Does Bruce mean that the State might consider moving for mistrial due to defense counsel's conduct? If so, then the playing field is evened quite a bit, though no one relishes re-trials. See Ex parte Bruce
It sure seems like the State could move for a mistrial. Especially if you consider the State is out anyway if the defendant is acquitted because defense counsel violated a motion in limine. I wouldn't advocate the move in every case, but I'll bet there are more like this one (Bruce) out there.
Posts: 956 | Location: Cherokee County, Rusk, Tx | Registered: July 11, 2001
Neither the state nor the court may grant a new trial on their own motion, so how do they get to grant a mistrial for the state? Seems pretty dicey to me.
And not to take anything away from the judge (I like to see a defense attorney get spanked just as much as the next person), but, really, was the jury all that tainted? A nice instruction works pretty well.
Now, I would like to know if a grievance also followed.
This seems a little creepy to me, and plus look at the delay it puts in your trial. The defendant files a double jeopardy writ, appeals the ruling, and boom, you have a year or more delay in your trial.
Isn't an instruction from the judge enough to protect your case? Ask the judge to hold defense counsel in contempt in addition to filing a grievance with the State Bar. If you think your judge will grant your motion for mistrial, they'd also be likely to make the lawyer sleep in jail during the trial and forfeit any fee for the case as a fine to the court.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
John R., seems to me the presumption is the defense attorney has gone so far out of bounds that you believe you are faced with at least a hung jury, if not an acquittal, if you choose not to request a mistrial. Not that it happens very often, but some defense attorneys on occasion do seem willing to do whatever it takes to foul-up the State's case. I have never considered the threat of contempt much of a deterrent. And we have previously discussed prosecutors filing grievances against defense counsel.
At least the idea that one's conduct might result in a re-trial seems a useful seed to implant in defense counsel's mind. Really, it should be spooky for both sides. Up to now, it seems the assumption has been there was really not very much the State's attorney could do, but hope defense counsel didn't lose control. I see attorneys pretty frequently "violate an established rule of procedure or of evidence" and "state or allude to [a] matter that the lawyer [should] not reasonably believe is relevant ... or that will be supported by admissible evidence". Certainly, we should be most careful in evaluating the harm done and the best remedy, but if mistrial is a remedy, it should be considered as well.
Finally, I am not convinced that a Robinson appeal will always result in a stay of the trial. See Trimboli , 735 S.W.2d 953.
[This message was edited by Martin Peterson on 07-14-03 at .]
