Jury Geek 2013
Our little law firm has had a damned good year... we won three out of three jury trials: a misdemeanor DWI, a federal felony involving a US Deputy Marshal accused of feeding information to a drug conspiracy, and a second-degree felony Aggravated Assault with a Deadly Weapon.
We are now at 55 trials, in a row, without a final conviction.
We also won three Motions to Suppress, including a first-degree felony codeine case and a large marijuana grow-house operation. In addition to that, we had a capital murder case remanded to the Court of Appeals for reconsideration, and lots of dismissals, reductions, and a half dozen or so deferred prosecutions...
We have added a third lawyer to our firm, Matt Buckalew, and a full time business manager, Roxanne Avery. We also have two of-counsel attorneys working with our firm, Kevin Michaels and Richard Senasac. We are adding space to our Waller County office, right across the street from the courthouse in Hempstead, TX and added another office to our space in Houston this year. We presently have cases from McAllen to Chicago and several places in between.
Morris B. Hoffman wrote a fascinating op-ed for the March 7, 2006 New York Times. In it he persuasively argues that the peremptory challenge should be abolished. Hoffman is not alone in that position: Brandeis University Government Professor Jeffrey Abramson, author of the hugely successful introduction to jury studies "We, the Jury," concurs.
WHAT IS A PEREMPTORY CHALLENGE?
The peremptory challenge is the primary tool for jury selection that lawyers have. Generally, we do not "select" jurors — we de-select them. The first twelve people in the box will be the jury unless the Prosecution or the Defendant strikes one - either through a peremptory challenge or "for cause."
A "for cause" strike is exercised when a juror is disqualified as a matter of law. Any person who is too young, not a citizen, is a felon, is insane, or fits a small number of other disqualifying points, is disqualified as a matter of law and cannot serve. Primary among these would be any juror who is so biased against one party or the other that they could not put that bias aside and judge the case on the merits.
Any person who is legally qualified to serve may be removed through a peremptory challenge. Both sides have a number of peremptories to exercise (in Texas, each side has ten in District Court (felony cases), and three in County Court (misdemeanor cases tried before 6 member jury). A lawyer may exercise a peremptory strike for any reason other than gender and race.
Accordingly, peremptories may be exercised arbitrarily; they may not be exercised discriminatorily. This is a distinction without a difference. A lawyer can say that he didn't like the juror's wardrobe, attitude, vocal inflections, eye contact, lack of eye contact, etc.; so long as he doesn't mention race, there is no problem.
I have seen jurors dismissed for having the same hair style as the defendant — the theory being that the defendant and the juror, both African-American males with the same hair style, will somehow bond due to — (not their race!!! definitely not their race!!!) — their hairstyle.
To date, I know of no example of a juror being dismissed for having the same blood type as the accused. I cannot, however, monitor every case.
Recently a Texas capital murder case concerning Thomas J. Miller El, the Supreme Court reversed, granting Mr. Miller El a new trial, due to the State's use of racially discriminatory peremptory challenged. However, every lawyer, and most people who haven't gone to law school, know that the prosecutor's sin was not in using race to exercise her peremptory challenges. It was in getting caught: i.e., in being artless enough that her subterfuges could be seen through.
After all, she didn't once mention blood type!
The peremptory challenge serves important purposes, in allowing lawyers to remove jurors who they believe, but cannot prove, are overly biased against them. Once the peremptory challenge is subverted into a tool of jury stacking, it becomes a perversion of its own principle: a tool to micromanage the biases of the resultant jury.
It would appear that Jeff Abramson has it right: challenges for cause, perhaps, should be more liberally granted (so that those borderline jurors presently removed by peremptory challenges do not sit on trials), and the peremptory challenge eliminated or their number sharply reduced. This will put an end to the jury stacking that is presently an accepted part of our justice system, and return lawyers back to the task of presenting strong cases that a jury randomly selected from average citizens will find believable.
Today, February 1, 2005, I appeared for jury duty in Harris County, Texas. I was on time - in fact, slightly early. I got there at 7:40 AM, and I was summoned to be there at 8:00 A.M.
Now, for all those who talk about making jury duty less onerous, I have a simple question: why 8 A.M.? That means leaving the house no later than 7:00 A.M. for most people. This is early. Defendants don't have to be at court before 9:00 A.M. in most cases. Why did I have to wake up an hour early?
Now, Jurygeek is a night owl. Waking up before 6:00 A.M. is not just inconvenient, but physically stinkin' painful. Moreover, I was punished for being on-time. See below!
Once there, I handed in my standard jury questionnaire (very brief: age, occupation, spouse's occupation, how many kids at home, what level of education), and sat down. Right at 8:00 A.M. they showed a boring video full of platitudes (like the lies I've complained of before), and then told us that the doors would close at 8:30.
Shortly after 8:30, they did another collection of the jury questionnaires, and then showed the boring video full of platitudes again. Because I was on time, I had to suffer through this silly crap twice! Once was quite enough to cure any insomnia I was suffering from (not a problem for Jurygeek at 8:00 A.M.), twice was simply abusive.
Shortly after that I was assigned to a venire panel going to County Criminal Court at Law #15. I was excited - a real criminal case, maybe a drug case in which my vote of "not guilty" can save some poor sap from some unjust law. Ah, the romantic musings of a venireperson!
Our venire-panel was walked over to the criminal courthouse (can't they afford buses? It was raining lightly, and few of us had umbrellas), and we assembled in the hallway outside the courtroom. And waited.
I did have a nice time chatting with a newly-licensed attorney, who was also an engineer and who hadn't made up his mind whether or not to actually practice law. We talked about how the criminal courthouse works, the jury system, and Jon Stewart (he was reading Stewart's America, and I told him that if the prosecutor saw that he'd never have a chance of getting on the jury.)
Well, about an hour and a half or more later, we were finally allowed into the sacred temple of justice otherwise known as County Criminal Court at Law No. 15. There were two lawyers and a defendant at one table. There was another lawyer at the other table. The defendant had headphones on going to his interpreter - he only spoke Spanish, as it turned out.
After we'd gotten into our appropriate seats, the judge started speaking to us. Nobody was really focusing on what he was saying, so far as I could tell. He didn't say much worth hearing, either. Even the least legally literate of us had heard it all on TV before, and even the judge seemed disinterested in the canned dialogue he was forced to recite.
The judge kept saying "Oh, and one thing I forgot," and kept going on what was obviously a word-for-word reading of whatever was in front of him. Nobody was fooled into thinking he was being spontaneous. He asked only whether any of us were not US citizens, convicted thieves, or felons, and a few similar questions.
One woman was anxious to get off the jury and raised her hand. Appears her son had been killed in a fight about a year ago, and so she was unable to be fair. She didn't even know what the case was about yet, but she was convinced she couldn't be there. Although she was ultimately dismissed, she was not excused until the end of jury selection.
Then the prosecutor stood up. Thankfully for me, he was a newly minted assistant DA, someone I'd never met there before. Great! I figured that meant he wouldn't recognize me or know to strike me from the panel. When he asked me what kind of law I practiced, civil or criminal, I said some of each. I tried to appear as indifferent as possible.
Turns out this was a family violence case in which the alleged victim was going to testify that nothing happened. Thus, the only evidence was to come from the cops, who would testify as to what she told them right after the events, supposedly as "excited utterances." Now, over the years the excited utterance exception has grown to swallow up the rule: what used to require the level of excitement that would deprive the speaker of reflection, case law now merely requires that the speaker be "upset." This type of evidence is notoriously unreliable in family violence cases, because the "upset" speaker can be looking for an advantage in a to-be-filed divorce, child custody, or child support case.
Well, any hopes I had of being on the jury faded quickly when the defense attorney got up to do his questioning of the venire. Right off the bat, he starts talking about how he used to be an assistant DA, and that he recognized me from all the cases we've done together... poof. After that, I was doomed... the prosecutor struck me off the panel after that.
Five days later, I got my check for $6.00 in the mail, to compensate me for jury duty. I spent more than that on parking, of course. But I have the check in hand, and I'm ready to spend it. Perhaps I can now buy that small Renoir I've had my eye on...
I have, for years, heard complaints that jury nullification is not protected by the United States Constitution, because it is not explicitly mentioned in that document. These objections not just wrong, but plainly so. I wish to respond to them briefly here.
First, we must look at the understanding of the jury at the time the Constitution was written. As I've discussed at length elsewhere, the Founding generation considered the role of the criminal trial jury to include discussing both law and fact. This wasn't controversial at the time of the founding. Jefferson, Franklin, Hamilton and many others supported this view.
Secondly, legal practice in the early years of this country was to instruct jurors on their role as finders of both law and fact - even in civil cases. The plainest example is in Georgia v. Brailsford, 3 U.S. 1 (1794), in which John Jay, for a unanimous Supreme Court, wrote:
"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision. "
Finally, let's look at the best understanding we can have as to what a jury was expected to BE at the time of the founding: the most popular law dictionary of the time. Jacob's Law Dictionary explicitly stated that a criminal petit (trial) jury's role was was to decide both questions of fact and law. Pretty straight-forward as to what informed people would have considered the role of the jury.
Clearly, a historical understanding of the role of the jury indicates that it was never intended to be a mere fact-finder.
WHAT DOES THE CONSTITUTION SAY?
Several clauses of the Constitution and Bill of Rights protect the jury's prerogative to deliver a verdict according to conscience. The Art. III, Sec. 2 and Sixth Amendment guarantees to trial by jury deprive the trial court of the ability to convict a defendant against the wishes of the jury. There can be no directed verdicts for the prosecution in criminal cases - even if the defendant takes the stand and admits to every element of the offense.
A defendant cannot be denied a trial by jury in any case in which the sentence is more than six months. The jury can acquit, whatever the evidence, because only they can make the decision - and no matter what the reason for their acquittal is, it stands.
But most importantly, the Double Jeopardy Clause of the Fifth Amendment prevents the Government from re-prosecuting anyone who has been acquitted by a jury -- no matter how irrational, arbitrary, or bizarre the jury's reasoning in finding the accused not guilty. Even if the jury foreman scribbles the words "because your law sucks" under the words "not guilty" - and the inscription is unanimously initialed by the jurors. Not guilty = over (at least so far as that sovereign is concerned).
Consider the situation in Russia, in which jury acquittals are nothing more than speed bumps for prosecutors. Clearly, the power of Russian jurors to nullify is non-existent. Even when Vera Zasulich was acquitted for shooting the Governor General of St. Petersburg, she would have been re-prosecuted had she not gotten out of the city before she could be re-arrested.
Such has never been the case in America. While a person acquitted in State court can still be prosecuted and convicted in Federal court (remember the trials of the L.A. police officers caught on videotape beating Rodney King), it rarely occurs. The Double Jeopardy clause of the Fifth Amendment is still alive and well. As the Pennsylvania Superior Court has noted, the Double Jeopardy interest in protecting jury nullification is "absolute," as nullification is "the highest interest protected by the principle of double jeopardy."
It is clear that at the time the Constitution was written, it was intended to protect the nullification prerogative, as the definition of the jury trial at the time included that option. It would be like guaranteeing people cars, and then saying "ah, we never mentioned anything about tires or engines." Without tires or engines, we may have a collection of automotive parts, but we do not have cars. Similarly, without the nullification prerogative intact, we may have maintained significant vestiges of the Founders' trial by jury - but we certainly don't have the whole thing.
The Constitutional right to a jury empowered to nullify is protected in the Constitution. What is not guaranteed in the Constitution (although it may perhaps be considered included under the rubric of procedural due process) is the right of a defendant to inform the jury as to its nullification prerogative. However, there is no room for reasonable doubt as to the jury possessing this prerogative under our Constitution. It is there - and it's not going away.
One thing I've always despised is lawyers who lie, in order to project what they think is the "right image" to the public. It is sick, sycophantic, and silly.
"Fiction: Attorneys only pick jurors with a college degree.
"Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate. It’s up to the lawyers to present the evidence clearly. But we count on the juries to be honest in deciding for themselves what is true and what is fair. That is not based on intelligence or education- it’s just a basic sense of right and wrong."
Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.
We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That's the way the game is played - and shame on TYLA for lying to the public and prospective jurors about it.
"Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor.
"Fact: Voir Dire is a French term that means "Speak the Truth." Prospective jurors are sworn to tell the truth so that the attorneys or judge can ask questions to find out if they can be impartial unbiased, and trusted to make a reasonable decision based on the facts of the case."
Again, any associate with THIS firm who does not ask questions designed to figure out who will help reach a verdict in our client's favor will be unemployed before Voir Dire is over. We don't want a fair jury; that is the MINIMUM we will settle for. We want a jury that will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE, vote against us.
Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I've spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we'll be caught. That's either insane or stupid.
What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted - because they lie when, if they gave any thought to it, they'd know they'd be caught by anyone with two brain cells to rub together.
Kind of disgusting, this collective indifference to reality in the pursuit of image, isn't it?
P.S. I also tell high school classes that what the judge wants is a jury that will be compliant and will return on time after lunch. Judges HATE that I say that - one judge complained so much that the Houston Bar Association will no longer use me as a speaker. But that is the institutional bias of the judiciary. If we cannot tell the public the truth about what we do and how courts operate, it seems to me we have far more to worry about than our public image. What we have to worry about is that our public image may well be accurate.
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