Criminal

Another good DWI Jury Selection

By October 20, 2016 No Comments

DEFENSE COUNSEL: Good morning, ladies and gentlemen. I’m one of the defense attorneys. My client is here. And I’ve represented him throughout the pretrial prospect in this case. I’d like to start by showing you a brief video.

Okay. There are eight of you on both rows, so I’d like for the first row– We’ll call you the Black T-shirt team, you guys in the back White T-shirt team. There’s gonna be a group of about six women and they’re gonna be throwing a basketball to each other. So the Black T-shirt team I want you to count the number of times the ball’s thrown to the other team member. And the White T-shirt team same thing. Count the number of times that the ball is thrown to each other.

Has anyone seen this before?
VENIREPERSON: (Raises hand)
DEFENSE COUNSEL: Okay. You’ve seen it?
VENIREPERSON: (Nods head up and down)
DEFENSE COUNSEL: Okay. Then you can kind of abstain. Okay? If you wanna whisper to him, that’s fine, or whisper to her, because she’s cute. Okay?
Can everyone see?
(Video playing)
(Video stopped)
DEFENSE COUNSEL: Okay. So correct number of passes. Anyone get a number different than 16?
What did you get, sir?
VENIREPERSON: Fifteen.
DEFENSE COUNSEL: Mr. Tatum, right?
VENIREPERSON: Yes
DEFENSE COUNSEL: Okay
Who else raised their hand with a different number?
Ms. Carter-Irvin.
VENIREPERSON: Fourteen.
DEFENSE COUNSEL: Fourteen,
Mr. Kinchen?
VENIREPERSON: Fourteen.
DEFENSE COUNSEL: Now, did anyone see the gorilla that came across?
VENIREPERSON: Yes.
VENIREPERSON: Uh-huh.
Defense Counsel: Was there anyone that didn’t see the gorilla? Raise your hands. It’s about half the group. Okay?
Did anyone notice that one of the team members stepped off the stage? Did anyone not see that? All right. That’s pretty good. That’s pretty good. And did any one notice that the background changed? Did anyone notice that?
VENIREPERSON: No.
VENIREPERSON: No.
DEFENSE COUNSEL: So no one noticed that? Correct?
Okay. Well, let’s just look at it a little bit more. I’m not gonna take up a lot of time with this. Asking the same questions I asked. And then I’ll play it backwards a little bit slowly so you can see those things.
(Video playing)
(Video stopped)
DEFENSE COUNSEL: And that’s that. Hopefully that will be the only monkey business we’ll be engaging in this morning.

Ladies and gentlemen, I’d like to ask you to give me the same amount of attention that you gave that video when you were counting the number of throws. Okay? And the reason why is because these things we talk about are confusing. And I noticed that a lot of you have never served on a jury. Okay? But this is—What we’re talking about is Mr. Vaughn’s liberty here. So it’s very important to me, because I’m the thing, the person, the advocate that is between you and him and the determination, the decision of guilty or not guilty.

Okay? So I would ask you to do just a few things.

One is to please pay attention, be honest. If I—If you don’t know the answer, if I’m Being – if I ask it badly, just say I don’t—I don’t understand the question. If you feel a certain way—We may tell you that the law feels—law tells you to do this, but you may still feel a certain way regardless of what the law is. And that’s okay. Because those are the answers that I want to hear if you’re being truthful. Okay? Can we agree to do that?

VENIREPERSONS: Yes.
MR. CLAYTON: We kind of went on about this. The only thing I can say is the less you speak the more likely you are to be on the jury. Just kind of a rule of thumb.
And this was sort of alluded to by Hannah. She’d asked about anyone being arrested. Is anyone a member of law enforcement or a retired member of law enforcement? I think someone was an airport police officer.
Right, Mr. Sauceda?

VENIREPERSON: Yes.
MR.GRAHAM: Okay. Did you retire from that?
VENIREPERSON: No. I put in three years and then left.
MR.GRAHAM: Okay. Was it in San Antonio?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Okay. How would you describe the experience? Good, bad, or indifferent?
VENIREPERSON: Indifferent. I was primarily hired out of a group because of the anti-hijacking program. Everybody was starting to hijack airplanes and take ’em to Cuba. And then the United States enacted security guards at the check points.
DEFENSE COUNSEL: Okay.
Does anyone have family or a spouse that is in law enforcement, whether it’s being security or.
Yes, sir.
VENIREPERSON: My brother-in-law’s retired FBI and now he’s an investigator for the state of New York.
MR.GRAHAM: Is that where—Are you from New York also?
VENIREPERSON: Twenty years ago.
DEFENSE COUNSEL: Okay. That’s Mr. Gleason. Who else raised their hand?
Okay. Ms. Smithey?
VENIREPERSON: Uh-huh. My son-in-law is an Arlington police officer.
DEFENSE COUNSEL: And then Mr. Sauceda.
VENIREPERSON: Brother-in-law is DPS.
DEFENSE COUNSEL: And that’s— He’s in Texas?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Mr. Stephens?
VENIREPERSON: I have a couple of cousins that are cops in Arlington.
VENIREPERSON: Sir?
DEFENSE COUNSEL: Yes.
VENIREPERSON: My wife’s uncle’s a judge.
DEFENSE COUNSEL: Wife’s uncle. Okay. Is that—Where is that?
VENIREPERSON: Dallas County.
DEFENSE COUNSEL: Is it civil or criminal court?
VENIREPERSON: You know, I don’t know.
DEFENSE COUNSEL: What’s—Do you know the name?
VENIREPERSON: [ Unintelligible] DEFENSE COUNSEL: Okay. He’s in County Criminal Court Appeals 2.
VENIREPERSON: Good to know.
DEFENSE COUNSEL: Okay. Any—Anyone a member of MADD or any other alcohol public safety?
Okay.
All right. Here’s the question. I have
It scaled. I have scaled the answers.
The question is “If a person has consumed any amount of alcohol and drives, that person is guilty of driving while intoxicated.”
Mr. Gleason, what number would you choose.
VENIREPERSON: Four.
DEFENSE COUNSEL: What about you, Ms. Foreman?
VENIREPERSON: Probably four.
DEFENSE COUNSEL: Okay. And Mr. Reese?
VENIREPERSON: Yes, sir. Four.
DEFENSE COUNSEL: Mr. Kinchen?
VENIREPERSON: Four.
DEFENSE COUNSEL: And Carter-Irvin. Ms. Carter-Irvin?
VENIREPERSON: Four as well.
MR.GRAHAM: Ms. Palmer?
VENIREPERSON: Four.
DEFENSE COUNSEL: Ms. Watson?
VENIREPERSON: Four.
DEFENSE COUNSEL: Mr. Tatum?
VENIREPERSON: Four.
DEFENSE COUNSEL: Mr. Ratner?
VENIREPERSON: Five.
DEFENSE COUNSEL: Mr. Meraz?
VENIREPERSON: Number four.
DEFENSE COUNSEL: Are you related to Cynthia Meraz?
VENIREPERSON: No
MR.GRAHAM: Okay. Just curious. Charles Jackson?
VENIREPERSON: Five.
DEFENSE COUNSEL: Joseph Cox?
VENIREPERSON: I’m gonna do five also.
DEFENSE COUNSEL: Ms. Ruiz?
VENIREPERSON: Four.
DEFENSE COUNSEL: Ms. Smithey?
VENIREPERSON: Four.
DEFENSE COUNSEL: Anthony Sauceda?
VENIREPERSON: Four.
DEFENSE COUNSEL: And Mr. Stephens?
VENIREPERSON: Three.

DEFENSE COUNSEL: All right. So all of you answered four or five other than Mr. Stephens. And you’re the last. Just happens to be the first for follow up. So you somewhat agree. Tell me what your thoughts are on that.
VENIREPERSON: Drinking’s drinking I mean, that’s a possibility of impairing yourself,
period.

DEFENSE COUNSEL: Okay. So if you’ve had a drink, you would say—If a person’s arrested – or stopped and they have alcohol on their breath, they should be arrested for DWI? Is that—Am I taking too much license with what you think?

VENIREPERSON: I don’t drink so yeah. I mean, I wouldn’t mind having no one drinking on the roads because drinking and driving’s pretty bad.

DEFENSE COUNSEL: So is it fair to say – This is a DWI charge—because of that thinking would you not be able to be fair to Mr. Vaughn if he’s had any alcohol and is driving?

VENIREPERSON: If he’d been drinking, he shouldn’t have been driving. That’s my thought. I mean, I – It goes to how much you had and how impaired you are. Some people – like the heavy weight and light weight question. So it’s all about the evidence. I mean, if he has—if he has alcohol on his breath, according to a calcu – like something that has a number on there, you shouldn’t have been driving. That’s my opinion.
DEFENSE COUNSEL: Okay. So–

VENIREPERSON: A number shows up on the – on the alcohol thing, you shouldn’t have been driving.  
DEFENSE COUNSEL: Okay. You’d find him guilty if there was proof of any alcohol at this point?
VENIREPERSON: Uh-huh.
MR.GRAHAM: Okay. You understand—because Hannah explained–What’s your last name, Hannah?
MS.BELL: Bell.
MR.GRAHAM: Bell.
Ms. Bell explained that for the State to prove this case they have to prove all the elements. The driving—or operating a motor vehicle in the county on a certain day and the person was intoxicated. And nothing in that definition says because they had alcohol. They had—There was introduction of alcohol. And if the person lost their mental or physical faculties or if they provided a specimen of blood or breath that’s over .08. Are you saying that–

VENIREPERSON: They have to—Proof means- If you can give me a readout saying that he was drinking, then he was drinking. Other than that—I mean, people can have a toe problem and not be able to pass the tests. People don’t know how to read and write, I mean, so they’re not able to pass the test. Proof to me is evidence you can take on a piece of paper and go home with it.

DEFENSE COUNSEL: Okay. So if there’s a piece of paper and it shows any alcohol, you would vote guilty?
VENIREPERSON: Uh-huh.
DEFENSE COUNSEL: Yes?
VENIREPERSON: Uh-huh.
MR.GRAHAM: Okay. That’s fine. That’s — That’s what I wanna hear. Thank you for your honesty, sir.

Okay. Let’s talk about your role. I combined the role of the juror and the jury because this is kind of a—I don’t know if you’ve ever heard of the Gestalt’s theory. “The sum of the whole is greater than its parts. “Well, so let’s talk about that. The jurors, each of you as an individual, who are the six remaining, are the exclusive judges of the credibility of witnesses and the evidence to be presented. And I think you- all pretty much covered what you would see. You’re probably gonna see a vIdeo along the roadside, a video at a station. You’re gonna hear from officers and their impressions of what they saw along the roadside. And based on that you make a decision. But you individually decide whether or not the evidence is credible or whether those witnesses are credible, whether or not you believe them. Do you 

Believe them a little bit, do you believe them beyond a reasonable doubt.
Is everyone clear on that?
Mr. Cox, any questions about that?
VENIREPERSON: No.
DEFENSE COUNSEL: Ms. Smithey, are you following me?
VENIREPERSON: Yes.
DEFENSE COUNSEL: All right.
So a juror can accept all or none of the testimony or evidence presented. You can disregard all of it or you can just take it all as true, but you are the one that’s gonna judge it. And the other thing is you guys don’t have to agree. In order for us to get a verdict—which verdict Is a word that loosely translated means the truth. Veredicto. We call it true verdict, which sounds redundant. But you don’t have to agree.

I kind of compare—as far as patriotic symbols go a juror is kind of like an eagle. Because an eagle to me is the ultimate patriotic symbol of independence. They—The eagle flies alone, you know, hunts alone and spends most of its time alone, unfettered by—by what other things—only by the wind really. So that’s– that’s you. You have a vote
And you stick with your vote.

Now, when you deliberate, things can happen. There can be one of you voting one way, five of you going you’re crazy. Stick by you rvote. Okay? Unless there’s a reasonable reason that doesn’t violate your conscience, you stick with your vote. Okay?
Whichever the direction. Okay?

Every one clear on that?

Judge Hardy is a neutral participant. She directs the trial. I think she’s already explained it to you very well. She’s a neutral participant. She’s calling balls and strikes. If I get up and say objection, Your Honor, blah, blah, blah, she’s gonna say overruled or she’s gonna say sustained. If she says sustained, then the question can’t be asked; if she says overruled, then I need to sit back down. Okay? And when she is making a ruling, she’s not commenting on the evidence. She’s not saying, well, I think a certain way about this outcome, so I’m gonna– I’m gonna control it in the way that I rule on it. That’s not what– That’s not her role. Is everyone clear about that? Like she said, she doesn’t know anything about the case. She knows as much as you do, which is nothing, other than the fact that, you know, that there’s a charge and it’s my client, Mr. Vaughn, who’s sitting over there.

We’ve already gone through that

I put this in a little bit different terms than what Ms. Bell described. So the question is ”I would automatically put more weight on the testimony of a police officer. “Same scale of questions by number. Take a look at it.

VENIREPERSON: Can you qualify that? Versus anyone else? Versus Mr. Vaughn? Versus what?
DEFENSE COUNSEL: Versus any other witness. Putting more weight on them would be– I’m saying that you put more weight on the officer, give them more credibility–
VENIREPERSON: Than anyone else that gets up there?
DEFENSE COUNSEL:–Yes.—based solely on the fact that they’re an officer.
VENIREPERSON: Okay.
MR.GRAHAM: Okay? Does that make sense?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Great.
Mr. Ratner, what would your number be?
VENIREPERSON: Four.
DEFENSE COUNSEL: And Mr. Meraz?
VENIREPERSON: A four.
MR.GRAHAM: Mr. Jackson.
VENIREPERSON: Qualify that a little bit more. You talking about a person or you just talking about policemen?
DEFENSE COUNSEL: Well, kind of both. Sort of—I wanna separate the two. When you associate–
VENIREPERSON: Every– every—every person—In my opinion, every person’s a little bit different. Just because they wear a uniform doesn’t mean they all wear it the same way.
DEFENSE COUNSEL: Yes, sir.
VENIREPERSON: So, you know, I wouldn’t weigh him any different than anyone else.
DEFENSE COUNSEL: So sounds like your answer would be four. I’m not putting a number in your head, but…
VENIREPERSON: Yeah.
DEFENSE COUNSEL: Okay. Thank you, Mr. Jackson.
Mr. Cox.
VENIREPERSON: I’m saying four. And it’s because of the word “automatically.”
DEFENSE COUNSEL: That is—That is kind of a conditional word in the question.
Ms. Ruiz?
VENIREPERSON: Four.
DEFENSE COUNSEL: Ms. Smithey?
VENIREPERSON: Four. And I apologize. I thought my phone was off.
MR.GRAHAM: That’s okay. I didn’t hear a thing.
Mr. Sauceda?
VENIREPERSON: Number four.
DEFENSE COUNSEL: Mr. Stephens?
VENIREPERSON: Four.
DEFENSE COUNSEL: Mr. Gleason?
VENIREPERSON: Four.
DEFENSE COUNSEL: Ms. Foreman?
VENIREPERSON: Four.
DEFENSE COUNSEL: Mr. Reese?
VENIREPERSON: TWO.
DEFENSE COUNSEL: Two. So you somewhat agree?
VENIREPERSON: Correct.
MR.GRAHAM: I’ll get back to you on that.
Mr. Kinchen?
VENIREPERSON: Well, four.
DEFENSE COUNSEL: Ms. Carter-Irvin?
VENIREPERSON: Four as well.
DEFENSE COUNSEL: Ms. Palmer?
VENIREPERSON: Four.
DEFENSE COUNSEL: Ms. Watson?
VENIREPERSON: Four.
DEFENSE COUNSEL: And Mr. Tatum?
VENIREPERSON: Four.
DEFENSE COUNSEL: Mr. Reese, you said number two, correct. You somewhat agree?
VENIREPERSON: Correct.

MR.GRAHAM: And what is the–what—Can you qualify that for us?
VENIREPERSON: Sure. I mean, I think—may be not necessarily on the truth fullness. I wouldn’t necessarily just assume somebody because they’re in a uniform would be completely truthful, but I do think that they’ve been trained to do their job. They’ve got the certification to perform the test and to recognize impairment. And so, yeah, I would—I would give them a little more weight when it comes to assessing that. But that being said, I wouldn’t necessarily believe everything just because they’re an officer.
DEFENSE COUNSEL: Okay. Kind of make it simple. You don’t give ’em a leg up just because they’re a police officer?

VENIREPERSON: No, not from a truthfulness standpoint.
MR.GRAHAM: If all the witnesses—If
Being a witness meant running a race, a 100 yards, you’re not gonna start the police officer 10 yards ahead of every on else?
VENIREPERSON: No.
DEFENSE COUNSEL: Okay. Does everyone agree with that?
VENIREPERSONS: Yes.
DEFENSE COUNSEL: It’s a race. No one runs until the blank is fired. Right?
Let’s talk about normal. Who’s normal? Anybody volunteer to be normal?
Ms. Meraz, what makes a person normal? If you were gonna say I’m normal, why am I normal? Because I’m not. I don’t know with your normal is, right?
VENIREPERSON:(Shakes head side to side)
DEFENSE COUNSEL: I don’t know your normal either, do I?
VENIREPERSON: No.
MR.GRAHAM: We’re all strangers here, so we don’t really know what we normally do. Okay? So what is normal? Is it subjective? Do you need some experience with a person to know what they normally do? That’s why we go see a doctor, right, if we don’t feel well. Because we’re not upto snuff, we don’t have the energy we normally have. So what is normal?

VENIREPERSON: Average?
DEFENSE COUNSEL: Drum roll. Long drumroll. It’s a town in Illinois. And they’re having a ukulele fun jam next week, if you can make it. It’s two to four right now on Main Street. And there are some people picking and grinning.
Okay. Standardized field sobriety tests. Has anybody seen these? Know what I’m talking about?
Mr. Sauceda, you familiar with these?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Okay. So they’re standardized.
What does standardized mean to you? Who’s a technical person? Somebody works at a lab, works at Abbott?
Yes, sir.
VENIREPERSON: It’s a–It’s a list of criteria that must be met every time that you do that so that you’re not biased one way or the other.
DEFENSE COUNSEL: Okay. The—The results can be replicated and get the same result. Would that be fair also?
VENIREPERSON: Yes.
MR.GRAHAM: With human tests we have to
Take in to account certain things, don’t we, if we’re giving a standardized… Things like age, height and weight. Perhaps injuries. Because we’re talking about physical tests. If I’ve got a blown out knee, I probably can’t stand on one leg very well, or if I’ve got a blown knee and a bad back, then this is not—this is not the stance for me.
Okay. And let me just ask any of you—or all of you. Does anyone stand like this in their job? You can’t see me. Like this. One foot behind the other?
You’re a physical therapist, right?
VENIREPERSON: I am.
MR.GRAHAM: Okay. Let me ask. Do you have your patients, your clients, doing stuff like this?
VENIREPERSON: Uh-huh. People say I couldn’t pass that before or are you a police officer. It’s so funny.
DEFENSE COUNSEL: Just a train wreck.
VENIREPERSON: Yeah.
DEFENSE COUNSEL: But you’re doing that to generate their flexibility, their mobility and their strength, right?
VENIREPERSON: And balance.
DEFENSE COUNSEL: Balance.
VENIREPERSON: And reaction time.
DEFENSE COUNSEL: So people who come see you aren’t normally sober, are–aren’t normally intoxicated, are they?
VENIREPERSON: Exactly. Other impairment.
DEFENSE COUNSEL: Okay. So they have to practice a little bit in order to get—to nail that—those types of things?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Anybody else do this type of –stand like this? Stand on one leg in their job? Is this something that people normally do?
VENIREPERSON: They do it for split seconds without realizing it.
DEFENSE COUNSEL: Kind of like if you’re marching?
VENIREPERSON: When you put your pants on one leg at a time, you’re standing on one leg.
DEFENSE COUNSEL: Right. Okay. So kind of an occupational therapy?
VENIREPERSON: Yeah. I’m just gonna take my little stand here.
DEFENSE COUNSEL: Stand taken.
THE COURT: You have three more minutes
DEFENSE COUNSEL: Thank you, Judge.
Okay. Little bit on this. Technology or computerized instrument. Does it always reliably and correctly measure what it’s intended to measure?
VENIREPERSON: No.
DEFENSE COUNSEL: Does anyone say, yes, it does? Think of a thermometer. Your phone. You ever got lost using your GPS on your phone? It’s–it’s– It’s giving you a road map, but it’s not taking you where you wanna go.
Were you gonna say something, Mr. Stephens?
VENIREPERSON: I mean, if there’s electricity in it and the screen’s not broken, then it’s most likely gonna be reading correct.
MR.GRAHAM: Okay. Well, let me move up a little bit because I—
We’ll get to the fundamentals. The State’s prosecutor has the burden of proof. That’s these guys right here. Ms. Bell and Zane. So they have the burden of proof. That burden of proof is beyond a reasonable doubt, as explained. She had a good step stair to show you. The Judge explained it to you.
Is there anyone that’s confused about that?
Let me ask you this. What does Mr. Vaughn have to do?
VENIREPERSON: Nothing.
DEFENSE COUNSEL: That’s right. Nothing. Here’s what– Here’s what it is. We’re in trial because we have a dispute. Okay? They’re saying we’ll do this, you plead guilty. He said—What do you think he’s saying? Prove it. He’s saying prove it. That’s all he has– That’s all he has to do. When we’re here today, symbolically, we’re saying, oh, yeah. Prove it Everyone clear? And that ‘d be the same for all of you, that ‘d be the same for me if I was sitting where Mr. Vaughn is sitting.
Mr. Vaughn’s presumed innocent. And he’s not legally required to testify to prove to you that he is innocent and you as a juror cannot hold that against him.
Every one clear on that?
Ms. Foreman, you understand that?
VENIREPERSON: Yes.
DEFENSE COUNSEL: Just went over this.
Now ,usually we’ll think of some other words that mean these words, but because of the
Necessity of time I want you to just consider another word that goes with this. Because we can’t give you a definition of beyond a reasonable doubt. You use your common sense. But break it down and look at it and see what you come up with internally.
THE COURT: It’s time.
DEFENSE COUNSEL: About two minutes, Judge. I think I can wrap it up in two minutes.
THE COURT: I think you should.
DEFENSE COUNSEL: Yes, ma’am.
All right. I just want to point out,
Mr. Vaughn is not required to prove his innocence. I think you guys get that, from what you’re saying. Not legally required to testify. You cannot infer guilt from his decision not to testify, and you can’t talk about his decision to [sic] testify. This mostly applies to the six of you who are gonna deliberate after—after the trial is concluded. The Judge is gonna give you a charge. Those are instructions.
She’ll read it to you, but you’ll also get a copy. This language is gonna be in that charge .That’s the law.
Can everyone follow this law?
VENIREPERSONS: Yes.
DEFENSE COUNSEL: This is more of the same.
Presumption of innocence.
This is the last thing, Judge.
The presumption of innocence is the Principle that requires the Government to prove the guilt of a criminal defendant and relieves the citizen accused of any burden to prove his or her innocence.”
So Mr. Vaughn walks in here right now, he’s presumed innocent. Presumed means you can take it for granted that he is innocent. Okay? And it’s only unless the State proves each and every element that they describe for this offense of driving while intoxicated that you would find him guilty. If you have a single doubt, and it’s a doubt that’s found in reason, then your vote is not guilty.
Is every one clear?
I don’t have to prove he’s innocent. I don’t have to do anything. Okay? You can’t consider evidence that wasn’t brought before you. What if he had done this, what if the officer had done that. That is not evidence. Only evidence you’re gonna hear is what’s gonna be played on the video screen or you’re gonna hear it at the witness stand.
I think my batteries are about done, so I’m about done.
I wanna thank you for your time and look forward to working with six of you.
THE COURT: All right. Officer, if you’ll take the jury out, please.

Francisco Hernandez

Author Francisco Hernandez

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