HARRY'S GANG: Prosecutors need some muzzling

The law fascinates me, which is probably why I became a lawyer. I don’t do much criminal defense anymore, but my oldest brother Tom does; he’s a “prominent” criminal defense lawyer in Houston. We often share stories about our practices, and commiserate in the fact that our father, who loved us unconditionally, was still always a little embarrassed that he produced not just one, but two lawyers, out his seven children.

Tom is preparing for a murder trial this week, and sent me his motion asking the judge to limit some of the common tricks that prosecutors use on juries. I’m sure the prosecutor filed a motion of his own to limit Tom’s tricks, although I can vouch that my brother relies more on legal skill than legal trickery.

Here are some of my favorites:

A prosecutor can’t tell the jury that the defendant reminds him of Lee Harvey Oswald or Clyde Barrow or any other notorious criminal. The thinking is that the accused is linked, fairly or not, to someone the jury almost certainly knows is guilty, and that’s not allowed.

Prosecutors also can’t use name-calling, such as referring to the accused as a “cowardly cur” or a “fiend from Hell” or a “beast,” “punk” or “hippie, anti-Christian communist.” While name-calling is childish and demeaning, it’s also just an opinion and can’t really be proven. The prosecutor’s opinion is not evidence and should not be shared with the jury. For the same reason, a prosecutor can’t tell the jury that she believes the defendant is guilty; or that she believes one witness was more credible than another.

They also can’t infer that the accused earns his living as a criminal. I suppose a prosecutor would argue that the jury has an opportunity to shut down a criminal enterprise if they are willing to just convict this one crime. That’s unfair because the accused should be judged on whether they committed the crime; not because they are “bad people.”

Jury trials and the justice system are very carefully crafted to provide the liberties we enjoy as Americans while making sure criminals are brought to justice. It’s really about protecting our rights. Alan Dershowitz was quoted once as saying that most people who are arrested are later found guilty, and then going on to say, “Would you ever want to live in a country where that’s not true?” The implication is that police won’t arrest someone unless they are pretty sure they can prove a crime was committed, so that by the time a criminal is arrested, it’s pretty likely they are guilty.

Guess what? You can’t say that in Texas, either. The prosecutor can’t argue to the jury that the accused must be guilty, otherwise, why were they arrested? They can’t tell the jury that the police are more credible than the defense’s witnesses; they can’t say “police are sworn to tell the truth and therefore they did tell the truth” (we have had that issue rear its ugly head right here in Carlton County). They can’t argue that the police are paid with our tax dollars, so we must trust their honesty and integrity. Or that police officers are interested only in justice and are impartial, whereas the defendant has an interest in an acquittal.

Defense attorneys are prohibited from certain arguments too, of course.

Each side plays an important role in our very effective criminal justice system.

Pete Radosevich is the publisher of the Pine Knot News community newspaper and an attorney in Esko who hopes to host the talk show Harry’s Gang on CAT-7 again someday. He can be reached at [email protected].