Jury Selection Case Law

We going to talk about the very best cases from the Texas Court of Criminal Appeals from the last term and a few of the worst and a few more to watch out for that are now pending on PDR and so we’re going to watch them for the next year or so to see how they turn out. Got them color coded but you won’t need to look at the colors much, you’ll be able to figure out pretty quickly what I think about the opinions. We can’t possibly cover even a portion of the opinions that have been handed down. So I’m going to focus on the ones that I think are the best or the worst or the ones to watch out for.

Obviously its objective and its selective and even though its selective, we’re going to have to move really fast so I’m going to urge you not to try and follow along with your papers if you have them. What I’m going to do is give you a page reference at top of my PowerPoint, if you see a case that seems like it might apply to you and that’s my goal is to give you all some cases you can take to court with you on Monday morning. If you see a case like that, just jot down the page number and let this sort of as I heard a lawyer in Voir Dire say earlier last week “Just wash over you” and see if you can take it in that way. I used to always talk on this topic with this slide is my first one, it comes from Texas monthly November 2004, identifying that court is the worst court in Texas and may be in the United States. We can’t do that anymore, it’s a different court and they do different things and I say to you and I’m almost embarrassed to say it “It’s a good court now”.

But here’s what I also say “Its subject to change in the next election” and the rumors I’ve heard is that three judges are not going to run again and they’re all good judges and they typically render good opinion and so what’s going to happen is, if those three judges get replaced by three judges that aren’t so good we’re going to have different opinions coming down from the court of criminal appeals and I may have to revive my old worst court slide, so I’m going to urge all of you, I’d probably get in trouble with TCDLA if I’d told you who’d vote for and of course you don’t need me to tell you who’d vote for anyway. You’re all smart people but, what I would say is, “Please don’t take this selection for granted” I guess it’s going to start kicking into gear later on this year and the next year is going to be the actual election. Find the candidates, you think are good and support them. Tell your friends who might not know or care about what we do, who you think is good? And maybe even write some of these people checks, because we want this court to continue on doing good things.

Let’s talk about Jury Selection! Several cases on jury selection “Unkart”, came out of the Eastland court of the appeals and one of the venire persons, one of the potential jurors said this “Praise God, I haven’t been charged with a crime. But if I were, then I think I would probably want to get up and tell my side. It’s my nature. I would want to probably say my point of view on the thing or my version of the facts, but that’s just me”. So that was an easy person to take care of, you just challenge him for cause. Well! Just joking, that wasn’t a venire person that was the trial judge!

By the way,he said, “But that’s okay if you disagree with me as long as you can follow this instruction” now can you all follow this instruction and then he…blah blah blah blah. If the defendant decides not to testify, you cannot refer or allude to that fact during your deliberations! Can you all follow that? Seeing no hands I take it you can! This is the state care to take over now. There was no objection from the defense, probably the defense is thinking one of two things like,” what did he just say! That was the judge?”

Or the defense is saying and this is more probable to me, “What am I supposed to say now? Am I supposed to pick a fight with the judge right off the bet” and none of us mind picking fights with judges, that’s what we do for a living! But it’s much more delicate to pick a fight before, with the judge before 72 of your newest friends who are going to be on your case and are going to be thinking of; what kind of unpleasant person are you? So it’s a very delicate situation and I’m betting the lawyers here said, “How am I’m going to deal with this?” and they did deal with it, a few minutes or few hours later they filed an objection, they moved from this trial and it was denied! And the Eastland court of appeals however said, “Those remarks were so egregious that they vitiated the presumption of innocence, denied the man of fair trial, constituted harmful fundamental error and they reversed even though there was no objection!” and they relied on the famous case out of Texas that many of you know ‘Blue V state’.

Blue is the case outta Houston in which the judge brought the venire panel in and apologized to them right off the bet and said “You know I hate to keep you awaiting but this man is been going back and forth, back and forth, the state’s offered him a deal and he’s going to take it now, he’s not going to take it and so finally I just said,” I’ve had enough with this. We’re getting on with this trial right now! ” Well that was such an idiotic remark that the court of criminal appeals reversed that also without objection and at least 5 maybe even 6 of the judges agreed that reversal was required that it was fundamental error even in the absence of objection. And so Blue got a new trial, but the problem with blue it was a polarity decision that is only, I think four of the judges agreed on; at most four of the judges agreed on a particular rational. And so blue for years has been the only case that’s really recognized fundamental error in Texas and so we clinked to it but we also know and it’s also been subjected to criticism by courts of appeals that have refused to follow it because it’s a mere polarity decision.

So the court of criminal appeals granted the state’s petition for discretionary review in ‘Unkart’ and the court of criminal appeals clarified Blue. Any time 100% you hear the court of criminal appeals clarifying a lower decision, be prepared for the good guys to take a big hit. And because they never when they clarify things that just never seem to fall in our favor and sure enough it didn’t hear, they clarified Blue in this way. The Blue decision has no precedential value. That’s pretty good clarification, just forget about it. Now they didn’t say forget about it they said,” it has no precedential value but, you know, you can take the reasoning of the different judges and apply them as you like and maybe it will have some persuasive effect on us”. But the court went on to say in ‘Unkart’, the court went on to say “Whatever persuasive value Blue might have, the facts were significantly different there” the remarks were not nearly so egregiously and obviously and fundamentally bad and the court even said this,” instruction as a whole make it clear the judge was engaged in a well-intentioned effort to protect appellant’s rights” you’ve heard of the statement you know; Judge if you must go hit and try my case but don’t lose it for me, that’s what I think about the well-intentioned.

And the court went on to say, “Any residual harm could have been cured by an instruction to disregard” but of course because it wasn’t objected to, there was no opportunity to instruct to disregard. So Unkart lost! Because he didn’t object! Now you all have something like this in your PowerPoint or you have charts or something like that to illustrate the different burdens of proof. And we know we’re allowed to do it, the ‘Fuller’ case came out of maybe the Dallas area or somewhere few years ago and I was so scared that the court of criminal appeals was going to say that; the court of appeals was right and what the court of appeals said is “You can’t do anything like this in my court. This is improper Voir Dire”. The court of appeal said that but the court of criminal appeals resoundingly and firmly and stoutly said “Yes you can!” The notion that this is a definition of beyond a reasonable doubt which we know you cannot do, the notion that this type of thing is that it’s just a flat wrong. But that we’re no longer entitled to instructed or to give the jury a definition of reasonable doubt. Something like this is although more important and although more useful.

In Fuller, the defense lawyer said “I want to illustrate how important and how heavy a burden proof beyond a reasonable doubt is; by comparing it to clearing convincing evidence” and prosecutors hate that! Because you talk about taking away children and how you wouldn’t take away children on evidence like this but how can you put the, and you try to get high on your tip toes as you can get. How could you find someone guilty beyond a reasonable doubt? And so, Fuller said “we’re entitled to do that and we’re entitled to show it” Well! a case came out Easely and I forget what County was it up near Waco or somewhere Easely came out before or may be was in Dallas but anyway Easely came out before Fuller was decided. It was tried before Fuller was decided is what I’m tryin’ to say and the judge, well here’s what the judge said “I don’t allow you to get into a stair step thing of problem cause and reason to believe and that sort of stuff” so 3 months later after the judge made this ruling, the Fuller case came down so it was clear that the judge was wrong in so ruling. It was an error; there was no question about that.

But what the Waco court went on to say in Easely is that, “The denial of appropriate questioning during Voir Dire constitutes non-constitutional error” and that is very important in that case. So although Easely , the trial court eared in forbidding that inquiry, it was mere non constitutional error and the Waco court of appeals affirm the conviction and held that it was harmless error, because Easely could not show although error he could not show that it effected a substantial right of his. Well! The defense’s PDR was granted and that case now pins before the Texas court of criminal appeals and the question is; In this sort of error what harm analysis apply? Is it constitutional error or non-constitutional error? I think clearly the denial of a proper question denies us our right to effectively exercise our cause and peremptory challenges in violation of article 1 section 10 of the Texas constitution is constitutional error, it should be treated that way and the reason that’s important is, is because if its treated that way then the court says; its error, now is it harmful and to make that determination the court says, “We must reverse unless we are convinced beyond a reasonable doubt that it had, it made no contribution to the verdict or the senates”.

That’s a pretty heavy standard, as opposed to the non-constitutional error standard as they found in Easely, “Can we say that it affected a substantial right?” Well, we always wanted to be constitutional error and we’ll see what the court of criminal appeals does with this. I suggest if the court of criminal appeals holds its non-constitutional error, they basically eviscerated the Fuller case. And judges now, trial judges now will have license to say to overrule our request to do Fuller knowing, that it in all likely hood be up held as harmless error on appeal. So I’m really hoping the court does a right thing and holds that this is constitution error. I’m going to suggest, I’m going to suggest that you get something like this if you don’t already have it, it’s a, we called it, I don’t know we called it a ‘cheat sheet’, it’s really just a script that we need to remind us and what this does is; it has the right protected here on, on the left and then the US constitutional right that corresponds with that right,. The Texas constitutional right and the state statutory right and so you can stand up and make your objection under the federal constitution and then you can just keep reading across and make your state constitutional objection and then your state statutory objection, and that way you’ve got it all covered.