DWI Jury Selection

I’m going to talk to you guys — and the State just did. I’m going to ask you a bunch of personal questions on your feelings and thoughts. So before I thought I’d start peppering you with questions and start asking you stuff, I thought I’d introduce myself.
My name is Phillip Hall. I’m an attorney. I got licensed in November of 2014. This is my co-counsel, Daniel Hernandez. He went to TCU undergrad and Wesleyan Law. And I went to Wesleyan and A&M ended up buying us. And I went to UCLA for undergrad.
My client works in construction. He works for a company that installs cables in buildings and his company has contracts with AT&T. His wife, Catherine, is watching this trial. They’ve been married for three years and they do not have any children.
Before I begin, you will notice that the Court has provided us an interpreter. My client’s native language is Spanish and this is a very, very, very important time and day for my client. It’s important that he understands everything that is being said, everything that the State says and everything that the judge says.
Does anybody have any issues — and it is absolutely okay to tell me. Right now would be the time to be honest. Does anybody have any issues with my client using an interpreter or speaking Spanish? Everybody okay with it? Okay. And if you do, it’s perfectly okay to tell me now and I will tell you why.
I’m going to tell you a little bit about voir dire. And I’m going to tell you how it works. So let’s say we’re asking questions and going through — and I can’t talk about the facts. But let’s just say, Ms. Perales, I really like you. I think you’re a nice person and I’ve liked your answers and I liked the responses you were giving.
Each side gets three opportunities to strike people for any other reason. Based on responses, can’t be based on, obviously, ethnicity or gender. But just say, you know, I don’t like her answers. So the State knows and says, you know what, I really like Ms. Perales. So they will use one of their strikes to strike you. And the same goes for us. Say, you know what, I’m not really sure how, if they could be a fair juror in our case. So we may use our strikes. Each side gets three strikes.
If you say you can’t follow the law, then you’re not eligible to be a juror. And it’s perfectly okay. The judge earlier said Chisholm Trail; he doesn’t think that you should be limited to drive 50 miles an hour if you’re paying, right? So the judge would probably not be a good juror in a case where somebody got a speeding ticket on Chisholm Trail.
Here’s another example. Anybody know who that is? That’s a cartoon. Yes. Is it Ms. Anthony? Yes. Would you tell me what you’re seeing here?
PROSPECTIVE JUROR: Michael Vick.
MR. PHILLIP HALL: I’m sorry. The court reporter has to take it down.
PROSPECTIVE JUROR: Michael Vick.
MR. PHILLIP HALL: Thank you very much. Can you tell me a little bit about Michael Vick?
PROSPECTIVE JUROR: He was a football player accused of fighting animals at his house.
MR. PHILLIP HALL: Right. And I’m showing you a picture of Michael Vick, looks like he’s in court, and we have some jurors in the jury box. Can you describe the jury box with the jurors in the jury box?
PROSPECTIVE JUROR: They’re all dogs.
MR. PHILLIP HALL: Right. Do you think they’d be a good juror to sit on an animal fighting case?
PROSPECTIVE JUROR: No.
MR. Phillip HALL: Right. And so we bring that up and I bring that to your attention because I will share a personal story with you. When I was in law school, I had an old ’78 Chevy El Camino that my father sold to me. I worked on it, put a bunch of money into it. And my grandfather actually sold it to my dad when he went into the Navy. My dad was a fighter pilot and my grandfather was a fighter pilot in the Navy.
Well, I walk out, first week of law school exams, I’m stressed, and my muscle car is missing. So I’m like, well, I don’t remember moving it, but I’m sure it’s just on a different parking floor. Nope. Somebody stole it. It was never recovered. I would not make a good juror on a case where a vehicle was stolen. I could be a perfectly okay juror on a different case. Maybe, I don’t know, plenty of other cases I could be — maybe assault or something. But burglary of a vehicle or theft of a vehicle or something, I probably would not be a good juror for.
So I bring that to your attention because — and I understand that some shared they had personal experiences with family members and things, coworkers that had DWI’s. And I think you would like to be a fair juror. We all like to be fair people. But our mindset is a little bit clouded by our personal experiences. Because, let’s be honest, you guys don’t leave your common sense and you don’t leave your past experience at the door, right? Can everybody agree with that? Okay.
So just to clear up, does anybody know my client? Anybody know his family? I just introduced his wife, but anybody knows his family?
Jury service is supposed to be a very personal thing, especially for the person sitting in this seat over here, my client. Years and years and years ago when the Constitution was ratified, the government would go travel around and prosecute people. And I think the largest town at the time was like 6,000 people. Anybody ever has been to a town of about 6,000 people. Sir, you have?
PROSPECTIVE JUROR: Yeah, St. James, Missouri.
MR. PHILLIP HALL: And how was St. James, Missouri?
PROSPECTIVE JUROR: Everybody knew everybody.
MR. PHILLIP HALL: Right. Okay. And so the government was going to come in at this time years and years ago, hundreds of years ago, and they were going to prosecute somebody for a crime. They said if you’re going to come to our town and prosecute somebody, possibly seek the death penalty, it is the government’s responsibility to prove beyond a reasonable doubt each and every single element of the offense of the crime, right?
The defense can sit here. We can sit here and we can put our feet up on the table and do absolutely nothing because the presumption of innocence stands right now.
Anybody here can switch places with my client and there would be absolutely no difference, because right now, if I would ask you guys to vote, how would you vote?
VENIRE PANEL: Not guilty.
MR. PHILLIP HALL: And you said innocent, ma’am. And there is such a thing. But in a criminal trial, it’s guilty or it’s not guilty. Either the government did their job in convincing you that my client was operating a motor vehicle on a public road and while he was operating a motor vehicle, he was intoxicated.
I will give you guys an example. So let’s just say I had a blue tie on right now. But when the State, when Mr. De La Cruz was speaking, I had a blue tie on. Or — I’ve already confused myself.
MR. HERNANDEZ: You have a red tie on, had a blue tie on.
MR. PHILLIP HALL: Let’s just say I had a blue tie on, right, when Mr. De La Cruz was talking and I have a red tie on now. And it’s against the law for me to have a blue tie while I’m doing the presentation. And you guys say, well, you had a blue tie on in the first part of the presentation. Am I guilty of that offense?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Why is that?
PROSPECTIVE JUROR: No, I’m just messing with you.
(Laughter)
MR. PHILLIP HALL: That’s all right.
PROSPECTIVE JUROR: I just said yeah. Don’t pay me no mind today.
PROSPECTIVE JUROR: No. Because you said while you were giving the presentation you couldn’t wear the blue tie; is that correct?
MR. PHILLIP HALL: Right.
PROSPECTIVE JUROR: So, yeah.
MR. PHILLIP HALL: Right. They have to prove that at the time, now that I’m wearing a red tie, that I was not wearing that color tie when Darren was doing the presentation. Do you see what I’m saying? So let me clear it up. I think I’ve confused everybody. That’s what happens when you do it wrong.
PROSPECTIVE JUROR: Drop the tie.
MR. PHILLIP HALL: Drop the tie. Okay.
Drinking and driving, right? Does everybody understand — I’m going to clarify — it is not against the law to drink and drive? Does everybody understand that?
What do you think about that, what I just said?
PROSPECTIVE JUROR: That it’s not against the law?
MR. PHILLIP HALL: To drink and drive.
PROSPECTIVE JUROR: I mean, now that you said — I mean — okay. I think that the — I mean, again — I have a drink and I drive home. But I don’t get drunk to where it’s just ridiculous. Like I know when I’m, you know, that that’s enough. You know, like — and it’s occasional — but to the point where I know it is a law and I do respect that law. I just don’t go to that extent because I know that it’s not something I want to be caught doing even if I don’t overload it.
MR. PHILLIP HALL: You’re right. It is against the law to drive while you are intoxicated. And as the State got up here and said, they have to prove beyond a reasonable doubt that while you’re driving a car — and they have to prove that he was driving — that you were above a .08, you had lost mental or physical faculties, your mental or physical faculties.
If they don’t prove one of those three levels of intoxication, they haven’t done their job and it’s an automatic not guilty. Does everybody see that? And I just want to make absolutely sure everybody understands that. I’m not up here condoning drinking and driving. You know, I tell everybody take Uber, call a taxi, call a friend. But today is my client’s day in court and this is the first time that you guys get to review the case. This is the first time that somebody actually gets to sit and evaluate everything. This is his day in court.
How many came in here before you saw the charge and said I wonder what my client did? Nobody? You can be honest.
All right. Mr. Duehning?
PROSPECTIVE JUROR: Uh-huh.
MR. PHILLIP HALL: Tell me, what did you think when you came in here, when you saw my client sitting right here?
PROSPECTIVE JUROR: Well, usually when you come to court it’s for something, you know. And so if I’m completely being honest, you know, I wondered what happened, why am I in here. Obviously I’m here for a reason. What is that reason?
MR. PHILLIP HALL: Sure. Okay. Ms. Anthony.
PROSPECTIVE JUROR: I would say it’s the human nature to just be curious about what happened, what allegedly happened.
MR. PHILLIP HALL: Absolutely. Mr. Echevarria, what did you think when you came in here and saw my client sitting over here?
PROSPECTIVE JUROR: Well, I mean, obviously we’re here for a reason. When I came in, I wasn’t sure what obviously, because I don’t know anything. But we’re obviously — we’re here for a reason, so he might or allegedly did something.
MR. PHILLIP HALL: Exactly. Allegedly or might. Because as of right now, and I keep emphasizing it, but I really want to hit home because in other countries if you get arrested, you are guilty until you prove that you are innocent. Okay. We don’t have that system in this country. You’re innocent, and my client is innocent right now as he sits until the government proves beyond a reasonable doubt that he is guilty of driving while intoxicated.
And I want to talk a little bit about the charge. He’s charged with driving while intoxicated and a result, a breath test that came back at above a .15. But it’s the government’s job to prove to you that at the time he was driving the vehicle he was intoxicated, he was driving a vehicle on a public roadway and it was above a .15. And as we talked about it earlier, the range of punishment is a Class A misdemeanor.
And I know somebody had asked a question about whether they had previous DWI’s or what were the facts of the case. And I can’t go over the facts of the case. But we can do process of elimination. If my client had killed somebody, this would be a felony. We would not be in this court. If my client had seriously injured somebody in this case, it would be intoxicated assault or possibly intoxicated manslaughter and it would be a felony.
If this were a second DWI, My client would’ve been charged with DWI misdemeanor repetition. So by process of elimination, we know it’s a first. I can’t go into the facts, but I can give you that much.
So do you think it should be somebody’s job to prove themselves innocent or somebody who is accusing you of a crime to prove that you did it? Sir?
PROSPECTIVE JUROR: Prove yourself innocent.
MR. PHILLIP HALL: Prove yourself innocent? So let’s say we go out to lunch and I say, you know what, you stole my wallet. And I tell PJ, the bailiff over here, and I say, PJ, he stole my wallet, I want him arrested.
Do you think you should have to hire an attorney and prove yourself innocent? Or should I be the one required to show and prove that you stole my wallet?
PROSPECTIVE JUROR: I would have to get a lawyer.
MR. PHILLIP HALL: Of course, that’s how the system works. You’re going to have to get a lawyer. How do you think it should be? Do you think that you should prove your innocence or do you think that I should prove it?
PROSPECTIVE JUROR: You should prove that I did it.
MR. PHILLIP HALL: And that’s what we have here.
Anybody have any thoughts on that? Ma’am?
PROSPECTIVE JUROR: I guess I feel like you should always hear both sides. Because if I knew you and I’m starting to assume that you’re correct until I hear his side. And then once I hear his side, then it becomes a little more balanced.
MR. PHILLIP HALL: Right. And it’s human to feel that way. You want to hear both sides of the story. And is it Ms. Stubbs?
PROSPECTIVE JUROR: Uh-huh.
MR. PHILLIP HALL: Number 15. And I understand it’s human.
PROSPECTIVE JUROR: Well, and I also understand that’s not how the law works. I keep hearing it’s the law. So I understand that he is not guilty.
MR. PHILLIP HALL: Would you want to hear from the defense or would that factor into your decision at all whether my client testifies or not?
PROSPECTIVE JUROR: Whether he testifies or not, no. I think that he has hired representation and that they are going to speak for him.
MR. PHILLIP HALL: Sure. And we will argue for him. But at the same time, I could sit down and not do anything. And I could do nothing throughout this trial. And if I did that, obviously I would not be a very effective attorney, but legally I could do that. Would you hold that against the defense?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Who said yes? That’s all right. There are really no wrong answers. I just want to know you guys’ feelings. Are you trying to go to opening day?
PROSPECTIVE JUROR: No. I’m trying to get all three strikes. That ain’t three yet?
PROSPECTIVE JUROR: Just like the officer, the State is representing them in their defense. Because whoever arrested him, here the State is defending them. So it’s fair that you guys are defending my client.
MR. PHILLIP HALL: Sure. If an officer shows up on a scene and suspects somebody of drunk driving, do you want the officer to have a trial on the side of the road with My client or somebody else whether he was intoxicated or not?
VENIRE PANEL: No.
MR. PHILLIP HALL: And why is that? Ms. Bullis.
PROSPECTIVE JUROR: It wouldn’t be fair.
MR. PHILLIP HALL: And why wouldn’t it be fair?
PROSPECTIVE JUROR: Because there is just him and the defendant.
PROSPECTIVE JUROR: His word against his word.
PROSPECTIVE JUROR: Yeah, it’s just —
MR. PHILLIP HALL: Mr. Purer, did you just say something?
PROSPECTIVE JUROR: It would be his word against the officer’s word. And the officer is always going to win because of the badge he wears.
MR. PHILLIP HALL: So an officer makes an arrest for suspicion and then if somebody wants to fight, they get their day in court. And that’s what my client’s day is today. That’s why we’re here. I keep bringing it up with you, but I really want you guys to understand how important it is.
This is the first time that somebody like you guys are going to evaluate the case. And I’m going to ask you to listen carefully and specifically to each and every element the State alleges because — we’ll see.
I want to harp on this again. Those who do the accusing must do the proving. Mr. Puryear, if I say you stole my wallet, I got to prove that you stole my wallet. You don’t have to defend yourself. You don’t say, I didn’t steal it. How would you prove something you didn’t do?
PROSPECTIVE JUROR: You couldn’t.
MR. PHILLIP HALL: Right. Anybody else? Sir, how would you prove something you didn’t do?
PROSPECTIVE JUROR: You can’t.
MR. PHILLIP HALL: It’s difficult. Impossible. And I’m going to ask it again. I got a little ahead of myself. But does everybody agree with this statement, if my client doesn’t testify, I would consider that as some evidence of guilt? And that’s Mr. Stuck?
PROSPECTIVE JUROR: Yes. I think if he were innocent, he would want to tell everyone and tell his side of the story.
MR. PHILLIP HALL: Sure. It’s perfectly human to feel that way. And I don’t mind — and I thank you for sharing your answer.
There are different reasons why somebody may not want to testify. My client takes the stand, he’s got to, you know, I can toss him softballs. But Mr. De La Cruz or Dustin, who are experienced attorneys, get to cross-examine him and grill him. And my client has an interpreter right now. I think — can we agree that there could be some miscommunication or misstatements? And so some people may choose not to take the stand. But thank you, Mr. Stuck.
Does anybody else feel that way as Mr. Stuck does? It’s perfectly okay to feel that way. You’re not going to hurt my feelings. Now is our chance to find out.
PROSPECTIVE JUROR: To some degree, yes.
MR. PHILLIP HALL: To some degree?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: And is that Ms. Walton?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Would you care to elaborate just a little bit?
PROSPECTIVE JUROR: I feel like if he’s going to have an interpreter here, whose interpreter is it? The words are the words and, you know, how they’re interpreted is how they’re interpreted. There’s not that much difference between the Spanish understanding of the words and the English understanding of words. So I won’t hold it against him if he doesn’t testify, but I don’t think that there’s any hindrance in having an interpreter.
MR. PHILLIP HALL: Okay. And thank you for sharing that.
What about in the event he doesn’t testify? If he doesn’t testify, would you —
PROSPECTIVE JUROR: I would not hold that against him, no. If he did, I would expect the interpreter to tell me, because I do not understand in Spanish exactly what he’s saying. And to make me understand what he’s saying with his words.
MR. PHILLIP HALL: Okay. Does anybody here speak Spanish?
PROSPECTIVE JUROR: Was the officer Hispanic?
MR. PHILLIP HALL: I can’t go into the facts. I’d love to. But if I do, the judge is going to shut me down. Right, Judge?
THE COURT: Yes.
MR. PHILLIP HALL: Are there things in Spanish that can’t be directly translated into English?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Is that Ms. Camacho?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: And would you say there are words like that?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: And why?
PROSPECTIVE JUROR: It just does not translate correctly.
MR. PHILLIP HALL: Do you think there could be some sort of miscommunication if somebody doesn’t speak Spanish or English?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Ms. Percales, would you agree?
PROSPECTIVE JUROR: Yes. I mean, yes, I would.
MR. PHILLIP HALL: You can elaborate. I’m not saying it can’t be translated. I’m just saying are there things that —
PROSPECTIVE JUROR: There are just English words that are, you know, it’s just hard to — there are English words that are hard to translate in Spanish. And then to substitute another word for it, you know, whether it’s English or Spanish, it could be something totally different.
MR. PHILLIP HALL: Sure. Okay. Thank you.
In this county, and I’m being 100 percent honest with you, typically the judge sets the punishment. And that’s because they see the case, they can evaluate it and they have been exposed to this a lot.
In this case, my client decided you guys are going to set the punishment. We discussed the range of punishment a little bit and we’ll get into that in just a little bit. But I think a lot of people, a lot of attorneys are scared that the jury is going to go in the back and say he could’ve killed somebody, he could’ve done this or he could’ve done that and we’re going to give him the maximum. And we’re going go into the range of punishment in just a minute.
But I trust that you guys are going to listen to all of the facts and evaluate this case and set the appropriate punishment if he gets to a guilty. And I don’t think it will. But if it does, I’m going to ask you to consider the full range of punishment. And I will go into that in just a minute.
So the range of punishment if, a big if, if the jury reaches a guilty verdict is zero days up to 365 days in jail, $0 and up to a $4,000 fine.
Is there anybody here — and I know some people earlier were saying that they thought the range of punishment was too lenient — is there anybody here that agrees with this: I couldn’t consider giving zero days no matter what the facts were?
PROSPECTIVE JUROR: Does that mean probation or —
MR. PHILLIP HALL: Sure. Probation, you’re right. Probation is also an option. But if we ask for no probation.
PROSPECTIVE JUROR: You are simply asking about jail time?
MR. PHILLIP HALL: Basically asking about jail time. You are absolutely right, Ms. Camacho. Is there anybody that could not consider giving zero days?
PROSPECTIVE JUROR: Is that presuming guilty?
MR. PHILLIP HALL: Yes, ma’am. That’s presuming that the case has been tried.
PROSPECTIVE JUROR: If the jury has found him guilty, I couldn’t consider giving him zero days.
MR. PHILLIP HALL: Thank you.
PROSPECTIVE JUROR: I would agree with that.
MR. PHILLIP HALL: So that was Ms. Morton?
PROSPECTIVE JUROR: Uh-huh.
MR. PHILLIP HALL: And you would agree with that, Ms. Andres?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: You could not consider giving zero days on a DWI?
PROSPECTIVE JUROR: Not if he’s found guilty.
MR. PHILLIP HALL: Thank you for that. I know that some people earlier were saying that they thought the punishment was too easy.
Ms. Keep, could you consider giving zero days?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: You could consider giving zero days?
PROSPECTIVE JUROR: Yes, I could.
MR. PHILLIP HALL: Ms. Morton?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Could you consider giving zero days?
PROSPECTIVE JUROR: I just said no.
MR. PHILLIP HALL: You just said no.
Ms. Walton?
PROSPECTIVE JUROR: I could give zero days with a fine in lieu of time.
MR. PHILLIP HALL: Sure.
THE COURT: I just want to say this, ladies and gentlemen, to make sure. He is not trying to commit you to any punishment. All he’s asking you is can you consider it. And I think y’all are getting confused that you’re trying — he’s not trying to pin you to that. He’s just asking if you can consider the range of punishment.
MR. PHILLIP HALL: Judge is absolutely right. I’m not trying — I don’t want to put words in your mouth. I’m not trying to say that this is what I want you to do right now. I’m just saying that in the event it gets to a guilty verdict, the jury must be able to consider the full range of punishment. I might ask the exact opposite, somebody consider the full range, somebody consider the maximum. Because to be a fair juror you have to be able to consider the full range.
Ms. Bullis, could you consider the full range, zero days, if he were found guilty?
PROSPECTIVE JUROR: I guess I could consider it. Like I said earlier everything, zero, zero, zero, all the way down to if he was found guilty, I don’t know that I would agree with that. I don’t think I could agree with that. But, you know, like fines and probation, possibly. I mean, I don’t know the situation.
MR. PHILLIP HALL: Sure. And you’ll learn it.
PROSPECTIVE JUROR: But I’m probably not going to say no all the way down to nothing, you know, if he’s found guilty.
MR. PHILLIP HALL: So the law says the full range of punishment could be as low as zero dollars and zero fine. You’re saying you would not be able to do that?
PROSPECTIVE JUROR: I might have a hard time with that if he were found guilty voting zero, zero, and zero all the way down.
MR. PHILLIP HALL: And I hate to push, but I have to get you to commit one-way or the other.
PROSPECTIVE JUROR: I could consider the zero days, but maybe the fines and the, what do you call it, probation. But I think there is punishment if you’re found guilty of a crime.
MR. PHILLIP HALL: Sure. And we’ll get into that in just a minute.
PROSPECTIVE JUROR: If that makes sense.
MR. PHILLIP HALL: Mr. Guerrero, could you consider zero days and zero fine?
PROSPECTIVE JUROR: Yeah. I think it has to do with what the facts are. We really don’t know anything right now, just kind of all talking.
MR. PHILLIP HALL: Okay. Mr. Echevarria?
PROSPECTIVE JUROR: Found guilty I wouldn’t feel comfortable with zero.
MR. PHILLIP HALL: Okay. Thank you. Mr. Baird?
PROSPECTIVE JUROR: And you’re not saying that probation doesn’t have —
MR. PHILLIP HALL: If probation wasn’t — if we’re asking for jail time or somebody were to ask for jail time, could you consider zero days?
PROSPECTIVE JUROR: I think it would be difficult for someone that was found guilty.
MR. PHILLIP HALL: Sure. Okay.
PROSPECTIVE JUROR: I could give them probation.
MR. PHILLIP HALL: Thank you. Does anybody else feel that way? They couldn’t give or consider zero days, zero fine? Could I see a show of hands?
Ms. Weber.
PROSPECTIVE JUROR: Yes. If he is found guilty, like everyone said, like there should be some sort of punishment. So it would be difficult. If it’s not jail time, then, you know, a fine or probation. But something needs to come of it.
MR. PHILLIP HALL: Okay. Who else? Who else agrees with Mr. Weber?
PROSPECTIVE JUROR: I’m probably in that same camp.
MR. PHILLIP HALL: Mr. Dunking?
PROSPECTIVE JUROR: And you’re saying — you’re considering —
MR. PHILLIP HALL: No probation. I’m saying if it’s a jail time offer who says I cannot — if I could just see a show of hands — zero jail time and zero fine, I can’t consider that in a DWI above .15.
PROSPECTIVE JUROR: With a guilty?
PROSPECTIVE JUROR: No punishment at all?
MR. PHILLIP HALL: Right.
PROSPECTIVE JUROR: You’re saying no punishment at all after a person is found guilty?
MR. PHILLIP HALL: Yes, ma’am. I’m not asking you to commit.
PROSPECTIVE JUROR: I thought you meant just like zero days although it could be probation or zero time and a fine or something. You know, I know a couple guys, really good guys, they got DWI’s, they got some fines and they’re great. It’s been years. They don’t even drink any more. That’s all they needed to straighten their life out. Zero days, why not? But, like I say, it has to do with the facts, everything else, maybe a fine, maybe probation. Just kind of all matters really.
MR. PHILLIP HALL: You’re right. Each case is different.
PROSPECTIVE JUROR: How can you be guilty without any penalty?
MR. PHILLIP HALL: Well, let’s give an example. You had mentioned you got arrested for public intoxication?
PROSPECTIVE JUROR: Right.
MR. PHILLIP HALL: What happened in that case?
PROSPECTIVE JUROR: You sure did put me there. I’m glad you did. Because you know what, I think of myself whenever — I’m putting myself in my client’s place right now. So thank God they just put me into, what do you call it?
MR. PHILLIP HALL: The drunken tank?
PROSPECTIVE JUROR: No, to sleep it off. I spent the night. They let me go the next day. But I didn’t get charged or anything.
MR. PHILLIP HALL: Did you ever do it again?
PROSPECTIVE JUROR: No. I learned my lesson. See, and that is why I became an occasional drinker, you know. I don’t — and like I said, I know people who have gone that way.
MR. PHILLIP HALL: But why not? You weren’t convicted and you had no punishment.
PROSPECTIVE JUROR: Right.
MR. PHILLIP HALL: So how did you learn?
PROSPECTIVE JUROR: Because I don’t want to ever be locked up in a cell again.
MR. PHILLIP HALL: But you had zero punishment.
PROSPECTIVE JUROR: I had zero punishment, you’re right. You’re right. So I learned from it. So, yes, I mean, I don’t want to go through that again. That was my punishment. At a young age, that was my first time. That was my punishment. But, again, I was young.
MR. PHILLIP HALL: And to be clear, when somebody is on trial for suspicion of DWI an arrest was made. So I can’t go into the facts, but an arrest was made. I’m saying after everything, can you guys consider the full range of punishment? Considering everything, and I guess I should clarify a little bit.
This is my first time doing this with a jury, so I know there are a lot of questions that have come up. If it gets to a guilty verdict, we’re going to have a whole separate trial on punishment so that the jury can adequately determine what is an appropriate punishment for this case.
I’m going to further elaborate a little bit and maybe everybody will feel a little bit more comfortable. But I appreciate your answers. And please keep peppering me. I really do appreciate it. You’re not going to hurt my feelings. Especially — and I know I’m not explaining everything absolutely clearly.
So, question. We know that my client can get up to one year in jail and up to a $4,000 fine if he is found guilty. He can get that. At the end of this trial PJ can put him in handcuffs and take him over to the jail cell and he’ll be booked in and the jury can give him up to a year in jail.
What punishment does the government get if the jury votes not guilty?
PROSPECTIVE JUROR: Why would they get punishment?
MR. PHILLIP HALL: It’s just a question I’m asking.
PROSPECTIVE JUROR: I don’t think there is punishment.
MR. PHILLIP HALL: You’re absolutely right.
PROSPECTIVE JUROR: But they’re not the ones on trial, either.
MR. PHILLIP HALL: You’re right. Absolutely right. But I’m just saying that’s why the Constitution and our laws say that those that do the accusing must do the proving. Right? Because if my client is found guilty in his trial, he is facing up to a year in jail. Right? If the State doesn’t do their job, nothing happens. Does everybody see that and understand that? It’s like gambling, there’s no way you can lose, right? You lose zero.
Now I’m going to talk about what happens when somebody is arrested, generally speaking. Do you think somebody could possibly lose his or her job if you get arrested for DWI? Mr. Haws?
PROSPECTIVE JUROR: Sure.
MR. PHILLIP HALL: Mr. Purer, what do you think about that?
PROSPECTIVE JUROR: Job, home, family.
MR. PHILLIP HALL: Job, home, family. And you just got arrested for it.
Ms. Perales, what do you think about that?
PROSPECTIVE JUROR: Yeah, you could lose your job, your family, you know, I mean, a lot.
MR. PHILLIP HALL: And you haven’t been convicted.
PROSPECTIVE JUROR: People know. Yes, a lot.
MR. PHILLIP HALL: Do you guys know that your license is suspended 40 days after you’re arrested automatically? Your license will be suspended, depending on whether you have a breath test or not, the minimum is three months. Anybody ever had to rely on somebody else for a ride to work?
Mr. Sanders?
PROSPECTIVE JUROR: Yes, I have.
MR. PHILLIP HALL: And what was that like?
PROSPECTIVE JUROR: Terrible. Depending on someone to get you there late. That’s a bad feeling.
MR. PHILLIP HALL: And how long did you rely on somebody for transportation?
PROSPECTIVE JUROR: About six months trying to get my own vehicle, relying on someone to get me back and forth to work.
MR. PHILLIP HALL: Did you miss job opportunities?
PROSPECTIVE JUROR: That’s not — I was back and forth between jobs, yeah. I found a steady job.
MR. PHILLIP HALL: Were you ever late?
PROSPECTIVE JUROR: Yeah, I was late. But they understood.
MR. PHILLIP HALL: Did you have to explain yourself, though?
PROSPECTIVE JUROR: Sometimes. I did sometimes.
MR. PHILLIP HALL: And if my client gets to a guilty verdict, and I’m just explaining, another license suspension will hit once the person is found guilty. If they plead guilty or they’re found guilty by a jury, another license suspension on top of the one that automatically hits 40 days after arrest.
Mr. Long, may I inquire a little bit?
PROSPECTIVE JUROR: Ask anything you want.
MR. PHILLIP HALL: What happened — without going into the facts of your case, just in your DWI case?
PROSPECTIVE JUROR: I think I got year probation and I got like a couple hundred dollar fine.
MR. PHILLIP HALL: What was the process like when you were arrested?
PROSPECTIVE JUROR: Pretty much said the alphabet backwards, walk this line and took you to the drunk tank overnight, let you go with a lawyer. Pretty much it. I don’t think — they didn’t take any blood. I don’t remember taking a Breathalyzer. This is back in ’75.
MR. PHILLIP HALL: Sure. And the laws have changed a little bit. But did you feel that the officer had his mind made up when he pulled you over?
PROSPECTIVE JUROR: Oh, yeah.
MR. PHILLIP HALL: Do you feel it was fairsighted or fair for you being in the hot seat?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Thank you. Did you have your car towed?
PROSPECTIVE JUROR: Yeah.
MR. PHILLIP HALL: Couple hundred bucks?
PROSPECTIVE JUROR: Yep.
MR. PHILLIP HALL: This is just being arrested.
PROSPECTIVE JUROR: Right.
MR. PHILLIP HALL: Anybody ever had his or her car towed? Mr. Stein?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Couple hundred bucks I’m assuming?
PROSPECTIVE JUROR: Back in the ’70s, about a hundred.
MR. PHILLIP HALL: It’s a couple hundred dollars now. And then you also got to pay storage fees for not coming and picking up the car that day.
As we just heard, Mr. Long said he spent a night in jail. You got to post bond. Bond is a couple thousand dollars to get out of jail. Or you got to hire a bondsman. This is just being arrested for DWI. I know that you guys are sitting in jury selection here, but I’m sure — anybody here learning anything about what happens when you’re arrested?
PROSPECTIVE JUROR: Oh, yeah.
MR. PHILLIP HALL: Is that Ms. Koepp? You said oh, yeah?
PROSPECTIVE JUROR: Yes, I did.
MR. PHILLIP HALL: Ms. Perales. Sorry. Bail, couple thousand dollars depending on how the magistrate judge sets it. This is just — you get arrested, this is already what you’re looking at — the attorney’s fees. You got to go out and hire an attorney. I’ve heard of some attorneys charging $20,000. Then you got to pay for trial. The Court is paying for the interpreter, but if it gets to punishment, my client could be assessed the court fees as well.
PROSPECTIVE JUROR: And those aren’t cheap.
MR. PHILLIP HALL: They’re not cheap, either. You know what an interlock is? Nobody knows what an interlock is? The State of Texas just passed a law this past September if you get a .15 or above, you’re pulled over, right, and they do a test whether it’s hours after the fact of driving or whatever the case may be. If they have a breath test that shows above a .15 or lab test, blood test, above .15, you have to install a machine in your vehicle and you have to blow into that machine to be able to start the car. You know how much they pay for that? It’s about $100 to install in your vehicle and then you got to pay $75 a month until the case is resolved. And possibly after.
This is just being arrested. This is generally speaking. Do you guys also know that the State of Texas added surcharges up to $2,000 a year for three years just to maintain your driver’s license? This is — again; this is somebody who has not been convicted, somebody who has not been found guilty by a jury. This is what happens in DWI. This is why I’m asking can you guys consider the full range of punishment with zero days and zero fine.
Nobody is saying he hasn’t learned his lesson. Right, Ms. Perales?
PROSPECTIVE JUROR: Right. I mean, that’s pretty hefty for just being arrested. He is going through a lot already.
MR. PHILLIP HALL: And we’re not in a felony trial, so he didn’t kill anybody. We’re not in a felony trial knowing he otherwise would be DWI with injury. This is what somebody who is accused of DWI faces.
Again, I’m not standing up here trying to throw a pity party or say people should be out there on the road drinking and driving. I’m just saying this is punishment for somebody who is not even guilty.
Mr. Haws, what do you think of all that, everything I just went through?
PROSPECTIVE JUROR: Shows a possible time served more or less.
MR. PHILLIP HALL: Mr. Rivera, what do you think of all this right here?
PROSPECTIVE JUROR: Going broke for so many years, you know, that’s the punishment. Got to come up with money all the time.
MR. PHILLIP HALL: If you can’t drive or get to work —
PROSPECTIVE JUROR: You’re screwed.
MR. PHILLIP HALL: And if you don’t have a buddy to take you to work?
PROSPECTIVE JUROR: Sometimes it’s unreliable.
MR. PHILLIP HALL: Do you think adding a year in jail or something like that, after going through all that, Mr. Purer?
PROSPECTIVE JUROR: I think a year in jail is ridiculous. I mean, you’re going to spend 20,000 or better into the system. And then you going to do a year in jail you get on top of all of that?
MR. PHILLIP HALL: Anybody else agrees with Mr. Purer? Ms. Bullis, I saw you shaking your head.
PROSPECTIVE JUROR: Yeah, that’s a lot.
MR. PHILLIP HALL: Mr. Noh.
PROSPECTIVE JUROR: Noh.
MR. PHILLIP HALL: Noh. What do you think of all that?
PROSPECTIVE JUROR: Well, for a person who learned. Drink and drive, drink and stay home.
MR. PHILLIP HALL: But what if they’re not punished?
PROSPECTIVE JUROR: Well, if you got caught drinking, that’s it.
MR. PHILLIP HALL: Okay. Mr. Noh, may I inquire into something that you disclosed on your sheet? If you’re uncomfortable, we don’t have to. I don’t want to bring it up if you don’t want me to. Are you okay with talking about it?
PROSPECTIVE JUROR: I’m okay, sir.
MR. PHILLIP HALL: You were arrested for selling alcohol to a minor?
PROSPECTIVE JUROR: Yes, I did. I did and I remembered.
MR. PHILLIP HALL: And your case was dismissed?
PROSPECTIVE JUROR: Was dismissed, sir. And when I sold that drink, a thief struck me that time. And I was in the area; it was a lot of drugs. And I’ve been watching. And I’ve been rushed with the same people. I think they — something going on and after I served, after I served, I turned around looking real quick and I see the guys saying, do you have ID with you?
MR. PHILLIP HALL: Did you get arrested?
PROSPECTIVE JUROR: I get arrested and they find out I wasn’t the one.
MR. PHILLIP HALL: But what was it like to be arrested?
PROSPECTIVE JUROR: It’s not a good thing.
THE COURT: Mr. Phillip Hall, you have one minute.
MR. PHILLIP HALL: Yes, Your Honor.
Did you learn from that situation?
PROSPECTIVE JUROR: Yes, I learned. But I don’t work any more.
MR. PHILLIP HALL: Never does it again? If you want to drive you also have to pay for an occupational driver’s license while your license is suspended.
I’m going to wrap up here in just a minute. Can everybody here — did everybody here drive today? Yes. I’m going to ask a favor. Can everybody here promise not to commit any traffic violations on the way home today? Okay.
Anybody ever have a traffic ticket? Ms. Koepp, you got a traffic ticket before?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Okay. What did you get a traffic ticket for?
PROSPECTIVE JUROR: Speeding.
MR. PHILLIP HALL: Speeding. Did anybody get hurt?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Did anybody die?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Did you cause an accident?
PROSPECTIVE JUROR: No.
MR. PHILLIP HALL: Is it possible in the right set of circumstances or facts that speeding could’ve caused an accident?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Could someone have been killed?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Could someone have been seriously injured?
PROSPECTIVE JUROR: Yes.
MR. PHILLIP HALL: Would it be fair if you wanted to take that speeding case to trial for the jurors to go back and say, well, you know what, Ms. Koepp could’ve killed somebody. She could’ve caused an accident. She could’ve killed an infant. She could’ve done this or that. And would it be fair to come up with all these possibilities of something that didn’t happen in your case?
PROSPECTIVE JUROR: No, not in anyone’s case.
MR. PHILLIP HALL: And I think that’s what a lot of attorneys fear in going to punishment to the jury is that the State is going to blow it up and come up with all these possibilities of things that could or could not have happened.
And I wrap up, go through the different levels of proof. Does anybody know how much evidence is needed for the State to come in and take away your children if they, if you are being used of neglect?
Ms. Weber.
PROSPECTIVE JUROR: It’s an accusation, right?
MR. PHILLIP HALL: Accusation, fortunately it’s not. It’s called clear and convincing evidence.
And in a criminal trial, which is where we are here, the burden is even higher. It’s beyond a reasonable doubt before a jury can decide to make that somebody’s home. And beyond a reasonable doubt is more than having a firm belief. And when the six of you who are left over, who end up on this jury, you guys must vote with your own conscience and stick to the facts and each and every single one of your votes matter. One person’s vote is not more important than the other. You guys all must reach an agreement, don’t give in to peer pressure and stay firm in your decision. I want to explain that because it’s important that you guys know every single one of your votes counts.
And with that I want to ask does anybody have any medical conditions or scheduling conflicts that would detract from you being able to pay attention during this trial?
Mr. Haws, were you raising your hand?
PROSPECTIVE JUROR: I’m all right.
MR. PHILLIP HALL PHILLIP HALL PHILLIP HALL: Mr. Noh?
PROSPECTIVE JUROR: I have one, but I’m good.
MR. PHILLIP HALL: And I don’t expect this trial will last all week. It will be probably two days at the most. And understand I got to do everything I got to do for my client to be a good and effective attorney. So I’m going to object throughout this trial. I don’t mean to frustrate you guys; I don’t mean to frustrate the Court. Is that okay with you guys? I got to fight for my client. I got to fight for my client.
THE COURT: Mr. Phillip Hall, your time is up.
MR. PHILLIP HALL: Thank you, Judge. Thank you very much for your time.