In this LWOP capital case, we are again bludgeoned with the reminder to preserve every error that possibly can be preserved. With the exceptionally broad waiver rules we face on appeal, there is never too much objecting trial counsel can do. No doubt, as appears to have been the case here, your ongoing relationship with the judge is a factor; the flip side is that we owe the client our loyalty.
To the meat and potatoes: the Fifth Court found waiver in the following situation: the trial court questioned the purpose of a witness’ testimony, suggesting to the state that it had not sufficiently provided a temporal link between events the witness described and the murder. Without the timeline, the trial court said all the state had proven was a string of extraneous offenses subject to being stricken or being the cause of a mistrial. The court asked if defense counsel had anything to put on the record, and suggested counsel’s complaint might be that the court was “helping the State.” Counsel did not object.
So, object. We appellate lawyers repeat this to you every time we give a talk because it has such a blunting effect on the help we can provide clients after generally excellent trial representation.
On appeal, one could make the argument that the trial court and state knew exactly what the defense objection would be and the court made it quite clear any objection would have fallen on deaf ears. Still, there was no actual objection. Other courts have declined to find waiver when hostile trial court made the situation untenable, but don’t count on it.
Finally, consider bringing along appellate counsel for your more important trials. Civil lawyers routinely do it these days. In a recent CLE to the Litigation Section, Rusty Hardin highlighted the importance of having appellate counsel by your side, noting that the trial lawyer’s job is to convince the jurors. Switching gears to sometimes exceptionally complicated legal issues unnecessarily blurs the trial lawyer’s focus. Hell, the state does it, at least on its big cases. This is one aspect we can control in leveling the playing field!