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Best Criminal Defense Pleading Ever!

PLN primarily reports on civil litigation involving prisons and jails rather than criminal cases. There are other resources that address criminal law; for example, Punch & Jurists (, which covers issues related to federal criminal cases.

However, when we ran across a pleading filed in a criminal court proceeding in Tennessee, it was simply too good not to report.

The pleading, a response to a May 2013 motion for limine filed by a Williamson County prosecutor in a case involving defendant Donald Powell, requested that the court prohibit Powell’s defense counsel, appropriately named Drew Justice, from referring to the District Attorney or Attorney General as “the Government.”

“The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State’s attorneys as ‘the Government’ repeatedly during trial,” Assistant DA Tammy J. Rettig wrote. “The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorneys seem oppressive and to inflame the jury.”

Justice filed a response on May 31, 2013 that squarely addressed the DA’s motion, which he summarized thusly: “The government has moved to ban the word ‘government.’”

He noted that DA Rettig had failed to provide any legal precedent for her request, that “numerous courts do frequently use the term ‘the government’ to describe the prosecution,” and that a restriction on the terminology – i.e., speech – used by defense counsel would constitute a violation of the First Amendment.

However, “[s]hould this Court disagree, and feel 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,” Justice wrote.

“First, the Defendant no longer wants to be called ‘the Defendant.’ This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. Donald Powell. The word ‘defendant’ should be banned. At trial, Mr. Powell hereby demands [to] be addressed only by his full name, preceded by the title ‘Mister.’ Alternatively, he may be called simply ‘the Citizen Accused.’ This latter title sounds more respectable than the criminal ‘Defendant.’ The designation ‘That innocent man’ would also be acceptable.

“Moreover, defense counsel does not wish to be referred to as a ‘lawyer,’ or a ‘defense attorney,’” Justice continued. “Those terms are substantially more prejudicial than probative.... 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 the opposing counsel [the Attorney General’s office]. 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.

“Along these same lines, even the term ‘defense’ does not sound very likeable. 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 [State] hereby names itself ‘the Resistance.’”

Justice concluded, “Wherefore, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”

The Circuit Court held a hearing on the state’s motion in limine on October 22, 2013, denied the motion and declined to adopt, or comment upon, the alternative semantic proposals offered by Justice in his response.

Donald Powell is scheduled to go to trial in November 2013 on a charge of attempted aggravated burglary – a felony – based on an incident that his attorney described as “supposedly knocking on the door of a house, or for being a bystander while a co-defendant knocked. Their exact theory remains unclear.”

His response to the DA’s motion to ban references to “the government” at trial, however, was perfectly clear and an apt indication that while criminal law is a serious matter, it also has its moments of humor and share of absurdities. See: State of Tennessee v. Powell, Williamson County Circuit Criminal Court (TN), Case No. I-CR086639B.

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Related legal case

State of Tennessee v. Powell