I donât want to derail your
theory but I do want to offer my stream of consciousness. If my client
were accused of being in a gang in a criminal case and I knew he wasnât, I
would limit the energy I waste on persuading the prosecutors from introducing
pictures because it would be a losing proposition. The judge is going to
let it in and let the jury decide. This is not a question of law but a
question of fact. So why not embrace the pictures. They are the truth
and they are a reflection of the life of an aspiring rap artist that your
client desired but will never now have. You may even want to use them to
get the jury to give you more money because your client will never be able to
live the life he dreamed of having. Does he not have a right to live the
life he dreamed of? The suggestion that because your client likes Rap
music and flashes signs, he must be a gang banger is common for a bunch of
ignorant, probably white, lawyers who have no awareness of popular
culture. The jury is aware of it. They see it on TV and listen to
it on their radios on their drives to and from work. Their kids listen
to rap and flash signs but have nothing to do with gangs. Itâs just pop
culture.
Drawing analogies is a good
way to counter the defenseâ theory that your client is in a gang but why try
to come up with all those analogies yourself? The jury is going to go
through that in the deliberation room because they all know people who listen
to rap and flash signs but have nothing to do with gangs. Why not let
the jury help you with finding analogies during your voir dire and have them
become your advocates against the defense. Clearly you have plenty of
evidence and experts to show that heâs a not a gang member. Use the
pictures yourself during voir dire and ask the jurors how they feel about
them. Tell them what the defense wants to do and ask whether you should
even be up there and make the effort to present your clientâs case. Ask
them to help you draw analogies. I think you will be pleased with the
responses you get. The defense wants to divert their attention from the
case with pictures because they have nothing else. They want to destroy
the manâs reputation after they neglected to protect him. Use the
pictures yourself and deflate their argument.
From: David Glenn
[mailto:DavidGlenn@glennlawfirm.com]
Sent: Tuesday, July 05, 2011
5:16 PM
To: Nelson Tyrone; 'TLC'
Subject: RE: [TLC] Rule
403 prejudice v. probative analogies. Need help.
Nelson, I think your better
argument might well be under 401 which requires the evidence must tend to
prove or disprove the issues being litigated. Is his possible gang
membership an issue in the case? Look at the evidence handbook and
review the notes under 401 on âmaterialityâ and ârelevanceâ. Remember
the pleadings and the substantive law determine what is provable in the
case.
David M.
Glenn
TLC 2006
GLENNLAW
FIRM
210 West Wall
Street
Grapevine, Texas
76051
(817)
424-5999
(817) 481-3240
Fax
Davidglenn@glennlawfirm.com
GlennLawFirm.com
From: Nelson Tyrone
[mailto:ntyrone@tyronelaw.com]
Sent: Tuesday, July 05, 2011 3:35
PM
To: 'TLC'
Subject: [TLC] Rule 403 prejudice v.
probative analogies. Need help.
My client: Nathan is a 28
year old black man who was attacked as he returned to his apartment complex on
path through the woods. As client ran from attackers they shot him in back
leaving him paralyzed from waist down.
Nathan was an aspiring rapper
and producer. He ârappedâ with friends, put out music on MySpace and
âproducedâ with a mixer in his bedroom. He also had a record âlabelâ
(his bedroom). He posted lots of pictures of him and his friends looking
like thugs (holding weapons, cash) and holding various hand signs (2 fingers
for âDeuce recordsâ) etc. He and others have testified that these were
for the record label. No one has identified any of the folks in the
photos as gang members.
Defense argues that all
photographs are admissible as relevant to whether Nathan was in a gang.
All witnesses have testified that he was not in a gang. He has no record of
being in a gang. The head of the gang unit for the county has testified no
record of Nathan as a gang-member and the photographs do not depict a
gang.
I do not need help with the
law or strategy. We have presented a 40 page brief with every photograph
analyzed under 403.
I do need help with an
analogy. What is this like for
you or me or the judge? Letâs say I was shot and there were photographs
of me being a cross-dresser (only on weekends). And the defenseâs theory
was that someone targeted me because I was a cross-dresser. Absent any
evidence supporting the Defense theory (never caught the attacker/ donât know
his motivation) I would not think the cross-dressing photos would be
admissible despite the fact that in this part of the country you could
certainly get attacked for being a cross-dresser. Letâs say I just
looked like a cross-dresser: there were rumors that I was gay, that my
room-mate was a gay man, that I supported the amendment for gay marriage.
Inadmissible right? How about (closer to this case) that the
cross-dressing was not accurate â that I had only cross-dressed because I was
an actor in a play or a musician (David Bowie?). What then:
(However this analogy is not the right one for this judge). This judge
is:
1.
A
judge
2.
Greek
3.
A
leader in the Greek community
4.
A
âniceâ guy
5.
Likes
to âsplit the babyâ.
Letâs say there was something
prejudicial about being Greek. Letâs say the judge was an illegal alien
(from Greece) and the defense theory was that a fanatical anti-immigration
attacker is the one who shot him. Assume no evidence of attackerâs
motives. Assume (finally) that jury would be prejudiced if they knew
judge was Greek (letâs say the Greek financial crisis triggered a âgreat
depressionâ in this country). Would the fact that the judge is Greek be
admissible? (Remember, Nathan is not a gang-member). What about photos of the
Judge at a Greek orthodox church. What about photos of him holding the Greek
flag or singing the Greek anthem. If, for some reason, we imagined that
his Greek-ness was prejudicial, the Defense couldnât make his Greek-ness
relevant evidence based on pure speculation that he was attacked because he
was Greek. Right? (This is still not the right analogy. I need something
simpler).
Letâs say he was a member of
the KKK. Would his membership in the KKK be admissible if he were attacked by
a black man?
Unless I come up with an
analogy that makes sense to him Iâm afraid he will split the baby and let some
âgangâ photos in and keep some out.
Help?
Nelson Tyrone