So, I'm reading Greg Gilleland's Back to Basics article on Opening Statements. You know you do it too. You're watching a roadside stop video, the juicey bits have already passed and now you're at the fifteen to thirty minutes of footage where nothing happens. But, you watch it anyway listening to the in-car audio in the background just to be sure there's nothing else fun there.

At the bottom of page 23 and the top of 24, GG discusses getting a theme going during your opening. And, I thought: I've got three trials coming up in the next few months that merit significant theme planning. So, here are the three fact scenarios. What are some theme ideas you might use in opening on these three trials?

Facts 1: Drunk driver (.23) cruising on a busy street at night and doesn't see the work truck and the cones set out to alert motorists that a crew is working. Defendant's pick-up smashes into the very heavy work truck moving it 50 or so yards down the street. Worker is caught between the two vehicles and killed. (I'm looking for a cohesive way to discuss the victim just doing his job.)

Facts 2: Drug user becomes jealous of his lady of the night spending time with another man. A series of arguments throughout the night are punctuated with the purchase of narcotics and the sharing of said product. Evening ends with the lady retiring to her 'campsite mattress' outside a local bar and the defendant approaching her with a 12 gauge shotgun. Defendant executes the victim at close range: single shot to the head. (I'm looking for a classy way to address the issues of prostitution, drug use, and the horror of the crime scene photos.)

Facts 3: Habitual DWI. Defendant has been arrested and convicted of at _least_ 5 priors. The indictment uses all DWIs throughout. Defendant makes statements in the jail video while the officer is reading the DICs, 'Has my 4 hours started to run yet? You can do this paper work without me. Just take me to jail so I can get through my four hours and get out of here. I don't give a s**t what that says, just let me do my thing and get out of here.' (Would you let the jury hear that through the tape? Or, would you start out with the callousness of the defendant right off the bat? Often, I think: Save it for close, let the jury be shocked by the defendant's own words, but with 25-life on a drunk, I don't know if I should start out with that or not.)

Themes are the most difficult part of a trial for me, Phillip. I have always been lucky to have very talented lawyers in the offices where I have worked who have theme ideas for days. I think I did note in my article that I struggle with themes on a regular basis.

Personally, I seem to be better at developing themes for the punishment phase. Suzy Morton in Fort Bend County is particularly good with themes, as are Mike Hartman and DA John Healey. I got many theme ideas from those folks in the years I was there.

I have a hunch that AP is a good person for themes, as would be some of the wittier persons I know, like David Newell, Scott Brumley and Phil Hall. The Scotts of this forum, i.e. Brumley and Durfee, also seem to come up with incredible ideas seemingly out of nowhere. I suspect Brumley has a good feel for the attitudes in your area and he seems to be able to turn a phrase very well. Bug him for ideas.

Let me see if I can help.

Facts 1:
Your victim is not unlike a police officer or fire fighter working at night and being struck by a intoxicated driver. He is doing public service, be it road work, gas, electric, cable or telephone repair. No one gets paid enough to get killed on the job. His families lives are now altered detrimentally forever. They might say their lives are ruined.

Your driver must have had some speed to move the heavy work truck 50 feet. In many DWI cases, I am reminded of the image of Slim Pickens in Dr. Strangelove, as he rides the nuke out of the bomber like a steer rider coming out of the chute.

That car is like a deadly weapon or bomb with wheels. I can clearly see an image of a bomb on wheels when speaking those words. That is the imagery I seek to create in my themes, because then the words have become part of their thought process, once they are visualizing your words.

So one theme could be merging the old safety phrase "speed kills" with a dwi theme.

In this case, two wrongs (and the two wrongs could be driver inattentiveness, speeding, dwi'ing, etc) do not make a right. Depending on how many factors you have that led to the manslaughter, three wrongs don't make a right.

Facts 2:

To this defendant, love is dead.

Well, my first thought would be to research the law regarding prejudicial effect of the scene photos. My former appellate attorney in Fort Bend used to constantly warn against overkill, and he knew of what he spoke. The more gory the scene photos were, the more he would urge caution in how many were admitted and to not making a big deal out of the goryness of them. They will speak for themselves.

On the other hand, the old cliche, "every picture tells a story", seems to be more than appropriate here. In this case, a single crime scene picture tells the story of a depressed, drug addled, sad life that was wrongfully taken. For inspiration you can listen to Rod Stewart's early 70's song of the same name.

Of course, you can do a variation on the theme of "Hell hath no fury like a woman spurned".

Or The victim had nowhere to go, and the def knew it. She had no real home, like all of you (jurors). Her life was a series of degrading acts, one after another, in support of her drug habit, and she was not allowed the ultimate dignity and choice, the right of life.



Facts 3:

I'd save that and let the jury "discover" that evidence themselves. The D atty probably won't mention it, unless he is good and understands the value of stealing your thunder. But that can backfire on him if you don't mention it. He will surely try to quash it, but they will hear it in one phase or the other. Save it for closing.

A nice professional looking chart or powerpoint showing the conviction years vs years in jail and on probation would be nice for closing in punishment.

One thing I've thought long and hard about was a proper way to focus a jury's attention, in a case just like the one you have (felony dwi + habitual felon) on the fact that if the defendant had killed someone, it would have been murder (felony murder rule) and not intoxicated manslaughter. I realize your case is about habitual dwi's and not a homicide, but we all know with a repeat dwi offender the risk is very high.

Your defendant here just refuses to not drive while intoxicated. That is the one thing you know for sure about him is that he is gonna drink and then he is gonna drive. Nothing has worked yet with either incarceration, probation or rehabilitation.

I wouldn't be surprised if he is rehab'd by your time of trial and says that he has now finally learned his lesson. No more punishment is necessary.

[This message was edited by GG on 04-25-07 at .]

[This message was edited by GG on 04-25-07 at .]

Since you have so many priors within the indictment in the felony DWI, you could consider it as the defendant's resume, applying for another conviction. Not only is he proficient at what he does, he also has plenty of experience. That might better be saved for punishment, but given your indictment...


If you save it for punishment, that defendant seems so qualified for the job that a lifetime appointment as a convict could be urged using a resume theory.

Good luck!

#1 A different kind of road side bomb, but just as deadly

#2 A hard life does not justify an even harder death

#3 Obviously 4 hours doesn't do the trick, how about life?

For guilt innocent how about:

"just a normal night with out his normal faculties"

Since pop songs seem to be en vogue in this thread, I'll suggest another for your shotgun case. 10,000 Maniacs had a song about child abuse, called, "What's The Matter Here?" with an apt line (paraphrasing): "Answer me and take your time, tell me what's the awful crime, she did to deserve such a fate?" Though most jurors may feel somewhat detached from a junkie/prostitute, unlikely anyone will say she deserved what they see in your photos.

#1 While the victim was working hard, the defendant was drinking hard and driving hard.

#3 This is the case of an impatient drunk driver who needs a jury's verdict to slow him down for a long time.

quote:

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Originally posted by Neel McDonald:
"Answer me and take your time, tell me what's the awful crime, she did to deserve such a fate?"

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Along those same lines, I've had several cases where, with an unsympathetic--or even outright criminal--victim, I've argued (in punishment) that the defendant saw fit to assess the death penalty for whatever he perceived was done to him by the victim, he should not be heard now to ask for a lesser punishment for a greater crime.

OHHHHHHHHHHH, that resume argument is good. Real good.

Also like hard life does not equal hard death and the while defendant was drinkin and driving hard the victim was working hard to ensure your safety.

We have some great theme makers here!

You guys are great! Thanks! I'll let you know how it goes.

Robert DuBoise in our office has used the resume argument in punishment closing on a few cases, with good results. His version is an "Application to Live in Our Community". It works great in all habitual offender or long criminal history-type cases, reminding jurors that what they do will impact the safety of their family and friends. The argument works well for the smart-aleck prosecutor (which is very plentiful in our office).

Just read it. That's good stuff! I'd have a really hard time not dripping with sarcasm. I'll have to focus on playing it as straight as possible to pull it off. Otherwise I'll end up looking like the acidic smartypants that I often am.

FYI: "Facts 3" plead to 32 years TDC today.

Good job. By the way, after this thread began I had a call from an esteemed prosecutor who this week is trying a child porn case. After arrest, the defendant went out and joined the armed forces, and has persisted in attending every court appearance in uniform. My idea for a punishment theme was "You can't judge a book by his cover".

Any other ideas? If so, I'll forward them to the prosecutor via cell...

"You can paint over a skunk's stripe, but it don't change the smell ...." Wait. That might offend your animal lovers.

How about: "A uniform is only as good as the man who wears it"?

May 1, 2007, 9:55AM
Smoking pocket tips deputies off in marijuana case
By KEVIN MORAN
Copyright 2007 Houston Chronicle

A suspect in a marijuana-growing case had no smoking gun but he allegedly had a smoking pocket when Harris County sheriff's deputies apprehended him.

John Dominguez, 21, allegedly fled an apartment where marijuana was being grown in a closet last week, deputies reported.
After handcuffing Dominguez, deputies said they found a marijuana joint, still burning, in the man's pocket.

Along with Dominguez, deputies arrested Autumn Wishard, 18, at the Crystal Cove Apartments in the 16700 block of Kuykendahl on a charge of possession of marijuana.

Deputies went to the complex after a complaint about a disturbance in the apartment where Wishard and Dominguez live, according to a statement.
Finding the door open, deputies searched the apartment and found Wishard hiding in a bathroom.
In a closet, deputies said they found "two large marijuana plants."
"The closet was being utilized as a greenhouse and was equipped with high-intensity lighting equipment and numerous forms of plant food and vitamins," Deputy Coleen Fisher said in a statement released Monday.

Besides the plants, deputies found plastic bags containing harvested marijuana, cups of earth containing marijuana seedlings and several forms of printed marijuana cultivation directions, Fisher said.

Wishard posted a $2,000 bond and Dominguez posted a $1,000 after being booked into the Harris Couty Jail.

quote:

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Originally posted by Scott Brumley:
"You can paint over a skunk's stripe, but it don't change the smell ...." Wait. That might offend your animal lovers.

How about: "A uniform is only as good as the man who wears it"?

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I have forwarded these excellent suggestions to the prosecutor, whom you know quite well, btw.

Have the prosecutor trying the the military person call me. As a JAG I take special offense to the person wearing the uniform as a shield to criminal prosecution in a civilian court. I may have way around this problem. 903-843-5513.

Marihuana case: Why has this guy wasted all of our time in having a trial?

Child pornography: This uniform is supposed to symbolize a guardian of the freedom and peace that we enjoy in this country; the thousands of men and women who have worn this uniform allow all of us to pursue our dreams. Before he perverted this uniform, the defendant perverted the lives of hundreds of children, and helped to rob them of their freedom and peace; he helped to steal their dreams.

You might could get in something about protecting freedom of speech and maybe he hopes to protect the freedom of child pornographers, but that starts to get hard to condense into something catchy.

For the marijuana case (the obvious):

"Is that a joint in your pocket, or are you just happy to see me?"

And I can't believe I didn't allow the child porn aspect of the other case to sink in, but there's always: "You can uniform the pervert, but please don't let him pervert the uniform."

Bob,
Worry not about Mr. Uniform to Cover the Stink. I understand that at voir dire a fair number of the prospective jurors rather unflinchingly told the defense attorney what they thought of the defendant wearing his uniform to court. Rather than being impressed, they were insulted, angry, offended, etc. And they had no qualms with sharing those feelings.