A defense attorney filed a 12 page "Motion to Limit State�s Jury Argument" in a sexual assault of a child case. It argues among many other things that the prosecutor should not make derogatory references to the defendant such as "cowardly cur", "fiend from hell", "beast", "punk", or "hippie, antichrist , and communist".

It must be a "form" motion because it also says we should not suggest that "the defendant earns his livelihood committing the type of offense for which he is on trial"; nor are we to mention that the defense counsel "had previously represented a dirty bootlegger who had killed a prohibition leader."

I guess the attorney must have heard some things about our arguments in the past that were untrue. Anyone else seen a motion of this type?

I received a couple of those 17-18 years ago and, in keeping with the motion, have not referred to either the defendant or the defense counsel as a "mad dog, vicious cur" in closing arguments since.

It's one of those forms that gets circulated around at seminars, etc. We "even" see it out here in West Tx. Personally, I think "fiend from Hell" is my favorite.
-T

The only case the defense attorney failed to cite in his 12 page motion was Stone v. State, 2 S.W. 585 (Tex.Ct.App. 1886). That is too bad, because it recites one of my favorite prosecutorial miscues of all time:

In his address to the jury, the county attorney used the following language: "This defendant, I. L. Stone, is a contemptible and pusillanimous puppy. He comes into this court with the swaggering insolence of a grocery bully, and pleads not guilty to this charge. During the dead hours of night, while his family were at their humble home shedding tears of regret over the sad downfall of the husband and father, this man, this biped, I. L. Stone, is bedding up with these prostitutes. Had I the command of language to stand here and express my contempt of this thing, this I. L. Stone, I could stand until the dawn of the resurrection day, and then say less than he merits. If I were going to establish a hell on earth, and invade the realms of darkness for one to supervise it, I would leave there and come back here and take I. L. Stone, for he is a fair representative of the devil."

The court's holding was predictable:

Such language was uncalled for and highly reprehensible. It was not argument, not a discussion of the evidence. It was a personal and undignified abuse of the accused, such as should never be tolerated in a court of justice. It was calculated to arouse the passions of the jury against the defendant, and to materially prejudice him in the trial. It was such error in the proceedings as would of itself cause a reversal of the judgment. Ricks v. The State, 19 Tex. Ct. App. 308; Cohn v. The State, 11 Tex. Ct. App. 391; House v. The State, 9 Tex. Ct. App. 567.

If you've got time, shepardize some of the cases cited in that boilerplate motion. I think you will discover many of them are bad law. Like DJC, I used to see these all the time about 13-14 years ago. Once, I had an intern who had time to shepardize all the cites, and it turned out that at least 75% of them were overturned, many for other reasons.

I liked the one best that said you couldn't call the defendant "a hippie".

Having seen this motion a few times, I have always wondered if the "antichrist" reference was not actually supposed to read "anarchist." I, for one, would expect to draw an objection if I referred to a defendant as "the Antichrist." "Cowardly cur" doesn't bother me as much. Though I do assume that if a licensed attorney files, here at the dawn of the 21st century, a motion that contains the phrase "had previously represented a dirty bootlegger who had killed a prohibition leader," he's trying to be funny. At least that's my hope. The alternative is depressing.

Is "Lover of Children" on the list? Use it over and over, and when you do, use the "two handed finger quotation marks" each and every time.

Cowardly Cur? Oh no you didn't just call me a Cowardly cur?!? Sorry. Just doesn't get my blood pumping. What's the problem? The coward part or the Cur part?

Randy Schaffer of Houston put this motion together when he was working for Racehorse Haynes approx. 25 years ago. He later updated it but the old one apparently keeps circulating.