« A remarkable (failed) judicial effort to nullify a mandatory minimum sentence | Main | (Too) little coverage of JEC hearing on US drug policy »

June 19, 2008

There's no crying in court (especially in a capital case)!?!?!

Nocrying27jpeg"Are you crying, defense counsel?  Are you crying?  Are you crying?...  There's no crying, ... there's no crying,in court!  Professor Kingfield was my professor, and he gave me a dime and told me to call my parents to tell them I'm not gonna be a lawyer!  And did I cry? ... NO!  NO!  And do you know why? ... Because there's no crying in court!  There's no crying in court!  There's no crying!"

Thanks to this AP story, I was able to imagine these specifics from the motion filed by some local Ohio prosecutors (assuming they are fans of this classic scene).  Here are the actual details of a story that is as interesting as it is silly:

Prosecutors say there should be no crying during closing arguments in death penalty cases. 

Jason Phillabaum, an assistant Butler County prosecutor, filed motions this week asking that defense attorneys be blocked from using emotional appeals to a jury during the trial and sentencing phase of an upcoming death penalty case.  “Specifically, defense attorneys have strategically been known to cry on cue and beg for their client's lives,” according to the motions, which notes previous cases where defense attorneys have been admonished for crying in front of a jury during closing arguments.

The motions came following a trial last month in which attorney Greg Howard cried while urging jurors to spare his client, Harvey “Shawn” Johnson.  Johnson received life in prison for the kidnapping and strangulation of Kiva Gazaway....

Phillabaum and county Prosecutor Robin Piper declined to discuss the motions, but Piper said he thought a trained professional should be able to control emotions in court.

Howard called the motions “petty” and said he can't wait to argue against them in a July 18 hearing before Common Pleas Judge Andrew Nastoff in this southwest Ohio city.  “They want to kill my clients. They want to win at all costs,” Howard said. “They are tired of losing, so they are trying to limit what I can say in my closing arguments.”

He added that if he could cry on cue, he would be in Hollywood. “It is emotional; you are trying to save your client's life. It just comes out,” Howard said.

June 19, 2008 at 03:43 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference There's no crying in court (especially in a capital case)!?!?!:


There most certainly is crying in court, even in civil cases and even by the judge.


Posted by: anonymous | Jun 19, 2008 3:55:48 PM

This is ironic. Usually it is witnesses for the prosecution, or prosecutors themselves that pull that emotional crap. In fact, the Victims Rights Industry gives CLEs on this.

And, can people really cry on cue?

Posted by: S | Jun 19, 2008 4:01:40 PM

Maybe they haven't read your recent article on how the defense should engage emotions, Prof?

Posted by: txjeansguy | Jun 19, 2008 4:10:46 PM

Personally, if I was the judge, I would tell the prosecutors "sure, in order to assure a fair sentencing proceeding I will issue an order barring all crying in the courtroom. Please be sure to inform the friends and family of the victim that if they are observed crying in the courtroom they will be held in contempt of court and jailed." I'm sure the prosecutors would very quickly withdraw their motion.

Posted by: Zack | Jun 19, 2008 4:15:22 PM

well, Zack, that's why you're not a judge. Any judge that pulled that nonsense would not be one for long.

And, Zack, I'll note your utter callousness towards the victims' families. Funny how someone can seriously entertain the idea of doing such a nasty and mean-spirited thing to people who have done nothing wrong. Not only are you stupid (see, e.g., your extended writings on WWI) but you are an ass as well. I guess a modicum of human decency for family members of a victim of a crime is beyond you, but you'll rail about some supposed injustice done to a hardened criminal.

Nice set of priorities--I guess it's the same as when you suggested that a truce-like peace with gangs like MS-13 is ok because they left professional white people alone--not realizing that the quid pro quo is that the poor get to suffer the predations of these animals.

I just want to execute murderers, and somehow, in here, I am a bloodthirsty animal. You talk about locking up people who, horrors, cry when hearing about their loved one suffering, and you consider yourself the paragon of enlightenment. Perhaps, Zack, just perhaps, you are as mistaken about that as you are about history. Of course, your ignorance of history didn't stop you from talking out of your ass, so why would I expect you to be any different on any other subject.

Posted by: federalist | Jun 19, 2008 5:29:40 PM

Zack is generally correct. Judges issue all sorts of "keep the emotion down" orders in these cases. I don't know if they make a difference in the outcome. Whatever the case, there is nothing that Federalist can do about this, except demand that prosecutor try cases based on who can cry the loudest. None of these judges have ever lost their position (in any way at all) for issuing that sort of order.

Though, at some level, I would like to see a system where we could hire paid "criers" who would cry for whatever party paid their bill. After all, when the state kills someone it is a very emotional time for people and the jury is entitled to see people cry.

Posted by: S.cotus | Jun 19, 2008 6:13:38 PM

not too many judges lock up victims' family members, S.cotus. Big difference between that, and an admonition from the judge about emotional outbursts.

Posted by: federalist | Jun 19, 2008 6:23:05 PM

So, if Zack had left the words "and jailed" out of his comment, you'd have agreed with him and you wouldn't have posted your ensuing tantrum?

Posted by: anonymous | Jun 19, 2008 6:45:44 PM

Wow, there is some competition for dumbest thing posted in this thread:

We have S.cotus, who writes: "Whatever the case, there is nothing that Federalist can do about this, except demand that prosecutor try cases based on who can cry the loudest."

And then we have anonymous. Apparently, anonymous cannot figure out the difference between a judge cautioning against an "emotional outburst" and a judge threatening to hold victims' family members in contempt and jailing them for simply crying. A judge that threatens a family member with contempt for crying (and I don't mean unconsolable wailing, which is usually dealt with by far lesser sanction) is pretty low.

Posted by: federalist | Jun 19, 2008 7:09:47 PM

I think we're all competing for second place... commenting with you is like golfing with Tiger Woods in that sense.

Posted by: anonymous | Jun 19, 2008 8:07:24 PM

I am not the one who cannot figure out that there's a difference between threatening contempt for tears and an admonition for an emotional outburst. That's you anonymous. Or maybe, you just decided to distort things so you could get in your little insult about my post being a tantrum. Either way, your post was dumb.

I guess you agree that it's cool for judges to threaten victims' families who happen to shed tears over the death of their loved one. Morally obtuse and stupid to boot. Not a good mix.

Posted by: federalist | Jun 19, 2008 8:19:25 PM

Fine, I'll take the bait.

I understood "Zack's" point to be that strategic crying at criminal sentencing proceedings probably happens a fair amount on both sides and might even come more from the prosecution side than from the defense.

Thus, an appropriate response from a judge to a motion from a prosecutor to block crying at sentencing would be some kind of reminder that the crying often cuts both ways and that fairness would require that the "block" also apply to the prosecution's side of the case. If the judge made that point harshly enough, the prosecution would probably drop its motion.

Apparently the only words in the comment that mattered to you were "held in contempt of court and jailed," and you set off on an irrelevant tangent and dragged all sorts of other topics into it.

It probably takes less effort to do that than to talk about whether strategic crying might cut both ways and whether these sorts of motions from the prosecutors are appropriate.

In my view, there's probably nothing wrong with the motion. It sounds like this particular defense attorney makes this particular type of argument all of the time, and after watching his act a few times the prosecution decided to try to preempt it. On the other hand, sentencing proceedings seem to be based on little more than emotion anyway. Dahlia Lithwick had a great article about that a while back. http://www.slate.com/id/2110567/

Posted by: anonymous | Jun 19, 2008 8:46:12 PM

And in case it's not clear, I definitely don't support sanctioning the victim's family members for crying during sentencing in a death penalty case.

But I think Zack makes a good point nonetheless.

Posted by: anonymous | Jun 19, 2008 8:51:06 PM

Dahlia Lithwick and "great article"--oxymoron.

And anonymous, you guys are forgetting one huge point--a lawyer crying for his client is a lot different from victims' family members doing so . . . . One would hope, of course, that people would realize that.

And let's not forget that Zack did speak in terms of threatening jail for victims' families--that does show callousness (and a certain amount of silliness too--judges just aren't going to do that). I then juxtaposed that with his extreme solicitousness (shown here often) for criminals. You may think I was a bit harsh, but, let's stop and think about the idea of some judge tossing some grieving mother in jail over tears. His flippancy about that, especially when juxtaposed with his deep concern for criminals, and his gangs-aren't-so-bad-because-they-leave-white-people-alone statement, in my view, call into question his moral bearings. If you want to call that a "tantrum", fine, but expect a response in kind, which you got.

Posted by: federalist | Jun 19, 2008 9:13:58 PM

a lawyer crying for his client is a lot different from victims' family members doing so

Now we're getting somewhere...

Dahlia Lithwick and "great article"--oxymoron.

She isn't batting 1.000, but occasionally she makes a good point. In my view, she did so in December of 2004, which is when the article was published. I'm not sure that I agree with much that she's written since then, with the possible exception of something she wrote for the American Lawyer in 2006 about the popular appeal of originalism, but which is now unfortunately behind the subscription wall. http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1143725003583

Posted by: anonymous | Jun 19, 2008 9:23:12 PM

re: Lithwick--even the blind pig gets the acorn every once in a while.

re: batting 1.000--Now that's the understatement of the year . . . .

Posted by: federalist | Jun 19, 2008 9:30:21 PM

Pot, meet kettle.

Posted by: anonymous | Jun 19, 2008 9:52:58 PM

A criminal lawyer (defense or prosecution) who hasn't crid in the courtroom isn't human or hasn't handled enough cases. This former jarhead has cried during victim impact, cried at NGs, cried when a client who I believed was factually innocent got convicted, cried at the descriptions of blood curling crimes, and so many other times I couldn't count them. If you don't have the EQ to address the raw emotion in a criminal court room you don't belong there.

With that said, I don't know anyone from the defense bar, however, who can cry on command. The prosecution's assumption that counsel can cry on command either speaks volumes of Greg Howard's ability and power with a jury, or .....

Posted by: anon | Jun 19, 2008 9:55:54 PM

"Tears have always been considered legitimate arguments before a jury, and, while the question has never arisen out of any such behavior in this court, we know of no rule or jurisdiction in the court below to check them. It would appear to be one of the natural rights of counsel which no court or constitution could take away. It is certainly, if no more, a matter of the highest personal privilege. Indeed, if counsel has them at command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises . . . ." Ferguson v. Moore, 98 Tenn. 342 (1897).

Posted by: | Jun 19, 2008 11:28:33 PM

Just out of curiosity, how many of the commenters have tried a capital case?

Posted by: bruce cunningham | Jun 20, 2008 6:20:40 AM

Bruce, I have not.

Posted by: S.cotus | Jun 20, 2008 6:45:49 AM

While the Ohio Supreme Court has admonished a prosecutor for crying, the Court also accepted it as reality.

"We certainly cannot condone a prosecutor's weeping in open court. The prosecutor, as the representative of the state, ought to exercise self-control and has a professional obligation to refrain from creating prejudice against the defendant. However, as suggested by defense counsel's allegation that at least four of the spectators in the court room were crying, as well, “any capital trial generates strong emotions. * * * Realism compels us to recognize that criminal trials cannot be squeezed dry of all feeling.” 85 Ohio St.3d 433.

As a result, I would say the State's request is unsupported by Ohio law.

Posted by: NewFedClerk | Jun 20, 2008 8:54:50 AM

As an FYI - that crying prosecutor is now a Judge herself.

Posted by: NewFedClerk | Jun 20, 2008 8:55:37 AM

Great article ! I really enjoy reading your posts.

Posted by: rechtsanwalt schweiz | Jun 20, 2008 11:08:27 AM

Gee, some people (actually only just one everyone else got the point) are just humor impaired. I thought I couldn't more obvious that I think that the prosecutors motion is insane, frivilous, and malicious and if I was the judge I would let the prosecutors know that I wasn't amused by them wasting my time with it.

Bruce, I've never tried a capital case either - but I've tried some serious felonies and even minor misdemeanor cases where witnesses, victims, and defendants all cried. Last time I went to court, I saw a guy senteced to 6 months in jail - his mother, girlfriend, and him were all crying up a storm. No tears from the defense attorney or prosecutors though.

Posted by: Zack | Jun 20, 2008 7:27:06 PM

The sadness of victims' families is not an appropriate source of humor, Zack.

Posted by: federalist | Jun 20, 2008 8:28:35 PM

Yes it is.

Besides, for people that actually practice in this area (or any area), you have to have some kind of sense of humor.

So, of course, behind closed doors, everyone laughs at witnesses, cops, lawyers, judges, so-called "victims," reporters, etc. etc. Hell, that show COPS is a laugh riot because the gay deputy always wears those short shorts.

Posted by: S.cotus | Jun 21, 2008 12:50:46 AM

hello, I love this post, I like the part of the text that talks about mourn, I think is a good article to ponder, thanks for sharing the information!

Posted by: generic viagra | Mar 31, 2010 5:57:45 PM

Phillabaum and county Prosecutor Robin Piper declined to discuss the motions, but Piper said he thought a trained professional should be able to control emotions in court.

Posted by: generic viagra | Apr 9, 2010 1:11:56 PM

Qualifier: I am a law school student.

I understand that being a trial lawyer requires a level of professionalism, candor, and all that other stuff which one entrusted with a socially respectable position should possess.
However, I cannot imagine (don't bash me because I in fact have no legal experience) any human-being who gets to know (i.e. sit down at a table with them, witness their humanity) another albeit a criminal or alleged criminal and has the self-control and emotional discipline not to outwardly express any emotion whatsoever when the lawyer realizes their clients fate (even though the criminal may have or DOES deserve that fate). I don't know. I aspire to be a trial attorney. Is there a trial lawyer out there who can tell me: must I become extremely cold in order to enter into your profession?

Posted by: jeff | Jan 3, 2011 2:33:55 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB