Persuasion Matters

Photo of Dr. Bull and Benny Colon with client

Good Strategy or Unnecessary Risk? ‘Bull’ Team Rolls the Dice in High-Stakes Case

This week’s episode of “Bull” — “The Good One” — involves a New York organized crime family. The patriarch, Donovan McCandless, is in prison, just days away from his sentencing hearing, which is expected to be a life term.

Photo of Dr. Bull and Benny Colon with client

This upsets Brendan, his oldest son, who clearly inherited the crime gene. The matriarch, Colleen, senses that Pops and Brendan are up to no good, so she asks Connor, the “good” son, to save Brendan from himself.

(SPOILERS FOLLOW)

Connor (med-school student, no priors) conveniently finds Brendan walking down a dark city street as the federal judge assigned to their father’s case is taking his nightly walk. Connor tells his brother to get in the car, but Brendan has other plans: He catches up to the judge and slits his throat, leaving him bleeding out on the sidewalk. Then, he gets in Connor’s car and the two speed away.

Next, we find the two sons in federal lockup, charged with murdering a federal judge. Colleen does what any loving mother would do: she hires Bull.

There’s a trial. There are sanctions. There are questionable investigative tactics on behalf of Trial Analysis Corporation’s staff. There’s a plea. There’s another murder. And there’s pivotal jailhouse testimony that — of course — completely changes the dynamic of the trial. And I’m sure it’s absolutely no surprise whatsoever that “The Good One” is acquitted. (I’m rolling my eyes as I type.)

To put the episode into perspective, I’ll be sharing my views on whether the choices made by Bull, et al. were “Good Strategy or Unnecessary Risk.”

Motions to Sever

Poor Benny Colón. He didn’t want this case to begin with, but thanks to Bull, he’s now tasked with defending a young man who allegedly took the life of a well-respected federal judge. The McCandless boys are scheduled to be jointly tried for murder, which gives Benny serious heartburn. In the best of circumstances, a joint trial would be extremely difficult. But in a case involving a family that makes a career out of crime? Almost insurmountable.

Benny wants to create as much distance as possible between the two boys by filing a motion to sever.

Good Strategy or Unnecessary Risk?

While every case is different, from a jury level in this Bullish circumstance, filing a motion to sever is smart strategy. Evidence overwhelmingly points to Brendan as the murderer. This, coupled with the family’s criminal history, increases the odds of a jury giving the federal prosecutor a two-fer. If one brother is convicted, it’s most likely they’ll both get convicted. Family blood may be thick, but when it comes to defending siblings in a murder trial, temporal, physical and emotional distance can be your friend.

My Ruling: Good Strategy

Pushing the Envelope with the Judge

It’s no surprise that the sitting judge is not a big fan of either defendant or their legal teams. And, while judges are supposed to unbiased, despite what you may hear, they are actually human.

After the judge quickly denies Benny’s motion to sever, rather than moving on, Benny pushes back: “Excuse me, Your Honor, I did not have an opportunity to be heard.” The Judge essentially states that any argument would be a waste of the court’s time. So, he pushes back. Again. “I beg to differ. I think it’s only reasonable that you hear… .” The judge finds him in contempt. Benny replies, “Really? You can’t be serious.” And the judge slaps him with a $1,000 sanction, to which Benny responds with a “but your Honor” and is immediately fined another grand and threatened with lockup.

Good Strategy or Unnecessary Risk?

Did Benny have a right to be heard? Yes? Did he have a duty to fight for his client? Of course. But he was playing with fire when he chose to repeatedly push back on the judge’s ruling. Sometimes, you’re going to take a hit. And sometimes, it won’t be fair. Learn how far to push, and when to shut the heck up. The last thing you want is to be on the bad side of a federal judge before you even start the trial.

My Ruling: Unnecessary Risk

Cashing in Favors with Your Peeps

The TAC team is frazzled because none of their sources will “slip them a jury list” ahead of time. Well, duh. The odds of a someone associated with the federal courts “slipping” anything but disdain or a pair of handcuffs to the folks defending a judge-killer are, dare I say, zero? But the mere fact that the TAC team was asking around for such a thing was an affront to my ethical self.

Good Strategy or Unnecessary Risk?

As a jury consultant, I like to have as much information as possible about the venire before walking into the court for jury selection, but let’s be real: the information should always be obtained legally, ethically, and within the rules.

If you don’t want the court to know what you’re doing, then don’t do it!

My Ruling: Unnecessary Risk

Choose Witnesses with Substance

After some key eyewitness testimony, Brendan McCandless has a revelation: he no longer loves his brother more than his own life. In order to avoid a lethal injection, he changes his plea to guilty and accepts a life sentence in exchange for testimony against Connor. (Maybe he and his dad will be bunkmates.)

Colleen McCandless is beside herself, Connor is confused, and the trial team is faced with the task of developing evidence to refute whatever Brendan is expected to say. Colleen volunteers to provide emotional testimony about The Bad One and The Good One. But Bull rejects the offer.

Good Strategy or Unnecessary Risk?

Colleen may actually have made a decent witness, all things considered. But the reality is that she could offer zero evidence related to the actual murder or whether Connor was at the scene of the crime to stop Brendan … or to help him.

Emotional testimony can be compelling. But the object of the game is to present persuasive evidence. If your witness is only on the stand to play into juror sympathy, you may want to think twice. Jurors — and judges — want evidence, not an emotional, speculative narrative. And they’re all smart enough to see through the gamesmanship.

My Ruling: Good Strategy

Calling a Convicted Criminal as Your Key Witness

In the few short hours between Brendan’s plea agreement and his expected testimony, he is murdered in the prison yard. (Who dunnit? Nobody knows.) The TAC team is awkwardly relieved to have Brendan’s quagmire out of the case, but now Connor is the last man standing. Always risky for any defendant, let alone a mobster family member on trial for murdering a federal judge. And let’s be honest: everyone — including the jurors — will be wondering if he played a role in his brother’s death, too. Another (in)convenient coincidence.

Bull pulls a Hail Mary and puts patriarch Donovan McCandless on the stand. He blatantly admits that he and Brendan hatched the murderous plan to take out the judge, and that Connor had nothing to do with it. He sang praises for Connor: “He has no appetite for mayhem. Connor wouldn’t kill a cockroach,” he said. Opposing counsel objects, Donovan continues spouting off, and the judge has the Marshals remove him from the courtroom. No motions for a mistrial by the prosecutors (w-e-i-r-d), just an instruction from the judge for juror to “disregard testimony.” As if.

Good Strategy or Unnecessary Risk?

No trial team wants a key witness to go rogue or to be escorted out of the courtroom by the Marshal service, but occasionally, the drama that unfolds comes with a benefit. In this case, Bull’s client reaps the reward because apparently, jurors believed Donovan McCandless’s raw truth about his youngest son. A bit ironic considering he’s a convicted criminal, but even witnesses with a shady past can give compelling testimony.

My Ruling: Good Strategy

‘The Wisdom of Juries’

Despite the sheer audacity of the storyline, Bull actually says something I can hang my hat on. As he’s discussing trial strategy with Colleen McCandless and explaining that her testimony would be of little help, she desperately wants to know what they can do to save her son. His answer:

“We go to court. We fight. … And we put on the best defense possible. Ask the toughest questions. And put our faith in the wisdom of juries.”

Amen to that.

 

This article was originally published by Texas Lawyer on May 1, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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