Criminal

Driving While Intoxicated Jury Trial Selection of a Jury

I’m going to tell you a little bit about how the
Jury selection works, and tell you a little bit about what jury
selection is. And then we’re going to talk about the law a
little bit.

But here is how the jury selection works, for
those of you who don’t know: Essentially, what happens is
there are several rules that apply in jury service. One of the
most obvious ones is that the defendant has a right to remain
silent. And a jury will be instructed at the end of the
trial.

A jury can’t consider that as any evidence of guilt. And, for
example, does anybody feel, even if the Judge gives you an instruction to the contrary,
if an accused doesn’t testify, would you consider that at
least some evidence of guilt?

Now, we know that there are people that feel
that way. Okay. All right. Well, if anybody would say, yes,
I’d consider, if someone doesn’t testify, I would consider that
as some evidence of guilt even though the rules say I shouldn’t?

Well, if you’d say that, then the Judge should excuse you from jury duty.
So does anybody want to change their answer now? Okay. That’s supposed to be funny.

You laughed; you smiled. But the point is, if a juror says
that he or she cannot follow the law, then
it’s the Judge’s job to excuse you from jury duty.

The first thing we do once you all go out in the
hallway, is we talk about, well, did any juror say something
that basically is a statement that I will not follow the law?
The Judge would disqualify those jurors. Then once that part’s
done, each side gets three, what’s called peremptory or wild
card challenges, where basically we get to strike three more
people.

Now, why am I telling you this? Well, number
one, you might be interested in how it works. But number two,
there is a direct corollary to that: We can’t tell by looking
at you if you’re going to be good for our side. No matter what
you look at, I can’t tell. Some of you are better looking than
others. But that doesn’t tell me if you’re going to be a good
juror in my case. I can tell which ones are good-looking and
which ones aren’t, but unless you say — no one gets to select
a juror.

Like, for example, if I like Ritchey, there’s nothing I can do
to select him other than not exclude him. But if I like him a lot,
they’ll probably get rid of him, and there’s nothing I can do about it.

The direct corollary is this: To get kicked off this jury, you have
to say something that someone doesn’t like. If you say nothing,
what does that do for your chances of getting on this jury? They go up
extraordinarily. So the quieter you are, the more likely
you are to be on this jury. And you can take that for whatever
you want. But if you want to be on the jury, stay quiet.

Okay? Now, so that’s how the jury selection process works.
And we kind of hint at that at times, but usually after the
trial the jury will stick around and talk to the lawyers, and
usually the first question they ask is, well, how did I get
selected for this jury? You don’t get selected; you didn’t get
eliminated. And you were leftover. The jurors who serve were
leftovers; they’re the ones who didn’t get struck. So now you
know. Now, that’s how the jury selection process works.

Now, we’ve talked about the jury — the history
of jury service. Does anybody know when in this country the
right to a jury trial came into being? I wouldn’t expect
anybody to know this, but you can surprise me, if you did. All
right. All right. In 1789 — the Constitution was passed in
1788, ratified. And then in 1789 we added the Bill of Rights,
and the 6th Amendment is — guarantees the right to a jury
trial. Now, it’s a little bit of a trick question, because
we’ve always had the right to jury trials, even before we put
it in the Constitution, but in the Constitution — because we
brought that over from Great Britain, we used their trial
process, and they had the right to a jury trial. But we made
it official in this country in 1789. Okay.

Does anybody know when the first census was in
the United States? Of course not. It was 1790, the next year.
Anybody know who was president then? George Washington. Okay.
Well, in 1790 we did a census, and you can look it up, it’s —
you can go online and find it, in 1790 — can anybody tell me
how big you think the tenth largest city in the United States
was in 1790? Anybody want to try a wild guess.

JUROR: 20,000.
DEFENSE LAWYER: Close. Six thousand. It was
5,664, I think. So the tenth largest city was less than 6,000
people. Did anybody grow up or spend any time in a city with
less than 6,000 people? None of you did? You did. All right.
So did I. Did everybody know everybody’s business in a town
that size?

DEFENSE LAWYER: If you didn’t know someone, you
knew their family or you knew where they worked. I mean, it’s
a dinky little town. And the idea of a jury, at that time —
remember, that’s a big city. That’s one of the ten largest
cities in the United States. The idea was that when the
government would come in and charge someone in one of those
small towns with a crime, those jurors all knew that person.
And we set up a system saying, well, if the government’s going
to say someone committed a crime, you know, against one of us,
it was supposed to be one of us — them against us, and they
had to really prove it to a high degree. And at least the idea
was the jury wouldn’t convict unless they were pretty darn sure
the guy was guilty.

Now cities are so big, you know, you’ve never
met this guy, and you’ve probably never — no one has ever met
him, have you? Anybody ever heard any — anybody know anybody
named District Attorney that lives in Tarrant County? So you probably
don’t know — Hill might. But you probably don’t know him,
probably don’t know his family, you’ll probably never run into
him, you’ll probably never meet him, and it becomes very
impersonal.

But it’s supposed to be a very personal thing.
And the jury that we get, according to the rules are, the jury
is — we’re supposed to get six people who will start the trial
saying he’s innocent; we presume him innocent. And you guys
have got to prove to us that he’s not; prove to us that he’s
guilty. And so we kind of look for — to be a fair juror or to
get a fair jury, fair doesn’t mean you start the trial going,
like, well, I’ll keep an open mind to both sides. Fair means,
no, he’s innocent until you prove otherwise. Does that make
sense to everybody.

Anybody — other than that historical
background, does everybody know why that should be the case?
Or does anybody disagree with that, that it shouldn’t be that
way? Like Longcrier, if I say that maybe on the way out
for the lunch break or whatever, that you assaulted me and took
my wallet, should it be your job to prove you didn’t or my job
to prove that you did?

JUROR: Your job to prove that I did.

DEFENSE LAWYER: Right. Because it’s hard to
prove you didn’t do something, right? And that’s part of the
same process here.

Now, does everybody agree with that? Now, look
at another thing. Now, you don’t — anybody — now, nobody
knows anything about District Attorney, right? Okay. But in this
lawsuit, in this case, this is the State of Texas vs.
District Attorney. Someone give me a wild guess, who do you think —
who do you think has more resources, the State of Texas or
the District Attorney?

(Jury panel answers, “State of Texas,”
collectively)

DEFENSE LAWYER: Would you say that’s by a two to
one margin?

JUROR: At least.

DEFENSE LAWYER: They have an overwhelming
financial advantage. They can bring as much money and
resources to bear on an individual prosecution as they choose.
Now, it may look like he’s spent a lot of money
on this defense team, but kind of let me explain a little bit
about what’s going on here.

Ms. Tucker is an acquaintance of
mine from years ago. She was a paralegal. I met her at the
courthouse in Dallas County several years ago. And she decided
she might want to try being a jury consultant or a jury
selection specialist.

This is the first time she’s done this, so she’s over here taking notes,
trying to be helpful. We’ll see later if she is or not.
But she’s volunteering. She’s not getting paid. District Attorney didn’t pay her.
In fact, he didn’t even know she was going to be here, I just kind of brought her.
Ms. Carter, she’s not getting paid either.

She’s just a friend of mine over here, and she wanted to come
watch me do a trial. So there’s only one lawyer, only one
person paid to be here for the Defense team, and that’s me.
We’ve got two people paid here for the prosecutors.

So now, the State has a lot of advantages. For
example, their offices are in this building. Mine are 40 miles
away or so. If they need to look something up on the computer,
they can get to their computer or go get a book. Or if they
need help, there’s at least 60 other lawyers who work for the
DA’s Office. They can make a phone call or step outside. They
have a lot of resources that I don’t have. So there’s a lot of
advantages that the State has in any of these criminal trials
that the Defense doesn’t.

The two things we have that try to even that up
is, number one, if they make an accusation, they have to prove
it. We don’t have to prove he didn’t do it; they’ve got to
prove he did. Okay?

The other thing is that we get to start with the
jury on our side; we presume him innocent. Other than that,
they have almost every advantage you can think of. So it’s
always an unfair fight, if you will, when these things start.
Does that make sense to everybody? Does it make sense why they
should have to prove it? Okay.

Now, I’m going to jump ahead a little bit — oh,
wait, I just came up with this cool idea. I’ve done this a
lot, but I’ve never thought of it in these terms, and for some
reason today I’m way over, time wise. What you are doing now is
kind of the oddest job interview you will ever do, because
we’re like interviewing you for this job that pays virtually
nothing, has no future to it, has no benefits to it, and you
don’t want the job. But that’s what we’re doing, we’re
interviewing you saying, okay, who do we want, who are the best
people for this? So this is your job interview, you know,
thanks for coming.

All right. Let’s jump to the very end of the
trial for a minute, then we’ll come back. If — we have chosen
that this jury, whichever six of you it is, is going to set the
punishment, if it’s a guilty verdict. Now, we’re hoping it’s
going to be not guilty. Kind of thinking maybe it will be a
not guilty, but if it’s not, the jury is going to set the
punishment. And that’s kind of an exception to the rule.
Usually people have the judge set the punishment. But I’ve —
for years I’ve had the jury set punishment. For that reason,
we need to tell you what the range of punishment is and make
sure you can consider the full range.

On this particular offense, basically, if the Defendant is found
guilty, he can be sentenced anywhere from zero days in the county jail to 365
days and fined anywhere from zero to $4,000. Okay? That’s the
range. Is there anybody who couldn’t consider the minimum
there? What is the minimum sentence, Hill?

JUROR HILL: Did you say zero days, zero
fine?

DEFENSE LAWYER: Zero days, zero fine, that’s the
minimum. Now, if you sit through this trial, you’re selected,
and six of you decide, yeah, they proved he was guilty, is
They’re anybody who says, I couldn’t consider giving zero, zero,
no matter what the facts were?
(Show of hands)

DEFENSE LAWYER: Okay. I’m seeing a couple of
hands. Ritchey, you could not consider that, no matter
what the facts were?

JUROR RITCHEY: I just think that if he
is proven guilty, then there needs to be some form of
punishment. There can’t be just a zero, zero for a guilty
charge.

DEFENSE LAWYER: Okay. All right.
And Bird?

JUROR BIRD: Yeah, I was deterrence, so
there needs to be deterrence.

DEFENSE LAWYER: Okay. Hang on a second. Who
else raised their hand? Mister — is it Soderstrom?

JUROR SODERSTROM: Yes.

DEFENSE LAWYER: Yes, you had a question?

JUROR SODERSTROM: I’m wondering what
criteria do we use to determine where in the range do they –

DEFENSE LAWYER: If there’s a guilty verdict,
then there is like a follow-up trial. There is more evidence
where they get to put on any evidence they have of any bad acts
they have a history of him doing. We get to put on evidence of
what a great guy he is, and then the jury gets to decide.

JUROR SODERSTROM: So it’s just whatever
information is available?

DEFENSE LAWYER: Well, it’s — the information —
just like in all the evidence, the Judge determines what
evidence is relevant, you know. If we put on evidence and he
says that’s not relevant, it doesn’t come in. But, yeah, we
put on what we think is relevant evidence of what he should
do — of what the punishment should be.

JUROR: So it could be anything, like in
the case of my sister who was impaired, largely due to –

DEFENSE LAWYER: Medication –

JUROR: — medication that she wasn’t
aware –

DEFENSE LAWYER: Now, would you think that if
someone was impaired on medication more than alcohol, that
might be somewhat mitigating?

JUROR: Yes.

DEFENSE LAWYER: Okay.

JUROR: Somewhat.

DEFENSE LAWYER: Some people do, some don’t.

JUROR: Not terribly, but –

DEFENSE LAWYER: Okay. Now, what is — I started
asking this question about a month ago. I think it’s
interesting. We know the defendant could be sentenced up to a
year in jail and fined up to $4,000, or both, if the jury finds
him guilty. What can the State get if the jury finds him not
guilty, what is their punishment?

JUROR: Nothing.

DEFENSE LAWYER: Nothing.

JUROR: They had to pay for all this.

DEFENSE LAWYER: Did they pay for any of this?
Did you guys pay for any of this?
That would be a first in my experience. They
may have paid for their pens, right? Anybody gamble at all?
That’s what we call free rolling, all right? That means when
you’re making a bet and you can’t lose, because no matter what
the outcome, they lose nothing.

So we can lose a whole lot. In fact, if you get convicted of DWI,
might that cost you your job? Might it cost you your driver’s
license? If we pass some laws — we have some dumb laws in Texas.

Every state has dumb laws. You may have heard of them
sometime or seen them on the internet or whatever, but let’s say
that they passed a law — and they don’t always tell us these
laws, especially the dumb ones; they say let’s keep them quiet.
Well, let’s say they passed a law that says — what color is your
shirt, Ms. Davis, would you call it orange?

JUROR DAVIS: Yeah.

DEFENSE LAWYER: Burnt orange? Or just orange?

JUROR DAVIS: Burnt orange.

DEFENSE LAWYER: Burnt orange. All right. Let’s
say they passed a law a couple of years ago that said it is
illegal to wear a burnt orange shirt to jury duty. And it’s
punishable by up to 180 days in jail and a $2,000 fine. Now,
I’ve never heard of any law like that; I’m sure you didn’t.
But let’s say, oh, by God that’s the law; the bailiff takes you
under arrest, you go to jail, you get out, you go hire a
lawyer, you spend thousands of dollars on your defense, you go
to trial, and that jury says, we’re not going to follow that
law; it’s a stupid law, we’re finding you not guilty. The next
time you go to jury duty, are you going to wear an orange shirt
because of the good result?

JUROR DAVIS: No.

DEFENSE LAWYER: Why not?

JUROR DAVIS: Because I wouldn’t want to
go through the process.

DEFENSE LAWYER: Really? So what if they found
you guilty, and they said your punishment is zero days and zero
dollars. Said we think it’s a silly law, but you are guilty of
it, would you do it again? Would any of you do it, would any
of you wear an orange shirt to jury duty again?
(Jury panel answers “no,” collectively)

DEFENSE LAWYER: Why not? There was no
punishment: Zero days and zero dollars.

JUROR: Still a hassle.

DEFENSE LAWYER: Still a hassle. Still a
conviction on your record. You still went to jail. You still
hired a lawyer for thousands of dollars, right? Can you see
how that plays in? So you can consider that sort of thing in
jury punishment if there’s evidence of that sort of stuff: Of
how much he paid for a lawyer, was he arrested, did his car get
impounded, did he lose his job? All that can be considered.
Does that make sense to everybody? Those are the types of
things you can consider in jury punishment.

Now, we all know that sometimes drunk drivers
kill people, right? That’s the worse thing that happens. Now,
we can’t get into the facts of this case, but I can tell you
that if you kill someone, that’s an intoxication manslaughter
case, it is not a DWI misdemeanor. So by virtue of the fact of
what he is charged with, we know he didn’t kill anybody. If he
hurt someone seriously, it’s an intoxication assault case. So
because this is a misdemeanor, you know there is no serious
injuries or no deaths.

All of you — did anyone not drive here today?
(Show of hands)

DEFENSE LAWYER: You did not. You did not.
Okay. All right. A couple of you. But for the rest of you,
y’all drove here. Can you assure me that on your way home
tonight that none of you that drove will commit a traffic
violation of any sort? No laughing out loud of my questions.
You can’t assure me of that, can you?

Now, would you agree with me that failing to
signal a lane change generally is a pretty minor traffic
offense, right? Okay. Now, if you go home tonight and you
fail to signal a lane change, you might cause an accident,
correct? It’s possible. And if it happens in the right place,
it could cause an accident, and under the right circumstance,
it might kill someone; is that fair to say? So would it be
fair to treat everybody who gets a ticket for not signaling a
lane changes like they killed someone?

JUROR: No.

DEFENSE LAWYER: Why not, they could have? Why
not? Ms. Schemmel, you say no, that wouldn’t be fair. Why
wouldn’t it be fair?

JUROR SCHEMMEL: Because they didn’t.

DEFENSE LAWYER: That’s the most obvious answer:
Because they didn’t. That’s not the facts of that person’s
case. Now, why am I saying that to you in this case?

JUROR: Because he didn’t –

DEFENSE LAWYER: Every defense lawyer is afraid
that the jury’s going to go back and say, he could have killed
someone. And what’s the proper response? He didn’t kill
anybody. If he killed someone, you’d punish him for that,
right? Unless you’re Eric Crouch (sic), apparently. Right?
But you make the facts — make the punishment fit the crime and
fit the facts of the crime.

If they didn’t hurt anybody, that’s not as bad as if they did hurt someone.
If they didn’t kill anybody, you know, if they didn’t have an accident — and
there’s all sorts of things you can take into consideration.
Does that make sense to everyone? All right.

Now, for a misdemeanor case, here is a set of
bad facts, I have used an example. Let’s say someone is
driving at 8:00 in the morning, 120 miles an hour through a
school zone, an active school zone, and crashes into a school
bus full of children, of second graders. Now, for it to be a
misdemeanor, you couldn’t hurt any of them, because if you hurt
them, then its intoxication — assault or intoxication
manslaughter.

But it’s possible that you could hit a school
bus and not hurt anybody, right? The car is down here, the bus
is up here. Under the right circumstances sometimes freaky
things just happen. Now, this is just a misdemeanor case, but
I think most people would say those are bad facts. You would
probably want to punish someone found guilty with those facts
at the high end of the spectrum; am I correct on that? Okay.

Then there’s cases that aren’t so bad, and those
people get something towards the low end of the spectrum. Does
that makes sense? You just take a look at the facts of the
case. Some people get stopped for speeding 130 miles an hour
in a school zone. Some people get stopped because their
inspection sticker is out of date. You know, some people are
just pulled off on the side of the road asleep in their car.
Every case is different, and the jury gets to take
consideration of those facts.

All right. Has anybody ever been a hundred
percent convinced about something and then later found out they
were wrong? That’s happened, right? Any of you ever been
divorced? No? Presumably you’re not getting married unless
you’re a hundred percent convinced, right? You say it’s
forever? Then, oops. All right. So what we’re really looking
at in these trials is we want the juries, if there’s doubt in
the case, if there’s reasonable doubt in the case, we want them
to acquit. Out in the street, police officers don’t have to
have proof beyond a reasonable doubt to make an arrest. If
they are suspicious and they have reason to think someone may
be guilty of driving while intoxicated, our law says you take
them in because it’s a safety issue for everybody. If the
officer has a doubt, an arrest needs to be made. But if a jury
has a doubt, what’s their decision? Not guilty. It hasn’t
been proven. All right? Do you see how that all works?
And Hill, I’m sure you can answer this.
Sometimes there are cases that are kind of iffy that come to
court, right?

JUROR HILL: That’s correct.

DEFENSE LAWYER: You’ve seen a lot of them,
right, on both sides, Prosecution and Defense?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Have you ever seen
officers appear to be less than truthful with the facts?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. That happens sometimes,
too, right?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Can someone tell me what
needs to be done, what do we need to do as a country or as a
state, if you will, to make sure that there are no more DWIs,
that people quit driving intoxicated?

JUROR: Kill everybody.
DEFENSE LAWYER: Kill everybody that would do it.

JUROR: Nuclear war.

DEFENSE LAWYER: Nuclear war. Total devastation,
that would do it. Is there anything short of that, does
anybody have any ideas?

JUROR: Uber.

DEFENSE LAWYER: Uber? Uber will make sure
nobody ever drives — drinks and drives.

JUROR: It makes it easy not to.

DEFENSE LAWYER: It makes it easy not to. Is
that going to stop it? Because seriously, if there’s a way to
stop it, I would like to know what it is. I want our
legislators to do it. If you convict District Attorney, is that going
to stop anybody from driving intoxicated again? Is that going
to send such a resounding message that people everywhere are
going to say, we’re no longer going to drink and drive because
District Attorney was convicted? Who thinks that’s going to happen?
Is it going to make any difference at all if he’s convicted or
found not guilty?

JUROR: Hopefully, in his life it will.

DEFENSE LAWYER: In his life, it may.

JUROR: And maybe in somebody else’s.

DEFENSE LAWYER: And maybe in somebody else’s,
sure.

JUROR: I think it’s all about, you know,
being aware and educating the public about the dangers if you
drink.

DEFENSE LAWYER: Do you think the public doesn’t
know the dangers of drinking and driving?

JUROR: Sometimes they don’t take it into
account.

DEFENSE LAWYER: Well, sure. But we all know
about it, don’t we? Really? Did y’all have to come here
and — did anybody walk in here and not know drunk drivers kill
people sometimes? Is that a revelation to anyone? We all know
that, don’t we? Sure we do. But people, when they drink, a
lot of times when they drink, they don’t think they’re going to
get drunk. A lot of times they get drunk, they don’t think
they’re driving, but then their friend leaves them.

Only got to get — it’s only two miles; I can make it two miles.
There are all sorts of reasons someone might take that needless
chance. But the bottom line is there’s nothing anyone can do
to stop it. And I’ve had people say, we ought to outlaw
alcohol. Really? Well, how did that work in Prohibition? You
know, outlaw driving. Well, that doesn’t — take us back to
the Stone Age. That seems a little inefficient way to handle
that problem. That’s shooting the elephant with an — or
shooting an ant with an elephant gun. So there’s just no way
to do that.

This — your decision in this case is not about
solving the problem of DWI. You can’t. Our best minds can’t
solve that problem. This is simply about this case, did these
guys prove beyond a reasonable doubt that he was driving while
intoxicated on the night in question? That’s all it’s about.
Nothing more, nothing less. Make sense to everybody.
Does anybody have any questions or you want to
share anything about your background that the Judge or the
lawyers might use in order for us to properly decide who we
want on this jury? Yes, sir, Robinson?

JUROR ROBINSON: Well, you asked if
anyone would be all right with doing a zero, zero –

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: — but you didn’t ask
the opposite spectrum, and that’s one thing that, for a
misdemeanor where nobody got hurt, DWI, I do feel that a year
and $4,000 is ridiculous.

DEFENSE LAWYER: Okay.

JUROR ROBINSON: Just speaking from a lot
of personal experience in the past and everything like that, I
think that’s outlandish.

DEFENSE LAWYER: Okay. Well, let me ask you
this: What about the guy that goes 120 in a school zone and
hits a school bus full of children and emotionally traumatizes
them all and has no physical injuries?

JUROR ROBINSON: I’m a bad person to ask
about that.

DEFENSE LAWYER: Why is that?

JUROR ROBINSON: I think all human life
is equal. Just because they are younger, doesn’t make them any
less valuable than anyone else.

DEFENSE LAWYER: I don’t think that makes you a
bad person to ask that question. And don’t let me put words in
your mouth. But are you saying that there are no circumstances
under which you think you can give the maximum punishment?

JUROR ROBINSON: For a misdemeanor,
nobody got hurt, that’s what I was saying, yeah. That’s a
ridiculous amount.

DEFENSE LAWYER: Well, I tend to agree with you
so far. That’s kind of my job to, but nonetheless — but let
me add a couple other factors. One of the things you get into
in punishment is the defendant’s prior record. Now, you
generally don’t hear anything about the defendant’s prior
record during the guilt/innocence phase.

Because, for example, let’s say that this was his 27th DWI,
which obviously it’s not. He’s not old enough to pick up
27 DWIs, probably. But if the State could start the trial by
saying, all right, this is the 28th time this guy has been
charged with DWI, could anybody
find him not guilty, no matter what the facts were?

JUROR: Yeah.

DEFENSE LAWYER: You could? All right.

JUROR: Each trial is its own beast.

DEFENSE LAWYER: Well, I agree. But a lot of
people would say, man, if this is his 28th time, he’s guilty.
I don’t need to hear — what’s that?

JUROR: Start thinking about the
probability based on –

DEFENSE LAWYER: Yeah. But the point is, even a
career drunk can drive sober once. And so the law says, you
don’t get to hear about his prior record unless they find him
guilty. Now, if it was a third offense or more, it would
automatically be a felony DWI, so you know it’s not a third
offense or more. But you don’t know if he’s got any priors.
And you won’t hear about that.

And you shouldn’t hear about that, because it doesn’t matter.
It doesn’t matter. The question is: On this day was he driving
while intoxicated? It doesn’t matter if it happened once before.
It doesn’t matter if it never happened before. Probably a
majority of these cases the person has no previous record.

I had a jury one time come back and find my
client guilty, and I said, okay, I thought this was like the
weakest case ever. How did you do that? And they go, well, we
knew he had to have a prior record or the State wouldn’t have
brought this crap. And my guy didn’t have a prior record.
They just assumed it had to be, why else would they prosecute
this piece of crap case?

A jury is not allowed to presume he’s got a prior record.
You only can go on the facts of the case.
And if you can’t tell — I’m still mad about that case, and it
happened like 20 years ago. It’s the most — well, I’ve seen a
lot — one of the worst things I have ever seen. That guy has
a DWI on his record for life because he had six idiots on a
jury panel. And they said, there’s no way they’d prosecute a
garbage case likes this unless he had a prior DWI. Okay.
You can’t presume a record unless there’s
evidence of a record. But if there’s a guilty verdict, you get
to hear a person’s entire record. To my knowledge Adolph
Hitler never had a DWI.

Osama bin Laden never had a first offense DWI. If they
were alive today and tried and convicted
of a first offense DWI, the State would be able to go, well
Hitler, weren’t you responsible for over 26 million deaths by
starting World War II, and prove evidence of that, and that
jury could say, we’re going to take that into consideration,
and we’re going to consider giving you a $4,000 fine and a year
in jail because of your prior record. Do you think you would
give Adolph a maximum fine in this case.

JUROR: What does all of this have to do
with a DWI?

DEFENSE LAWYER: I’m just asking. It means whatever it means to that jury.
In other words, if the State can prove that he’s just a really bad
character, someone you really maybe — you know, you really
want to put him away, the law says you can do it, if they can prove that.
If they can’t, then they can’t. So — and it’s just — in other words, you
never know what background someone has until you hear about it.
But it might be really bad.

So are you saying it doesn’t matter? No matter
what the situation is, I couldn’t consider giving him a year in
jail and a $4,000 fine?

JUROR ROBINSON: Just — again, if you’re
doing a trial and you only have the facts of what happened,
that’s it.

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: And nothing else to be
considered, that’s too much for that particular occurrence.

DEFENSE LAWYER: Okay. All right. And you –

JUROR HOLLEY: I agree with that.

DEFENSE LAWYER: You agree. Anybody else agree
with that?
JUROR SODERSTROM: I agree with it.

DEFENSE LAWYER: Quit agreeing, y’all.

FERGUSON: Who said that?

JUROR SODERSTROM: I did.

DEFENSE LAWYER: Holley.

MS. CARTER: Who was the second person?

DEFENSE LAWYER: That was Soderstrom.

Soderstrom, you also said you couldn’t
consider the minimum.

JUROR SODERSTROM: That’s true.

DEFENSE LAWYER: You’re on both sides.

JUROR SODERSTROM: I am. If you’re
convicted of a crime, you’re not just getting anything. But at
the same time, that’s an astronomical punishment for, you know,
an occurrence that happens all too often.

DEFENSE LAWYER: Yeah, well, and you know, you’re
right on both.

THE COURT: You’ve used 30 minutes.

DEFENSE LAWYER: Thank you.
Anybody else?

JUROR: I think the operative word is
“consider.”

DEFENSE LAWYER: Yes, it is the operative word.

JUROR: And you might consider it for a
millisecond, and disregard it. But you think about it and
disregard it. You think about this, and you disregard it. But
you consider it. That’s the question, I think, that you’re
asking.

DEFENSE LAWYER: And thank you. Does that make a
difference? Because the question is: Could you consider it?
Because if you can’t consider it, then it disqualifies you as a
juror. If you can consider it then disregard it, that’s fine.

Change anybody? Change anybody’s mind?
And thank you for pointing that out. It doesn’t
change your mind, Holley? Soderstrom? And
Robinson? Okay. All right. I believe that’s all I have.

Unless anybody else has anything for me? Does anybody think
you have something you want to talk to the Judge about in
private, something you think we would all want to know? All
right. Thank you for your time.

Francisco Hernandez

Author Francisco Hernandez

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