THE DEFENSE NEVER RESTS

Some thoughts about the Cruz contretemps in Broweird and the outburst by the judge assigned to her first first degree murder case. 

Perhaps a more experienced judge should have been selected. 

The defense is under no obligation to call any witness and can rest whenever they wish. Whilst former State Attorney Michael Satz reportedly "threw up his hands" in mock disgust when asked if he was ready to proceed with rebuttal after the defense surprised everyone by resting, we have yet to have a trial judge require the prosecution in any case tell us who they are calling, who they are not calling, or even who their next witness is.  The prosecution doesn't want us to know who their next witness is, and the defense doesn't want to let anyone know when they are going to rest. 

It is called trial tactics and those of us who try cases deal with it, and those who sit on benches and haven't ever tried a big case cannot deal with it. 

For those of you who aren't Starbucks swilling 30 something judges, the title of this post is a reference to a magnificent book by one of America's greatest criminal trial lawyers- Lee Bailey. But since he's not on Tik Tok or IG, we don't expect you 30 and 40 somethings to know anything about him. 

Some trial tactic no-nos. These are inviolable rules. 

Never tell the jury in opening your client will testify. You might just as well say "Hey Ms. prosecutor, here's a legal pad and pen, please start preparing to cross my client." You gain nothing, and you box yourself in- what if the case goes so well you don't need to call your client? 

Never not object because you're worried the jury will be upset with you or you do not want to call attention to the evidence. Read some case law on preserving the record for the legal reasons why you have to object (unless you sit on a bench at work. Y'all do not need to read case law as we all know. You know it all.).  No jury during deliberates and says "she's not guilty but that attorney objected so much maybe we should find her guilty."

Try and avoid Friday verdicts. 

Rarely if ever postpone opening until the prosecution rests. It never works out as you think it will. 

Never plead your client into some of the minor crimes during trial while contesting the main charge. It does not buy you good will and it just makes the prosecution's job easier. If your client possessed an undersized Snook while being arrested for murder, the jury can figure it out for themselves. 

In state court, speak to every jury in the venire unless you have a tactical reason not to. Do not let the judge hurry you into finishing voir dire. 

Do not thank the jury. It's a waste of time. If you must thank them, squeeze it in during the middle of closing. Not when you first address them or last address them. That's for amateurs. 

Do not be overly polite or helpful. The best criminal defense attorney you never heard of once told us  "The only thing I waive in court is the American Flag." He did not stipulate to lab reports or business records. He worked out of a storefront in an industrial town in the northeast and went decades trying 6-8 cases a year and losing only one or two. RIP our friend Lenny F. 

Do not be overly polite to the judge. They work for the state. Being nice to them does not get you good rulings. Once, after a win in Broweird a judge told us after the verdict- "I like you. You didn't try and kiss my ass."  Keep your self respect.  If you do not believe us, someday we will post the transcript of our contempt hearing for refusing to stand when the judge entered the courtroom during the trial. The state and the judge were so consumed with our rudeness, the defense slipped right by them.  And we were acquitted on appeal. 

Don't do the appeal if you lost the case. You need a fresh set of eyes. 

Presumption of Innocence and Burden of Proof only work in the movies. Every juror presumes your client guilty and you need, repeat- you need to prove their innocence. Reasonable Doubt only sounds reasonable. The defense wins when they remove all doubt. This isn't the law- but it's life and it's true and if you're tired of losing, stop arguing reasonable doubt in closing. Jurors will always vote for the prosecution in close cases, despite the Florida jury instruction about a having a conviction of guilt that waivers and vacillates.  it sounds nice. But it doesn't work one damn bit. 

Trial tactics come in many forms and flavors. It can be a sharp elbow thrown in the heat of battle, or the unseen knife deftly slipped into the heart of the prosecution's case at an unexpected time through a seemingly unimportant witness. There are no small trials or witnesses. Only small lawyers.

Last rule: Don't get caught up in tactics. Big moments win cases. The witness not being sure of the identification. The inability to prove possession. Threading a needle is the type of thing you talk about late at night at a bar during a CLE conference in Vegas, trying to impress some hot lawyer. Winning lawyers don't thread needles. They bludgeon the other side into submission until there is no doubt left that you have won. 

"Combat Tactics Mr. Ryan."

This is such a great scene, especially when the torpedo is about to hit and Sean Connery asks Alex Baldwin/Ryan what books he wrote and Ryan mentions a book on Admiral Halsey and naval tactics (which obviously refers to the mistakes Halsey made at the Battle of Leyte Gulf - although it's not mentioned in the movie dialogue) : "Oh I know this book. Your conclusions were all wrong Ryan. Halsey acted stupidly."  Great stuff for a WWII history nerd.