Mistrials and Sanctions

This week the Civil Law Series, “Client Sues Lawyer,” looked at situations in which clients and lawyers had disagreements which ended up in the courtroom. There are also situations where the lawyer gives a client legal advice that results in improper conduct on either the lawyer or client’s part. Today in Part IV of the Civil Law Series investigation into lawyer-client disagreements, The Texas Law looks at a case from the Court of Appeals for the Seventh District in Amarillo. In the case we shall see what can happen when a lawyer gives a client advice that turns out to be contrary to law.

Texas law prohibits certain forms of evidence, for example hearsay. In many cases, the prohibited evidence contains information which would benefit a lawyer’s case. To get around the prohibition lawyers use other rules which may allow the evidence to be admitted. Here, lawyers walk a very fine line. When they cross the line the danger exists that the trial may be tainted because the jury sees evidence which may be so prejudicial that it makes a fair trial impossible. When this occurs, the judge must declare a mistrial. Today in Part IV of the Criminal Law Series on Evidence, The Texas Law looks at a case from the Court of Appeals, Ninth District at Beaumont to investigate when evidence introduced is so prejudicial that the judge is left with no choice but to declare a mistrial.

Civil Law Series
Part IV of “Client Sues Attorney”

Yolanda Nelson and her attorney, James L. Johnson, sued Albertson’s Inc. for damages resulting from Nelson’s fall in an Albertson’s store. When James W. Watson, attorney for Albertson’s, was taking Nelson’s deposition, Johnson advised her not to respond to several of Watson’s questions. Johnson claimed the information sought by Watson was protected by the Attorney-Client Privilege. Watson disagreed and filed a motion with the court to compel Nelson to provide the information sought. He also filed a motion to impose sanctions on Nelson and Johnson for improperly withholding evidence. The court granted both motions and imposed sanctions on Nelson in the amount of $1,202. Nelson appealed.

When a party claims information is protected by the attorney client privilege, they have the burden of presenting evidence to support the privilege. Then the judge will view the materials in camera review, i.e. in his chambers. If the party does not produce evidence to justify the claim of attorney-client privilege, then the party may not use the privilege to protect information and may not later appeal the decision to impose sanctions for improperly claiming the privilege.

In this case, Nelson and Johnson failed to provide any evidence to the court to support their claim that the information sought by Watson was privileged. The appeals court held that they merely sought to “cloak” the alleged materials in the privilege without proving they were worthy of protection as attorney work product. The appeals court sustained the amount of sanctions against Nelson and Johnson.

Yolanda Nelson and James Johnson, Appellants V. Albertson’s Inc., Appellee
From the County Court at Law No. 1 of Tarrant County
Before Quinn C.J., and Reavis and Hancock, JJ.

Criminal Law Series
Part IV of “Evidence”

Rico DeShawn Holland was charged with aggravated assault for allegedly shooting Jerry Sylvester. At trial, the prosecutor asked a witness whether she was aware of any other shootings that occurred around the time and place of the shooting for which Holland was charged. Holland objected to the question as being irrelevant. Before the judge could rule on the objection, the witness stated that she was aware of other shootings. After the witness said this, the judge sustained Holland’s objection and then instructed the jury to disregard this testimony about other shootings. Holland then requested a mistrial, which the judge denied. Holland was convicted and sentenced to twenty years imprisonment. Holland appealed, claiming the trial court erred in not granting a mistrial.

Generally, asking an improper question will seldom provide grounds for granting a mistrial because in most cases an instruction from the judge to disregard the improper evidence will suffice to cure any harm. However, there are circumstances where evidence is so improper that it results in incurable prejudice to one or both parties. Prejudice ranges in severity from curable to incurable. When prejudice is curable, an instruction from judge to jury will suffice to save the trial. However, when evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds, then the judge is left with no choice but to declare a mistrial.

Regarding the Holland request for a mistrial, the Appeals Court noted that it was unlikely that the question, as posed to the witness, had an impact on the verdict. The court reasoned that the trial judge promptly instructed the jury to disregard the statement. The court held that “whatever the prosecution’s question about ‘other shootings that have taken place around there’ referenced, neither the question nor the answer was so clearly prejudicial to Holland as to preclude the jurors from following the trial court’s instruction to disregard.” The appeals court affirmed Holland’s conviction.

RICO DESHAWN HOLLAND, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Jefferson County, Texas
Opinion by Gaultney; Before McKeithen, C.J., Gaultney and Horton, JJ.