Wednesday, March 01, 2017


     Having tired several dozen homicides, watched another dozen, I honestly never expect to see something in a homicide trial that I haven't seen before.

     It is impossible to explain the stress of presenting either side of such a case.  The old saying "Death is Different" is really true.  Even the most serious drug case with Natural Life as a possibility doesn't create the tension that a homicide trial does.  So one sees unusual behaviors and gambits in such a trial.

     In homicides, discovery disputes almost invariably flare up.  Stuff is duplicated or the autofeed pulls two pages through at once or human error happens.  Lawyers of otherwise good cheer can get really testy with one another about stuff like that.  That's the backdrop.

     Opening Statements (not "Opening Arguments") are for one purpose and one purpose only, to tell the jury what each side thinks the evidence will be.  Arguing about what conclusion is to be drawn from that evidence is prohibited.  Honestly, most judges are pretty loose about that and lawyers don't object to slightly argumentative remarks because it's bad for the jury to get a first impression that either side is represented by a jerk.  So there's a balance to be struck.

     But juries don't care about discovery disputes, which have been solved by the time the case gets to the jury.  Juries don't even know what discovery IS.

     So I have to admit that I was surprised when Mr. Lovelace's Defense counsel used opening statement time to go on a rant about allegedly concealed or delayed discovery.  Just never have seen such a thing.  Maybe he'll circle back to it and really exploit it.  I have no idea.

     But I have practiced a lot of years, been shot twice and stabbed once and even caddied at the Odessa Invitational and I've never seen it done before.  That makes it worthy of noting.


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