Sometimes,
you
don’t
have
to
make
every
argument
in
the
alternative.
For
example,
the
prosecutors
in
Littlejohn
v.
State
of
Texas
had
a
number
of
avenues
to
challenge
a
competency
evaluation
request
from
the
defendant’s
counsel.
The
defense
sought
to
check
the
defendant’s
mental
competence
after
learning
that
the
court
clerk
observed
the
defendant
masturbating
during
testimony
at
the
punishment
phase
of
his
trial.
We’ve
all
heard
some
wanky
testimony
before,
but
this
takes
it
to
another
level.
The
judge
and
defense
counsel
both
said
they
hadn’t
seen
it.
The
jury
didn’t
report
seeing
it.
And
the
defendant
denied
it.
But
the
thing
about
someone
masturbating
under
a
table
is
that
they’re
probably
trying
to
keep
it
hidden.
So,
trusting
the
court
clerk’s
observation,
defense
counsel
requested
a
competency
evaluation.
The
judge
declined.
Littlejohn
was
sentenced
to
18
years,
which
was
not
the
happy
ending
he
hoped
for.
On
appeal,
the
defendant
argues
the
trial
court
should
have
conducted
an
informal
competency
inquiry
based
on
this
incident.
The
defendant
also
went
on
a
jag
about
everyone
trying
to
“voodoo”
him,
as
one
would
expect
from
a
totally
fit
party.
The
Harris
County
District
Attorney’s
office
filed
its
appellate
brief,
arguing
that
the
trial
court
didn’t
abuse
its
discretion.
Prosecutors
argued
that
the
clerk
never
formally
testified
to
having
seen
anything
(fair
enough),
disruptive
behavior
is
not
conclusive
of
incompetence
(makes
sense),
stopping
trials
for
competence
evaluations
for
every
act
like
this
could
incentivize
defendants
to
use
inappropriate
behavior
to
stall
or
derail
their
cases
(certainly
worth
considering)….
And
that
even
if
he
did
masturbate
in
open
court,
the
fact
that
he
kept
it
hidden
from
most
of
the
room
meant
“appellant’s
alleged
masturbation
is
not
some
evidence
suggesting
that
he
was
unable
to
display
appropriate
courtroom
behavior.”
Oh
come
on!
“If
a
defendant
masturbates
in
a
courtroom
and
no
one
is
around
to
see
it,
is
it
really
inappropriate?”
is
the
legal
Zen
koan
no
one
asked
for.
This
may
not
be
a
“make
O.J.
try
on
the
gloves”
level
of
overreach,
but
it’s
up
there.
After
just
arguing
that
treating
this
as
an
automatic
competency
evaluation
trigger
would
just
reward
acting
out
to
delay
justice,
there’s
nothing
to
be
gained
by
arguing
well,
actually,
it
was
so
discreet
that
it
shouldn’t
really
count
as
inappropriate.
Just
because
he
could
keep
it
to
himself
doesn’t—STOP.
You
know
what
I
mean,
get
your
minds
out
of
the
gutter.
Additionally,
appellant’s
ability
to
hide
his
actions
from
the
jury,
the
judge,
and
even
his
own
attorney
seated
3
feet
from
him
show
that
he
was
able
to
conceal
his
inappropriate
actions
from
the
participants
of
the
trial.
This
fact
shows
that
even
if
the
record
contained
a
suggestion
that
appellant
masturbated
during
his
trial,
he
did
so
in
a
way
that
did
not
disrupt
the
proceedings.
“Pics
or
it
didn’t
happen”
as
legal
standard.
Masturbating
in
court
probably
should
trigger
a
competency
evaluation.
If
he
passes,
he
passes,
but
why
not
err
on
the
side
of
“jacking
off
in
court
might
be
an
issue.”
Nonetheless,
the
prosecutors
presented
a
perfectly
viable
argument
that
this
either
didn’t
happen
or
if
it
did
the
court
was
within
its
rights
to
decide
the
action
wouldn’t
be
enough.
Adding
that
last
argument
in
the
alternative
just
makes
the
whole
thing
look
silly.
They
put
forward
a
credible
argument
and
then
they
introduced
just
enough
of
an
eye
roll
to
invite
skepticism
about
the
whole
brief.
They
explicitly
did
not
request
oral
argument,
so
we’re
judging
this
based
solely
on
what
was
inside
those
briefs.
Oh
no.
“Based
solely
on
the
filings,”
I
mean.
(Brief
on
next
page…)
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