On the Franklin & Bash episode aired June 23 ("Bro-Bono"), the prosecutor makes a Penn & Teller reference, and in my opinion, not an apt one. ADA Janie Ross, Peter Bash's former girlfriend, who is often assigned to prosecute his cases (are there no other ADAs in that office? how odd) objects to one of the pair's shenanigans in court. As Mr. Franklin flips opens a beer and proceeds to imbibe (in open court), working on a theory of their case in order to try to acquit their client, the judge senses that his courtroom is rapidly becoming a circus.
Mr. Bash: "We're arguing that it takes time for alcohol to be absorbed into the body. Mr. Franklin is demonstrating that to the jury." The judge: What's going on here? Ms. Ross: "Your Honor, may we approach the bench with Penn and Teller?"
First, nothing about Franklin & Bash's inappropriate demonstration is remotely magical. Why Janie Ross uses any magician's name in referring to them is beyond me. They aren't using any sort of misdirection, for example. Everyone can see Franklin opening the beer and drinking it; the question is why? Even after his partner explains the reason, the question is still why? If you want to explain to the jury that alcohol takes time to be absorbed into the bloodstream, call an expert witness. Don't drink the alcohol and then ask the police officer to test your partner's responses with a breathalyzer, which is what these two clowns do. (I said they turned the courtroom into a circus).
Second, judges frown on lawyers (particularly prosecutors) who make the "magician" argument. Comparing opposing counsel to a magician is bad form. In extreme cases, it might be grounds for reversal. As I discuss in a recent article, U.S. appellate courts in general disapprove of lawyers who use magical terms or refer to opposing counsel as magicians. For one example of how appellate courts treat the magician argument, see State v. Nasi, 2005 Wash. App. LEXIS 831 (excerpt below).
Because calling counsel a magician has negative connotations, we do not encourage the use of this metaphor. To protect the integrity of the adversarial system, prosecutors should be exceedingly careful, when commenting on defense counsel's strategy, not to improperly disparage defense counsel or defense counsel's role.
Third, Penn & Teller have said and written repeatedly that they don't drink alcohol. See Penn & Teller, How To Play In Traffic (1997), and numerous interviews, and I would think that most people who have heard of the pair know that. So, I wouldn't compare a beer-drinking lawyer in a courtroom (even one doing so to make a point for his client) to P&T. Even a fictional one. Even on TV. It just doesn't make sense.
Finally, the only reason that I can think of for using a magical analogy is to sway the jury. If a lawyer is going to use a magical analogy, she had better be sure it's a good one. Janie Ross's P&T analogy isn't a good one. As I noted before, Franklin & Bash aren't performing any kind of magic here. Franklin is drinking beer and then plans on a breathlyzer test. Neither Franklin nor Bash leads up to nor continues with any kind of "magical" reference. I think Ms. Ross is just trying to use the P&T name for reasons of her own, reasons which I, at least, don't understand. The reference may in fact, help her opponents, since the jury may identify them with the popular magicians. So, what exactly did the writers have in mind?
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