Overwhelming immutable facts that tend to show the defendant is indeed guilty of the crime charged can lead to some pretty creative excuses. For example, defendant gives consent to search on tape and a baggie of cocaine is found in his right front pocket.
Extensive legal training isn’t necessary here. The client intuitively knows that unintentional possession is the only realistic defense, and so from time to time you’ll hear a lawyer in the courthouse saying, “Hey, my guy told me the I-was-wearing-someone-else’s-pants story…”
It’s not that the defense is impossible – Goodwill sells used clothing, for example; but as a general rule it’s difficult to believe, and, more problematic for the lawyer, difficult to sell. I’d bet most long term prosecutors in felony courts have heard some such version of this several times over the course of their careers, but never dismissed a case based on that theory. I’ve never used it in front of a jury, but you’d probably need something else to back it up if you wanted it to go far.
And the defense lawyer’s job goes from difficult to practically impossible if, for example, the defendant gives admissible and inconsistent statements that contradict the defense.
Which leads me to Sharon Keller:
The state’s top criminal appeals court judge has amended her personal financial statement to disclose more than $2.4 million in property and income that she had not previously reported to the state, as required by law.
In a sworn statement filed in Austin earlier this week, Sharon Keller said she omitted more than two dozen properties, bank accounts, income sources and business directorships because her elderly father in Dallas had not told her about them.
As a state wide elected official, Keller is required by law to submit reports about her finances. In the case of judges one obvious reason for the rule is to allow parties with cases in front of her to know whether there may be a conflict of interest which would require that she recuse herself. And besides, the law is the law.
Keller brought this on herself by complaining that defending herself against ethics charges would bankrupt her. If you’re rich and you tell the press that you’re poor, they just might do some digging.
So what’s her defense for filing a sworn statement that omitted $2.4 million in holdings? Well, it can’t be a false – or felonious – statement if she didn’t know about her secret millions.
"My father, Jack Keller, over a number of years has acquired and managed, without input from me, all of these properties," Keller wrote in a filing with the Texas Ethics Commission meant to correct the annual report she made in April 2008.
Smell test problem, of course, but as long as there aren’t any inconsistent statements, it’s possible, right? The article continues:
Her attorney expanded on her explanation Friday, saying that Keller, the presiding judge of the Texas Court of Criminal Appeals since 2001, misinterpreted what she had to disclose and lost track of holdings she had disclosed in earlier financial reports.
"We’re not saying she is excused. She is at fault," Ed Shack said. "But she wasn’t trying to deceive anybody."
OK. She didn’t know about it. And she might have known about it but didn’t know she was required to disclose it. And she’s at fault, even though none of it was intentional on her part.
Well Sharon, here’s some free advice: the next time you buy pants at Goodwill, you better check the pockets. Your reputation for truthfulness is shot, so no one will ever believe you when you testify that you were wearing someone else’s pants.