Keith Gore, Lawyer Keith Gore, Lawyer
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What Matters in a Courtroom: Truth or Proof?

The late U.S. Supreme Court Justice Antonin Scalia wrote in an dissenting opinion that, "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent. In Re Troy Anthony Davis, U.S. Supreme Court, 2009.

Wait, what? Did a United States Supreme Court justice actually say that the Constitution would not be offended if an innocent man were executed for a capital murder he didn't commit? In a word: yes.

How can that be? Doesn't it defy common sense and basic notions of fairness to say that the United States Constitution has no problem with executing an innocent person? Not when you understand that criminal jury trials are about what a jury decides the truth is, not what the truth actually is.

The criminal justice system in the United States is not concerned with the truth, but rather with what a prosecutor can convince a jury is true. In theory, the rules of evidence and procedure followed in Texas courtrooms are designed to bring out the truth. And for the most part it works that way.

When you read in the news that someone was exonerated and set free from prison or death row, keep in mind that a jury found them guilty. The jury didn't want to send an innocent person to prison or to death row, and neither did 99.9% of the prosecutors in those cases. So how did it happen? Because the prosecutor and jury believed the evidence meant one thing when in reality it meant something else.

In a criminal jury trial, the jury decides what the facts are, not the judge. Facts are subject to different interpretations. For example, have you ever made a sarcastic comment that someone took literally? Remember the scene in the movie Trading Places when Eddie Murphy accidentally bumped into Dan Aykroyd and Dan thought he was being robbed? Anyone watching the movie knows that Eddie wasn't robbing Dan, but that's not how the police saw it after interviewing Dan. If the jury believes Dan when he says he was robbed, Eddie goes to prison.

A jury gets to decide if the accused's motives were good or bad; a jury gets to decide if the accused stole or borrowed; a jury gets to decide if the accused acted in self-defense; a jury gets to decide if physical discipline of a child was child abuse or loving correction; a jury gets to decide if a parent touched a child for medical care or sexual arousal. These types of examples are endless.

So what Justice Scalia means is that so long as the accused had a "fair trial," the jury's decision, and the punishment handed down, are by definition constitutional. What goes into a "fair trial?" The U.S. and Texas Constitutions both guarantee the right to the effective assistance of a lawyer, the right to see and question one's accuser, the right to due process or due course of law, the right to subpoena witnesses, the right to the presumption of innocence, the right to a fair and impartial jury, and other important rights. So long as these rights were afforded the accused, the law says he had a fair trial.

A person convicted by a jury has the right to appeal to a higher or appellate court. However, an appeal is not the same thing as a new trial. Rather, the appellate court only reviews the evidence from the trial, which consists of witness testimony, physical or demonstrative evidence (photographs, videos, fingerprints, certified records, forensic evidence, ballistics, DNA, etc.), and legal objections and arguments made by the lawyers. In other words, the appellate court does not hear from witnesses or receive new evidence but rather only considers what happened at the trial. Likewise, except in extremely rare cases, appellate courts do not second guess a jury's interpretation of the facts.

So what's the point of saying all of this? A jury trial is oftentimes your one and only shot at justice. Yes, appellate courts do reverse some convictions. And yes, post-conviction writs of habeas corpus alleging violation of constitutional rights and/or actual innocence sometimes set aside convictions. DNA testing and other types of recently developed forensic analysis has set many innocent people free. But scientific evidence is not a part of every case, and evidence is sometimes destroyed, either accidentally or intentionally.

When you hear in the news that someone was set free from prison because of new forensic testing, it is almost always because the evidence was preserved years ago, that is, the evidence remained in a storage locker at a police department. This is the case in Dallas County where many have been set free from prison over false convictions for serious crimes like murder, sexual assault, and drug possession. But think of all those innocents who are suffering in prison because the DNA and forensic evidence in their cases were not preserved.

I have successfully represented clients in appeals and post-conviction cases, resulting in exonerations and/or dismissals, but those proceedings are lengthy and costly. This highlights the importance of doing everything possible to maximize your chances of winning at trial, because it may be your one shot at justice. To do so, you should work with an experienced criminal defense trial lawyer with a track-record of success in Collin County and throughout the Dallas-Ft. Worth area. If you or a loved one faces criminal prosecution in McKinney, Plano, Dallas, Allen, Denton, Frisco, Sherman, Ft. Worth, and Rockwall, call Keith Gore today.

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Keith Gore, Lawyer
2301 Virginia Parkway
McKinney, TX 75071

Phone: 972-924-5665
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