Why, when you don’t get caught! At least, that’s how the saying goes.
One of the candidates for Harris County District Attorney apparently thinks the saying is a good one.
At a news conference shaped by the age of digital information, Lykos played — and distributed copies of — a video disc that shows Siegler telling law students how she slipped into a final argument remarks that a judge otherwise might have ruled against.
Lykos said no prosecutor should “go around telling law students to be unethical” and that prosecutors should set a high standard for courtroom conduct even though many lawyers use such techniques.
Siegler said by telephone later that, in the video, she was discussing legitimate trial tactics unfamiliar to Lykos, whose judicial term ended in 1994.
“A good prosecutor is aggressive, and I’m aggressive,” she said.
Siegler said Lykos’ allegations underscore the fact that Lykos never worked as a prosecutor.
Now, I’m not naive and know full well that Lykos is just looking for a leg up in the race. But something about Siegler’s philosophy in that statement bugs me. No question that a prosecutor has to be aggressive. But….does a prosecutor really need to bend the rules to convict guilty defendants? And should veteran prosecutors be teaching potential prosecutors how to bend the rules?
Something about that seems…..not quite right. Is it reflective of the philosophy of the rest of the ADA’s in Harris County? Doesn’t change my opinion that Siegler is the most qualified person left in the race: it’s probably an overreaction on my part but I don’t like it.
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My read on what she was doing was that it was not “unethical”…it was just outlawyering the defense attorney. If she was saying things that might have been questionable, the defense attorney had every right to object and ask the judge to srike the remarks. If the defense attorney didn’t do that, then it is on them. The prosecutor’s job in my eyes is to get as much evidence establishing the likely guilt of the defendant in front of the jury as possible. If that means being aggressive about trying to get it there in different ways, then so be it. The defense attorneys object to the admission of valid evidence that the jury SHOULD see all the time purely on the grounds that it would make their client look bad and they hope to keep the jury from seeing it.
Keep in mind that when evidence is withheld from the jury and the defendant is found not guilty, the government can’t appeal or retry. The same cannot be said for admission of evidence or statements. If there were defense attorneys who felt Ms. Siegler’s comments in closing arguments unfairly prejudiced the jury, then they are welcome to appeal the jury’s decision and ask for a new trial. Since I haven’t seen Ms. Lykos pointing out evidence where that has happened, I suspect that we are dealing with pretty minor details and tactics that fall into the category of being a good lawyer.
This is the best Lykos can come up with?
Cakewalk, Siegler.
Thanks, Bill, that’s good to know. The way it reads to me is screw the judge, I need to get this in.
In this day and age when the defense gets to throw out anything and everything as a defense to get his client off, then why not both sides. Let the judge decide. Just like the judge saying “let the jury decide”. It seems the criminal gets better rights than the victim. It also seems that the “insanity” and “I was abused as a child” defense keeps popping up more often than not.
I am not a practicing trial attorney or anything, but I do know that sometimes attorneys are reluctant to object during closing arguments unless there is likely to be a big impact to their client, because it just invites a return objection that will interfere with the flow of their own closing statement. What Siegler was talking about likely wasn’t slipping in a mention of a bloody knife that had been previously barred from admission, but more along the lines of how she phrased allegations or how she framed her statement of what happened. It all comes down to how you paint the picture of the jury. When asking questions of a witness during the body of the trial, the defense attorney or judge are likely to object to some of those kinds of things…less so during closing arguments. Its just good practice to sometimes see how far the judge will let you go with it. You never really know how far a given judge will let you go until you try. The trick is that if you try too much or too often, you piss off the judge and then they make life tough on you.
Im sorry, but wouldn’t we want a DA that’s tough? I wouldn’t want a DA that didn’t try all the tricks in the book.
We graduated business MBA’s raised in the philosophy, ” step on whomever you need to, to get ahead” We’ve educated attorneys to win at all costs. It’s all about the win, not about laws, rules, and justice served. I agree, Siegler is our best choice. I think she is just the produce of a system that counts raises and promotions by wins. There is no honor among thieves.
Siegler isn’t a thief. She’s our defense against them.
Siegler’s job is to examine evidence to determine if she thinks somebody is guilty of a crime. If she thinks they are guilty, then she has to determine if she has enough evidence to build a case that could convince a jury that the person committed the crime. Once she has made that decision, then it is her job to get as much of that evidence before the jury as possible. Along the way, she is responsible for following the rules of the judicial system. Those rules allow defense attorneys to object to her statements and for judges to sustain those objections and ask her not to say that again and tell the jury to ignore the statement. If she says something and the defense attorney doesn’t object or the judge doesn’t stop her, then where is the problem?
That isn’t unethical or dishonorable or thieve-like. It is just good practice for an aggressive lawyer trying to put somebody behind bars for a crime she believes they committed.
the point many of you are all missing is this:
Many new lawyers are afraid of asking questions that may draw an objection making them look bad or afraid they will not have an answer. A good defense lawyer will object or ever better, anticipate evidence that would be so damaging that the question itself would be bad can always ask the judge to have the other side approach the judge before getting into sensitive matters. While I have not seen the tape being referred to, I was instructed in trial classes in law school…by a very famous defense attorney who will remain nameless…the exact same strategy! (play menacing music here)
Therefore, some of you who post here seem to think that DAs have some free reign down at the courthouse. Remember, there is a defense attorney, a trial judge, and up to three layers of appeals courts.
If you were so inclined to read, there are too numerous to even count appellate opinions where some one thing or another was said in trial and the courts rule that while there is error, it is harmless in the face of the rest of the evidence.
The constitution gives you the right to a trial, not a flawless trial.
Cajun,
A DA should try tricks. That is usually left up to the defense attorney and that is why they are usually held in such low esteem. Didn’t Nifong try a bunch of “tricks”?
My Attorney would do everything he could to win his cases and he would also do everything he could to keep Kelly away from the DA.s seat. As much as I hate to admit it my Attorney is a staunch Democrat. We get into some heated debates.
There’s always more than one way to skin a cat. Learning a few tricks is what separates an experienced trial lawyer from a novice. That Seigler lady is looking pretty stout to me.
I’d say that’s more indicative of a problem with the way “rules” work in our courtroom than any troublesome lawyering tactic. Judges have wide discretion to impose all sorts of rules on the case ranging from the mundane and practical matters of genuine admissibility to outright ridiculous limitations on guilt/innocence, sentencing options, and more frivolous admissibility issues.
These “rules” effectively enable the judge to control the options that are available to a jury, thus allowing him to limit the case’s outcome to a smaller range of choices, all within his scope of preference and discretion. This is one of the worst and most widely abused features of judging, therefore I don’t mind it much when a prosecutor (or a defense attorney for that matter) maneuver around them a little through theatrics.
At the very most, it widens the jury’s scope of discretion beyond the limits imposed on it by the judge. And I think that’s a good thing. Of course I also think complete jury nullification rights are a good thing, but that’s for another time and place…
Kelly Siegler has my vote. We need all the help we can get on the good side of the law. Usually the defense lawyers outgun us at every turn with their dirty tricks.
Just more of BigJolly’s anti-lawenforcement drivel.
Where’d you learn a big word like that?
#16 - That’s just plain-ass silly.
Hamous the term is “plumb-ass silly”, but then you a BJ don’t really embrace accuracy.
#16 - I almost said the same thing earlier but didn’t want to start a fight. What’s with Mr. BJ’s fear of competent, armed law enforcement? Whether Mr. hamous recognizes it or not, it’s apparent in many posts lately.
I’m voting for Siegler, but I worry about the system where promotions and raises are given by ” wins” and worry that ” winning” is the end game…. at all costs.
The problem with the system is that many cases are turned away not because the crime didn’t occur, but because the winning was too iffy.
Harris County is the only county where I have to get the ADA’s permission to file the charge, even with all the elements of the crime present.
#19 Where I come from it’s plain-ass silly. Feel free to say colloquialisms any way you want but don’t try and tell me how to say ‘em.
#20 I know the man personally (something neither of you can say) and I can tell you you’re way off base. Apparently y’all missed this part:
AW,
Keep in mind that a big part of “winning” your cases is picking which ones to take to trial. A record like Ms. Siegler’s isn’t just built on being a great lawyer once the case reaches the courtroom…it also depends on making sure that the evidence and facts are there to actually support taking the case to trial in the first place. A DA’s office that emphasizes “wins” is one that also encourages ADAs to look carefully at the case and to decide if it is winnable before wasting taxpayer money taking it to court. If an ADA is constantly thinking in the back of their mind about the consequences of too many losses, they are far less likely to take a questionable case to trial, and therefore less likely to pull out all the stops prosecuting somebody with questionable evidence.
Bill is justice served better this way? I’m a layman, and wonder the answer. When there is a crime, there is a victim. Are victims best served this way? I suppose a plea, is better than risking a trial, and loosing?
AW,
I don’t know that there is a clear cut answer to that question. My view of how the justice system should function is pretty well summed up by “first, do no harm”. In other words, the greatest error that we can create in the course of dispensing justice is to punish an innocent person for a crime they didn’t commit. Certainly I also want to see justice served on behalf of the victims of a crime when we can prove that somebody did it. But I just see it as far worse to have somebody innocent locked up than somebody guilty going free.
If you look at it from that perspective, then having prosecutors that are very cautious about taking questionable cases to trial is much better than having a prosecutor who doesn’t care if they win or lose taking every case to trial and throwing a bunch of evidence in front of a jury to see what sticks. My experiences with jury duty and seeing the actions of juries like the OJ jury has made me VERY cynical about the ability of a jury to “get it right”, so I would rather have prosecutors err on the side of caution when it comes to taking cases to trial. That doesn’t mean I don’t want the bastedges that are found guilty to be nailed to the wall…I just put myself in the position of an innocent man accused of a crime and ask which kind of prosecutor I would want handling the case.
AW - Another thing to remember - The people, as represented by the prosecutor, just get one chance to try a case. If there isn’t enough evidence, or the case is weak and the criminal is acquitted, they cannot ever be re-tried for that crime. So, it makes sense that a good prosecutor would not want to try a case until it was solid.
# 26
In response to your last sentence.
I just put myself in the position of an innocent man accused of a crime and ask which kind of prosecutor I would want handling the case.
Kelly Siegler, and NOT Kelly Siegler. She looks long and hard and if she doesn’t believe it it will go away. However if she did prosecute she would probably win.
Our court trials are based on a concept known as the “advesary system”. Bending but not breaking the rules is fine. The name of the system says it all.
I agree Dov. If I were innocent, I would still want her, because I believe she would give me a fair chance to establish that before trying to take the case to trial. If I were guilty, she is the last person I would want…
Kelly gets my vote also!!
I googled “plain ass silly” and got 27 hits. I googled “plumb ass silly” and got one hit…from this thread. Hmmm, how ’bout that? That’s just plain ass amazing! Or is it plumb ass amazing?
#32 hamous
Yes, but was it accurate ?
Luv2hammer accuses you and BigJolly of not being accurate, but, of course, offers no evidence.
Hamous - Do the hokey pokey and let it go…
♬ That’s what its all about. ♬
Kelly was teaching a trial advocacy class. I don’t know if it was for aspiring prosecutors, or just aspiring criminal lawyers, in general. I haven’t seen the entirety of the tape, only snippets.
Both sides have rules that they must follow, and the judge is the decider of whether the rules are being followed or not. I’ve been a lawyer for some time, and I’ve yet to see a case tried where there wasn’t a sustained objection. A sustained objection means that a mistake was made.
That can range from the inconsequential (like “leading a witness”), to extremely consequential (mentioning an extraneous offense that was totally inadmissible).
One thing that no lawyer who goes to trial can afford to be is timid. Prosecutors should believe in their case every bit as much as defense attorneys believe in theirs.
Kelly got a lot of criticism for the “bed demonstration” during the Susan Wright trial, but the law (more or less) states that “if you can talk about it, you can show it” when it comes to evidence. As much criticism as she got, the Wright case was upheld on appeal.
In my opinion, if a jury is going to decide the fate of a defendant accused, they have a right to understand the case fully. Was the bed demonstration unusual? Of course it was. But it also brought home to the jury how helpless to defend himself the victim was.
If Kelly is going to get criticized for that, why? I give Dick DeGuerin a hard time on my blog, but he’s a good defense attorney who will go to great lengths to illustrate and defend his clients.
Should the State of Texas not be entitled to a prosecutor who works just as hard?
#36 AHCL
I agree.
I going through Voir Dire in a capital murder case with Mike DeGeurin as the lead attorney. At one point it got so bad I told him he was jeopardizing his client’s case by boring us to death. The judge didn’t say a word.
AHCL,
I’ve got no problem with this:
From at least 6 different accounts, that is not what Siegler advocates. Now, if what Bill F. said is the case, again, I’ve got no problem with it.
My problem is with it as presented. She clearly states that she is trying to get something in that the judge would ordinarily sustain. But in closing arguments, there is, apparently, some reluctance on the part of the defense to object. You would know that better, by far, than I.
I’m merely responding to the supposition AND to Siegler’s response, which seems to be, “hey, whatever it takes”.
It is interesting that no one responded to my question about having to resort to trickery to convict a guilty person.
** The way it reads to me is screw the judge, I need to get this in. **
I would suggest you need to read Chronicle articles with a much more critical eye. The Chronicle seems to have a pro-Lykos, anti-Siegler agenda, and it seems to show up in this article.
Big Jolly,
The short answer to your question about having to resort to trickery is obviously “no, they shouldn’t”. But in typical lawyer fashion, I have to say that “one lawyer’s trickery is another lawyer’s trial strategy.”
If we were in court, I would be objecting to an overbroad question. There are some attorneys who will cry “foul” and “trickery” over issues that an opposing attorney and a judge may not think are trickery at all.
Every criminal case is so amazingly different from another that it would be impossible to list them all. I would submit to you that there are many many many appeals filed calling “trickery” on an opposing party. Some appeals are granted. Many are denied.
I suppose its all a matter of perspective. But I see your point.
Publius,
I read the articles very carefully, thank you. This quote is not just in the Chron and I do realize that AB tends to push Lykos.
This particular article has less of a Lykos slant than most of his.
AHCL and Publius,
As I understand it, and not solely from this article, Siegler’s point to the students is that it is possible to get otherwise objectionable material into the minds of the jurors by using this method.
Call me naive, whatever you choose. At some point, evidence should rule the day.
It seems to me that everyone thinks these methods are A-okay because prosecutors have determined the guilt of the defendant and should therefore be allowed to do whatever they can, including “bending the rules”, to convict the person that they have predetermined is guilty. Heck, if that’s the case, why have trials at all?
I think that this mindset is quite different than a prosecutor that believes the defendant is guilty. Nuance perhaps but it is, in my mind, a stark difference.
Vote for Kelly !!
Okay.
Like AHCL, I’ve been a trial lawyer for awhile now. Prosecutors often have their hands tied in a number of ways. I’ve talked to juries after not guilt verdicts, and found them to be highly distraught when they learned how extensive the clean cut, suit wearing Crip gang member’s history was, history that they never got to know about at all.
I understand, respect, and uphold that law - we should convict people based the evidence that supports their crime, not their history.
But I’ve been in enough courtrooms with different judges and defense lawyers to know that one judge’s hearsay is another judge’s exception. One defense lawyer’s objection is another lawyer’s desire.
I think Kelly’s point was simply - don’t be timid. Judges have jobs to do. So do prosecutors. I know so many young lawyers on both sides who are intimidated by a judge who is trying to move a docket. Cowing down is appropriate sometimes. Sometimes it’s not.
As a prosecutor, I’ve had judges eyeball me hard when they thought the defense lawyer was doing something objectionable. And maybe they were - but in the moment, it was going the way I wanted - it shortened the trial by letting hearsay in or something like that - maybe made things clearer, that both sides wanted before the jury. I’ve been balled out by judges for not objecting enough.
But hey - if you wanted to be a trial lawyer, why did you become a referee? Let me, and the defense lawyer, try the case the way we want. If no one is complaining, what’s there to complain about?
I know Kelly. She won’t cheat to win. She won’t prosecute people she believes aren’t guilty, or people she isn’t SURE are guilty. But man, she’ll go after people she knows ARE guilty. And she is good at getting them.
Guess final judgement will be decided in November. Talk about a trial by jury of your peers! LOL. Vote, vote, vote!
Seems that what is missing here is that we are selecting an “administrator” for the DA’s office. As DA, the “person” will seldom do another trial, but will have ADAs (staff) do it. The DA in this county (due to size) is merely the manager, traffic cop and chief policy maker, if you count the number of cases you will see why.
What is blindly being missed here by the great minds is that we are selecting gladiators based upon their heroics and not their abilities of which the job demands.
You can’t blow smoke up my arse otherwise. Wasn’t it ethical problems that got us to this point in the first place? Don’t be blinded by the smoke to properly determine which house is on fire…. pouring water on the wrong one, only leads us to the delima that we are presently facing.
As the “Grail Knight” in one of the Indiana Jones movies one said, about the golden chalice: Choose Wisely …… he chose poorly!
Cheating is not cheating when you are not intelligent or smart enough to realize it.