In Topeka, Kansas, Judge Mark Braun was confronted with a legal and ethical dilemma, thought hard, and arrived at ridiculous decision, with the of best intentions.
Defendant Lance Franklin was in the fourth day of his trial for rape when he decided that he didn’t like his lawyer’s face or something and thus sucker-punched him in open court. Franklin is is six-feet, three-inches tall and weighs at least 260 pounds; he devoted attorney weighs about 170 pounds and is considerably shorter. This sort of thing happens now and then (it happened in Kansas earlier this year) does not go over well with juries. Imagine, for example, if Mike Brown hadn’t been killed and was being tried for assaulting an officer, and he did this to his lawyer right after his mother had told the jury what a gentle, promising child he was. The display would, one would think, undermine his credibility when he swore he was just meekly surrendering….well, with the racist jurors, anyway.
Thus, when this happens, judges declare mistrials because a fair trial is no longer possible. Ah, but Judge Braun has seen it all: you can’t trick him. He knows that if Kansas defendants see one accused criminal get to start all over because he cold-cocks his lawyer, they’ll all do it if the trial is going badly. So after senior assistant district attorney Dustin Curry begged him not to reward Franklin for his unmannerly gesture, Braun ruled that declaring a mistrial would “essentially put a target on any defense attorney’s back.”
The trial goes on, presumably with a new lawyer. And, when Franklin is found guilty, a successful appeal and new trial is virtually guaranteed, because a fair trial after something like this is impossible.
The judge was trying to be careful and considerate; he should be commended for not making an automatic decision to call a mistrial just because that’s what every other judge has done. He kept an open mind, and listened to a novel argument. Sometimes, however, an open mind lets stuff in causes havoc. In his effort to prevent lawyers from becoming in-trial punching bags, he guaranteed one defendant a second trial, and just moved that target somewhere else.
For example, I’m pretty sure attacking the jury mid-trial is a sure-fire recipe for a mistrial if battering one’s lawyer won’t work.
Or better yet, deck the judge!
Deck the Judge to get a mistrial
Punching lawyers s’not for this trial
If your trial is going badly
Fa-la-la, la-la-la, la-la-la.
Rush the bench while swinging madly.
Pointer: ABA Journal