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Second Career

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August 27, 2003, 11:57
Cindy Franklin
Second Career
I have a question regarding a defense attorney who is a former police officer. In trial, this attorney always informs the that he used to be a cop. Then he sets himself up as the supreme judge of "good" police work v. "bad" police work. It is shocking that so far in his career as a defense attorney he has not seen any "good" police work. His typical closing argument lambasts the police involved in the case and he tells the jury this is the worst, sloppiest, most careless, or pick any negative adjective police work so they must acquit.

This guy is a good attorney who prepares his cases. He seems to gain extra credibility with the jury due to his former status as a "good guy". He is having some success with this strategy and I am contemplating a Motion in Limine about his former career. Has anyone ever successfully prevented a defense attorney from telling the jury what he did before he was a defense attorney? Do I have a leg to stand on?
August 27, 2003, 13:49
I did a MIL to prevent an attorney from doing just that. He actually agreed except during voir dire he wanted to inform the jurors that he had been a police officer in our town - in case any of the members of the panel knew him during his time here as an officer. The judge agreed.
August 27, 2003, 14:26
Trey Hill
Well, I can see doing a MIL for this, because it is, after all, irrelevant. However, if & when he tells the jury in closing, that this is the sloppiest, worst & etc police work he's ever seen, could you answer his argument by telling the jurors that in all your trials with this guy, he always tells the jury this is the sloppiest, worst & etc police work he's ever seen?

On a related note, do you think we could require a local defense attorney (who avoids trial like the plague) to inform the jury that he is the owner of a local strip-club? Yep, took title to the place as his fee in representing a guy, whom the feds sent up the river a few years ago.
August 28, 2003, 07:46
Jim Huggler
We have a defense attorney who once was the elected and uses the same tactics (I was once the DA I know good work etc) we routinely file a limine for those issues and get them granted. The fact that he has a reputation for avoiding candor with the court may go a ways in those decisions also.
August 28, 2003, 10:55
Tim Cole
This sounds like the personal opinion of the attorney on the weight of the evidence, which he isn't entitled to give. He can say the evidence shows it was sloppy, common sense tells you it was sloppy, etc., but he should not be allowed to use his own experience to relate what he believes about the evidence. I think you could approach it in a limine in that fashion. I am not sure you will be successful in a limine to keep him from telling the jury that he used to be a cop. Does that mean, for example, that during jury selection I can't tell the jury that I was born and raised in the county, etc.? I think most judges are going to allow a lawyer to give a bit of information about himself as a matter of introduction to the jury.
August 28, 2003, 12:06
As a former full-time officer, now prosecutor (and reserve deputy in another county), I must say this guy either forgot or never knew why most cops do what they do. Or, most likely, let money soil his white hat.
August 28, 2003, 15:19
Cindy Franklin
I do think our judges would allow him to talk about his past with the jury. I agree that the right approach is a Motion In Limine to prevent him on commenting on the evidence in the context of his personal history. I just don't know how far our judges will allow him to go.

And we do have a similar problem with a former ADA.

As far as this ex-officer switching hats, he is just as zealous on his appointed clients so we know its not money. Mostly it is his very competitive nature. His need to win outstrips all other considerations.
August 28, 2003, 18:47
Stephen Hughes
If no MIL granted then what?

If at some point in argument he suggests thtat "he's never seen such sloppy, bad, ... police work", would that open the door to answer the argument?

If so, do an open records act request before the trial for his personnel and disciplinary records with the police agency. Do interviews of officers who served with him and get written statements.

Answer the argument with "My learned opponent forgets what it is to be out of the ivory tower and on the front lines making real time decisions without the benefit of 20 20 hindsight, why has he forgotten when he ..."

I would be surprised if the record was perfect ... that he'd never locked his keys in his squad, gotten lost on the way to a call, ...

True it would be objectionable in almost all circumstances, but if invited by his objectionable personal judgments .... it might well be proper to answer.

Might slow him down in the future if you had the material in the same bright red folder with an orange sticker on it on your table at next trial ...

You might be drawing the motion in limine which would set up your motion in limine to be granted.
September 04, 2003, 13:51
Shipp vs. State 482 SW2d 870. Last time I checked it was still good law. Basically entitles you to respond to argument as "permissible adversary comment". Basically, the case says you can argue that ..."I don't think it very unusual {that the defense lawyer is not satisfied with the State's case}. Defense lawyers are paid not to be." As I would make the argument I would slide a copy of the case across the table to the defendant's counsel and tender a copy to the Court if the Court were unfamiliar with the argument.

It has been upheld on appeal.

It's a strong argument, and not for every case. But it pretty much settled down the ex-dps trooper I was trying dwi cases against early in my prosecutorial career.