Those of you who stop reading the comments here when they degenerate into a serious discussion of the fine points of Texas constitutional, statutory and case law will have missed this ingenious bit from frequent commenter (and prosecutor) “Tarian.”
“THE WONDERFUL WORLD OF MARK AND PJ”
A One Act Play
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!
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.
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.
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.
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.
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!