Case Oddity

Here’s a picture from Harris County’s 263rd District Court yesterday. The prosecutors trying a murder (?) case had laid down a blue tape outline of the dead person’s body, chalk-outline style, early in the trial:
Blue tape chalk body outline.

When I saw this, my first reaction was: awesome! (coincidentally, that was my nine-year-old’s reaction as well). The prosecutors, Brad Hart and Katie Warren, became my trial advocacy heroes of the day. (Sorry, guys; you can’t commit such trial ad awesomeness and expect to remain anonymous.)

My second reaction was to ask myself how the defense could best deal with the potentially incendiary effect of the chalk outline? You’ve got this thing on the floor in the middle of the jurors’ field of view that you have to walk around or over every time you approach a witness. It’s like trying a case in a crime scene.

And that’s probably not a good thing for the defense. Especially if it was the State’s idea to take the jury there.

The obvious reaction: whine to the judge and ask him to tell them not to do it. That’s probably a good place to start, for the sake of the record at least. But what if the judge allows it to remain?

Insist that it’s covered when it’s not being used? The prosecutors reportedly did this for much of the trial, till it became too much of a nuisance. I suspect that leaving it uncovered might have been better for the defense—covering and uncovering it would call a lot more attention to it.

What else? The more it seems to the jury that the outline bothers you, the more harm it will do your client. So the first thing, assuming that the judge has rejected your arguments (out of the presence of the jury) for this bit of courtroom theatre to be forbidden, is to act like it doesn’t make any difference to your case. It shouldn’t change your routine at all. If you treat it like a corpse, stepping carefully around it, the jury will see a corpse. If you walk freely through it and over it as though there is nothing important there (but don’t deliberately damage it), there is nothing important there.

It’s tempting to say, “Treat it explicitly like great theatre. Point out to the jury that it is great theatre, but that great theatre doesn’ make the State’s case any stronger.” I’m not sure about that response. It is great theatre, but the 12 jurors don’t know that. They aren’t in the courthouse every day, and they don’t know what is usual and what isn’t. So the best approach might be to treat this just like another day in the courtroom.

When this happens in a case I’m trying, I’ll figure out what works.
Until then, I don’t claim to have the answers. What do you think?

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0 responses to “Case Oddity”

  1. I think it’s a pretty awesome idea as well! And I think you’re right. If you can’t literally make it go away via the judge–you make it figuratively go away by acting as though it isn’t there.

    And if I were working on the other side, I would ponder what the prosecutors might do to communicate quietly to jurors that you are being disrespectful and uncaring as you step all over the victim. It is fabulous theater. I am totally awed. 🙂

  2. Well, not being in the trade, I’d tend to want to laugh at it — at the “cartoon on the floor.” Murder is, I’d argue (to the extent that I’d be allowed to; again, I’m in a different trade), is something to be taken seriously. A cartoon — in blue tape, no less — isn’t. I’d probably want to distinguish between the late, lamented (or not) Mr. Smithers (who was taken from his family by person or persons unknown; or the mad dog of a human being, Buck “Maddog” Smithers, who my client was forced to take the life of to save his own, or whatever), whose person and memory deserves respect, and Bobo the Cartoon Tape Guy, who is a strange and kinda funny trick that these terrific state dramatists have shared with the jury.

    The chances of some random amateur getting it right are tiny, so: why am I wrong?

  3. Absolutely awesome!

    There are, I think, two approaches to the elephant in the courtroom. You can pretend it’s really not there and hope the jury forgets that it is, or you build your case around the elephant.

    The first method is to ignore it completely, as you suggest, simply treating it as if it’s not there or, at least, not important.

    The second is trickier and necessarily case specific, but you can try to own it. Have the witnesses decorate it with multi-colored tape on cross, for instance, so that the jury ends up seeing it as a silly cartoon. (“Would you use this green tape, please, and mark where the shirt tail was sticking out.”) That’s dangerous, of course, since you want to be careful not to make fun of the crime. So the other way is to actually make it part of your case, using it as your model to demonstrate that the killing couldn’t have occurred the way the state claims.

  4. I wouldn’t ignore the dead guy. Can you imagine the look on the juror’s faces if the defense atty walked through the tape? It would be like trampling a dead person right in front of them. It would be insensitive and harsh. A guy was killed. No question about that. What I would do is to add the other witnesses to the scene. Make tape outlines of them around the dead guy. Is it self-defense? Then the proximity of the parties is important. Did some other dude do it? Then put that dude in the picture. Was it accidental? Put a tape drawing of the gun or weapon. You gotta talk about the pink elephant in the room.

  5. I appreciate the kind words, Mark. I am sure Katie does as well. It was a hard case. I think the defense did a fantastic job on their side. Leticia Quinones was outstanding for the defense. As for the “cartoon” comments, no one, not us, the defense or the jury thought it was funny. The family whose daughter was killed did not find it disrespectful . The jury thought it was helpful. Yes, it caused the defense some fits. I believe both the State and Defense would agree that neither side did anything disrespectful to Shannon’s memory. Anyway, thank you again, Mark.

    • Well, that is, of course, the obvious counter-counter-gambit* — that the taped outline in the floor isn’t a cartoon, but is an icon that represents a real person, and that disrespect for the cartoon/icon/outline would be disrespectful toward the person.

      * With the taped outline being the initial gambit, and treating the taped outline as though it’s a cartoon being the counter-gambit.

  6. The Straight Dope tells us that the “chalk outline” is a figment of TV writers’ imagination:

    (although they do say that uninformed/overenthusiastic police officers occasionally do it).

    So a tape outline of a body on a courtroom floor isn’t even ACCURATE theatre. Might as well just splash a few litres of stage blood around.

    • That explains why I’ve never seen a chalk outline in a murder case. I though maybe it was an east-coast thing that we never saw here.

      But I’m not sure what you mean by accurate theatre. Theatre can be entertaining and educational, and even true, when it’s not factual.

      • Yes, I think you are right about how theatre doesn’t need to be accurate to be true. Let me adjust my comment:

        My guess is that the prosecutors in this case would not call their tape outline “theatre”; rather they would say that they were “reminding the jury what happened”, or some other appeal to truth or reality.

        My argument was that, since chalk outlines don’t happen in reality, using them in an appeal to actual events is flawed.

  7. I’m just a 2L, but wouldn’t any probative value of the blue man on the floor be substantially outweighed by the danger of unfair prejudice? I’m sure the defense made that argument, but it would seem like the judge abused his discretion and could be considered reversible error on appeal. Then again, maybe not since it’s Texas. Do they even still allow appeals down there?

    Granted, I obviously don’t have all the facts, but it seems like it has some Old Chief implications.

    • Todd,

      Judges here have a lot of discretion. And, it has to be unfair prejudice. Regular-ol’ garden variety prejudice is what every trial advocate I know is striving for.

  8. For the prosecution: Very imaginative – outside the box! V ery effective I would imagine. Catch the other side off guard. In any case I agree very clever.

    For the Defense: Ask that this be done on a large fiber board that can be moved around for demonstrative ease. Obviously relevant, but “could” be a distraction once one side rests, or another witness is on the stand. Since both sides get to use the “stage” of the courtroom – once the State rest, the defense should be entitled to begin their case with ‘Act I”‘s furniture taken away.

    With absolutely no disrespect to the victim/complainant in the case at hand, just wondering how newly hired prosecutors prosecutors in County Criminal Court could use this technique. Possibly show weaving lines from the hallway leading into the courtroom? Maybe an outline of where people stood during FST’s? – just a thought.

  9. Isn’t another avenue to, when the prosecutor is done with the witness, to ask the witness (presumably the cop) if they need the outline for testimony any more, and if they don’t, ask if he minds if you take the tape off the floor. It’s just a demonstrative exhibit so it doesn’t go back with the jury. That way you aren’t disrespectful and the problem is gone.

    And the prosecutor should have no objection because any further use is cumulative (and then maybe prejudicial).

  10. This discussion of true but not factual theater; remindsme of Joseph Campbell and “true” myth-this blawg may be the genesis of a Sunday School discussion-thanks for being thought provoking once again.

  11. Was an actual chalk outline made at the scene around the victim’s body? Not commonly done here in Pa. If not, you can have a lot of fun on cross and in close.

    “Do you have any photos officer of the original chalk outline around the decedent’s body?”

    “Did you even make such an outline”

    “Does this blue one on the courtroom floor accurately represent the body’s position when you found it?”

  12. Respectfully removing it after the witness is done seems like the best answer so far. Possibly the questions about how accurate it is in representing the scene as well, if you can manage that right you may in fact shred whatever credibility the outline possesses.

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