury selection is not to “further the defendant’s rights” like you mention in your last question. The defendant has a lawyer, a judge, and a constitution to protect his rights. The job of the State’s attorney is to seek justice, and if we’re trying a case it is because justice demands a conviction. Notwithstanding anything Mark has to say on the subject, the State DOES have the right to a fair trial and as a result we get to strike people who we don’t think will give us one.

    Mark:

    You can dance fast, my friend! Castillo, which you cite religiously, is a pre-Standefer case, too, but, like Robinson and Garza, was unaffected by its broadly misconstrued but actually quite limited holding. And of course you poo-poo the Texarkana case because you don’t like the holding. I think any regular reader of your blog knows that, had the same court come to some absurdly pro-defense holding (a longshot, but bear with me) you would be trumpeting them as a beacon of liberty in a darkening totalitarian land.*

    Lee is pretty much directly on-point, and allows the question you don’t like so long as it is phrased appropriately. Questions on specific evidence types, such as DNA or medical, can be phrased similarly and are also proper.

    *I have to admit they don’t seem impressed by Standefer. You’ll be amused to note that in one unpublished case (Medina v. State, 2004 WL 764444, *3+ (Tex.App.-Texarkana Apr 09, 2004) they refused to follow it as “dicta.”

    You still have failed to demonstrate why it is somehow wrong for prosecutors to identify and challenge jurors who are going to raise our standard of proof “beyond” BRD in cases where we have only one witness, which is really what we’re doing. I think if we ever get to try a case against each other I’m going to ask that question, even if I’ve got 20 eyewitnesses and a videotaped confession, just to see you go into a spittle-flying frenzy!

  6. Mark,

    A great read. Texas law does not define BARD. Therefore the definition of BARD belongs to the jurors alone. A juror can require any kind of evidence to meet BARD- DNA, video tapes, more than one witness etc.

  7. You’re nitpicking. Castillo (and Lee, citing Castillo approvingly after Standefer) says that a juror is not disqualified by having a broader notion of reasonable doubt than a prosecutor. Castillo and Lee are from Texas’s highest court; Robinson and Garza are from lower courts not particularly renowned for scholarship. In the face of Castillo and Lee, Robinson (and the dicta in Garza) are of no effect.

    If TXK comes out with a pro-liberty opinion, I’m still not holding any hope that courts in Texas will follow it.

    Yes, Lee allows the trick question — it looks good on paper. But that doesn’t make it any less sneaky. Prosecutors think that jurors whose notion of “beyond a reasonable doubt” is narrower than theirs are disqualified; the law unambiguously says that they are not, but allows prosecutors to ask a trick question to get the same result.

    The State has no rights in relation to its citizens. (Please read Collier v. Poe and discuss it before you claim here that the Government has rights.) Anyone who tells you otherwise is selling something.

    Riddle me this: between the citizen who can follow the law and has a right to serve on a jury and the government that wants a conviction and has the power to prevent him from serving, who should prevail?

    The single-witness question is a trick question. I don’t think you believe that most jurors answer the literal question. Rather, you would use the trick question to eliminate (for cause) qualified jurors who have a philosophical position with which you disagree — not just those who would require BRD+ (which is what the question explicitly seeks) but also those who feel that BRD>1W.

    Being a “public servant” should require forthright dealing with the public. A prosecutor who can’t win his case without tricking the public has no business in the courtroom. That’s why the trick question is wrong.

    I concede that the courts allow you to ask trick questions involving DNA or medical evidence or child testimony as easily as trick questions involving a single witness. No doubt. Take all the time in the world on your trick questions; I’ll spend my voir dire time building rapport with the jury and help them realize that you asked them a trick question; you are welcome to report the results here. Heh.

  8. Tarian,

    The State doesn’t get to define beyond a reasonable doubt. That is the province solely of individual jurors. Thus, you can never complain that anybody will be holding you to proof beyond beyond a reasonable doubt, because what a person requires to get to that level of certainty will vary and depend on the individual. There is no objective “beyond a reasonable doubt” standard that you can demand jurors apply.

    Also, judges, in practice, do not protect defendant’s constitutional rights. They are usually complicit in violating them. Given that, the constitution itself is no protection.

    Finally, you write, “The job of the State’s attorney is to seek justice, and if we’re trying a case it is because justice demands a conviction.”

    No. A thousand times no. A prosecutor does not have the prerogative to decide what justice demands as an end result. If you decide that justice demands a conviction, then justice must also demand that you suppress exculpatory evidence to obtain that end. That is wrong, wrong, wrong.

    If the evidence you possess is legally and factually sufficient for a conviction, then justice demands that you present that evidence to a jury in a trial, but justice can never demand a conviction. Juries decide that, too.

    This attitude–that prosecutors get to determine when justice requires a conviction–is the most pervasive (and pernicious) ethical lapse of prosecutors today. The sooner you get it out of your mind that you are the judge of the evidence, the safer and more secure we all will be.

  9. Mark,

    I hope you’re proud of me! I ACTUALLY READ A CASE. Collier v. Poe does indeed hold that the State doesn’t have any rights under the 14th Amendment of the U.S. Constitution. Luckily, the State DOES have the right (and it may well be the ONLY right) to a fair trial under Texas C.C.P. 2.03(b). You’re always citing 2.01…this article should be on the same page, so you won’t have to go far.

    Citizens do not have a “right” to serve on juries. Shelby v. State, 479 SW2d 31(Tex.Crim.App. 1972) –Yeah, it’s old. If you’ve got more recent contradicting authority, go ahead and blow me out of the water. But I couldn’t find it. Citizens have a DUTY to serve as jurors, but only if they can follow the law. That includes holding us only to the burden of BRD. Call it trickery if you want — I’ve already stated in earlier posts that I admit jurors sometimes misunderstand the question or its underlying premise — but I don’t think our duties as public servants include dumbing down our questions so that the LCDs can understand. The ones who are too dumb to get it don’t have any business serving on a jury anyway.

    And, while we’re on the subject of dumb, that brings me to PJ’s assertion that “A prosecutor does not have the prerogative to decide what justice demands as an end result.” OF COURSE WE HAVE THAT PREROGATIVE, PJ!!! If we didn’t have it, who WOULD decide? C.C.P. 2.01 sets out our duty to see that justice is done. If we can’t make up our minds as to what justice is in an individual case, then how the heck could we ever fulfill our duty? And, yes, we have to abide by all the other rules, including the duty to reveal exculpatory evidence, along the way. It’s not all the complicated and most anyone who has ever served as a prosecutor understands the concept perfectly. It’s called fair play.

    Determining when justice requires a conviction is not an ethical lapse — it’s our JOB!! It’s what we’re sworn to do, what you elect our boss to do, and what we’re entrusted by the public to do. To check that power, we have grand juries, judges (in whom you seem to place no trust) and juries (who you trust so much you think they should be prosecutors, too?). Prosecutors do not have the ultimate say as to what justice is, but we are absolutely charged with determining what we think it is so that we can see that it is done within the confines of the system.

    “Justice can never demand a conviction.” Sheesh. MAN, I’m glad I don’t live in your world!

    • I know this post is years old, but I served in a jury pool today and was “thanked and dismissed” for not fully agreeing with the “one witness rule”. I couldn’t believe that the court would make me follow a law that assumes one witness is sufficient for a conviction and so I questioned it when I got home and found this thread. I am rather insulted to read posts from prosecutors calling jurors (inexperienced like me) dumb for not understanding the premise of the question. The prosecutor never clarified for me the logical assumption of “if the witness provides testimony that proved beyond a reasonable doubt…” Of course I would’ve said “ok based on that assumption, I agree.” I would’ve still thought to myself “that scenario is unlikely” and I think the prosecution still would’ve striked me because my standards are higher than she would’ve liked. I shouldn’t have to mention that I have a graduate degree in economics and a career as a statistician, but I will just in case anyone needs my pedigree. Obviously I am intelligent and inquisitive enough to go home and do some research about my experience today. I also do not watch CSI and am not religious, but I do work in a quantitative and analytical profession. I don’t need DNA for every instance, it depends on the case. But I would, in most circumstances, need more than a single witness to convict. That also depends on the witness and there qualifications…

      The way I interpreted the question was in response to what I believed was the DA trying to get me to commit to accepting a single witness testimony as “equal to physical evidence” (her words) before I was even exposed to the witness. I didn’t feel comfortable doing that. It felt forced and shady, like she was testing to find out the sheep, looking for jurors who could be fooled, not trusted to make sound conclusions. Little did I know that I was in fact made to be “the fool who does not understand reasonable doubt”! I actually had no idea that I had been asked a trick question or misinterpreted the question until I looked it up. As a person with a high expectation of integrity for myself and the law, I think it was a very cheap technique and I feel cheated from fully representing myself as someone who can follow the law and make a logical decision based on facts and evidence. It scared me too and now I have distrust in the judiciary process. Another thing that bugs me: the judge had named the witnesses in the trial and there were 3, so I wouldn’t have even had to convict based on a single testimony.
      I work in a field that is never an exact science but strives to provide the most accurate data possible as a public good. And this is done through consistent practices and careful techniques applied at every stage. I am totally confused that what I read here is standard practice and even celebrated as a technique towards fairness. Maybe I am a fool for trusting too much. I have reinforced why I chose to study economics and mathematics and not law as I had originally pursued in college. I took a couple of business law classes and realized it’s not at all about finding the truth, but about finding a loophole to win.

      Thanks for all of the information and insight into selecting a jury. I learned a lot and next time if I am chosen, I will be better prepared not to be made the court jester. However I doubt that a more prepared jury pool is a benefit to the prosecution.

      • Thank you for your comment. In my view it’s the defense lawyer’s job to go back and explain the underlying assumption to the jurors like you, so that you can be rehabilitated and the prosecutor has to burn a peremptory challenge on you (or leave you on the jury not trusting him).

  10. Tarian,

    You asked this question: “If we didn’t have [the prerogative to demand what justice demands as an end result], who WOULD decide?” … when in the previous post I wrote: “Juries decide [what justice demands as an end result].”

    You also asked: “If we can’t make up our minds as to what justice is in an individual case, then how the heck could we ever fulfill our duty?” … when in the previous post I wrote: “If the evidence you possess is legally and factually sufficient for a conviction, then justice demands that you present that evidence to a jury in a trial…”

    You wrote: “Determining when justice requires a conviction is not an ethical lapse — it’s our JOB!!”

    No, it’s most certainly not your job. That is the jury’s job and when you do it you are invading the province of the jury. That you are so insistent that it is your job suggests you may be a dangerous person to wield prosecutorial power. Your job is not to put people behind bars any more than it is the police’s job to put people behind bars. This kind of mindset is why so many police officers lie on the witness stand and why so many prosecutors cut corners and engage in misconduct.

    Your job is to present evidence to juries in those cases where you believe the evidence is legally and factually sufficient. (That is where you exercise your prosecutorial discretion.) It is the defense lawyer’s job to protect the rights of the defendant and to present evidence to juries that creates a reasonable doubt about the defendant’s guilt. It is the jury’s job to put people behind bars based on its consideration of the evidence presented and whether that evidence has proved the elements of the offense beyond a reasonable doubt.

    Everything in its place.

  11. Your argument, Tarian, would — I suppose — be that the State has rights because the State (through CCP 2.03) says that the State has the right to a fair trial (though it doesn’t call it a right, and the jury is not bound by CCP 2.03).

    Utter nonsense.

    The State is the prosecutors, the lawmakers, and the judiciary. The State makes the rules, restrained by the fragile leash of the Constitution. If the State (prosecutors, judiciary, lawmakers) suddenly decided to ignore the Fourth, Fifth, and Sixth Amendments, what recourse would the People have?

    None.

    The State has the power to get whatever kind of trial it wants. But might does not make right.

  12. PJ,

    It’s hardly worth responding, but you might take a look at the commentary for Vernon’s Ann.Tex.Const. Art.5, Sec. 21. “The overwhelming importance of the offices of public prosecutors arises from the fact that upon the prosecuting attorney rests the power of determining whether prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful conclusion.” In your world of meek, passive, “conduit” prosecutors, that would, of course be impossible. And I guess we better do away with plea bargains, too, because they “invade the province of the jury.” Ridiculous.

    Mark,

    My point is that, contrary to the position that you have triumphantly taken numerous times on this website, the State DOES have rights, and if you don’t believe me, check out the Bill of Rights to the Texas Constitution, Art. 1, Sections 10 and 30, for starters. That’s what you’re calling “utter nonsense.”

    And no, the State doesn’t “make the rules.” PEOPLE make the rules, through their duly elected representatives. Some people seem to be of the opinion that this, in itself, is unfair. As always, in a country where the rule of law reigns, people have the constant recourse of the court system when they believe their constitutional rights have been violated. Strangely, it seems to be almost exclusively criminals who complain. Failing that, I guess there’s always revolution…

    The emotional truism of “might does not make right” has no relevance here. Your arguments never seem to take into account where our authority comes from: The constitution and the duly enacted laws of the people. The might of the State comes FROM the people, is authorized BY the people, and is used FOR the people. The people against whom that might is used quite naturally don’t like it. But that doesn’t make them right.

  13. Tarian,

    I don’t really care what the commentary for Vernon’s Texas Constitution says, but I think it supports what I have said far more than it supports your position. (I would simply omit the word “successful” and it would perfectly encapsulate what I’ve said. Nowhere does what you quoted suggest the prosecutor’s role is to determine who is guilty.)

    I generally dislike the idea of plea bargains altogether. The government should be put to its burden of proof in every case. Plea bargaining only exists because our society has decided to make criminals of so many people that it can no longer keep up. It’s hardly ideal, but there is no way to effectively fight it since a defense lawyer has to do what is in his individual client’s best interest rather than make systemic challenges that might help more people at the possible expense of his current client. It’s just one of the many ways the system is rigged.

    On the specific point, a plea bargain occurs with the defendant’s consent and is made for the purpose of avoiding a trial, so I fail to see how that contradicts anything I’ve said. A plea bargain to avoid trial can occur even if the prosecutor has only decided the evidence is sufficient to go to trial. It does not require the prosecutor to decide that justice demands a conviction.

  14. Tarian, the State’s power comes from having a virtual monopoly on deadly force. If we didn’t have a constitutional government, we’d have some other band of armed thugs lording it over us, and we’d have nothing to say about it.

    When the prosecutors have managed to convince the courts to ignore the last of our constitutional protections (with the consent of the majority, no doubt, if you seek it), that’s what we’ll have.

    Innocent people who are harmed by the government’s violation of the constitutional rules don’t get to complain about it in the government’s courts because the government has made itself virtually immune to suit in those courts.

    The founders didn’t get together and say, “hey, now that we’ve kicked out the Crown, a government would sure be a good idea; let’s make one.” They got together and said in effect, “now that we’ve kicked out the crown, some sort of government is inevitable; since it’s going to happen, let’s make it as ineffectual as we can.”

    Unfortunately, governments have learned to use fear to get the people to do their bidding. There’s little hope that the People, so manipulated, will turn things around before the last Constitutional right has been declared quaint and old-fashioned.

  15. I just want you all to know how sad I am that Mark blew off grabbing a beer with me so that he could stay at home and argue with Tarian.

  16. “THE WONDERFUL WORLD OF MARK AND PJ”
    A One Act Play

    Scene I
    A convenience store, daytime, the year 2021. PJ is calling 911.

    PJ: Help, I’ve just been robbed at gunpoint!
    911: I’m sending the police. It could be a while.
    PJ: Can you please make sure to send some honest officers? I can’t stand it their constant lying.
    911: Excuse me?
    PJ: Um, never mind. Just hurry up!

    (An hour and a half later)
    Sgt: What seems to be the problem?
    PJ: A guy just robbed me at gunpoint! I can give you a description. He took everything in the safe!
    Sgt: Were there any other witnesses?
    PJ: I — I don’t think so.
    Sgt: Well, I’m sorry, sir, but we can’t really do anything with just your testimony. Eyewitness testimony is the least reliable form of evidence. Ever since Gov. Bennett signed the Biblical Evidence Act of 2019, we’ve needed at least 2 witnesses for everything.
    PJ: Are you kidding? The guy just stuck a gun in my face! Are we going back to stoning? That’s in the Bible, too!
    Sgt: Just the facts, sir. Do you have any security cameras?
    PJ: No, I was using the system to upload something to YouTube.
    Sgt: What about DNA, do you think the guy left any?
    PJ: I doubt it. How would I know?
    Sgt: Sir, there’s nothing I can —
    Robert Guest: Wait a minute, I’m a witness!
    Sgt: Huh?
    Guest: I was hiding behind the corn-nuts. I saw the whole thing!
    Sgt: Got lucky on that one. SCTexas! Get over here!
    Ofc. SCTexas: Sarge?
    Sgt: Get descriptions from both these guys and put it out on the radio. Then do a sweep of the area.

    (Ten minutes later)
    Ofc. SCTexas: (bringing in Defendant) Sarge, I got him! Fits the description perfectly!
    PJ: That’s him! I recognize him! No doubt in my mind.
    Sgt: (to RG) What about you?
    Guest: Yeah, I think that’s him.
    Grits-For-Breakfast: (bursting in, out of breath) I saw the whole thing. Worst case of police brutality and harrassment I’ve ever seen! This guy just grabbed him off the street for no reason!
    Ofc. Texas: He fit the description! They just IDed him!
    Grits: You can’t intimidate me with your Gestapo tactics. You don’t attend UT without graduating and not learn something about courage.
    Ofc. Texas: You’re nuts! Get out of here!
    Sgt: Not so fast, Texas. We have to put his name in the offense report. Or else we could get sued.
    Ofc. Texas: But he didn’t see anything! He didn’t witness the robbery or anything to do with it. He was digging in a dumpster, for crying out loud!
    Grits: That dumpster provided the perfect cover. And besides, there was a perfectly good cheeseburger in there, barely touched–
    Sgt: Doesn’t matter. Ever since Gov. Bennett signed the Police Liability Act of 2019, our asses are in a sling. Take his name down.
    (a few minutes later)
    Sgt: (to Defendant) Okay, pal, we’ve got your ID info. You’re free to go.
    PJ: What? Aren’t you going to arrest him? He just robbed me?
    Sgt: I don’t know where you grew up, son, but around here we have something called the presumption of innocence.
    PJ: That’s for the courtroom! He just robbed me! He had a gun! He’s a dangerous criminal!
    Sgt: It’s not our place to decide that. That’s what juries are for.
    PJ: Aren’t you going to at least search him for evidence? He might still be armed.
    Ofc. Texas: Already checked. No gun. But he did have THIS (holding up bankers bag)
    PJ: That’s my money!
    Sgt: (to Texas) Make a note of that. (Handing bag to Defendant) You’re free to go.
    PJ: You’re letting him have it?
    Sgt: We don’t have an authorized forfeiture order for it. Ever heard of the 4th Amendment? That’s considered an unreasonable search and seizure now. And besides, how do we know it’s yours?
    PJ: Because the bag says “PJ’s PrestoMart” on the side.
    Ofc. Texas: He’s got a point, Sarge.
    Sgt: Alright, then. (Opens bag, empties $17500 in bills out and hands money to Defendant, then hands bag to PJ) You’re free to go.
    PJ: But that’s my money!
    Sgt: A jury will have to decide that, pal. Everything in its place.

    Scene II
    A grand jury room

    ADA: And, so, ladies and gentlemen, I would respectfully submit that it is possible there could be probable cause to indict Mr. Defendant for the offense of Aggravated Robbery.
    GJ Foreman: So he did it?
    ADA: I can’t really comment on that.
    GJ Foreman: But you’re saying that the evidence supports a conviction, right?
    ADA: It’s not my job to decide that, sir.
    GJ Foreman: But aren’t you supposed to see that justice is done? What does that mean in this case…a truebill?
    ADA: In the old days we used to ask for truebills, but I can’t really do that now. Ever since Gov. Bennett modified the C.C.P. 2.01 and changed the annotations to the Constitution. We used to be able to ensure that cases were “pushed to a successful conclusion,” but now we just let juries decide.
    GJ Foreman: You guys are the biggest bunch of wussies I’ve ever seen. Absolutely pathetic.
    ADA: Thank you, sir.

    Scene III
    A courtroom

    PJ: Are you the prosecutor handling my case?
    ADA: Are you a defendant?
    PJ: No, I’m a victim. I got robbed and the guy is being tried today. You sent me a subpoena.
    ADA: Sorry, just thrown off by your terminology. It’s not really “your” case. It’s his, since his liberty is at stake and his rights are the focus.
    PJ: Fine. So, we’ve never talked. Did you want to ask me anything before putting me on the stand?
    ADA: No, not really. The evidence is the evidence. I’m just going to present it and let the jury sort it out.
    PJ: But don’t you want to prepare me?
    ADA: That could be considered “woodshedding” and is specifically prohibited by C.C.P. 36.051, “State Shall Not Woodshed.” Don’t you remember? Gov. Bennett pushed that one through.
    PJ: Which Gov. Bennett?
    ADA: Jennifer. She beat Mark to it.
    PJ: But what about my rights as a crime victim? Don’t I get any say in what happens here?
    ADA: (laughs grimly) They repealed Sec. 30 of the Texas Bill of Rights years ago. Nobody has any rights anymore except defendants.
    PJ: So how is the case looking?
    ADA: Not so great. He’s got a hotshot defense attorney — ex-DA, I think. I had to turn over data on other aggravated robberies in Houston to him. There were 116 convenience store robberies in the last 2 years involving suspects with the same general descriptors as this defendant and the same m.o.
    PJ: M.O.?
    ADA: Yeah, they all pointed a gun at the clerk and demanded money. And they were all males. Pretty eerie, huh? Some were committed while this defendant was serving time for another aggravated robbery he committed out of state. So they’re going to argue mistaken identity.
    PJ: But there’s no doubt in my mind he did it. They’re not suggesting some other dude committed all of these robberies, are they? That’s ridiculous.
    ADA: Sure they are. And I had to turn the data over. 116 other robberies is pretty powerful stuff.
    PJ: 116 robberies is living in Houston! And didn’t they convict any of these other robbers?
    ADA: Actually, no. That’s pretty rare nowadays.
    PJ: But that’s totally irrelevant to my case!
    ADA: –His case.
    PJ: –Whatever, the point is, you should object!
    That’s not relevant and not exculpatory!
    ADA: Sorry, but I can’t take that chance. The Prosecutor Accoutability Act of 2018 says I can go to prison for hiding or even objecting to exculpatory evidence — that’s in addition to civil liability.
    PJ: Then why are you prosecuting? Why would anyone want to do what you do?
    ADA: Beats me. Especially for $60,000 a year. I’ve got an application in to cosmetic school.
    PJ: My God, is that the jury panel? Some of those folks look pretty rough.
    ADA: Yeah. Too bad I don’t get any strikes anymore.
    PJ: Do you want me to draw a scene diagram, something to show the jury?
    ADA: No, that could be construed as advocating for one side or the other. That would be a gross violation of my ethical duties.

    (A few hours later. Closing arguments have begun and the defense is up.)

    Def Atty Tarian: Members of the jury, this case is a complete farce. You’ve heard that 116 other robberies were committed in Houston in the last 2 years with the same m.o. by a male fitting the description of my client. Using sophisticated statistical analysis, that means there is less than a 1% chance that my client is guilty! In essence, I have proven him innocent beyond a reasonable doubt! Clearly, we have a serial robber at work. But that person is not my client. What we have here is a case of mistaken identity. And you are being asked to send a man to prison based on the feeble testimony of that man! (indicating)
    PJ: But I saw him!
    Judge Ollie: Order! Bailiff, if that man makes another outburst, I want him removed.
    Dep. AHCL: Yes, sir.
    Def Atty Tarian: As you know from my experts, eyewitness testimony is inherently unreliable. There are thousands, maybe millions of innocent people in prison as a result of it. And millions more convicted every day. But not today. (standing behind Defendant) Not this man. The travesty ends today. You’re going to end it. With your verdict of Not Guilty. (sits down)
    ADA: Members of the jury, you have seen all the evidence. I can’t really tell you what you should do based on that evidence, but it definitely supports the fact that an aggravated robbery took place. I ask that you take everything you’ve heard into consideration and render a verdict that is just. Unfortunately, I’m not really allowed to define what “just” would be in this case. Thank you.
    (sits down)
    PJ: What about a plea for law enforcement? What about arguing for your side?
    ADA: My only side is the side of justice — whatever that is. And we’re not allowed to plea for law enforcement anymore. It’s not my place.

    (2 1/2 minutes later)
    Judge Ollie: Has the jury reached a verdict?
    Foreman: We have, Your Honor.
    Judge Ollie: Please hand it to the bailiff. And, bailiff, please pass out my cards to the jury.
    Dep. AHCL: Here ya go. Man I need a beer.
    Judge Ollie: The verdict reads as follows, “We the jury, find the Defendant Not Guilty. Signed, “WTF??? Foreman.”
    PJ: This is an outrage!
    Def Atty Tarian: If you think this is bad, wait until you see the lawsuit my client is going to file against you.
    PJ: But I’m already on the verge of bankruptcy!
    Def Atty Tarian: Maybe Ron in Houston can help. Oh, no, I guess he does mostly family law stuff. Oh, well. Sucks to be you!

    THE END

  17. Tarian,

    First, great job. You write dialogue quite well, truth be told. (I felt the cops, in particular, were written true to life.) Second, the Houston Chronicle published the salaries of District Attorneys so we know how much you guys make, and it seems to be more than $60,000 for many of y’all. Third, even $60,000 is a heck of a lot more than many attorneys make, particularly legal aid attorneys and the like. Fourth, you’ve described a great world, if a bit exaggerated. Whatever makes you think I would have wanted the story to end with a guilty verdict!!?

    Let this be a lesson: living by principles (and constitutional norms) does require inconveniences. It may even require guilty people to go free! Didn’t somebody once say something about that?

    I can’t wait for 2019 and the Police Liability Act! Hopefully Bennett’s already got a draft.

  18. Wow

    Mark writes a post and he gets a one-act play written about him.

    Right now my brain hurts so I’m emailing AHCL to have the beer instead of Mark.

  19. I actually was able to follow some of that. I guess all that LSAT prep is starting to pay off. I found this interesting:

    “The job of the State’s attorney is to seek justice, and if we’re trying a case it is because justice demands a conviction.”

    “Ann.Tex.Const. Art.5, Sec. 21. “The overwhelming importance of the offices of public prosecutors arises from the fact that upon the prosecuting attorney rests the power of determining whether prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful conclusion.”

    Maybe it’s me, but when did “successful conclusion,” which could mean an acquittal as well as a conviction, change to “demands a conviction?” I’ve googled it and come up empty?? Black’s Law was no help either?

    Any help?

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