Dallas Bar Association
HEADNOTES May 2010 Volume 34 Number 5
Focus Criminal Law
Preparing for the Punishment After 50 Years, Atticus Finch Still Phase of Trial Sets the Mark for Lawyers by Justice Molly Francis
Prepare for Punishment Phase Like Guilt/Innocence. Although the second phase of a trial seems far removed from the first phase, preparation for punishment should be every bit as comprehensive. If a guilty verdict is returned, the range of punishment applicable will have serious consequences for the defendant, and the time needed to investigate and research the admissibility of prior offenses will have long since passed. A cautious attorney should not just rely on her client for this information and assume the State’s paperwork will be in order but, early on, should independently determine what the prior record is and what documents and court jackets need to be ordered and reviewed. Recent decisions regarding adequacy of notice by the State (no bright-line rule) and the sufficiency of the evidence to prove enhancement paragraphs (evidence of prior plus link to defendant) can make pretrial preparation essential.
To Voir Dire the Jury on Enhancements? Whether or not to ask about enhanced punishment during voir dire is often a decision made by the trial court or the State, who both address the jury panel before the defense. Although
attempts to be general are preferred, there was no error based upon the State’s voir dire of visual aids entitled “Range of Punishment” and “Repeat or Habitual Offender.” Hanson v. State, 269 SW3d 130 (Tex. App.–Amarillo 2008, no pet.). Where both documents were relevant, tracked appropriate statutory language and the explanation was hypothetical, both the State and defense could properly discuss all applicable aspects of the law. To take the sting out of the discussion, be prepared to explain why all aspects of the law must be covered during jury selection.
Plead Not True to Enhancement Paragraphs. Pleading true just to be a nice guy is not your job; representing your client is. While many good reasons do exist to plead true, be sure you can articulate that reason before you waive potential error. The State carries the burden of proving the prior convictions were sequential and final. And when there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual offender statutes. Generally, if you plead true, the sufficiency of the evidence will not be an issue on appeal, and you might even have to address an ineffective assistance continued on page 11
Justice Lang Receives Fellows Award
On March 31, amid a packed ballroom at the Pavilion in the Belo Mansion, Justice Douglas S. Lang was presented with the 2010 Dallas Bar Foundation Fellows Award. Also in attendance were (left to right) Mark Shank, DBF Chairman, and State Bar of Texas President Roland Johnson.
by Gregory W. Sampson
S
ince it was published in 1960, Harper Lee’s classic To Kill a Mockingbird has won numerous awards and a lot of American hearts. It has also had a profound impact on the legal profession and many prominent lawyers. So it is fitting in this 50th anniversary year to reflect on why this story has been such a great inspiration. Harper Lee tells the story of a virtuous white criminal defense lawyer, Atticus Finch, doing the right thing in the face of opposing social mores by defending an innocent black man against charges of raping a white woman in a small Alabama town in the 1930’s. For lawyers, the central character is Atticus Finch. Gregory Peck won an Oscar for his portrayal of this single father raising his young daughter, Scout, and son, Jem, amid the sometimes harsh reality of racial and social clashes of that day. Atticus’ uncommon effort to save his client, help his children understand those times and develop true compassion for their fellow men established Atticus as one of the most revered movie characters of all time. In one of many casual fatherly lessons, Atticus tells his daughter, “If you just learn a single trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view--until you climb into his skin and walk around in it.” Imparting such wise principles makes it easy to see why Atticus is admired as a good man and a father. But what is it about Atticus that he can launch a legal career for young men and women and drive them to reach their own career pinnacles as so many have said? Morris Dees, co-founder of the Southern Poverty Law Center and first recipient of the DBA’s Courageous Advocacy Award, is said to have cited Atticus Finch as the reason he became a lawyer, and many other legal icons have said they were similarly inspired. Kim Askew, a respected litigator and recognized leader in national, state and local bar associations spoke of the importance of Atticus Finch to our profession in her 2006 Opening Statement as ABA Section of Litigation Chair, “Beyond the Moral Archetype,” published in the fall 2006 ABA Litigation magazine. She said, “I have long admired Atticus for the reasons most lawyers do. Atticus represents the best in us. He is the ultimate: the lawyer and person every lawyer wishes to be. He inspires us to greatness because he believed in justice and equality. He embodies our highest ideals and represents the nobility of the profession.” When asked why she wanted to lead the ABA, President Carolyn Lamm reflected, “When I was much younger, I remember watching the film “To Kill a Mockingbird” for the first time. I remember watching Atticus Finch, standing alone in the courtroom. I remember wanting to stand beside him, to stand for what he stood for, to help him fight and to win.” In another memorable moment, Atticus gives a lesson on true courage that has spoken to the heart of many who see the practice of law as a virtuous mission worthy of pursuit regardless of the outcome. He tells Scout, “I wanted you to see what real courage is … It’s when you know you’re licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.” Beyond words, both the book and the movie provide many images that can inspire those of us living in the trenches of legal battle every day. Take the moment in the movie when Atticus is leaving the courtroom in defeat and the balcony gallery rise to their feet in reverence to this humble man’s courageous struggle; I suspect many lawyers feel a lump in their throats at that moment. Like real life, the book also reveals that even the most virtuous lawyers can still be challenged by ethical dilemmas. For example, there is a scene at the end of the book when the sheriff asks Atticus “to lay hush on” the truth of how Mr. Ewell died to protect the hero Boo Radley. How Atticus ultimately resolves that ethical dilemma upon later reflection, or how his legal career ends, will never be written by Harper Lee. But perhaps that is the chapter we are now writing--the story of the future of our profession. Kim Askew reminds us that Atticuses do still exist and closes her Opening Statement with this encouragement. “Our legal system faces unprecedented challenges, but we are up to the task. As you answer the call to duty, just look around and remember that Atticuses are some HN where close by. Applaud them and follow their examples. Atticus can be you.”
Gregory W. Sampson is a shareholder at Passman & Jones and Co-Chair of the DBA Legal Ethics Committee. He can be reached at sampsong@passmanjones.com.
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DBA LAW DAY LUNCHEON
Honorable Barbara M.G. Lynn Friday, May 7 at noon Honoring our State & Local Judiciary Tickets: $35 Must be purchased in advance. For more information contact Michelle Dilda at mdilda@dallasbar.org