Monday, March 25, 2013

Getting Personal, Getting Reprimanded

The Wisconsin Supreme Court has publicly reprimanded a defense attorney for misconduct in two criminal matters.

One of the matters involved an opening statement to the jury:

...Attorney Brittain appeared in court for the first day of a scheduled jury trial and made an opening statement on behalf of V.K.  In the course of the opening statement Attorney Brittain told the jury, "I want to talk about violence.  And, well, what it is like to be in an environment where people yell and scream.  And I know that environment because I grew up in one, and my mom was very erratic, very emotionally unstable."  Judge Davis immediately interrupted and admonished Attorney Brittain that it was inappropriate to reflect on personal matters in an opening statement.  After Judge Davis asked that he refocus his remarks, Attorney Brittain approached his client, put his hands on his client's shoulders, and told the jury, "I know . . . a brave man when I see one."

Judge Davis immediately interrupted again and admonished Attorney Brittain that his conduct was inappropriate.  Judge Davis directed Attorney Brittain to return to the lectern and instructed that he was not allowed to vouch for his client and that he should not put his hands on his client or talk about his client's character in that fashion.

Continuing his opening statement, Attorney Brittain told the jury:

     Imagine what it is to be falsely accused of something, and to know what a conviction would emotionally unstable and erratic, and you're falsely accused, what that means.

     I'm going to tell you what happened that day.  I'm going to tell you about [the defendant]. 
I'm going to do it in the first person narrative as if I am [the defendant] so that you can know what happened.

Judge Davis again interrupted and said the court would not allow Attorney Brittain to make an opening statement in the form of a first person narrative.  After Attorney Brittain said he would renew an earlier motion seeking Judge Davis's recusal based on alleged bias, Judge Davis excused the jury.  In the conference that followed outside the presence of the jury, Judge Davis said Attorney Brittain was raising his voice and sticking his finger in the face of the assistant district attorney who was prosecuting the case.  Attorney Brittain disagreed with Judge Davis's statements.  He also continued to challenge rulings made by Judge Davis as to the form of the opening statement.  Judge Davis reaffirmed his earlier rulings and instructed Attorney Brittain not to give any first person remarks, not to vouch for his client's credibility, and not to talk about his personal life experiences.

After the jury returned to the courtroom, Judge Davis sustained two more objections by the assistant district attorney based on Attorney Brittain making inappropriate comments during his opening statement.  After Judge Davis sustained the second objection, Attorney Brittain turned to look at Judge Davis, paused, and then said to the jury, "And so, [l]adies and [g]entleman, under a lot of——a lot of obstacles, we are here today."

After opening statements were concluded, Judge Davis again excused the jury and found Attorney Brittain in summary contempt of court for the comment about "obstacles."  Judge Davis sanctioned Attorney Brittain with a forfeiture of $50.  On February 16, 2009, the court entered the written order of contempt against Attorney Brittain based on the oral contempt order of November 25, 2008.  Attorney Brittain appealed the contempt order.  The court of appeals affirmed Judge Davis's order holding Attorney Brittain in contempt.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/03/the-wisconsin-supreme-court-has-publicly-reprimanded-a-defense-attorney-for-misconduct-in-argument.html

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