In a criminal case against defendant Donald Powell pending in Tennessee (Williamson County) Circuit Court, the prosecution filed a motion in limine seeking to prevent defense counsel from referring to the prosecution as “the government.” In his brief in Opposition (here), Powell’s defense attorney, Drew Justice, pointed out that the term “the government” is frequently used by the courts to refer to the prosecution, and in any event, that the defense’s right to refer to the prosecution as “the government” represents speech protected by the First Amendment.
The defense attorney had a few more things to say, just in case the court was inclined to grant the prosecution’s motion.
As defense counsel put it, if the court is “inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code.”
First, defense counsel advised the court that “the Defendant no longer wants to be called ‘the Defendant,’” a term that has “a fairly negative connotation” that “unfairly demeans and dehumanizes” Powell. Instead, defense counsel suggested that Powell “should be addressed only by his full name, preceded by the title ‘Mister.’” Alternatively, defense counsel suggested, Powell could be referred to as “the Citizen Accused,” adding that the designation “that innocent man” would also be acceptable.
Next, the defense attorney turned to how he wished to be referred to in court, rather than as a “lawyer” or as a “defense attorney:”
Rather, counsel for the Citizen Accused should be referred to primarily as the “Defender of the Innocent.” This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation “Guardian of the Realm.” Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of opposing counsel. Whenever addressed by name, the name “Captain Justice” will be appropriate. While less impressive than “General,” still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.
Counsel – of should I say the Defender of the Realm -- them moved on to the use of term “defense” because “the whole idea of being defensive comes across to most people as suspicious” So to “prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself ‘the Resistance.’” This terminology “need only extend throughout the duration of the trial – not to any pretrial motions” as “during its heroic struggle against the State, the Resistance goes on the attack, not just the defense.”
Having completed his arguments, defense counsel wound up his Opposition by saying that “Captain Justice, Defender of the Realm and Leader of the Resistance primarily asks this Court to deny the State’s motion as lacking legal basis.” In the alternative, “the Citizen Accused moves for an order in limine modifying the speech code as aforementioned and requiring any other euphemisms and feel-good terms the Court finds appropriate.”
No word yet on the outcome of the prosecution’s motion or the court’s response to defense counsel’s opposition.
Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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