Not So Egregious? Not So Severe?

In Williams v. State, the First Court of Appeals today upheld the 182nd District Court’s denial of a mistrial, after sustaining the defense’s objection to the following argument by prosecutor Justin Keiter:

What did the defendant have access to before trial?  He’s had years to craft a story. As we said in voir dire, we have an open file policy. They have access to copies of police reports, statements, and photos. They can build a whole defense that fits everything that we have. That’s just how the game is. It doesn’t mean they get credit for it or you believe it.

It’s a foul argument, striking at the defendant over the shoulders of defense counsel.

Here’s a taste of what Justice Terry Jennings had to say in his dissent:

Here we go yet again—an appellate court admonishes attorneys not to engage in improper jury arguments, but the court itself actually glosses over the egregious nature of the complained-of argument and the actual harm caused by such arguments, not only to those accused of criminal offenses, but to the very administration of justice in Texas. Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues. Accordingly, I respectfully dissent.

The Texas Court of Criminal Appeals has long “maintain[ed] a special concern for final arguments that result in uninvited and unsubstantiated accusation of improper conduct directed at a defendant’s attorney” and emphasized that, “[i]n its most egregious form, this kind of argument . . . involve[s] accusations of manufactured evidence.” Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (emphasis added). Here, however, the majority asserts that just such an argument is “not so egregious” and “not severe.”

The majority errs in concluding that the trial court did not err in denying the motion of appellant, Troy Williams, II, for a mistrial. Appellant made his motion in response to the State’s argument to the jury that his trial counsel abused the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to fit the State’s evidence in the name of winning a “game.”

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In sustaining appellant’s objection to the prosecutor’s improper argument, the trial court correctly concluded that the prosecutor’s accusations that appellant’s trial counsel had abused the State’s open file policy to access evidence and, in collaboration with appellant, fabricate a “whole defense” to “fit[]” the State’s evidence in the name of winning a “game,” were improper. The majority agrees, and it even recognizes that “arguments attacking defense counsel are improper because they unfairly inflame the jury against the accused.” Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999) (emphasis added).

Regardless, the majority goes on to mischaracterize the State’s uninvited and unsupported accusations as “not so egregious” and “not severe.” It further erroneously concludes, thus, that the harm from the prosecutor’s accusations was curable by the trial court’s cursory instruction to disregard. This stands in stark contrast to the well-established law as recognized by the court of criminal appeals, which has clearly explained that, in their most “egregious form,” accusations of improper  conduct  directed  at  a  defendant’s  attorney  “involve  accusations  of manufactured evidence.” Mosley, 983 S.W.2d at 258.

* * * * *

According to the majority, the prosecutor’s accusations about the involvement of appellant’s trial counsel in the fabrication of a “whole defense,” based on abuse of the State’s open file policy, were not “so egregious” and “not severe” because the State, in part of its argument, referred to the defendant individually.

The majority’s logic is not only invalid in that its conclusion does not at all follow from its stated premise, it is also unsound because its premise is false: the simple fact is that the only way that appellant himself could have had any access to the State’s open file was through its availability to appellant’s trial counsel. No matter how the majority parses the complained-of accusations, the State, in no uncertain terms, accused appellant’s trial counsel of abusing the State’s open file policy with the intent to access the State’s evidence and then, in collaboration with appellant, fabricate a “whole defense” to “fit[]” the State’s evidence in the name of winning a “game.”

It must be emphasized that the State has not, in either its briefing or oral argument, argued to this Court that the prosecutor below did not mean anything other than what he actually accused appellant’s trial counsel of doing.…

* * * * *

The State’s uninvited and unsubstantiated accusations against appellant’s trial counsel prejudiced appellant as a direct attack on his counsel’s integrity.…

[T]he prosecutor’s misconduct, in implying that appellant’s trial counsel had abused the State’s open file policy and collaborated with the defendant to “build a whole defense” to “fit[]” the State’s evidence to win a “game” was especially egregious. It strains credulity to say otherwise, especially given that we, as an appellate court, are supposed to have a “special concern” about such unsubstantiated accusations against defense counsel. See id.

[T]he trial court’s cursory instruction to disregard the State’s accusations against appellant’s trial counsel could have little or no efficacy in light of the egregious nature of the accusations, i.e., asserting that appellant’s trial counsel actually worked with appellant to abuse the State’s open file policy and worked with him to manufacture a defense, treating the trial process as a mere “game” to be won. The trial court’s boiler-plate instruction to the jury that “what the lawyer says is not evidence . . .” is equally unavailing. Here, the State did not merely attack the credibility of appellant as a witness based on the evidence. In making its unfounded accusations about the involvement of appellant’s trial counsel in a criminal act, the State gutted counsel’s credibility in front of the jury and essentially deprived appellant of an effective advocate.    Thus, any “curative instructions [were] not likely to prevent the jury from being unfairly prejudiced against the defendant.” See Archie, 340 S.W.3d at 739.

* * * * *

Given the severity of the State’s misconduct, the cursory and ineffective curative measures of the trial court, and the absence of any certainty of conviction, the trial court erred in not granting appellant’s motion for a mistrial.


I would hold that the improper and inflammatory jury argument made by the State was incurable and, thus, that it probably caused the rendition of an improper judgment. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (stating that mistrial is “the only suitable remedy” when instruction to disregard objectionable occurrence could not “have had the desired effect, which is to enable the continuation of the trial by an impartial jury”). I would further hold that the trial court abused its discretion in denying appellant’s motion for new trial. Accordingly, I would sustain appellant’s third issue, reverse the judgment of the trial court, and remand the case for a new trial free from the State’s improper argument.

The majority’s decision to the contrary is in serious error and should be corrected by a higher court. See TEX. GOV’T CODE ANN. §22.001(a)(6) (Vernon 2004).  Unless corrected, the majority’s opinion will actually encourage more such improper arguments, “for what is permitted is considered proper.” Roger D. Townsend, Improper Jury Argument and Professionalism: Rethinking Standard Fire v. Reese, 67 TEX. B.J. 448, 454 (2004). If appellate courts are inclined to find such improper and inflammatory jury arguments to be curable, why not “take the gloves off,” engage in such inflammatory displays, and bias and prejudice the jury against your opponent? See id. at 452. Importantly, although such “improper arguments work,” they take a great toll on the public’s perceptions of lawyers and our jury trial system.  Id. at 453.

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As noted by Townsend,

“When [judges] abdicate [their] duty, professionalism suffers even more than when a lawyer makes an improper argument, for what is permitted is considered proper by the jury. All judges who do not stop improper arguments—and all trial lawyers who make improper arguments—have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.”

Id. (emphasis added).

Terry Jennings Justice

Harris County District Attorney Devon Anderson must be very proud of Justin Keiter right now.

7 responses to “Not So Egregious? Not So Severe?”

  1. In Harris county we have 22 State District Courts handling felonies. We also have 15 County courts
    That handle misdemeanors.

    The vast majority of judges are ex- prosecutors who, have never embraced the concept that they are “ex-prosecutors”. They lean so far in favor of the prosecution that it would be funny if it wasn’t so
    Outright disgusting.

    The vast majority make little or no attempt to be ” neutral and detached” as they are supposed to be. Nope. They played for the DAO, and they are still on that team. That’s why we refer to them as the “judicial branch of the DAs Office”. In my opinion, these judges and their bias constitute the very worst element in the criminal justice system.

    Their innate bias daily impedes fair & impartial trials & case dispositions. They do not accept this fact as fact. They delude themselves, rather arrogantly, into believing that they are fair, when they are not. . Their opinion of themselves and how very wonderfully fair they are is baseless & daily contradicted.

    We expect prosecutors to be our adversaries. We are entitled to expect the judiciary to act in a fair and impartial manner. For the most part, the judiciary in Harris County has never made any serious attempt to be truly fair & impartial or neutral & detached.

    As they are so very content with themselves, and as they are generally cut from the same clothe, there is little hope that they will soon or ever change. The judicial branch of the DAO is here to stay. As long as their default mode is to side with the DAO, the defense will call them ” Your Honor”, not out of respect, but as a two word pep talk.

    Robb Fickman

    • This is why I would like to see more criminal-defense lawyers running for judicial offices. Unfortunately, the criminal-defense lawyers I would like to see on the bench would have to take a significant pay cut in order to do it. The ones for whom it would be a lateral move, or a pay increase — I probably wouldn’t want them on the bench.

      • Having thought about it some more, I offer this addendum to my comment above. First, a disclaimer: This is not meant to be normative, but descriptive. I’m not saying people in one category are better; I’m just saying people in the categories tend to be different.

        I have experience in both the public and private sectors, and they tend to attract and retain different sorts of people. Public-sector folks tend to value, and contribute to, stability. This is why the State of Texas offers longevity pay. They tend to be risk-averse. Combining that with the organizational inertia inherent in a government agency, the status quo tends to endure.

        By way of contract, private-sector folks, especially people who work for themselves (e.g., solo criminal-defense practitioners), tend to be willing to trade stability for more money. They are more inclined to accept risk and challenge the status quo. Frankly, they have to: Either they adapt to meet the changing needs of the people who give them money, or they don’t eat.

        Against this backdrop, I have a clearer understanding of why former ADAs tend to occupy judicial offices. More than just being former prosecutors, they tend to be deeply invested in maintaining the status quo, at least until they start getting their pension checks, and by then it’s too late to do much.

        Just my $0.02.

  2. Ahhh yes,we are not the assholes DIRECTLY…we just fed the info to our crafty client, who then spun a nefarious plot that we, non-ex-prosecutors with minimal ethical standards (or we WOULD have been prosecutors) gladly utilized to our advantage, in an attempt to win the “game”.


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