With a song!
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
Fa-la-la-la-la, la-la-la-la
Punching lawyers s’not for this trial
Fa-la-la-la-la, la-la-la-la
If your trial is going badly
Fa-la-la, la-la-la, la-la-la.
Rush the bench while swinging madly.
Fa-la-la-la-la, la-la-la-la!
____________________
Pointer: ABA Journal
Facts: Capital-Journal
Ethics Alarms 
In the second trial is it completely permissible for the prosecution to remind the new jury that the defendant laid out his attorney during the previous trial?
Or is that only useful in a separate trial for assault and battery on the lawyer?
And, how many times would a defendant get away with throwing subsequent trials out the window with the same shenanigans? Until a court order compels his appearance in court restrained in a strait jacket?
Yeah, can’t be used in the retrial. The problem with the “strategy” is that it keeps adding crimes to the list. I don’t see it catching on.
Theoretically, one could do this indefinitely ?!
I would assume at some point a judge’s order to appear in restraints would eventually be produced.
Yes!
Stand Your Ground applicable to defense attorneys?
Good question. David Kelley would have done an episode on it.
I don’t know the answer to this… I mean, lawyers are supposed to give the best defense possible. I know it hasn’t happened, but as those defenses get more and more inventive, how long before we see a defense attorney advise his client after lets say… a particularly bad cross examination, or in response to a witness who’s testimony has already been heard dying, to punch him in the face and hit the big red reset button?
I think bad behavior by a client in court should not be grounds for a mistrial in and of itself. It’s perfectly fair to include the fact of his violent outburst in consideration. It practically guarantees a loss, but that’s not the same as being unfair.
Maybe if it’s tied to actual grounds for a mistrial, such as ineffective counsel. A lawyer deliberately using fighting words in a whispered conversation with his client for instance…
The problem is, and correct me if I’m wrong Jack, is that Crimes separate from the one the defendant is on trial for CANNOT BE USED as consideration of guilt for the crime in the current trial.
That is to say, Johnny the Library Burner has been convicted 10 times for burning libraries down. Another library just got burned down and Johnny is accused of it. At trial, it isn’t evidence to say “Well he did the last 10, so he did this one, convict him!”
Likewise, the assault and battery of the lawyer constitutes a new CRIME, which cannot be considered as evidence of the commission of the crime for which he is currently on trial, but does create enough possible bias in the jury that they cannot be ‘trusted’ to ignore the new crime while considering the one on trial.
Does that make sense?
For my own edification Jack, this whole “reputation isn’t evidence” guide applies to the trial itself, but, assuming a conviction, past convictions are fair game to use during the sentencing phase, correct?
Sentencing yes, trials, usually not.
It’s relevant not because of the crime, but because the behavior of the accused is a legitimate factor when considering his trustworthiness. If it didn’t happen in the courtroom, it shouldn’t be brought in by third parties, but the accused brought it in and gave up any right to exclude it from the evidence.
It strikes me as similar to the reason that no matter how bad an idea it is, representing oneself is allowed and precludes the claim of inadequate counself for a mistrial. by making that choice, the defendent gives up certain grounds for complaint.
Valid points but I think the kicker is what it may do to jury biases. And in a system weighted in favor of letting the guilty go to protect the innocent from false conviction, then the possibility of jury bias outweighs the possibility that this will help the jury make the right decision.
If hypothetically absolutely utterly innocent Johnny Defendent is getting shafted by a crappy attorney and the trial is going against him and he lashes out… Well that doesn’t help things for him even though he is truly innocent of the crime in question.
At least he was unarmed, so therefore apparently no real threat. I’m shocked they even took a recess for it. /sarc
Maybe the judge was being progressive. To declare a mistrial would be to suggest that the defendant was wrong or acting violently by attacking his attorney. The judge should instruct the jury that the defendant was not being inappropriate by attacking his attorney and if any of them felt that they would be more likely to convict the defendant because of the incident they should recuse themselves for being racist. /sarcasm
Hmmph, if he uses violence and threat of violence on his LAWYER who is that much smaller in open court, I think that should be relevant. Losing his temper should not be a ‘get-out-of-losing-trial’ card. Isn’t mistrial supposed to address errors in the system, not new crimes during the trial by the defendant? That punch DOES answer a crucial question about the defendant’s use of violence.
Jack, we should write lyrics together.
You’re the first one whose mentioned the lyrics!