I've got a talk coming up in August on ways to get your case reversed in final argument during a capital murder death penalty case. I've started a list but would like to hear suggestions.

Starting off,

Comment of defendant's failure to testify. The classic comment is to stand behind the defendant and say, "Well, there is someone in this trial we haven't heard from...."

My favorite is always the "I'm here to do justice, but defense counsel is here to do whatever he can to get this guy off . . ."

Arguing extraneous offenses that were admitted should be considered evidence of general criminal propensity.

I'm sure your audience would be amused by some of the epithets that prosecutors have gotten reversed on in the past. I.e., you may call a person who commits murder a murderer, but you may not call him the "worst monster to inflict his evil upon the universe since Satan!"

Unless, of course, the record actually supports that statement.

Who can forget the legendary argument of Ted Poe...the "Christmas Card" argument...the one he made in an intoxication manslaughter he tried shortly before the holiday, in which he read an imaginary Christmas card that the deceased police office would have written to his young child.

Reversed, but classic in its creativity and power.

I don't recall Judge Poe's words on the subject, but I think his position was that there was no shame in being reversed for being so good that a court later deemed it downright unfair to the criminal defendant...

Be careful not to strike at defense counsel over the shoulders of the defendant (or is it the other way around???)

I had a defense witness once get on the stand to say she'd seen a girl consorting w/ the defendant and the girl said her name was..... (drumroll please, camera closeup) ..... a name other than the victim's, which was obviously what she'd been put up there to say. When the frustrated defense counsel asked again, same name. A third time, she stammered out that she really meant the name that happened to be that of our victim. Priceless.

I argued, I thought legitimately, that she had gotten her script wrong. The CCA slapped my hand pretty hard on that one. Said I was striking over the shoulders even though I didn't say a word about counsel. Thank God for the harmless error rule, along with the overwhelming evidence of guilt!

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Originally posted by John Rolater:
My favorite is always the "I'm here to do justice, but defense counsel is here to do whatever he can to get this guy off . . ."

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Coming from the "It's a thin line but sometimes you gotta walk it" category, I certainly agree it is reversible error to comment on the differences in the duties of prosecutor and defense attorney, but what about this gem:

You can say: Defense lawyers are paid not to be satisfied with the State's evidence. I found this little gem years ago, where it was held to be permissible adversarial comment in Shipp v. State, 482 S.W.2d 870 (Tex.Crim.App. 1972). This case was tucked away in a list of cases regarding final arguments in some 1980's TDCAA handout. I couldn't believe it would fly. I shepardized the case, and found it was still good law, but had never been cited since.

It's a strong argument, and not for every case, but as shown below, it has it's proper place. I have used it in several trials, and it was taken up in one that was decided in 2000, to-wit:

Antonio Corpus v. State, 30 S.W.3d 35, (Tex.App.-Houston[14th] 2000), opinion by retired justice M. Amidei:

"Appellant complains about the following arguments made by the prosecutor: (1) that the defense counsel was not pleased with the level of evidence the State brought to the jury; (2) that defense counsel is paid to be dissatisfied with the evidence that the State brings;...

(HN7 ommitted)

Appellant first objects to the following part of the State's argument:

PROSECUTOR: I'm sorry that [defense counsel] was not pleased with the level of the evidence that the State brought you today.

DEFENSE COUNSEL: Your Honor, I would object. This is putting counsel in - a personal attack on counsel.

THE COURT: Overruled.

The prosecutor's remark that defense counsel was not pleased with the level of evidence that the State brought was in response to argument by defense counsel about the level and quality of evidence. Defense counsel began by saying no case was made against appellant but was instead made against his cousin, who [**13] was the passenger in the car. When talking about the law on possession, defense counsel again stated that the evidence showed that appellant's cousin and not appellant possessed the weapon. Defense counsel even stated that the State had put on a "shabby" case. All these statements show that defense counsel was highly dissatisfied with the evidence put forth by the State.

In Shipp v. State, 482 S.W.2d 870 (Tex. Crim. App. 1972), the State gave the following argument:

PROSECUTOR: . . . now, in listening to his argument about the only thing I am struck by is that he is not satisfied with the State's case. I don't think it very unusual. Defense lawyers are paid not to be. It is my experience that the more important the State's case is that we bring -

DEFENSE COUNSEL: Object to the State's attorney testifying to the jury unless it is coming from the stand.

THE COURT: Overruled.

The Court of Criminal Appeals held that this argument, virtually identical to the argument in the present case, represented permissible adversary argument. See id. at 871. We come to the same conclusion.

Appellant next objects to the following argument made [**14] by the State:

PROSECUTOR: And I will submit to you that [defense counsel] is the reason for not being satisfied with the evidence that the State of Texas brought you in this case because that's his job, ladies and gentlemen. He is paid to be dissatisfied.

[*41] DEFENSE COUNSEL: Objection, your Honor, that's an improper argument and counsel knows it.

THE COURT: Overruled.

Again, the prosecutor's statement is similar to the one addressed in Shipp v. State. We adopt the reasoning of Shipp and hold that the State's argument was not impermissible."

I'm going to have to trot out that satisfaction argument sometime this year in a State Jail Felony case. There's a lawyer or two here that will absolutely pop their top over something like that. *smirk*

Although, I don't know that intentionally creating appellate work would go over well with the seasoned crowd here.

Interesting distinction, Greg.

Lisa, I guess the court thought the word "script" implied that the defense lawyer provided it (imagine that ). You would have been okay if you just argued, "Folks, you know she's lyin' 'cause she couldn't get her story straight, she kept sayin' it was Susie Q instead of Janie Doe."

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Originally posted by Philip D Ray:
I'm going to have to trot out that satisfaction argument sometime this year in a State Jail Felony case. There's a lawyer or two here that will absolutely pop their top over something like that. *smirk*

Although, I don't know that intentionally creating appellate work would go over well with the seasoned crowd here.

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I don't know how things are up there, but EVERYTHING I have tried in a felony court for the past 6 or 7 years in three jurisdictions has been appealed.

Here's another appellate opinion on that argument from a murder case, an unpublished case. This defendant was one of Stacey Brownlee's favorites, and Stacie's help was instrumental in securing a life sentence on a 17 year old probation eligible defendant:

[Sean Patrick] Haynes v. State, 2001 Tex. App. LEXIS 2095

In my brief for that case, I listed over a page of footnotes listing defense closing argument comments accusing Houston PD homicide detectives Tom Ladd and R. Huseman, myself and a stellar prosecutor out of Fort Bend named Mike Elliott of racism, malicious prosecution, a litany of unconstitutional actions, unethical behavior, etc, basically everything but the assassination of JFK. That court said:

Improper Jury Argument

Appellant's sixth issue asserts that he was denied effective assistance of counsel and due process by the following portion of the State's jury argument:

Mr. White is not happy with the level of the evidence that the State has brought you in this case today. And I submit to you, with all due respect to Mr. White . . ., that's not unusual. Defense attorneys are paid to be dissatisfied with the evidence.

Appellant objected to this argument that it was an outside-the-record criticism of defense counsel's motives and ethics, but the objection was overruled. Taken in context, we conclude that the State's remarks were a permissible adversarial [*16] comment and a statement of matters within the realm of common knowledge. n8 Accordingly, the arguments were not improper references to matters outside the record, and appellant's sixth issue is overruled.

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n8 See Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App. 1998) (holding that common knowledge is an exception to the prohibition against arguing facts outside the record), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999); Shipp v. State, 482 S.W.2d 870, 871 (Tex. Crim. App. 1972) (holding that similar remarks made by the State were a permissible adversary comment).


Although I submitted Shipp to them in my brief, they did not cite it. And yes, there are many defense attorneys who will literally come unglued. I usually hand a copy of the opinion with the history to both the judge and defense counsel as the argument is coming out of my mouth, with the appropriate holding highlighted.

I even had one of the justices in the Corpus appellate court arguments tell me there was no way that the law would allow that comment, and argue with me at great length about it, until one of the other justices intervened and asked him to move on, citing the holding of Shipp.

Obviously, this is one of your standards when you're trying a case.

John,

It saw more use in younger years. I probably haven't used it in four or five years. It seems the higher caliber lawyers I've dealt with since then don't resort to personal attacks on the state, thus in a "gentlemanly" [I don't know what the pc term is] trial, those sorts of arguments aren't necessary.

I did learn a great argument theme since then from Lucy Davidson, and a couple of great others from Gil Epstein and Fred Felcman, amongst others. I try not to have a standard argument.

I hope to be covering a few of my favorites in a future article for the Prosecutor.