Re: [TLC] Rule 403 prejudice v. probative analogies. Send in the Marines

On Jul 6, 2011, at 8:41 AM, Haytham Faraj wrote:

I don’t 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 wasn’t, 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. It’s just pop culture.

Drawing analogies is a good way to counter the defense’ 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 he’s 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 client’s 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 man’s 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 “materiality” and “relevance”. 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 “rapped” with friends, put out music on MySpace and “produced” with a mixer in his bedroom. He also had a record “label” (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 “Deuce records”) 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? Let’s say I was shot and there were photographs of me being a cross-dresser (only on weekends). And the defense’s theory was that someone targeted me because I was a cross-dresser. Absent any evidence supporting the Defense theory (never caught the attacker/ don’t 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. Let’s 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 – 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 “nice” guy
5.      Likes to “split the baby”.

Let’s say there was something prejudicial about being Greek. Let’s 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 attacker’s motives. Assume (finally) that jury would be prejudiced if they knew judge was Greek (let’s say the Greek financial crisis triggered a “great depression” in this country). Would the fact that the judgeis 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 couldn’t 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).

Let’s 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 I’m afraid he will split the baby and let some “gang” photos in and keep some out.

Help?

Nelson Tyrone

Andy Vickery

Perdue Kidd & Vickery

One Riverway, Suite 1150

Houston, Texas 77056

tel. 713/526-1100

fax 713/523-5939

andy@justiceseekers.com