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2021 YLS Skills Institute: Day 1 The NSBA’s Young Lawyers Section presents: 2021 YLS Skills Institute: Day 1 Thursday, March 18, 2021 WEBCAST George Dungan, Lancaster County Public Defender’s Office Bruce Prenda, Lancaster County Attorney’s Office Sarah Newell, Nebraska Commission on Public Advocacy Seth Morris, Berry Law Firm Claude E. Ducloux, LawPay This page intentionally left blank. AGENDA 1:00 PM – 2:00 PM Ethics Lines in Criminal Closings George Dungan, Lancaster County Public Defender’s Office Bruce Prenda, Lancaster County Attorney’s Office Sarah Newell, Nebraska Commission on Public Advocacy This panel discussion will review what a lawyer can and cannot say during closing arguments, including when a lawyer crosses the “ethical line,” from both the prosecutorial and defense perspectives. 2:00 PM – 2:05 PM Break 2:05 PM – 3:05 PM 10 Strategies for Taking Witness Testimony in Depos and Trials Seth Morris, Berry Law Firm Though it may look simple when done correctly, witness testimony is not as easy as creating a list of questions and asking them in a courtroom. There are many intricacies that go along with it, including preparation. This session will review 10 strategies attorneys need to know when taking witness testimony. 3:05 PM – 3:10 PM Break 3:10 PM – 4:10 PM The Psychology of Settlement: Behaviors that Encourage Opportunities for Resolution Claude E. Ducloux, LawPay This session will cover: The biology of decision-making and cognitive behaviors of human mind; The psychology of making decisions when in stress, as in litigation; Use of heuristics, and other mental short cuts which supplant deliberative operations; Seven Steps to good decisions; Confirmation Bias; Determining client objectives and alternatives early to identify paths of resolution; Attorney missteps such as underestimating, engaging in improper conduct; and failure to keep clients informed; subserving the client’s inappropriate motivations; Strategies for honest advocacy and civility; Discussions of the atmosphere for settlement; Good Client relationships, and respect from court and staff; Cultivating productive relationships with opposing counsel; Duties of proactivity to encourage settlement; Psychology of ADR, and characteristics of effective “neutrals”; Using Catharsis v. Directive persuasion; Improving and Defending your profession; and What Clients Really Want: the survey results. SPEAKER BIOS George Dungan, Lancaster County Public Defender’s Office George Dungan is a graduate of the University of Kansas and Washington College of Law. He currently works as a Deputy Public Defender in Lancaster County, Nebraska. Bruce Prenda, Lancaster County Attorney’s Office Bruce Prenda is a graduate of Brown University and Creighton University School of Law. He currently works as Chief Deputy Lancaster County Attorney in Lancaster County, Nebraska. Sarah Newell, Nebraska Commission on Public Advocacy Sarah Newell is a 2001 graduate of the University of Nebraska College of Arts and Sciences and a 2005 graduate of the University of Nebraska Law College; she graduated from both with high distinction. Before starting her legal career, Sarah worked for the Nebraska Legislature in several different capacities and served as a mental health technician at CenterPointe’s dual diagnosis youth residential treatment center. In law school, she clerked for the Lancaster County Public Defenders’ Office and was elected Research Editor of the Nebraska Law Review among other student organizations. After graduation, she clerked for Nebraska Supreme Court Justice William Connolly before returning to the Public Defenders’ Office where she practiced until 2013, handling cases ranging from juvenile court and mental health commitments, to misdemeanor and felony jury trials and appeals. Since 2013, she has practiced at the Nebraska Commission on Public Advocacy, a state agency that provides indigent defense to high-profile, serious felonies across the State. Throughout her career, she has tried more than 45 cases to jury, and handled over 20 cases before the Nebraska Supreme Court including death penalty cases. Seth Morris, Berry Law Firm Seth Morris is an ardent protector of his clients’ rights in the courtroom. Seth has trial experience in civil and criminal cases at both the State and Federal levels. Recently, Seth won a nationally-publicized criminal case where he earned an acquittal for a client wrongly accused of resisting arrest and obstructing a police officer. This case was one of the first in Nebraska in which cameras were allowed in the courtroom. Seth has also been recognized by Super Lawyers as a Great Plains Rising Star, a designation given to only 2.5% of lawyers in the state. He handles a variety of criminal defense cases, including drug crimes, DUI/DWI defense, assault, personal injury, and civil rights violations. Seth received his B.A. from Concordia University, then earned his J.D. from the University of Nebraska College of Law. He is currently a member of the Nebraska Bar Association and an active participant in NORML. Claude E. Ducloux, LawPay Claude E. Ducloux is a Board-Certified by the Texas Board of Legal Specialization in Civil Trial Law and Civil Appellate Law, and former Grievance Prosecutor for the State Bar of Texas (also licensed in CA and CO) and former Chair of the Texas Center for Legal Ethics. This page intentionally left blank. 2021 YLS Skills Institute: Day 1 Ethics Lines in Criminal Closings George Dungan Bruce Prenda Sarah Newell Thursday, March 18, 2021 Webcast This page intentionally left blank. 3/16/2021 Ethical Lines in Criminal Closing Arguments Bruce J. Prenda Chief Deputy Lancaster County Attorney 1 Presentation Credit (for educational purposes) • Jim Smith, Chief Appellate Division Nebraska Attorney General • Steve Schmidt, Professor University of Nebraska College of Law 2 1 3/16/2021 Berger v. United States, 295 U.S. 78 (1935) • Adversarial Process, but the interest for the government “in a criminal prosecution is not that it will win a case, but that justice shall be done” • “guilt shall not escape or innocence suffer” • “[S]he may prosecute with earnestness and vigor, indeed, [s]he should do so. But, while [s]he may strike hard blows, [s]he is not at liberty to strike foul ones. It is as much [a] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” • Violations of the “bounds of propriety and fairness” included: improper suggestions and assertions, introducing personal knowledge into evidence, questioning with unsupported insinuation, misstating facts, introducing facts not in evidence, bullying and arguing with witness • Acting “indecorous and improper”, “undignified and intemperate” amounts to misconduct 3 Rules of Professional Responsibility Rule 3.8 Special Responsibilities of Prosecutor (Comment 1) A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it the specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. 4 2 3/16/2021 ABA Standards for Criminal Justice 3‐1.2(c) The Function of the Prosecutor (c) The duty of the prosecutor is to seek justice, not merely to convict. 5 5 Defense Obligations • United States v. Wade, 388 U.S. 218, 256 (1967) concurring and dissenting: “Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns [the defense] a different mission. [It] must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that [defense counsel] defend [a] client whether [s]he is innocent or guilty.” 6 3 3/16/2021 • concurring and dissenting • “The state has the obligation to present the evidence. Defense Counsel need not present any witnesses to the police, or reveal any confidences of [a] client, or furnish any other information to help the prosecutor’s case. If [s]he can confuse a witness, even a truthful one, or make [the witness] appear at a disadvantage, unsure or indecisive, that will be [the] normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what [s]he thinks or knows to be the truth.” Justice White on Defense Attorneys United States v. Wade, 388 U.S. 218, 256 (1967) 7 • No name calling (references to the defendant or counsel) • “predator” vs. “predatory behavior” • “gang member” vs. “gang‐related activity” • “counsel lied” vs. “counsel argued” • Always be fair • Don’t lie • Focus on the Law and the Facts Bright Lines: Avoiding Prosecutorial Misconduct 8 4 3/16/2021 Appellate Caselaw for Criminal Cases • Necessarily skewed • Who appeals? • When do they appeal? • What do they complain of when they appeal? • Most commonly review prosecutor’s statements and conduct 9 Case examples Misconduct vs. Error Cases necessarily arise most often in criminal law based on the conduct of the prosecutor 10 5 3/16/2021 Prosecutorial Misconduct • Two Prong Test 1. Did statements mislead or unduly influence jury? 2. Did it prejudice defendant’s right to fair trial? 11 Did it prejudice defendant’s right to fair trial? Five considerations 1. Degree to which remarks tended to mislead/unduly influence jury 2. Whether remarks were extensive or isolated 3. Whether defense counsel invited the remarks 4. Whether the court provided a curative instruction 5. Strength of evidence supporting conviction 12 6 3/16/2021 State v.
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