by Tony Bornstein
The Oregon Defense Attorney – November/December 2011
When I was a new criminal defense lawyer, I got to know John Henry soon after I moved to Oregon. Joining with the National Criminal Defense College, he helped lead a boot camp on closing argument. Awed by his demo summation, I decided it would be worth my while to watch him in court. So, when time permitted, I attended his hearings and trials. Those court sessions served as clinics in zealous advocacy.
“Your Honor, I do not believe it is the office of this court to give the district attorney a course in trial skills.”— John Henry Hingson, III
In one DUII case, a young prosecutor had a devil of a time authenticating the test tube that led to the inculpatory blood test. The sympathetic trial judge came to his aid by laying the foundation for him. John Henry jumped to his feet: “Your Honor, I do not believe it is the office of this court to give the district attorney a
course in trial skills.”
He regularly delivered summations the rest of us would not dare to make. An especially memorable one came after the arresting officer’s testimony contradicted his client’s. In that situation, as we all know, the client’s word will rarely carry the day. To level the playing field, John Henry argued: “In 1963, Martin Luther King told the country that he longed for the day when his children will be judged not by the color of their skin, but by the content of their character. In this Oregon county, I long for the day when a witness will be judged by the content of his testimony, and not by the color of his uniform.”
John Henry approaches motion practice with singular originality. There’s no better – or gutsier – example than his challenge to a search warrant. Sensing that an inordinate percentage of warrants were being issued from a particular judge’s chambers, John Henry engaged a professional statistician to demonstrate that it was impossible to explain the excessive visits by police to this one judge merely as a product of chance. Armed with strong empirical support, he argued that the police had engaged in impermissible “judge shopping” in order to secure an otherwise shaky search warrant. At the suppression hearing, the trial court, perhaps deciding it wise to sidestep that thorny issue, suppressed the evidence as obtained without probable cause.
In another case, knowing that witnesses often change their stories, John Henry decided not to let the government’s original disclosure stand as the final word on discovery, so he came up with
a “Motion to Disclose Amendments to Statements.” I had never heard of such a thing, but decided it was worth a try. So I filed one in my next big case, and the prosecutor confessed that the victim had indeed backed off a key allegation. A robbery charge was dismissed on the spot.
Both in writing and in court, John Henry is refreshingly plain spoken. He cross examines police officers about their academy course in testifying: “Now officer, at witness school. . . .” In one post-conviction brief, he argued that defense counsel negligently failed to challenge the stop of his client’s car. Eschewing legalese, his caption read simply: “Why No Motion to Suppress?” Once, after winning his pitch for broad access to the government’s evidence, the judge allowed him to prepare the discovery order. He penned this gem for the court’s signature: “Order Requiring Government to Lay All Its Cards on the Table.”
I’m also told of a case in which an officer, having arrested the driver for DUII, left him in the breath test room while he called his lawyer. Apparently, the client noticed that a tape recorder was left running during his call. John Henry argued that the recording violated several electronic surveillance laws. His caption: “Motion to Dismiss Because The Police Officer Committed More Crimes Than Defendant is Alleged to Have Committed.”
Taking seriously his role as brother-in-arms for the defense bar, John Henry generously gives of his time, serving on NACDL’s Strike Force, readily sharing his motions and memos, and discussing his ideas over the phone. A great teacher, he has delivered countless inspiring and instructive CLE presentations. He is also tremendously encouraging. The day before a difficult appellate argument I once had, he left an encouraging message on my phone that was a huge confidence builder.
As he has been there for all of us, please join OCDLA in paying a richly deserved tribute to John Henry as he receives the Association’s Lifetime Achievement Award. Reserve a spot for dinner at the Benson on December 2nd!