I suppose this could be posted as some sort of poll, but I would be curious to know how other prosecutors feel about opinions such as that expressed by Judge Baird in Wead, 94 S.W.3d at 138. He says "affirming convictions on the basis that defense counsel has not done his job, or that the trial judge has taken curative action does nothing to prevent prosecutors from breaking our established rules for jury argument. Instead, those opinions actually serve to embolden and encourage those prosecutors determined to violate the ... rules ... declaring harmless the argument in the instant case [where the prosecutor pointed out that the defendant was "looking like he really didn't care one way or the other what happened here today"]would further encourage the State to continue this type of offensive conduct."
In a brief involving comment on the defendant's silence, I saw the following argument made: "In truth, punishing [the child sexual assault victim] and the taxpayers and possibly other victims is not a very effective means of accomplishing [the goal of preventing similar prosecutorial conduct in the future]. While many courts view declaring this type of error harmless as somehow sanctioning the misconduct or encouraging further abuse by the State, this assumes prosecutors are intent in engaging in brinkmanship and have no regard for such strictures as Tex.Discip.R.Prof.Conduct 3.04(c)(1)."
I, for one, simply do not plot and plan how to avoid or break established rules for jury argument. I am not emboldened by any thought that maybe I can get away with this or that because another prosecutor did last week or last year or 10 years ago. Most of my argument is pretty spontaneous, and while I may sometimes break a rule, I resent the idea that I am just out trying to establish some minimum standard for all prosecutors. To me, the opinion in Wead contradicts the more logical approach in Waldo, 746 S.W.2d 750 and is unjustly demeaning to all prosecutors. Harmfulness of error, at least in the case of jury argument, should be restricted to the perceived effect in the particular case and not judged on false aspersion of the State's attorneys. E.g., Fletcher, 852 S.W.2d at 275.
Even a fairly superficial review of Judge Baird's opinions would quickly show his prejudice against prosecution. He has an extraordinarily high rate of reversals as a visiting judge assigned to panels on the courts of appeals. So, I wouldn't take any comments he makes as representative of the judiciary as a whole.
Judge Baird was voted off the Court of Criminal Appeals by the public, yet he continues to serve on the bench at the trial and appellate level. We should be more concerned that we have a system of judicial service that permits such a situation.
The Legislatute is currently working to cut the budget for visiting judges in half, noting that there does not seem to be any organized effort to hold down those costs.
[This message was edited by John Bradley on 03-22-03 at .]
Somebody ought to direct the court to United States v. Hastings, 461 U.S. 499, 507: "the interests preserved by the doctrine of harmless error cannot be so lightly and causually ignored in order to chastise what the court viewed as prosecutorial overreaching." Hastings reversed the 7th Circuit's attempt to teach prosecutors a lesson about repeatedly bad jury arguments.
Interestingly, although this bill would exclude from the list of retired or former judges eligible for assignment as a visiting judge those who have "been defeated in an election in which the judge was a candidate for a district, statutory, or county court", judges coming from a wider jurisdiction (such as Baird) could continue to serve.
Count me among those who would love nothing more than to see the reins really tightened on visiting appellate court judges, especilly one's that have been "unelected" by the voting public in this state. He got me on a dope case last year finding legal insufficiency to support the conviction where my defendant was apprehended in a "decoy" vehicle traveling in front of a dope vehicle. The kicker: the defendant's fingerprint was found on the Walmart bag which contained the dope which was then placed in a box type stereo speaker. Judge Baird reasoned that the defendant could have touched the bag anytime and that it was essentially insignificant that he was stopped less than a quarter mile ahead of the vehicle that was actually transporting nearly $20,000 in cocaine. Incidentally, it took the jury less than 30 minutes to find the defendant guilty and that was WITHOUT any improper closing argument on my part. Go figure.
In a Houston Chronicle article, Houston judges have suggested that maybe they could make up for the cuts in their budgets for visiting judges by actually dividing up the work among elected judges. What a thought.
For details, (including a proposal to eliminate a district bench), go to the article.
