I was a fan of Kim Ogg’s candidacy for the Harris County DA. It was time to break the Republican party’s chokehold on that office, and Ogg was a good person to do it.
Unfortunately, the promise was greater than the product.
The Harris County District Attorney’s Office has been my principle adversary for almost a quarter century, but I don’t want it poorly run. Demoralized prosecutors are easier to beat, but prosecutors who are easier to beat are more likely to cheat.
And I’d rather my adversaries didn’t cheat.
I’d also rather human beings not be demoralized, as long as they aren’t trying to put my clients in boxes. All else being equal, we should all be fulfilled in our lives.
The DA’s Office has a morale problem. Kim Ogg is a terrible manager, and she has filled leadership positions in the office with terrible managers. These are friends of mine, and good lawyers, but none of that makes them competent managers/ Line prosecutors are walking on eggshells, afraid to exercise their discretion for fear that higher-ups will punish them for it.
But, as the title says, this post isn’t about morale. It’s about credibility.
Kim Ogg’s DA’s Office has a credibility problem, from top to bottom.
Credibility is a funny thing. It’s like leadership or liking or attractiveness. They’re all pretty much interchangeable—if (in real life) you find someone credible, you probably trust her and are attracted to her (not necessarily sexually, but you will not be repelled) and like her and are willing to follow her and have rapport with her.
Put this all under the umbrella of “charisma.”
We humans choose charismatic leaders based, first, on our perception of their beneficence: will they act in our best interest? Only if we find them beneficent, we will judge their competence: are they competent to advance that interest? Between two beneficent potential leaders we will choose the more competent, but if someone doesn’t come across as beneficent it doesn’t matter how competent he is: he will never be allowed to lead us.
(On second thought, maybe this post is at least a little bit about morale. If people are forced to follow incompetents, their morale will be low.)
We have a presumption against beneficence. Someone can appear beneficent a dozen times, and if he shows himself once not to have our best interests at heart he will lose our trust. This makes sense, considering that people may be motivated to fake beneficence, but probably not its lack. Revealing a lack of beneficence is betrayal. We can lose trust / credibility / rapport / personal power forever with a single betrayal.
We have a presumption in favor of competence. A beneficent person can lose a dozen times, and if he wins once we may have faith in his leadership. This makes sense, considering that even competent people often lose. In fact, they often screw things up. (A difference between the incompetent and the competent is that the latter learn from the screwups.)
A jury trial is largely about leadership. Which lawyer will a juror follow? Whose story will he adopt? Mistakes will be forgiven, but betrayal will not. A lawyer can flub a dozen things and still convince a jury, but if the jury sees once once that she doesn’t have its best interest at heart, she’s sunk.
An elected DA can go to Commissioner’s Court and ask for money to hire more prosecutors, and they’ll probably give her what she wants, unless she lies to them to get it. Those prosecutors may really have been needed, and Commissioner’s Court may have given her the money if she’d laid her case out honestly, but the falsehood casts doubts on her beneficence.
I teach my voir dire students that prosecutors usually come into voir dire with a credibility advantage. Law-abiding jurors—Law and Order jurors—assume that prosecutors are beneficent and competent. The best way to turn that around is to have a sustained objection during the State’s voir dire. When the judge sides with the defense lawyer against the prosecutor, the scales even out, before the defense lawyer even begins his voir dire. And an even playing field is a lot better, at that point, than what we usually get.
The sustained objection may implicate beneficence (did the State lie to us???) or competence (did the State not know the law???). The former is better for the defense, of course—a betrayal rather than a mistake, and harder for the State to recover from.
Hanlon’s Razor suggests that we should, when possible, attribute error to incompetence rather than maleficence, but the more competence the jury attributes to the prosecutor, the more likely will it ascribe a misstatement of the law to maleficence, in which case the State is sunk.
Which means, of course, that these kids who went from high school to college to law school to the DA’s Office so that they could use the power of the state to punish those less fortunate than them should be humble before the jury and downplay their competence.
Ell oh fucking ell.
In two recent voir dires, I’ve seen Harris County prosecutors throw their credibility advantage away with misstatements of the law, exploited by defense counsel with objections that were timely, correct, and—most importantly—sustained.
Both prosecutors were using Powerpoint presentations. One clearly didn’t understand the script she was reading from. The other may have understood his.
Neither was able to recover from having objections sustained against them. They’d left themselves no outs. They visibly floundered, dumbfounded.
For all of this, Kim Ogg and her former-defense-bar cronies are to blame.
These are smart, good-looking, well-educated young lawyers who have every advantage, and should be learning to try cases effectively. This can be taught. If these were criminal-defense lawyers, coming to me willing to learn, I’d get them on the road to being courthouse kaiju like my protégée Simone Bray (or Damon Parrish of the PD’s Office, who keeps handing the DA’s Office’s head to them in serious felony cases).
But as they fail to give line prosecutors discretion to deal with cases, Ogg and company fail to give them the training required to try cases. Prosecutors with 12 months of experience who learned from prosecutors with 21 months of experience are teaching prosecutors with three months of experience.
In the DA’s Office the blind are leading the blind. This is a recipe for the perpetuation of bad lawyering. Multiple bad reps entrench bad form.
So, Mark, what would you teach differently?
One thing: I’d scrap the Powerpoints. Voir dire is our only chance to have a conversation with jurors, and screens interfere with conversation. Powerpoint is a crutch for the lawyer.
I know the argument—jurors are so used to looking at screens that we best reach them by using screens.
On your next first date, show your date a Powerpoint presentation. There won’t be a second date.
Jurors are human beings, who have evolved to respond to human contact. For hundreds of millennia we’ve reacted to being told stories around the fire. Technology doesn’t change that. People are hungry for non-screen human interaction, and they respond to it.
Furthermore, Powerpoint is sequential. Using Powerpoint is following a script, and it is inadequate for dealing with the dynamic exercise of voir dire because it doesn’t account for what the potential jurors are going to say, much less what objections the defense is going to raise.
Contrasted with defense lawyers’ job in voir dire, which includes overcoming the State’s credibility advantage (among other things), Prosecutors’ basic job in voir dire (as in trial) is not difficult: tick a few boxes, and don’t step on your own dick.
I might allow prosecutors a script, because that job requires little creativity, and a baby lawyer preparing six cases for trial Monday morning has got to start somewhere. But any lawyer using a script must know that script. She has to know what it says, and why it says it. Ticking boxes doesn’t do any good if you don’t know the significance of the tickmarks.
How do you make sure you understand your script? You write it yourself.
Every word matters. If you get your script from someone else, it’s going to be applicable to his case, maybe, at best. It’s not going to be applicable to yours. What worked for someone else because the defense lawyer was asleep at the switch is not going to work for you when the defense lawyer is paying attention.
Lawyers shouldn’t recycle other lawyers’ scripts.
These two prosecutors wouldn’t have been dumbfounded at the sustained objections if they had not been dependent on their scripts. Instead they’d have improvised and recovered. They might not have prevailed, but they wouldn’t have thrown away their credibility advantage (thanks, Dick Wolf!) on stupid stuff.
Voir dire is important, and it’s hard. It can’t be half-assed, even if you’re the State. If you half-ass it, you might win despite yourself (because LOL you get to choose the cases you try), but “despite yourself” is the worst way to win.
Stop half-assing voir dire. You’re throwing away your credibility.
If you were a defense lawyer, I could teach you better. Since you’re a prosecutor, though, that’s on Kim Ogg. And she’s not even setting an example that teaches you that credibility matters.
I supported her. She was the best option at the time.
I won’t apologize.