ABA Journal


Trials & Litigation

Dershowitz: Knock-knock joke could be grounds for mistrial motion

Jun 26, 2013, 11:05 am CDT


I don't think it was the joke so much as the evident complete lack of knowledge as to how to do voir dire. Or that opening.

By nidefatt on 2013 06 26, 2:00 pm CDT

Might be grounds for a later ineffective assistance of counsel appeal. But a mistrial motion by the side that screwed up? Never happened and never will happen.

By AndytheLawyer on 2013 06 26, 4:38 pm CDT

Zimmerman's attorney made a big move, thought it would be a good idea, and was wrong. That's not a basis for a mistrial.

By JR on 2013 06 26, 5:54 pm CDT

it's really good ina criminal case when the defense lawyer can get teh jurors to laugh. a laughing jury is less liekly to convict. they like you, they're having a good time.

Most laywers think they're funnier than they are.

a prepared joke is always going to suck, as opposed to soemthing situationally witty.

You'd have to be able to think real fast though, to filter and alnalyze whetehr the remark is ok.

A knock knock joke has got to be the lamest, least witty msot pathetic form of humor.

By defensive lawyer on 2013 06 26, 6:30 pm CDT

I could see a mistrial motion being at least seriously considered, provided it was promptly made.

If the defense goes all the way to a verdict and then seeks to use its own side's bad judgment as a basis for a do-over, then I'd say they clearly waived the issue.

@4: the biggest sign that the lawyer was off track should have been that he was (supposedly) trying to illustrate how difficult it was for him to pick a jury. I don't think juries have much sympathy for the overpaid lawyer who had to stay up late billing while his client sat in a jail cell. Lawyers are there to give voice to their clients' problems, not thier own. Oh, poor lawyer.

By Robert B. on 2013 06 26, 8:12 pm CDT

@5. i disagree. i don't think he was looking for pity. I think he was trying to say, hey, there isn't scarcely a person in the entire country who hasn't heard about this case, and so it's gonna be difficult for the defendant to get a really fair trial from jurors who haven't at least preliminarily formed an opinion

By DEFENSIVE LAWYER on 2013 06 26, 8:15 pm CDT

A man is dead. Whatever the cause, this was a stupid place and time to make an equally stupid joke.

By donniem23 on 2013 06 28, 10:13 am CDT

The assertion by Attorney Dershowitz that the joke provides grounds for a successful mistrial motion is absurd on its face. However, Attorney West clearly forgot the advice given during most trial practice seminars that humor should be employed sparingly and only when it is truly pertinent to the facts and issues at hand. I have used humor with success, as have my adversaries, but on very few occasions.. Contrast the effectiveness of Mr. West's opening knock-knock joke with that of his adversary who used Zimmerman's own words to persuade the jury that Zimmerman was a predator on the hunt. The latter was certainly more effective than the former.

My surmise is that the joke will have no real effect on the outcome...but the testimony of the gal on the phone with Trayvon will be believed despite the needlessly long and unduly sharp cross-examination.

By Robert P. Zisgen on 2013 06 28, 10:20 am CDT

West's behavior sets the tone for the jury's overall impression of the defense. The knock knock joke, told without any context, fell flat and could help give the impression of incompetence or lack of professionalism.

If they get past motions for dismissal as a matter of law at the end of the prosecution's case-in-chief, then the pivotal part of the trial will be the prosecution's cross-examination of GZ. GZ must testify to establish the elements of self defense, and he has given the prosecutors much to work with (e.g., the contradictions about his assets and 2nd passport from the bond hearing, the video interview with the police, etc.). If the prosecution can make him look like a liar during the cross-examination, then the jury won't believe GZ's version of the facts.

By BhamJim on 2013 06 28, 1:19 pm CDT

From our Monday morning quarterback seats it appears that the joke was not very good and perhaps none of us would have opened that way, but Dershowitz is simply a talking head, impressed with the sound of his own voice, and always grandstanding. Sometimes I silently thank the inventor of the TV remote for giving me the ability to make him disappear and turn to something more substantive such as the Kardashians.

By Tom on 2013 06 28, 1:23 pm CDT

He should have followed up with an explanation of how the joke applied to picking a jury on such a high profile case. It was a horrible mistake of judgement. I watched few more minutes of the opening, however, and he seemed to recover and was doing a good job of telling what the evidence in the case will show - which is the purpose of an opening statement. It also sounds, from what I have read, that Zimmerman's lawyer did an excellent job impeaching the girlfriend, who is the prosecutions prime witness, and I am sure that will be a major part of the closing argument. The joke is a good basis for an ineffective representation bycounsel appeal later if Zimmerman gets an adverse ruling, so if I were Zimmerman's lawyers, I would proceed with the trial. .

By paramale on 2013 06 28, 1:41 pm CDT

In my state, you have a hard time moving for a mistrial when your side has planted the error.

By Jim on 2013 06 28, 1:42 pm CDT

Years ago I used to be impressed by Alan Dershowitz. This article reveals the Dershowitz has really lost it. The defense doesn't get to gore itself (if the knock knock joke even is a goring) and then ask for a mistrial. It's a little like Lizzie Borden asking for consideration from the court because she's an orphan.

What's also really hard to understand is that this piece got past the ABA editors and out to the public on an ABA Journal website. Amazing.

By Vermont Lawyer on 2013 06 28, 1:53 pm CDT

#8, 10. Yes Indeed. That is issue #1 here: who gives a f&*k what Alan Dershowitz thinks?

By Wortmanberg on 2013 06 28, 1:58 pm CDT

Agreed - defendant Z should have stood up IMMEDIATELY and screamed for new counsel.
"Knock, Knock?" Who's there... one supremely ignorant defense attorney.
Regardless of your interpretation of defendant's guilt or innocence as to the charge, this case was no place for such an attempt at snarky politically infused "humor." It degraded the jurors as well as the entire process. Too much pandering to the cameras and media by all of us.
Z will be convicted, appeals and costs will follow. Pathetic.

By Tallahassee Tall Man on 2013 06 28, 2:01 pm CDT

I think Professor Dershowitz is in error. I agree with those who recognize that the offending party is hardly in a position to ask for a mistrial. Even if it were appropriate, it seem that you should make the motion promptly and not wait until a verdict is reached or you waive you right. Something like a failure to object or take an exception to the jury instructions. I also agree that the knock, knock "joke" was an assinine thing to do. In any trial, humor, if used, must be judged very carefully since it can easily backfire. One does not horse around with murder.

By jim on 2013 06 28, 2:52 pm CDT

Have to agree with JR. Obviously, it was poor lawyering. However, it won't have any influence on the final verdict. No reason for a mistrial.

By Denver Spectator on 2013 06 28, 2:54 pm CDT

As a former trial attorney its always easy to judge from outside the bar. When is the last time Dershowitz actually defended a defendant at trial. I have had cases in the past with these prosecutors, who are very experienced and honorable men. however these defense attorney are doing an outstanding job defending the rights of Zimmerman, which is indirectly defending each and ever person commenting here!!! Thanks for all those attorney who have stood up for our First Amendment Rights giving us the ability to express our opinions here.

By Former Trial Defense on 2013 06 28, 3:10 pm CDT

If you are the prosecution, do you not run with that idiotic move in your closing argument? I think they take it and paint the picture that GZ thinks this case is funny; he doesn't take it serious; this is a joke to him - and has been since the beginning when his own lawyer stood up and told you folks a knock knock joke.

By Kevin on 2013 06 28, 3:16 pm CDT

The best move Zimmerman could have made would be to fire West at the next recess. When the jury came back and saw West was gone they would think Zimmerman is a reasonable person... Ultimately that's the only question at issue in the case.

By CherkLaw on 2013 06 28, 4:09 pm CDT

Mr. West's opening will live long after him in trial practice classes, articles and seminars--but not in a good way.

By Hadley V. Baxendale on 2013 06 28, 4:11 pm CDT

If the defense is successful, and I suspect they will be, all that will be remembered is the final verdict. Who remembers the scores of any of the super bowls? Nobody...but you might remember who won!!!

By Former Trial Defense on 2013 06 28, 4:42 pm CDT

NPR played audio this morning. The joke was met by dead silence. It seems everyone in the courtroom recognized it for the gaff that is was. But why would it provide a basis for a mistrial?

By DC on 2013 06 28, 5:25 pm CDT

DC, if it would have made a difference, and that is a Big IF, certainly the prosecution would have waived their right by not making a contemporaneous objection and moving for mistrial at the time of the joke at trial. End of Story!

By Former Trial Defense on 2013 06 28, 6:30 pm CDT

Former Trial Defense: Does it make any sense for Zimmerman to seek a mistrial, and do you see what basis he would have for a mistrial? I think I see a de minimus complaint about ineffective counsel (his joke certainly fell flat): Is that a basis for mistrial? I know too little about criminal defense.

By DC on 2013 06 28, 6:52 pm CDT

DC, essentially trial strategy belongs to the attorneys, so any move for mistrial should be made by the attorneys representing the party. Here, the motion for mistrial would have to be made by the state (ie, the prosecution) if they felt it was warranted. As to the issue of ineffective counsel, that would belong to the defendant (Zimmerman), however, that is a post-trial issue that a defendant would not raise if they where acquitted (ie found not guilty). Certainly, if the defendant (Zimmerman) was convicted (found guilty) he could raise the issue of ineffective counsel post-trial.


By Former Trial Defense on 2013 06 28, 7:15 pm CDT

It was appallingly poor judgement. Still, if a mistrial motion isn't made *PDQ*, it's going to be waived forever. You don't get to peek and see how this trial is going before making the objection. I don't see that the judge would grant it even if he/she agreed how poor the judgement was; at most, the defendant would be allowed to remove the lawyer from his defense team. You can't poll the jury to see if the joke did "damage". The lawyer also did not make any legal error or fail to secure some legal right, so it doesn't seem to be "ineffective assistance", per se. It's just one of those things within the zone of judgement of an attorney that probably none of the rest of us would do, but the lawyer was taking the chance that there would be some upside to it in establishing rapport with the jury. Of course that failed. But you don't get to surgically separate the chance of the upside from the chance of the downside as to judgement calls. @Kevin, you don't chalk the joke up to GZ because that's not right or honorable; the lawyer did specifically say it wasn't his client's idea, and GZ didn't look too comfortable with the joke. You can still chalk it up to the lawyer, especially when he argues to the jury what to take very seriously in the evidence, for example, but the best course is to avoid mention of it altogether. You don't need to play the game as badly as your opponent. @FormerTrialDefense, this is one of those cases where more than the verdict WILL be remembered. This case is reaching OJ proportions and we remember more than the verdict there ("If the glove doesn't fit, you must acquit", the police officer that regularly used the n-word...). I think this trial is already notable for the profoundly bad judgement of a knock knock joke on jury voir dire, and the battle over the word "cracker".

By Adamius on 2013 06 28, 8:27 pm CDT

Former: Good link. Dershowitz must have been speaking loosely.
For Adamius: I think the line I'll always remember is "That's really retarded, sir."

By DC on 2013 06 28, 8:48 pm CDT

Knock knock. Who's there? George Zimmerman. George Zimmerman who? I'm George Zimmerman - bang you're dead!

By Anthony on 2013 06 28, 9:39 pm CDT

i agree that if GZ had fired West asap following the opening, this would be a slightly different trial at least in "feel" (but probably the same outcome). as it is, it seems to me, although i am not a lawyer just yet, that stalking then confronting someone not committing any crime, where a fight eventually ensues and the stalker shoots and kills the person being stalked, this will not go over too well with a jury. white black asian hispanic female male young old rich or poor, makes no difference. they are likely reasonable people. i dont think what happened in the fight will make much difference. his injuries to GZ are not significant enough to move a jury when they can see the 17 yr old lying face down in the grass dead. the witnesses have mixed interpretations, so the jury will resort to their common sense given the proven timeline and with what they know structurally -- armed man stalks victim, stalker confronts victim, stalker kills victim. when i look at the florida 2nd degree statute, conviction by the jury looks likely. will a pro care to back me up, or straighten me out?

By CA Law Student on 2013 06 28, 11:03 pm CDT

Dershowitz himself is the biggest problem here - I agree with Vermont Lawyer (#13) about him.
I think he's bitter and intemperate in his frequent shoot-from-the-lip, hyperbolic and extremely binary thinking. It seems his every comment over many years has been that (you-name-it) is totally intolerable.

In fact, I don't see how anyone can evaluate the nature or degree of defense counsel's error - or even whether it was a mistake at all - unless we know how the jury reacted. Sure, it was lame and insensitive. But if they laughed, maybe it was his best move. If they groaned, maybe not. If they sat stone-faced, a definite disaster.

I doubt Dershowitz knows the difference - or even knows the facts. And I doubt he cares.

By Avon on 2013 06 29, 3:01 am CDT

@19 "If you are the prosecution, do you not run with that idiotic move in your closing argument? I think they take it and paint the picture that GZ thinks this case is funny; he doesn’t take it serious; this is a joke to him - and has been since the beginning when his own lawyer stood up and told you folks a knock knock joke."

If I was one of the jurors and the prosecution made this argument, I would consider it an insult to my intelligence. Could the prosecution point to any other evidence that GZ is not taking this seriously? The prosecution should make reference to the joke, but not overplay it.

By buzzflood on 2013 07 01, 6:11 am CDT

@22 "Who remembers the scores of any of the super bowls? Nobody"

27-10! Unfortunately, I can't forget it. But, at least we had fun on Bourbon Street, afterwards.

By buzzflood on 2013 07 01, 6:22 am CDT

Mistrial would be the biggest mistake they could make. From what I have seen on TV the defense is winning and if the lead detetive testifies like ABC predicts today, it is all over unless they put Zimmerman on the witness stand.

I had the pleasure of meeting Dershowitz once. Brilliant man who in my opinion could not poor piss out of a boot. Knock Knock a big mistake but they have been kicking ass ever since

By Law Office of Larry P. McDougal on 2013 07 01, 1:25 pm CDT

Comment removed by moderator.

By Commercial Appraiser on 2013 07 01, 9:50 pm CDT

Dershowitz has stuck his foot in his mouth more than a few times lately. BTW - he is not a trial lawyer. But that is no excuse, for him or for whoever published such nonsense.

By HealthLawyer on 2013 07 02, 10:37 pm CDT

Comment removed by moderator.

By Commercial Appraiser on 2013 07 02, 10:59 pm CDT

Comment removed by moderator.

By Commercial Appraiser on 2013 07 02, 11:35 pm CDT

I agree with Denver Spectator; lame and inappropriate, but won't matter in the greater scheme of the case.

By Ky. Lawyer on 2013 07 06, 6:12 pm CDT

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