July-August 2007

Fractured justice?

Terese Buess

Assistant DA in Harris County

Allison Buess

Law Student at the University of Houston Law Center

A recent film starring Anthony Hopkins as a devious murderer and Ryan Gosling as a hot-shot prosecutor begs the question:  Could this onscreen trial happen in real life? How about in Texas?

In my household we try not to watch television shows about crime detection and law enforcement, especially the courtroom dramas. I’d like to tell you that it is an attempt to draw the line between work and leisure time, but that would be a lie. Quite frankly, I get so disgusted at the blatantly incorrect portrayal of the process that I can’t stay quiet, and my family is tired of hearing my tirades. So going to see Fracture, a movie about a murder and prosecution, was a TDCAA assignment that my husband found most amusing because I was going to have to control myself at least while we were in the theater.

I will try not to spoil the movie if you haven’t seen it yet. It was tagged as “diabolically fun and beautifully intricate” by Rolling Stone magazine and “genuinely smart, pulsing with energy and sly wit” by The Wall Street Journal, and I have to agree. Anthony Hopkins plays a devious, evil protagonist who executes the meticulously planned and super-creative murder of his cheating wife. The prosecutor, played by Ryan Gosling, is a young, hot-shot Los Angeles deputy district attorney who has just accepted a megabucks job with a civil firm and is on his way out of the office with a 97-percent conviction rate. The usual one-dimensional portrayal of our prosecutorial community began with our hero asking to try this one last case and assuring his boss, the district attorney, “If you give me a chance and there’s a way, I’ll put him away.” But the plot quickly thickens with a multitude of twists and turns, and the black and white images all begin to gray. It was a good watch, and I highly recommend it.

And I have to say that even after 16 years of practicing criminal law as a prosecutor, I walked out of the theater thinking that I knew what aspects of the trial, as portrayed on screen, were realistic in Texas … but after more thought, I wasn’t so sure. I started digging through caselaw, but after several hours of research, I still couldn’t find definitive answers for every question the movie raised, so I enlisted the aid of my daughter Allison, a second-year law student, as she can access more than just Texas cases.

Caveat: If you really want to watch the movie without me spoiling it for you, stop reading here. If you can’t find the movie at a theater, don’t worry: The DVD is due out August 14.

Question 1: Admissibility of the defendant’s confession

One of the defining moments in the plot of Fracture occurs when the case detective is on the witness stand and has just completed direct testimony about responding to the murder scene, hearing the defendant make a res gestae statement that he had shot his wife, and obtaining a videotaped confession. The defendant, who is representing himself (and doing a pretty fine job of playing somewhat naïve in the ways of law), stands up and, before asking the detective a single question on cross, asks the judge what the legal term is when a detective is having sexual relations with your wife and that same detective coerces and threatens you into giving a confession to her murder. There is a moment of ominous silence while all faces, especially the prosecutor’s, turn to the detective on the witness stand. The silence is broken when the detective leaps over the stand and dives at the defendant, whose statement to police is eventually ruled inadmissible.

Would a Texas court rule the same way? An accused’s statement may be used in evidence against him if it appears that the same was freely and voluntarily made, without compulsion or persuasion, under the rules prescribed.1 Those rules include the Miranda warnings plus the extra Texas warning that the defendant can terminate the interview at any time as well as a requirement that the defendant knowingly, intelligently, and voluntarily waived his rights.2 In addition, a confession must not be taken under circumstances condemned by the decisions of the U.S. Supreme Court as violative of the Due Process Clause of the 14th Amendment.3 A finding of coercion does not depend upon actual violence by a governmental agent; a credible threat is sufficient,4 and coercion can be mental as well as physical.5

What was missing from the movie was any kind of suppression hearing, the defendant’s testimony other than his unsworn declaration to the judge, and any rebuttal testimony from the State. Had there been a suppression hearing concerning the admissibility of the defendant’s statements, the court would have been the sole trier of fact,6 and looking at the totality of the circumstances, the judge would have to be satisfied that the State had negated the accused’s allegations of coercion.7

What might have happened in a motion to suppress? The detective would testify that although he had met the victim on several occasions at a local hotel, she had never told him her name and he had no reason to know that she was the victim when he responded to the “shots fired” call. He would say that as he approached the defendant, who made his res gestae statement, there was no hint of coercion and no threat of any kind. And although the detective knew that he probably should have not been present during the final taping of the defendant’s formal confession, he would testify he felt there would be no harm because he assumed the defendant had no idea of his involvement with the defendant’s wife. The two additional detectives who were present when the final statement was taken could corroborate that no threat was made and nothing was done to coerce the defendant. Is it enough to overcome the defendant’s allegations? Unfortunately, the detective’s lunge for the defendant did not help his credibility, but I think a trial judge could find that the defendant’s original statement was freely and voluntarily made, despite the detective’s previous relationship with the victim.

Question 2: Discovery rights of a pro se defendant

In my trial experience, those who elect to represent themselves are not the most intelligent defendants; they tend to be stubborn people who refuse the advice of not only defense counsel but also that of the trial court. We know that the 6th Amendment’s right to counsel may be waived, and a defendant may choose to represent himself at trial.8 A pro se defendant’s right to represent himself cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice,9 and the pro se defendant is held to the same procedural requirements as a defendant represented by an attorney.10 In criminal cases, a defendant does not have a general right to discovery of evidence in the State’s possession;11 the right to discovery is limited to exculpatory or mitigating evidence.12 However, if a defendant shows good cause (materiality) and provides notice to the State, the judge shall order the State to produce and permit the inspection and copying or photographing of any items the court deems material except for work product.13 The decision on what is discoverable is committed to the trial court’s discretion.14

So if we had a pro se Anthony Hopkins defendant, we would not be compelled to produce a complete copy of the State’s file and deliver it to him pretrial in the county jail, as Gosling’s assistant DA does in the film. Only if Hopkins were savvy enough to present an argument to the court that established good cause and materiality for further production of discovery would we have to provide what was ordered. And of course we would have a duty to produce any exculpatory or mitigating evidence.

Question 3: Double jeopardy bar

Does the gloating Anthony Hopkins, who believes he can’t be tried again for an offense for which he has been exonerated (attempted murder) with a directed verdict of not guilty, win the day with a double jeopardy bar? Or will the law permit another trial, this time for the greater offense of murder after the prosecutor has obtained new evidence (an admissible confession and the death of Hopkins’ wife)? My initial response was “no way,” but the new evidence claim gave me pause.

The underlying idea of double jeopardy, one that is deeply ingrained in the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.15 A jury verdict or trial court judgment of acquittal is viewed as an absolute bar to further prosecution for the same offense even if it appears that the acquittal was based on an egregiously erroneous foundation.16

So is a trial for murder after an acquittal on attempted murder, where the underlying offense and victim are the same, barred by double jeopardy? We know the answer when the order is reversed: A conviction for the lesser- included offense of attempted murder when the original charge was murder means that the State is barred from reprosecuting the greater offense at a new trial, as this verdict is considered an acquittal of the higher offense.17 And we know that when a jury is impaneled and sworn and the indictment read, jeopardy attaches to not only the primary charge, but to the lesser-included offenses when the State does not pursue a conviction for any lesser (by requesting a lesser charge), which acts as an abandonment of trial on the lesser without manifest necessity.18 But what happens in the reverse situation? Can you prosecute a completed offense after an acquittal for the attempted offense?

The primary question is whether the charges of murder and attempted murder constitute distinct statutory provisions or whether they are the “same offense” for double jeopardy purposes. The Blockburger test looks at if each statute requires proof of a fact which the other does not.19 A person commits murder if he intentionally or knowingly causes the death of an individual.20 An individual commits attempted murder if he specifically intends to cause the death of another and does an act amounting to more than mere preparation that “tends but fails to effect the commission of murder.”21 Murder requires proof that the death of an individual occurred, an element not required for an attempted murder charge. While you could say that the attempted murder statute requires proof of an “act amounting to more than mere preparation,” something not required to be proven for the murder statute, the difficulty is that we are really talking about the manner and means of the act of murder, so it is an element that must be proven for both statutes. So there is one element for the murder statute not required by the attempt murder statute, but the attempted murder statute does not require proof of a fact not required by the murder statute. A defendant cannot be convicted of both a completed offense and an attempt to commit it.22

Is all lost? The Supreme Court’s decisions have consistently recognized that the finality guaranteed by the clause is not always absolute “but instead must accommodate the societal interest in prosecuting and convicting those who violate the law. … [A]bsent governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect, the compelling public interest in punishing crimes can outweigh the interest of the defendant in having his culpability conclusively resolved in one proceeding.”23

Did the author of Fracture come up with a scenario that provides a sufficiently compelling fact pattern that the legal community could give greater weight to the need to punish such a horrendous crime and less weight to the strictures of double jeopardy when the defendant himself has masterfully manipulated the criminal justice system to his benefit? According to one treatise, “[A] conviction of a minor included offense will bar a subsequent prosecution for a higher crime embracing the minor offense, unless the first conviction was procured by the fraud, connivance, or collusion of the defendant.24 Couldn’t you extend that theory to an acquittal of a minor included offense?

Is the possibility of a second trial beginning to shape up from the mists of fiction?

Question 4: Scheduling and second-chair prosecutors

Another puzzle in Fracture is that Gosling’s deputy DA tried this attempted murder case all by his lonesome, without an intern or second-chair prosecutor by his side. And at the defendant’s request, the trial was fast-tracked on the docket, so just a week or so separates the crime from the trial.

It is certainly possible to try a case within a week of the commission of the crime, but what reason could you have for doing that? Typically there would be several weeks of delay waiting for ballistic reports, the completed offense report, and final results from the police laboratory analysis of evidence, especially DNA test results. The victim in our case is in a coma in the hospital—she could come out of it as brain swelling reduces in time, persist in her vegetative state, or even die. Nothing good could come of rushing to trial, so why agree to it?

It would be ideal to always have a second chair on every trial of a serious offense. Unfortunately, for many of us, that is not reality. Most of us have learned our trade solo by the “sink or swim” method in the school of hard knocks, and having a second chair is a luxury. In my county, office policy dictates that all capital murder cases where the State is seeking the death penalty are required to have first- and second-chair prosecutors. At all other trials, having a second chair is discretionary.

But I suggest that if you have a pro se defendant with the devious, manipulative nature and cunning of Anthony Hopkins’ Fracture character, ask for all the assistance you can get. I’d want a watcher just to keep tabs on who Hopkins is winking at—a sure sign of trouble!


1 Tex. Code Crim. Proc. Art. 38.21.
2 Tex. Code Crim. Proc. Art. 38.22.
3 Collins v. State, 171 Tex. Crim.585, 352 S.W.2d 841, 843 (App. 1961), cert. denied, 369 U.S. 881, 82 S.Ct. 1152, 8L.Ed. 2d 283 (1962).
4 Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1253, 113 L.Ed.2d 242 (1991).
5 Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed2d 242 (1966).
6 Romero v. State, 800 S.W. 2d 539, 543 (Tex. Crim. App. 1990).
7 Farr v. State, 519, S.W.2d 876, 880 (Tex. Crim. App. 1975).
8 Faretta v. California, 422 U.S. 806, 819-20, S.Ct. 2525, 2533 (1975).
9 King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Wallace v. State, 618 S.W.2d 67,70 (Tex. Crim. App. 1981); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976).
10 Kent v. State, 982 S.W.2d 639, 640-641 (Tex. App.—Amarillo 1998) (pet. ref’d as untimely filed) (holding that pro se appellant is held to same standard for providing record that would apply in other cases).
11 Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980).
12 Id.
13 Tex. Code Crim. Proc. Art. 39.14.
14 Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990).
15 Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993).
16 Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 2184, 57 L.Ed. 2d 43 (1978).
17 Tex. Code Crim Proc. Art. 37.14; Bennet v. State, 871 S.W.2d 801 (Tex. App.—Houston [14th Dist.] 1994); Stell v. State, 662 .W.2d 96 (Tex. App.—Houston [1st Dist.] 1983).
18 Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993); Shute v. State, 812 S.W.2d 61 (Tex. App.—Houston [14th Dist] 1991)(holding double jeopardy bars subsequent prosecution for lesser offense of attempted murder after defendant was acquitted on appeal for greater offense of attempted capital murder of police officer where State did not request an instruction to jury on the lesser).
19 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.Ed. 306 (1932).
20 Tex. Penal Code, Sec. 19.02.
21 Tex. Penal Code, Sec. 14.01.
22 Robbins, Ira P., Double Inchoate Crimes, 26 Harvard Journal on Legislation 1 (1989), 9-12.
23 Garrett v. United States, 471 U.S. 773, 796, 105 S.Ct. 2407, 2420, 85 L.Ed.2d 764 (1985) (O’Connor J., concurring).
2421 Am. Jur. 2d Criminal Law, Sec. 352, May 2007.