Trial Advocacy and the Ethical Prosecutor Prof. Coleman Please see the syllabus below and do the readings (available in TWEN) assigned in the right column of the syllabus for the first class, June 9. Please also read: http://www.nytimes.com/2014/12/08/nyregion/grand-juries-seldom-charge-policeofficers-in-fatal-actions.html?emc=eta1&_r=0 You should also be prepared to discuss the use by the local prosecutor of the criminal grand jury to investigate police deadly force cases against civilians (i.e., Ferguson, Missouri and Staten Island, NY); specifically: how to fairly investigate such cases, and who should do it, and in what forum? TRIAL ADVOCACY AND THE ETHICAL PROSECUTOR Adjunct Professor Jerry P. Coleman Summer, 2015 Course Summary: We all regularly read – in news articles and editorials, in appellate opinions, and even in law school innocence project reports – about ethically challenged prosecutors and police who suppress defense-favorable evidence at trial, violating the 50 year old Supreme Court rule of Brady v. Maryland. In this 3 unit course, a career local prosecutor, ethics educator, and Brady specialist/innovator will guide you through the pitfalls of the Brady rule and into the promised land of ethical trial advocacy. By course’s end, you will have learned to critically read police reports, defend yourself against real (& imagined) Brady violations, and personally conduct all the key aspects of trial practice from jury selection to closing argument in real criminal cases – and in the process, may change your assumptions about what it means to be a prosecutor. The class is divided into 14 sessions, with case law and supplemental readings to be done in advance of each session. The sessions will provide a mix of instructor lecture/demonstration and student exercises; the latter include hearing an actual United States Supreme Court oral argument on a recent Brady case, reenacting a recent notorious San Francisco dope preliminary hearing revealing a Brady violation (later prosecuted by the feds), individual reports from the readings, and team demonstrations of all aspects of trial practice from a simple felony case; the exercises culminate in each student being assigned an actual complex misdemeanor case file to work up for trial, then (over many weeks) personally demonstrating 3-5 aspects of actual jury trial practice in a mock trial setting (voir dire, opening statement, direct examination, cross examination, and closing argument). Obviously, class participation is not just strongly recommended, but is the very raison-d’etre of the course. Grading is pass/no credit, but includes your participation in the following: a written reply brief to a defense motion for dismissal and Brady sanctions (to be turned in on class 3); team exercises in the simple felony case (classes 4-8); and individual trial advocacy demonstrations on the complex misdemeanor cases (classes 11-14). A bump-up in grading will be given for consistently useful (though not necessarily merely frequent) class participation; a bump-down is possible for consistently sitting back silently and letting others carry the discussion. Missing three classes unexcused will result in a no credit grade. Use of laptops, tablets, and smart devices to take notes or follow the course readings is allowed; but if they are used for checking emails, movie listings, or ordering pizzas outside of class, then such devices may be subject to the real world sanction imposed on such misuse in real criminal courts: forfeiture of the device for the pendency of the session by the court bailiff. (Ordering a pizza for in-class sharing by the Professor is allowed however, to celebrate completion of closing argument in your case.) Course Syllabus (each class has three topic blocks, approx. 45 minutes apiece; L denotes JC lecture, E denotes student exercise; SM denotes course supp. materials) Class 1 Tue. June 9 Topic & Exercises The Long March to Trial A. Charging, Investigation, & Search Warrants (With an Ethical Emphasis) (L) B. Conducting a Grand Jury Hearing: Prosecutor with Three Hats, as DA, Defense, & Judge (L) & (E)* C. Introduction to Discovery: DA Brady and Defense Pitchess (L) [*This class will include a spirited discussion of the use of grand juries to investigate police deadly force cases against civilians, in this post-Ferguson and post-Staten Island environment.] 2 Thur. June 11 The Worst Brady Boo-boos A. Student Reports on Brady Misconduct from Recent State or Federal Trials (E) [Students will do the reading, and gather up one reversed or disciplined case to discuss each, evidencing Brady misconduct by prosecutors and/or police.] B. How Not to Justify Brady Misconduct Before the United States Supreme Court (E) [Class Cases & Ethical Rules Johnson v. Superior Court (1975) 15 Cal. 3d 248; Penal Code § 939.71; People v. Backus (1979) 23 Cal.3d 360, 393; Brady v. Maryland (1963) 373U.S. 83; Pitchess v. Superior Court (1974) 11 Cal. 3d 531; City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1; Alford v. Superior Court (2003) 29 Cal. 4th 1033; Gutierrez v. Superior Court (2003) 112 Cal.App. 4th 1463; Abatti v. Superior Court (2003) 112 Cal.App.4th 39; Cal.Bus.& Prof. Code 6068; Cal.Rule of Prof.Conduct (all SM) (CRPC) 5-110 [performing the duty of a member in gov’t service], 2-100 [communication w/a represented party], 5-120[trial publicity], 5-200 [trial conduct]; 5-220 [suppression of evidence]; 3-210 [advising the violation of law];ABA Model Rules (all SM) 3.3 [candor toward the tribunal], 3.4 [fairness to opposing party/counsel], 3.6 [trial publicity], 3.8 [special responsibilities of a prosecutor] “Rampant Prosecutorial Misconduct”, NY Times editorial, 1-5-14 (SM); “Bill Would Bolster Brady”, San Francisco Daily Journal, 2-3-14 (SM); Assembly Bill 885 (text, history, & analysis) (SM); In re Matter of Benjamin Field (state bar court opinion on review) (2010) No. 05-O- will listen to US Supreme Court oral argument in Smith v. Cain, involving the New Orleans’ DA’s Office.] C. The Brady Dirty Dozen; The Hardest Brady to Deal With (Police Administrative Misconduct) (L) [At the end of class, students will be given an actual SF Public Defender Pretrial Motion for Brady Violations and Sanctions (SM); and the Henry Hotel Police Report (SM); both to deal with next class] 3 Tues. June 16 Brady at the Real Street & Trial Court Level; & Transition to Trial Advocacy A. Student Written Reply Briefs (as DA’s) to Defense Sanction Motion Turned In & Discussed (E) [In the interim from class 2 to class 3, the students will write actual reply briefs, as prosecutors, in response to the defense motion for sanctions handed out in class 2; the start of class 3, after collecting the briefs, will be a discussion of the points that should be in them; the actual turned in briefs will count in part towards the course final grade] B. The Henry Hotel Preliminary Hearing (E) [Students were given the police report at the end of class 2; now, the class will reinact the actual Henry Hotel preliminary hearing, complete with the surprise defense video of what happened, provided only in real time after the officer testified for the DA on direct; students will read from the hearing transcript (provided in class - (SM)) the parts of the DA, the defender, the police witness, and the judge; at the conclusion of the hearing, there will be a discussion of the ethical issues of turning the defense video over to the prosecution in advance versus waiting till preliminary hearing to trap the officer (but forcing the client to remain in custody another week).] C. Strange Bedfellows: DA and Defense Working Together to Solve a Brady Issue Where the Court Refuses to Play its Essential Part (L) [After the middle block of extreme litigational rivalry between prosecution and defense, this final block shows how in some 00815 (SM); Tennison v. San Francisco (9th Cir. 2009) 570 F.3d 1078; United States v. Olsen (9th Cir. 2013) 737 F.3d 625 (Kozinski dissent); Smith v. Cain [read opinion in advance at (2112) 132 S.Ct. 627; transcript and actual oral argument to be provided in class (SM)]; Fagan v. Superior Court (2003) 111 Cal.App.4th 607 People v. Jordan (2003) 108 Cal.App.4th 349; United States v. Agurs (1976) 427 U.S. 97; Kyles v. Whitley (1995) 514 U.S. 419; CRPC 3-100 [confidential information of a client] (SM);CRPC 5-300 [contact w/ officials] (SM) ABA Model Rule 1.6[confidentiality of information] (SM); Sample JC In Limine Motion for general trial use (SM); Coleman’s Anatomy of a Trial (SM); Coleman’s General Brady Law Topic Outline for USF Class (SM) circumstances, both sides can actually work together to achieve Due Process jointly] 4 Thur. June 18 To See Them Speak: Voir Dire, the Trial Begins, & the Issue of Race A. Preparing For Trial, the ‘PDF’ Strategic Approach (L), followed by: Ethical Voir Dire – Law & Techniques (L) [2 topic blocks] B. Student Exercise, discussing and practicing voir dire in context of “Spiderman” burglary case (E) 5 Tues. June 23 The Newsflash Opening Statement (or, “Meteor Speeding Toward Earth; Film at 11”) 6 Thur. June 25 Direct Examination That’s Dramatic Not Dull A. Demonstration of a Powerpoint Opening from the Largest Jewel Heist in SF History (L) B. Student Exercise of Opening Themes for Spiderman Case (E) [2 topic blocks] [Students, in teams, demonstrate their opening statements (5 min. max.) in the Spiderman burglary case, by concentrating on their chosen themes] A. Examining the Effects of an Effective Examination: Witness Order, Case Timeline Organization, & Techniques of Direct (L); plus, I Hear Him Say We Need to Know the Evidence Code: Simple Rules of Evidence for the Conduct of Criminal Trials (L) B. Student Exercise of Direct Examinations of the Spiderman Victim, Case Detective, & Criminalist (E) [2 topic blocks] [Students divide the roles into witness and examiner, Spiderman burglary case file (SM); People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79; Smith Kline v. Abbott Lab (9th Cir., 2014) 2014 DJDAR 717; CRPC 5-320 [contact with jurors] (SM); Coleman’s Anatomy of a Trial; “Jury is still out on the full impact of ‘the CSI effect’”, SF Daily Journal, 1-4-14 (SM); Article: “The Ethical Boundaries of Cybersleuthing: Picking a Jury in the Digital Age”, CDAA Prosecutor’s Brief, summer 2014 (SM); People v. Black Cal. Supreme Court case & Daily Journal Article, 3-28-14 (SM) Spiderman burglary case file; Alameda County District Attorney’s Office Points & Authorities training bulletin by Sr. ADA Jeff Rubin on ethical opening statement (SM); “Trial Tips – Punch a Juror in the Mouth”, by Elliott Wilcox (SM); Coleman’s Anatomy of Trial Spiderman burglary case file; “How (not) to Handle Exhibits”, by Judges Kathleen White & Daniel Maguire (Yolo Co. Superior Court), Daily Journal, 5-23-13 (SM); “Practical Tips on How to Make a Good Record”, by James Atkins, San Diego DA’s Office, in CDAA’s Prosecutor’s Brief, vol.34, no.1, 2011 (SM); Coleman’s Anatomy of Trial; CRPC 5-210 [member as and conduct 3 directs; meanwhile, one class member will be tasked for each direct to play the role of defense attorney to raise valid objections during direct examination.] 7 Tues. June 30 Crushing it at Cross Examination: Perils & Promise 8 Thur. July 2 Ethical Yet Effective Closing Argument 9 Tues July 7 Case Exercise Prep I (Investigation & Proof) [Students are divided into 3 teams, and 3 separate misdemeanor cases are assigned, one to each team; these cases represent typical, though complex, criminal misdemeanors going to trial in SF and around the state: (1) a ‘no-driving’ DUI (“Asleep at the Wheel”), a co-defendant loaded/concealed firearms possession (“Fun with Guns”), and a family battery A. Former SFDA Trial Attorney Ethics Discussion: Dealing with the State Bar (L) B. Cross Exam Types and Tips (L) C. Crossing the Defense Eyewitness Identification Expert (Powerpoint lecture and transcript demonstration) (L) A. The Seven Deadly Sins of PowerPoint (L); plus: Avoiding Error: the Many Pitfalls; and, Some Instruction on Jury Instructions (L) B. Student Exercise of Closing Argument in the Spiderman Case (E) C. Coleman Spiderman Close Demo (L) witness] (SM); “’Believe Me,’ Prosecutor as Witness AND Advocate is Not a Pretty Picture”, by Jerry Coleman, CDAA’s Did You Know…, vol.8, no.6, June 2002 (SM). Evidence Code sections: 352, 452, 771, 788, 801-802, 1200, 1220, 1230, 1238, 1240, 1242, 1271, 1280, 1291, 1552, & 1560; United States v. RangelGuzman (9th Circuit, May 28, 2014) (SM) Spiderman burglary case file; “How to Detect ‘non-answers’ during Cross-Examination”, by Elliott Wilcox (SM) ; Coleman’s Anatomy of Trial; Transcript of Cross of ID Expert in Cuong Tran robbery trial (SM) Spiderman burglary case file; “Keeping Jury Arguments Within Bounds”, by Garrett Beaumont, Sr. Dep.Atty.Gen., in CDAA’s Did You Know…, Mar-Apr., 2012 (SM); Coleman’s Anatomy of Trial; Griffin v. Caifornia (1965) 380 U.S. 609; Doyle v. Ohio (1976) 426 U.S. 610; People v. Katzenberger (2009) 178 Cal.App.4th 1260; Closing transcript in SF mother murdering her children case (SM); SF Daily Journal article, 3-3-14: Prosecutor went too far (SM) 3 Complex misdemeanor case files (basic file materials for: “Asleep at Wheel” case (SM); - “Fun with Guns” case (SM) ; and - “Mean Mommy” case (SM).) 10 Thur. July 9 11 Tues. July 14 12 Thur. July 16 13 Tues. July 21 (“Mean Mommy”). In this class’ exercise, each team presents its request for further investigation on its case, and discusses the crime elements and means it chooses to prove them; should the teams properly identify issues worthy of extra investigation, the requested items will be handed out at class end.] Case Exercise Prep II (Trial Strategy & Presentation) [During this class, each team justifies its trial strategy (based on the original and subsequent case materials) covering: witness order, case theme, and & anticipating moves of the opposition; as the teams evolve more into individual presentations for the upcoming classes, more personal variations of trial strategy are encouraged.] Also planned for this class will be a guest presentation by a former Chief Assistant DA in SF who now represents police in internal discipline hearings, “Defending the Police in Misconduct Hearings: Due Process for Them Too” Voir Dire Individual Presentations, all teams [Each team member will conduct a voir dire of a full 12 person panel of jurors (all juror roles played by the Professor); after all team members of a specific case have completed their voir dire, there will be oral critiques by the Professor; then the next case team will do voir dire, then critiques; then the final team’s individual voir dire, followed by critiques.] There will also be a surprise handout and exercise: 2 minute strategic jury selection Opening Statement Individual Presentations, all teams [Same organization as the last class, but with opening statement demonstrations, by team, then critiques. Time permitting, this class may actually begin some direct exams noted in the next class.] Direct Examination Individual Presentations, all teams [Some team members will play the role of examiner, some the role of witness, for each case; and one member of the team will play the role of defense attorney to raise valid objections to the direct examination! Same organization of case/critique/case/critique as before.] Theories of Cross Examination [The class before, students will be told which key defense witness would take the stand in the defense case of their trial, and what the defense direct would be; for this class, selected members of each team will be asked to report on an outline of cross they believe would be helpful to utilize against such defense witnesses.] 3 Complex misdemeanor case files (basic file materials); as well as supplemental case materials provided in response to the past class’ investigative requests (SM) Misdemeanor case files Misdemeanor case files Misdemeanor case files 14 Thur. July 23 Closing Argument Individual Presentations, all teams [Same organization as before: all case member arguments/critiques/next case/critiques; closing argument presentations will be required to include a powerpoint element, and the Professor will add specific critiques on that aspect of the presentations.] Misdemeanor case files