With regard to the mistrial declared in San Angelo: "The key objection came after Guerrero told jurors that only Jackson could explain what had happened to the victims at the hospital.

Such a statement raises the issue of a defendant's right to remain silent, planting the seed in jurors' minds that if the defendant does not testify, she is hiding something and withholding evidence, said Jack Strickland, a Fort Worth criminal defense attorney.

"That's a pretty big misstep when somebody does that," said Strickland, chairman of the Texas Board of Law Examiners. ... An experienced trial lawyer will stay away from even any kind of implication of that because that's one of the few things the courts don't have any patience with."

A defense attorney could say prosecutors are forcing his client to testify, stripping the defendant of her right to remain silent, said Strickland, a former Tarrant County prosecutor."

That is one view. But, how does that mesh with the following: "in voir dire, if the State has no way of knowing whether the defendant will testify, comments regarding [same] are not taken as comments on a subsequent failure of the defendant to testify and are not error. [Rather] the prosecutor's comments [are] only an attempt to instruct the jury on how to treat [the Defendant's] decision to not testify or to testify." Graff, 65 S.W.3d at 737. I am not sure I understand either Strickland's conclusion or the Judge's determination (especially after Bauder).

A.G.'s comments regarding the person who could explain was made during opening statement. Also, the media reports all indicate that this was just one of many objections lodged by the defense attorney to the opening statement.

OK, well, I guess I needed to refer to such cases as McCarron, 605 S.W.2d at 595, which I understand to allow the prosecutor to make reference to facts (that the defendant would know about the charge) prior to the time it is known whether the defendant will testify.

Prosecutor Could Testify
Jury may have to decide fate of Jackson trial

Times Record News (Edited)
March 18, 2005

Assistant Texas Attorney General Ralph Guerrero, on loan from the state, might have to testify if a judge grants a defense request to allow a jury to decide whether to dismiss a capital murder charge against Vickie Dawn Jackson, 39, of Nocona.

Thursday, 97th District Judge Roger Towery gave the prosecution and defense a week to justify whether he should refuse or grant the request, lawyers said at Montague County Courthouse.

If Towery grants defense attorney Bruce Martin's request, the defense will seek to prove prosecutorial wrongdoing in addition to Jackson's innocence. Defense attorneys can present evidence - including Guerrero's testimony - to try to show misconduct caused the mistrial.

Even if the capital murder charge in connection with the January 2001 deaths of Wyler and Nichols is dismissed, five other charges are still pending against Jackson.

"It's not their only bite at the apple," defense attorney Rita Stevens said.
_________________________________________________


I may be exposing my abject ignorance but where is the provision for a jury to find the facts on a Bauder claim? The normal procedure, I think, is that the Court would call the case and the D would enter a special plea of former jeopardy and the Court would hear evidence on the issue and then rule, making findings of fact and conclusions of law. How would this process the judge in Montague County is contemplating play out?

Having researched this issue considerably several years ago, one common misconception I would point out is that it is the defendant's right to remain silent and this right/decision does not transfer to the defense attorney.

I'm at home and have no law handy, but there is law to this effect. Yet, I'm constantly astounded when prosecutors allow the defense attorney to say, unchallenged, that the decision whether the defendant testifies will be made by his attorney. Simply not true, no legal basis for it, and any such comments should be kept out with a motion in limine.

Likewise, it is the defendant who must enter his plea before the court, not the defense attorney.

Pre-Bauder, I had upheld on appeal a line of voir dire that I learned from veteran Harris County Prosecutor Mark Vinson. Mark often says something to this effect: "There are many reasons a defendant might not testify. He might not be a good speaker. He might have a poor education and not wish to match wits with the prosecutor on cross examination. He might be nervous. He may stutter...or he may be guilty as sin."

WHen I got the brief on that case, I called Mark, and he was surprised because he had never had an appeal raise that issue in the cases where he used it. I was really happy when the case got upheld to send him a copy of the opinion.

I got this upheld on appeal, but by the skin of my teeth, and don't use it anymore. It was obvious at the argument before either the 1st or the 14th (can't recall which) that 2 of the three justices were not terribly impressed with that particular comment. They were, albeit, justices with civil experience but there was no doubt in the room that they didn't like the remarks and didn't consider them appropriate.

The conviction was upheld and no error was assigned to those remarks. And I don't feel it is a comment on the defendant's right not to testify, as it is a hypothetical discussion of what may motivate a hypothetical defendant to testify, other than the decision of his attorney?

But not having read the transcript of this particular case ya'll are posting about, it may be different in that it apparently may have specifically addressed his 5th rights speaking specifically to certain facts. That is a different story, and I suspect the State will take the stand to attempt to prevent a ruling of intentional prosecutorial misconduct.

The transcript or a portion appears on the home page under "� Transcripts From the Vickie Dawn Jackson Trial." If the article relates the extent of the prosecutor's error, I fail to see how a retrial is impermissible. I'm not even sure the necessity of mistrial was manifest. To paraphrase Ron Meyer, the football coach at SMU who led them to the Southwest Conference championship (and then to the death penalty) an instruction to disregard cures cancer.

Well, if nothing else, the prosecutor's tactic seems to have given the defense an extended continuance while the Bauder issue plays out. In light of Lewis, Ben do you really think it is too far-fetched to believe the Fort Worth court might not find re-trial is now barred?

I have to keep wondering how the prohibition against compelling an accused to give evidence against herself ever got translated into this type of result. If the accused takes the stand, the recent fabrication rule should apply just as it would to any other witness. And being able to point out what the defendant would necessarily know about the case before exercise of the right to remain silent at trial seems a fair procedure consistent with the wording of the Fifth Amendment rather than a cumbersome penalty or form of coercion. But, crafting around Griffin and Doyle is indeed a tricky business. One hates to see a capital case so easily jeopardized when the underlying rationale is non-sensical.

One of my best friends tried Lewis and the irony is that he is one of the best lawyers I know. When you read Lewis read Gary Matthew Twine as well. These cases are what horse racing aficianados call an entry.

Nothing is too far-fetched for this court. They concern themselves with whether the proper objection is "repetitious" or "repetitive" and think the mention of the word "insurance" in a criminal case is akin to commenting on the defendant's failure to testify.