Go figure
Today was submission day at the Court of Criminal Appeals and it was indeed a busy day at the old palais de justice. I’ll need some time to sit down and digest what I’ve run off but there is one case in particular I want to comment on right here and now.
The Court affirmed a capital murder conviction and death sentence in Gallo v. State, slip op. no. AP-74,900. Appellant raised thirteen points of error, among them complaints about the procedure whereby juries pass upon mental retardation issues and the trial court’s refusal to admit a defensive expert’s testimony regarding risk assessment and infanticide profiles. Both of these points merit reading and I encourage the capital practitioner to do so. But I want to discuss Appellant’s eighth point of error. There, he complained that the prosecutor’s use of profanity denied him due process. Below are excerpts from the opinion highlighting those arguments made the subject of this complaint:
[PROSECUTOR]: This focus on Cristina and the 911 calls, I haven’t got a clue what [defense counsel’s] clue is about on that one. I mean, come on, the 911 numbers, a hang-up call, what does that tell you? He had a hypothesis like he does most of the time with Mr. Sanchez - Dr. Sanchez, that the 911 calls are land lines over here while the 20-minute gap is over here (indicating). Where in the hell is the evidence on that? There isn’t any. It’s his theory to run you down a rabbit trail so you’ll lose focus of Tomas Gallo.
[Defense counse objects, objection sustained, jury instructed to disregard, motion for mistrial denied.]
[PROSECUTOR]: . . . Alexis didn’t name anybody else as being present in that home when her sister was murdered, not a one. The only one mentioned was Tomas Gallo, the only name given. It doesn’t take a rocket scientist at that point to figure out who your suspect is, and it kind of helps when you’ve got an idea who you are looking for and the son-of-a-bitch is running -
[Defense counsel objects, objection sustained, jury instructed to disregard, motion for mistrial denied.]
[PROSECUTOR]: When he’s the one running, hiding in a car two streets over and he’s smoking marijuana and he’s eating pizza . . . That baby was laying there, like he says, it was for that 20 minutes worth of phone calls. How did — why didn’t he dial 911? Why didn’t he dial 911? H didn’t dial 911 because he is the killer. He’s thinking, oh shit, what have I done? What am I going to do now?
[DEFENSE COUNSEL: I object again –
[THE COURT]: Sustained.
[DEFENSE COUNSEL]: I ask the jury be instructed to disregard.
[THE COURT]: [Prosecutor], please refrain — please use proper language.
[PROSECUTOR]: Yes, ma’am.
[Motion for mistrial denied.]
The Court addressed the substance of Appellant’s point with the following:
“Appellant’s argument on appeal is that the prosecutor “subjected [him] to epitaphs unworthy of courtroom decorum and in violation of the United States Constitution.” His general objection at trial does not comport with his argument on appeal. Further, he fails to explain on appeal exactly which of his federal constitutional rights were violated. This portion of his argument is not preserved and is inadequately briefed. [citation omitted] Point of error eight is overruled.”
Not a single word about the fact that the basis of the objection was so obvious that the trial court didn’t need specificity to know why defense counsel was objecting. And we all know why the trial court immediately sustained the objection. But what’s more aggravating is not a single word of criticism about the prosecutor’s loutish behavior and use of profanity in the courtroom. Not a single word. Can you imagine the hue and cry if this had been a criminal defense lawyer referring to a law enforcement officer, a prosecutor or State’s witness as a SOB? If he had used the s**t word in some descriptive form? I venture to say he would have been immediately held in contempt. If I’m wrong on that, he sure would have been put in holding cell for the second and third use of profanity. There wouldn’t have been any feeble remonstration from the bench, such as ”please use proper language.” And I don’t think you wouldn’t have heard the end of it from the Court in Austin either. I’d go even further to say that the matter might well have been turned over to the Office of the Chief Disciplinary Counsel for investigation of disciplinary rules violations. In other words, at the risk of offending the bench and bar, there would have been a lot of squealing like stuck pigs from various quarters if this had been a criminal defense lawyer. But it wasn’t and the whole thing is reduced to something less significant than a footnote. Go figure.
It all reminds me of the great quip from an old LA County criminal hack who was asked about what things were really like in the criminal courts while the OJ soap opera was toiling on. His comment? ”There are two kinds of justice down here - O.J. and no J.” I’ll say no more for now.
September 27th, 2007 at 8:45 am
This lack of professionalism, lack of decorum towards a defendant and his counsel is an indicator of how far our criminal justice system has fallen. I was taught that the number one responsibility of our courts and their officers is to engender respect for our system of justice.
The Gallo case is representative of what happens when a prosecutor has absolutely no fear of being held accountable for his conduct and our courts could care less.
October 30th, 2007 at 2:54 pm
It is difficult to make proper objections. Sometimes we rely to heavily on the fact that our objection is “obvious”. I for one, sometimes get tongue tied and stammer until I get the right objection out. I know the objection but merely shout out “Objection” until I can think of the right term.
I make this self-deprecating predicate because I have addressed other lawyers about the necessity of objecting. I explain to them the frustration of reading the reporter’s record, waiting for the objection that does come, writing the point of error anyway, only to be told by the appellate court: that the error was not preserved below.
Generally, I get the response that it is unncessary to make objections because the appellate court will just overrule them anyway. Now, talk about a catch-22.