Jury Voir Dire
JURY VOIR DIRE
P R O C E E D I N G S
THE COURT: All right. Court calls Case
No. 1415787, State of Texas versus David Shawn Minze for trial.
We have had quite a difficult time getting everybody here this morning, but right now we have two prosecutors and one defense attorney and one attorney from Baylor Hospital. He has provided medical records that pertain to the offense that occurred on or about May the 8th of 2015.
On the witness list is also the custodian of the records. He has an affidavit prepared by the custodian. And as I see, that is sufficient rather than having the custodian come and testify later this afternoon. Is the State satisfied with that?
MS. WASHINGTON: State is, Your Honor.
THE COURT: Ms. Knapp?
MS. KNAPP: Your Honor, I would say that we would request the custodian of the records actually testify.
THE COURT: All right.
ATTORNEY FOR BAYLOR HOSPITAL: Your Honor, just, if I may, the custodian will only testify about what’s contained in the affidavit itself. I understand
counsel wishes for it to be pertaining to the rules. We would just ask for the courtesy of not having to have our custodian come down. She is available and she will appear, if requested and if required. But nothing that she will be able to testify to will not be contained within the affidavit nor will there be any cross-examination because part — what’s contained in the affidavit, that’s all she statutorily knows and all that’s statutorily required. And so we would just ask for courtesy from counsel to allow the custodian to appear by affidavit.
MS. KNAPP: Your Honor, we would not agree to that.
THE COURT: All right. If you would tell her to be here about 2:30.
ATTORNEY FOR BAYLOR HOSPITAL: I will do it, Your Honor. Thank you.
THE COURT: All right. Ms. Knapp, I’m about to start. If you don’t want to do this by yourself, find him.
(Pause in proceedings.)
THE COURT: Back on the record in 1415787, the State of Texas versus David Shawn Minze. If the defendant would please rise and the State would arraign the defendant.
MR. FACTOR: Judge, if we make no – we make no election, then we know it’s the Court for punishment, so we’re going to make no election. We’re aware of what that means.
THE COURT: So you’re not making an election?
MR. FACTOR: We’re not making an election. And we are aware that not making an election means that the Court assesses punishment.
THE COURT: Okay.
(Information read.)
THE COURT: And to those charges, how do you plead: Guilty or not guilty?
MR. FACTOR: Not guilty, Your Honor. Your Honor, may I examine the Court’s file? I just need to see something about the amendment.
THE COURT: It’s the yellow tab.
(Pause in proceedings.)
MR. FACTOR: Okay. And, Judge, I don’t know how many counts that was, but just for the record, I’d ask that they elect between counts.
THE COURT: It’s not counts; it’s paragraphs.
MR. FACTOR: Okay.
THE COURT: There’s four paragraphs.
MR. FACTOR: Okay. Well, my motion is the same. I still request that they elect between paragraphs.
THE COURT: Denied.
MR. FACTOR: Okay. And I’m assuming the jury is coming in relatively soon. I understand that this is part of the State’s voir dire, and I don’t think the jury needs to see it until it is the State’s voir dire.
THE COURT: Okay. Turn it off until I get through talking.
MS. WASHINGTON: And, Judge, the State would still ask for an attachment for Wendy Young and Cathleen. They are — they were sworn to come back by the Court — I believe it was on the 2nd of September. I believe it was the original court date. As of now, they have not appeared, and we have left messages for them to show up to court.
THE COURT: Okay. So that presents another problem. If you — you need to tell your investigator to get the writ of attachment ready. So do you want to start this trial without them being present, or are you asking for a continuance?
MS. WASHINGTON: Well, I believe the defendant spoke with Ms. Young, and Wendy Young may be on her way, but I’ll need them both, Cathleen and Wendy. So if Cathleen is not present, then the State, I guess, would have to —
THE COURT: I mean, we can go forward and pick a jury, but if they don’t show up, they’re going to end up in jail for a couple of days. And if they don’t show up, then I’m going to have to recess, and this jury is going to be in limbo for a couple of days.
(Pause in proceedings.)
THE COURT: The easiest thing to do is issue your writ of attachment, and then we can start when they get here. But once again — Mr. Factor, I don’t know if you’ve been listening to this. She’s asking for a writ of attachment for two witnesses. So we can go ahead and pick a jury, and then if they don’t show up, then I’m going to have to recess until they show up. And I think the easiest solution is to issue the writ and then pick a jury once they —
MR. FACTOR: I understand.
THE COURT: — they have been attached.
MR. FACTOR: I understand.
THE COURT: That’s the problem. I mean, you just — I can’t leave a jury in limbo for a week or more on a misdemeanor case.
MR. FACTOR: I understand.
MS. WASHINGTON: I was just told that Cathleen Young is here.
THE COURT: Okay.
MS. WASHINGTON: Wendy Young has not arrived, and she clearly will be a material witness. Let me contact the investigator to check on getting the write of attachment for Wendy.
THE COURT: All right. It is 11:00 o’clock. This trial was set to start at 9:00 o’clock this morning. Everybody needs to get all their little bundles in the right basket, and let’s start or ask for a motion for continuance.
MS. WASHINGTON: Does the Defense know or the defendant knows if Wendy Young is going to appear?
THE COURT: You can answer if you want, Mr. Factor.
MR. FACTOR: Well, I will say this, Your Honor: Based on the exculpatory information that I have
Here to fore received from Wendy Young, if she’s not here, I’ll ask for a continuance because she’s — she’s the person who’s going to give evidence that’s favorable to the Defense.
THE COURT: Okay. Why don’t you ask your defendant if she’s going to appear? So, I mean, if you want her here, why don’t you see if you have any knowledge
if she’s going to appear.
MR. FACTOR: Well, I assumed she was here, but — so the fact that she’s not here is news to me. I’ve got some indication she’s coming, but, you know…
THE COURT: Okay. Get the writ of attachment ready. Then we’ll gone forward. Just e-mail your professor — I mean, your professor – your investigator. Don’t leave me.
MS. WASHINGTON: Judge, is it okay if I call right now?
THE COURT: Uh-huh.
(Pause in proceedings.)
THE COURT: Is this your writing or maybe your wife’s?
MR. FACTOR: Yes. It’s Kim’s.
THE COURT: All right. Well, bring him in. There’s a custodian from Baylor. She said she had to appear. But if you change your mind and are going to accept the affidavit, give us plenty of time to call off before 2:30, okay?
MR. FACTOR: Okay.
(Pause in proceedings.)
MS. WASHINGTON: My investigator is away from her desk.
THE COURT: Okay. Well, we’re going to go
ahead and start because it sounds like even — that she’s not out of town somewhere, that she’s somewhere local.
BAILIFF: We have one in the restroom, Judge.
THE COURT: Okay.
(Jury panel enters the courtroom.)
THE COURT: All right. Good morning, ladies and gentlemen. It’s still morning. I apologize sincerely for how long y’all had to wait out in the hall. Several of the cases that were before this case took a lot longer than I thought they were going to. If you’re mad at anybody, be mad at me, not at either side, okay? Once again, I apologize. Hopefully, everything will go smoothly from here on out. I know this was done downstairs, but I have to do it again, so if you would raise your right hand.
(Jury panel sworn.)
THE COURT: All right. The next thing the law requires me to do is to determine your basic qualifications to sit as a juror here in a criminal case here in Tarrant County, Texas. I do this by asking you three questions. Once again, I know they did it downstairs but ever so often somebody slips through. So I have to do
it up here again just to be careful. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state?
VENIREPERSONS: Yes.
THE COURT: Have you ever been convicted of any theft or any felony?
VENIREPERSONS: No.
THE COURT: Are you under indictment or legal accusations for theft or any felony?
VENIREPERSONS: No.
THE COURT: All right. We have a good panel. This is a misdemeanor court so I hear Class A and B misdemeanor cases. I’ve also been designated by the legislature as the family violence court in Tarrant County, Texas. So I hear the majority of the misdemeanor family violence cases. I’m going to give you instructions that will govern all our conduct from this point forward. When you hear these instructions, you will understand they’re not meant to be burdensome but are designed to give fair and impartial — both sides in this case a fair and impartial trial. The case that is now on trial is the State
of Texas versus David Shawn Minze, and it’s a criminal action which will decide whether Mr. Minze is guilty or not guilty of the alleged offense. The State has alleged the offense in four different paragraphs. Two of those are assault body injury of a family member, and the other two are assault body injury but without the family member, household member, dating relationship language. It is your duty — it is the duty of the judge to see this case is tried in accordance with the rules of law. In this case, as in all cases, the actions of the judge, parties, witnesses, attorneys, and jurors must be according to law. Texas law permits the proof of the violations of the rules of proper jury conduct. By this I mean that jurors and others may be called upon to testify in open court about acts of jury misconduct. I instruct you, therefore, to follow carefully all the instructions which I’m about to give you, as well as any other instructions you receive while this case is on trial. If you do not obey the instructions I’m about to give you, it may became necessary for another jury to retry this case. These instructions are as follows:
Do not mingle with nor talk to the lawyers, the witnesses, the parties, or any other person who might be connected with or interested in this case except for casual greetings. They have to follow the same instructions, so you’ll understand it when they do. Do not accept from nor give to any of these persons any favors, however slight, such as rides, food, or refreshments. Do not discuss this case with anyone or even mention it to anyone whomsoever, including your wife or husband, nor permit anyone to mention it in your hearing until you are discharged as jurors or excused from this case. If anyone attempts to discuss this case, report it to me at once. Let’s back up and go over those a little bit. These attorneys can basically say good morning, good afternoon, and that is all they can say to you outside of this courtroom until this case is said and done. They’re not allowed to give you any favors, such as rides, food, or refreshment. So this afternoon, if you’re down at the bus stop trying to get back to LaGrave Field, and all of a sudden, we just get a huge rainstorm, and you’re getting soaked, and the attorneys — each one of these attorneys zoom right past you and each one is in a big old SUV.
They’re nice and dry. They have plenty of room to take you to LaGrave Field, but they don’t stop and offer. They just sort of wave and keep on going. That’s because, at this point in time, they cannot stop and offer you a ride. The rules apply to me, also. So this afternoon when you see me downstairs in front of the candy machine, and you can tell by the look on my face, after this morning, I need a Snickers bar to make it through the day. But I have 60 — and I have 40 cents in my hand, and I think a Snickers cost 75, or something like that now, cents, and you go, here, Judge, let me give you a couple of dimes, I can’t take it. You can’t offer it to me at this point in time. I just have to go Snickers free for the rest of the day. The other part of this is you can’t talk. And when I say “talk,” I mean tweet, e-mail, text, communicate in any manner with anyone about this case until you are discharged from the jury. So, when we take a break or we break for lunch, if you get bored and you start playing on your phone and you text your wife or your husband and they say: Hey, tell me all about it. The final episode of CSI was last night. Tell me what’s going on. Tell me. I want to know everything.
You have to say: I can’t tell you anything about this case until it’s over. Then you can talk to anyone you want to about it. Everybody understand these instructions so far?
VENIREPERSONS: Yes.
THE COURT: All right. The parties, through their attorneys, have the right to direct questions to each of you concerning your qualifications, your background, your experiences, and your attitudes. In questioning you, they’re not meddling in your personal affairs but are trying to select fair and impartial jurors who are free from any bias or prejudice in this particular case. Do not conceal information or give answers which are not true. Listen to the questions and give full and complete answers. And if the attorneys ask some question directed to you as a group, but you want to say something as an individual, you raise your hand and bug the attorneys until they let you talk. Don’t wait for that perfect question. If you have nonrefundable tickets to Hawaii, or you have a job interview that you’ve been waiting for forever, or you have some big project at work,
or you have a test that you’ve been studying for, anything that didn’t quite make it up all the way to a legal excuse to get out of jury duty, but it’s all you can think about right now, let them know. I can’t guarantee you that we will cut you loose, but we always try our best to work with people like that, but we can only do it if we know about it. So if any of you have a situation like that, speak up and let us know. This — as I said, I don’t think I told you the cause number. This is Cause No. 1415787, the State of Texas versus David Shawn Minze. As I indicated, the allegation is of assault body injury of a family member or household member or in a dating relationship or assault body injury. Now, knowing that much or little about this particular case, do any of you feel like you know more just based on the defendant’s name? All right. I take it by your silence you do not. Let me introduce you to some folks sitting here. In front of you representing the State of Texas is Ms. Tulani Washington.
MS. WASHINGTON: Good morning.
THE COURT: And Mr. Dustin Trammell.
MR. TRAMMEL: Good morning.
VENIREPERSONS: Good morning.
THE COURT: Representing the Defense is Mr. Abe Factor.
MR. FACTOR: Good morning.
VENIREPERSONS: Good morning.
THE COURT: And Ms. Kimberly Knapp.
VENIREPERSONS: Good morning.
THE COURT: And then, of course, Mr. Minze. And I’ve said his name about five different ways, so you’ll just have to — one of these days I’ll get it right. You have met my bailiffs James and Robby. I just got through telling you, don’t talk to us; we can’t talk to you. Well, these two are your answer now, okay? So if you have questions throughout the day, talk to them. They’ll do their best to help you. Also sitting in front of you is my court reporter, Mr. Terry Bradshaw. Yes, that is his name, but I don’t think he ever played pro football. He has to take down everything we say and do and make an accurate record of this trial. He’s a very good court reporter, but sometimes the acoustics in this room are not that great, especially when the attorneys stand up there in front of
you and start asking you questions. It’s just human nature to speak just loud enough for that person to hear you, but we all have to hear your answer or the next attorney might get up there and ask you the same thing. So please don’t be offended if I ask you to speak up or if I ask you to repeat your answer. Mr. Bradshaw is a very good court reporter. He does a great job for me. But he’s not real fond of “uh-huhs” or “huh-uhs” or nodding of the head or shaking of the head. So the first time you say “uh-huh,” he’s going to let you get away with it. Second time you answer “uh-huh,” he’s going to shoot you a dirty look to try and remind you to say “yes” or “no.” Third time you say “uh-huh,” he’s going to shoot me a dirty look to remind you to say “yes” or “no.” So everybody help us make a good record. I’m going to go over certain fundamentals of our criminal justice system with you. These are things that you already know. I think it’s helpful to have them fresh in your mind at the beginning of a criminal trial. The first thing is the presumption of innocence. As Mr. Minze sits here today, he is cloaked
with the presumption of innocence and that presumption stays with him unless or until his guilt is established by legal and competent evidence beyond a reasonable doubt. The fact that he may have been arrested and/or charged with the alleged offense gives rise to no inference of guilt at this trial. In a misdemeanor criminal case, the State of Texas generally begins things by filing a piece of paper called an information. It is the charge, and it has three purposes. It tells — it starts the case. It tells the defendant what he’s charged with, and it tells the State what they must prove. The fact that an information is on file in this case gives rise to no inference of guilt against the defendant. The burden of proof in a criminal case is always on the State of Texas. They have to prove what we call each and every element of the alleged offense beyond a reasonable doubt. At the end of the trial, the six of you — and that’s how many I need is six, and I’ll talk to you more about that in just a moment — who serve as our jury will receive the Court’s charge, which contains all the law applicable to this case, some definitions, and any instructions that I’m allowed to give you; that is, the
burden of proof is carried by the State, and that applies to each and every element of the alleged offense. On the other hand, Mr. Factor, Ms. Knapp have done their job just by showing up here today. They could sit there and remain silent throughout this trial. They don’t have to ask you questions; they don’t have to cross-examine witnesses; they don’t have to call witnesses because they don’t have the burden of proof. I seriously doubt that will be the road they go down. I think they will probably speak to you. But you have to remember they don’t have the burden of proof. So you cannot — if they — you cannot consider the choice to question witnesses or not or hold it against the defendant in any way. If the State succeeds in proving each and every element of the alleged offense beyond a reasonable doubt, it will be the duty of the jury to find Mr. Minze guilty as charged. If the State fails in its burden or if you have reasonable doubt about it, it will be the duty of the jury to find him not guilty. If I instruct you that that is the law, can each of you follow that?
VENIREPERSONS: Yes.
THE COURT: All right. The first part of a jury trial naturally is jury selection. In a misdemeanor
case, both sides have up to three strikes they can use against potential jurors for almost any reason. And what happens is the first six of you who are not stricken or otherwise excused end up being on our jury. So it’s sort of jury selection by elimination, if that makes any sense to you. That’s why you fill out the long questionnaires, so they get to know a little bit about you. And that’s why they get to speak to you, so they can have good reasons to use those three strikes. If you sit there and answer every question with, well, I don’t know, I’m not sure, sometimes they go back there, and it’s just sort of a guessing game of, he sort of looks like the guy who dumped me the night before senior prom, and I guess I have two females out there, so — or, you know, this looks like a guy who bullied me the whole time I was in college. I don’t want anything to do with him. But if you speak, if you talk to them, it not only makes jury selection more interesting for myself, it gives them good reasons to use those strikes. So now, No. 20, Mr. Martin Olivo —
VENIREPERSON: Yes, ma’am.
THE COURT: — is sitting back there going: Okay. Obviously, Judge Cummings doesn’t know how to do
math. If she — if you need six people and each side gets three strikes, why am I No. 20 here? Well, Mr. Olivo is correct. I do not do math unless I am forced to do math. But he is my insurance policy, okay? If I lose too many people because they have those non-refundable tickets to Hawaii, or they have that job interview they’ve been waiting for, or there’s just some reason they can’t be fair and impartial in this of type case, if I lose too many people, I can’t call downstairs and say: Hey, send me three more so I can keep on going. I have to completely stop and start over the next day with a new panel. It is not likely he is going to end up on this jury, but it’s possible. So he can’t sit back there and read a book or take a nap or text or anything like that. He has to pay just as close as attention as the rest of you because it’s possible he may end up on the jury. Mr. Luther Alexander being No. 1, you’re sort of in the hot seat, okay? Basically everyone on the front row and a little bit of that back row is what they call you’re in the strike zone. So they need a little bit more information about y’all than they do the last four or five.
So don’t be offended when they don’t ask y’all questions, okay? It’s just these people are in the strike zone, so they’ve got to know a little bit more about y’all. So everybody understand how jury selection works?
VENIREPERSONS: Yes.
THE COURT: All right. Once again, jury selection only works if you participate and answer honestly. If you disagree with the law, speak up and tell us. Both sides are looking for six people who can give a fair and impartial hearing to this particular case. There are circumstances in all our lives that make us great jurors in certain kinds of cases and not such great jurors in other kinds of cases. And that’s what this whole process is designed to determine. If you’re selected to be on the jury, you will then be sworn to follow the law of the State of Texas as I give it to you. Right now you’ve taken an oath to tell the truth. So if you disagree with the law, speak up and let us know. Don’t be shy. Don’t be bashful. If there’s something you don’t believe or you think they have wrong, speak up and let them know. No one’s going to try and change your mind. No one’s going to argue with you.
They just want to know how you feel about certain things. This is not — you’re going to find out, this is not like TV. If it was, my goodness, you wouldn’t even be in your second episode. We would declare this a mini series at this point. Those are designed to be entertainment. This is not. Some of this case may be very boring. Some of it may be very emotional. I have no idea because I don’t get to hear the facts until you hear the facts. But what I do know is this case is very important to every participant in this trial. And when you walked through my courtroom doors, you became a participant. If a subject comes up that you’re not comfortable talking about in front of a group of strangers, let the attorneys know, and we’ll bring you in and speak to you about that matter individually. A little bit of housekeeping, and then I will turn it over to the attorneys. We can take a break anytime you want to take a break, but we all have to take a break at the same time. If you need a break, catch my eye or the bailiff’s eyes, and we will take a break. I try to work until around 5:00. It all depends on the witnesses and where we fall. If it’s easier to quit at 4:30, I’ll quit at 4:30. And if it’s –
if I can finish a witness by staying until 5:30, I’ll do that. But I will give you — you’ll have plenty of breaks throughout the day so you can deal with transportation and what time you’re going to be home. I try to start at 9:00 o’clock in the morning. I know that’s sort of a joke today, but that’s when I try and start is 9:00 o’clock. I have my Diet Coke up here with me, so when we take a break, if you want to go get something to drink, feel free to bring it in. I think that — and I think — based on what both sides have told me, I would think that we will not finish this today, but we will probably finish it tomorrow. Does everybody agree with that?
MS. WASHINGTON: Yes, Your Honor.
THE COURT: Okay. So you would come back tomorrow. All right. State ready?
MS. WASHINGTON: Yes, Your Honor.
THE COURT: All right. You may proceed.
MS. WASHINGTON: Thank you, Your Honor. May it please the Court and defense counsel. Good morning. How is everybody doing?
VENIREPERSON: Just fine.
VENIREPERSON: Good.
MS. WASHINGTON: Let me try one more time. Good morning. How’s everybody doing?
VENIREPERSONS: Just fine.
MS. WASHINGTON: That’s much better. My name is Tulani Washington. My co-counsel is Dustin Trammell. I am from Baton Rouge, Louisiana. I am not married. I do not have any children. I have never sat on any type of civil or criminal trial. I have been here, I think, for about three or four months. Prior to being here, I was in Navarro County, Texas. And for my age, we’ll just say I’m in my 30s. I won’t say high or low. We’ll just say 30s. Now, I gave you that brief introduction about myself because you guys filled out this questionnaire, and so I feel that if you’re going to give me some personal information about you, it’s only fair that I do the same in reciprocating kind and that way we start off on the same foot. Is everybody okay with that?
VENIREPERSONS: Yes.
MS. WASHINGTON: Okay. Now, that being said, is there anyone in here who feels like they know me?
Anyone in here who knows me, be it in a case up here or maybe seen me around the courtroom? Is there anyone up here that knows me?
VENIREPERSONS: No.
MS. WASHINGTON: Okay. Is there anyone in here that knows my co-counsel, Mr. Dustin Trammell?
VENIREPERSONS: No.
MS. WASHINGTON: Okay. Is there anyone in here who knows defense counsel, Mr. Abe Factor?
VENIREPERSONS: No.
MS. WASHINGTON: Okay. I’m sorry. Ma’am, what’s your name?
VENIREPERSON: Nancy Saunders.
MS. WASHINGTON: Nancy Saunders. Okay. How do you know Mr. Abe Factor?
VENIREPERSON: Family friend.
MS. WASHINGTON: Family friend. Okay. Is there anything about you knowing
Mr. Factor that would cause you to be unfair if you were chosen to sit on this panel?
VENIREPERSON: No.
MS. WASHINGTON: Okay. So you believe that you could listen to all the evidence and be just as fair to Mr. Factor and the State at the same time?
VENIREPERSON: Yes.
Mr. Factor’s co-counsel? Is there anyone who knows Ms. Knapp?
VENIREPERSONS: No.
MS. WASHINGTON: Okay. Is there anyone who knows the defendant, Mr. David Minze?
VENIREPERSONS: No.
MS. WASHINGTON: Okay. Now, we’re here on an assault family violence case. You’ll see that here. This case is an assault —
THE COURT: That’s too much.
MS. WASHINGTON: We’re here on an assault bodily injury of a family member, okay? That’s the type case we’re here on. And there are various types of assaults. We have felony assault, which typically involves some type of bodily injury. We have Class A assault, which is what we’re here on today. And we also have a Class C assault, which is an offense of touching, okay? Those are the various types of assaults that we have. Assault — my PowerPoint might not be working.
THE COURT: Can you see — y’all were fiddling with it earlier. Can you see if you can make it work?
MS. WASHINGTON: Okay. Here it is. Assault in the State of Texas — he has magic. Assault in the State of Texas is defined as a person who commits an offense if the person intentionally, knowingly, or recklessly caused bodily injury to another, including the person’s spouse. Okay. Now, that is what constitutes assault. So in this particular case, because it’s a family member, the only thing we have to add on to it is just going to be somebody as a dating relationship or family member. But right now we’ll just concentrate on assault. Okay. Is there anyone in here who was a — has been the victim of an assault? Anyone in here, raise your hand if you believe that you have been the victim of an assault. First row?
(No response.)
MS. WASHINGTON: Second row?
(No response.)
MS. WASHINGTON: Okay. Is there anyone in here who has had a family member that was a victim of an assault, close family member? Okay. Ms. Roney?
VENIREPERSON: Uh-huh.
MS. WASHINGTON: Okay. You have a family member that was the victim of an assault?
VENIREPERSON: Uh-huh.
MS. WASHINGTON: Okay. Is there anything about your family member being a victim of assault that would cause you to be unfair if you were chosen on this panel?
VENIREPERSON: No.
MS. WASHINGTON: Okay. You could be fair. Okay.
THE COURT: I’m sorry. I didn’t hear your answer.
VENIREPERSON: No.
THE COURT: You could not be fair?
VENIREPERSON: Oh.
MS. WASHINGTON: You could be fair if you were chosen?
VENIREPERSON: Yes.
THE COURT: Okay.
MS. WASHINGTON: Mr. Hubbard?
VENIREPERSON: Yes, ma’am.
MS. WASHINGTON: Okay. You have a family member that was the victim of an assault?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Is there anything about that that would cause you to be unfair if you were chosen on this panel?
VENIREPERSON: No.
MS. WASHINGTON: Okay. Anybody else, family member? I’m sorry. Mr. Ruiz?
VENIREPERSON: Uh-huh.
MS. WASHINGTON: Okay. You have a family member?
VENIREPERSON: Yes.
MS. WASHINGTON: Is there anything about your family member being a victim of an assault that would cause you to be unfair?
VENIREPERSON: No.
MS. WASHINGTON: Anyone else on the first row?
Mr. McDonnell?
VENIREPERSON: I was actually the one that the assault charge was — I filed the assault charge against a family member, and it was in this courtroom.
MS. WASHINGTON: Okay.
VENIREPERSON: I cannot be on this jury. I have been in this courtroom —
MS. WASHINGTON: Okay. So –
Within the last year.
MS. WASHINGTON: Okay. So you could not be fair if you were on this panel?
VENIREPERSON: No, I cannot.
MS. WASHINGTON: And you said it was recently?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay.
VENIREPERSON: It was within the last year.
MS. WASHINGTON: Okay. Is there anyone else on the first row, family member, victim of assault?
(No response.)
MS. WASHINGTON: Okay. What about the last row? Family member, victim of an assault?
Ms. Saunders?
VENIREPERSON: Yes.
MS. WASHINGTON: You have a family member that was a victim of an assault?
VENIREPERSON: Yes.
MS. WASHINGTON: Is there anything about that that would cause you to be unfair?
VENIREPERSON: No.
MS. WASHINGTON: Okay. Anybody else on the last row?
Mr. Paul Nourse?
VENIREPERSON: Yes, ma’am.
MS. WASHINGTON: Okay. Is that a family member?
VENIREPERSON: Yes.
MS. WASHINGTON: Is there anything about that that would cause you to be unfair?
VENIREPERSON: No.
MS. WASHINGTON: Okay. Ms. Ricard?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Is there anything about a family member?
VENIREPERSON: No.
MS. WASHINGTON: Can you be fair, if chosen?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Mr. Olivo?
VENIREPERSON: No, ma’am.
MS. WASHINGTON: You haven’t had a family member. Okay. Okay. Throughout this trial, you’ll hear me talk about elements that I have to prove. And essentially what I have to prove is, on or about a certain date — it doesn’t want to work — in Tarrant County, Texas — it just doesn’t like me today — the defendant
intentionally or knowingly caused body injury to another, a member of the defendant’s family, household, or is or has been in a dating relationship with them. Okay. These are the only elements the State has to prove, okay? The State can prove all of the elements and not prove that it happened in Tarrant County, Texas. And if the State fails to meet that one burden, you would have to find the defendant what? Not guilty?
VENIREPERSONS: Not guilty.
MS. WASHINGTON: Okay. But if we prove each and every element beyond a reasonable doubt, then you would have to find the defendant guilty. Could everybody agree to that?
VENIREPERSONS: Yes.
MS. WASHINGTON: Okay. Now, is there anybody in here who would require the State to prove more than these elements? Like who in here would require the State to prove serious bodily injury? Okay. So everybody in here can hold the State to this particular burden?
VENIREPERSONS: Yes.
MS. WASHINGTON: Okay. Let’s talk about cause bodily injury. Bodily injury in the State of Texas means pain, illness, or any impairment of physical condition.
It does not mean serious bodily injury. Cuts, scrapes are more than enough, okay? Now, let me ask Mr. Alexander. Can you think of a situation where you could feel pain and there not be any type of visible injuries?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Could you explain that to us? What of type scenario can you think of?
VENIREPERSON: Well, actually, all pain that’s inflicted does not leave a visible injury.
MS. WASHINGTON: Okay. Now everybody heard what Mr. Alexander said, and that’s important because not every injury, bodily injury that occurs, will have some type of visible injury. And so my question is: Is there anyone in here that would require the State to have some type of visible injury, be it a cut or a bruise, anything? The only thing I’m required to prove is pain. Is there anybody in here — Mr. Olivo, you would require the State to prove more than just the type of pain?
VENIREPERSON: Yes, ma’am. I would require some kind of witness or paper from a doctor.
MS. WASHINGTON: Okay. Well, that’s other type of evidence. And so I guess that’s what I want to
know. Would you require me to prove more than what you see on this screen? How many people in here have siblings? Okay. I have a twin brother. And when we were younger, we would get into arguments, okay? I would talk about him, say something he didn’t like, and first thing we do is interlock. What’s the first thing you think he grabs on me?
VENIREPERSON: Your hair.
MS. WASHINGTON: My hair. He would grab it by the roots. And if you look at me, you didn’t see any type of physical injury to me. But when he pulled my hair, I absolutely felt pain. So can anyone — can everyone understand how you could actually feel pain and there not be some type of physical injury or bruise or anything of that nature? That’s why this type case, the only thing I’m required to prove is pain. Now, do you think if your twin grabbed a plug of your hair, you would feel some type of pain?
VENIREPERSONS: Yes.
MS. WASHINGTON: Absolutely. And that’s the only thing I’m required to prove. You see Mr. Olivo?
VENIREPERSON: Yes, ma’am. MS. WASHINGTON: So are you still going to require the State to bring some type of medical expert or doctor to come in even though I’m only required to prove pain?
VENIREPERSON: No.
MS. WASHINGTON: Okay. Is there anyone else in here who would require the State to prove more than what you have on the board, on the screen? Ms.?
VENIREPERSON: Wilson.
MS. WASHINGTON: Ms. Wilson. Okay. You would require me to prove more than just what?
VENIREPERSON: Subjective pain.
MS. WASHINGTON: Type of subjective pain. So you would —
VENIREPERSON: That’s subjective pain. You can’t go to your mom and prove that he’s pulling your hair. You know what I’m saying?
MS. WASHINGTON: So would you want there to be some type of — so even though — so let’s just say a witness took the stand and the witness said that “I felt pain,”
that wouldn’t be sufficient for you; you would need something else to say that pain actually occurred
VENIREPERSON: Yes.
MS. WASHINGTON: Okay.
THE COURT: You have some more hands.
MS. WASHINGTON: I’m sorry, Judge.Okay. Mr. Porter. Okay.
VENIREPERSON: How does — how does one rule out self-inflicted pain?
MS. WASHINGTON: How does one rule out self-inflicted pain? Well, we’ll get to that, that witness aspect in one second. But at this point, would you — well, let me ask — well, we’ll get to that point in a second. But let me ask you this: Would you require me to prove some type of medical, scientific, or anything like that?
VENIREPERSON: Not necessarily.
MS. WASHINGTON: Okay.
VENIREPERSON: I wouldn’t definitely say so, but their needs to be some objective proof.
MS. WASHINGTON: Some objective proof. Okay. That’s Mr. Porter. You would require some objective proof?
VENIREPERSON: Yes.
MS. WASHINGTON: Who else feels like Mr. Porter?
Mr. Clippard?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. You would require some type of objective proof as well?
VENIREPERSON: Yes, ma’am, I would.
MS. WASHINGTON: Okay. Who else? Mr.?
VENIREPERSON: Boroff.
MS. WASHINGTON: Boroff. Okay. Okay. And Ms. Ricard?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Let me ask this question: Knowing that this case involves some type of family member, how many people in here believe, you know, things that happen in between family members should stay in between family members and just stay in the house? How many people believe that law enforcement should never get involved with some type of family issues? And it could be any kind, be it spouses, siblings, what-have-you. Is there anyone in here on the first row who believes that law enforcement should never get involved with some type of family dispute? Second row? Okay. Then let me go to the next – this
is what constitutes a family member. If you’ll recall back at the previous screen we talked about, it has to be to a family member or someone that’s in a dating relationship. Is there anyone in here — and I think we all know what would constitute a family member, parents, spouses, even ex-spouses, children, cousins, brothers. Can everybody agree that that would be considered a family member?
VENIREPERSONS: Yes.
MS. WASHINGTON: Okay. So let’s go to the next one, which would be dating relationship. A relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such relationship shall be determined based on a consideration of the length of their relationship, the nature of their relationship, and the frequency and type of interaction between the persons involved in that relationship. This is where we’re going to be, and this is essentially boyfriend/girlfriend. This covers people who are just dating, going out, and so forth, okay? Is there anyone in here who says: I don’t know; you know, it’s going to be difficult for me to kind
of say that a boyfriend and a girlfriend shouldn’t be considered some type of domestic violence? Is there anyone in here who says boyfriend and girlfriend should not be considered domestic violence? First row?
(No response.)
MS. WASHINGTON: Second row?
VENIREPERSON: I mean, domestic violence, doesn’t that mean —
MS. WASHINGTON: Well, and I say domestic violence, that just means assault family violence, assault on a family member, okay?
VENIREPERSON: No, I don’t think so. I mean —
MS. WASHINGTON: So you think that —
VENIREPERSON: People, I believe, that people that date people, the person that’s dating the family member, well, that’s family, but dating a person is not family.
MS. WASHINGTON: So you believe that a boyfriend and girlfriend should not be considered some type of — should not fall under the category for some type of family offense? Because you remember what the section said — it says that they have to be a family member.
They have to live in the household, or they have to have a dating relationship.
VENIREPERSON: But it — I mean, like if your daughter goes out with a man for, let’s say, two times, that’s not considered a relationship. I mean, it’s dating.
MS. WASHINGTON: Well, and that’s why the code says you have to consider the length of the relationship, the nature of the relationship, and the frequency or the type of interaction, okay So what — what would you say would be too short of a time?
VENIREPERSON: A month.
MS. WASHINGTON: A month. Okay. Is there anyone in here who puts a time limitation on what is considered a relationship? Okay. Is there anything else, Mr. Olivo? What about the interaction and frequency? Because it could be something intimate as well.
VENIREPERSON: A person can see each other every day, but, I mean, they cannot really — I don’t think they can really interact and find each other’s character or who they really are within that time.
MS. WASHINGTON: Okay. So — and just correct me if I’m wrong. You’re saying that you could not
consider a boyfriend and girlfriend relationship?
VENIREPERSON: Not within a month.
MS. WASHINGTON: Okay.
VENIREPERSON: They could have sex every day, but they could — I mean, that’s less than – and relationships are different.
MS. WASHINGTON: Okay. So you can’t consider that?
VENIREPERSON: No, ma’am.
MS. WASHINGTON: Okay. And that’s
Mr. Olivo, No. 20.
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. Now, let’s talk about uncooperative victims. Dealing in family violence cases, whether it’s between spouses or siblings, their tendency — there comes a time when maybe the — the heat can die down, and sometimes the person says: You know what? I don’t want to prosecute. How many people says: You know what, State; if the family member doesn’t want to prosecute, then you should not get involved? How many people says that? Mr.?
VENIREPERSON: Boroff.
MS. WASHINGTON: Mr. Boroff.
And could you explain why would you feel that way?
VENIREPERSON: If the person doesn’t want to press charges, then why would the State get involved?
MS. WASHINGTON: Well, what type of interest would the State have in continuing to prosecute even if the victim says no?
VENIREPERSON: They wouldn’t.
MS. WASHINGTON: You think maybe the State might say, you know, just to prevent future things from happening? It’s possible, Ms. Holdridge? That’s possible?
VENIREPERSON: Yes.
MS. WASHINGTON: What could be another reason the State would say: You know what; no, we’re going to go forward with charges? What about —
VENIREPERSON: I think that if the person doesn’t want to press charges, then it’s not a serious matter.
MS. WASHINGTON: It’s not a serious matter. Okay. What do you think of as a serious matter?
VENIREPERSON: I would think, if they
received bodily harm, then they’re angry enough to press charges.
MS. WASHINGTON: Okay. What about when they’re of the opposite sex in their relationship? You think maybe that person may become uncooperative because they want to continue in a relationship?
VENIREPERSON: I can’t see why.
MS. WASHINGTON: You can’t see why. But you think that’s possible? Maybe they’re afraid, you know, that they’ll lose this person.
VENIREPERSON: I don’t think that would be possible.
MS. WASHINGTON: You don’t think that would be possible? So, in your mind, the State should just say: Okay, State, if the victim doesn’t want to prosecute, just drop the charges?
VENIREPERSON: If it’s not a serious matter —
MS. WASHINGTON: If it’s not a serious matter.
VENIREPERSON: — why press charges?
MS. WASHINGTON: Is there anyone who feels like Mr. Boroff? Keep your hands up, please. I’m sorry.
Anybody on the first row?
VENIREPERSON: No, but I have a question.
MS. WASHINGTON: Okay.
VENIREPERSON: If they don’t —
MS. WASHINGTON: Can I come back to you? I mean, I just want to get these on —
VENIREPERSON: Okay. Go ahead.
MS. WASHINGTON: Okay. Anybody who feels like Mr. Boroff? Mr. Wilson?
VENIREPERSON: Yes.
MS. WASHINGTON: Do you say, if the State — if the victim doesn’t want to prosecute, State should just drop it?
VENIREPERSON: Okay. We’re talking about adult participants in this particular situation, and just that each one of us have a free will, allowed to make choices. If an individual is choosing to drop the charges, based on whatever their, you know, details are, then I agree, if they do not want it, if they want to continue to be in a relationship, then they are choosing to continue in that type of environment.
MS. WASHINGTON: Okay. I want to make sure everybody recognizes, it’s for the State to bring charges
and not bring charges.
VENIREPERSON: Right.
MS. WASHINGTON: Okay. The victim can’t determine whether or not the State pursues charges or not, okay?
VENIREPERSON: Okay. My point — yeah. My point is, if the people that you are representing state — is saying no, then that is their free will. So the State should step back.
MS. WASHINGTON: So you’re saying the State should step back just to —
VENIREPERSON: And allow people to make their choices. And consequences always come with choices.
VENIREPERSON: Yes.
MS. WASHINGTON: And Mr. —
VENIREPERSON: I agree with that, also, yes, ma’am.
MS. WASHINGTON: You do, sir. Okay. Anybody else who feels like Mr. Boroff? That’s Ms. Saunders?
VENIREPERSON: Yes, I agree with that.
MS. WASHINGTON: Okay. Ms. Peterson?
2
VENIREPERSON: Sandoval.
MS. WASHINGTON: Sandoval. Okay.
VENIREPERSON: Yes, I agree with that.
MS. WASHINGTON: Okay. Anybody else?
Mr. Peterson?
VENIREPERSON: Nourse.
MS. WASHINGTON: Nourse. Okay.
Ms. Ricard?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. And Mr. Freeman?
VENIREPERSON: Yes.
MS. WASHINGTON: And Mr. McDonnell?
VENIREPERSON: (Nods head.)
MS. WASHINGTON: Okay. And Mr. Porter?
VENIREPERSON: I guess I have a — I find it a very complex question because there’s not enough detail.
MS. WASHINGTON: All right. And at this phase, we can’t go into the facts. At this point, the only thing we’re able to do is just talk about the law and what you guys agree to or not agree to. We’re not allowed to go into the facts of the case.
VENIREPERSON: Yeah. I think, in most cases, I would — I would think if — you know, if family members want to amicably, you know, agree to make things up and not drop — you know, not proceed with charges, then that’s — that’s fine.
MS. WASHINGTON: That’s fine. Okay.
VENIREPERSON: That’s fine.
MS. WASHINGTON: Okay. Does that – does that stay the same if it’s spouses versus siblings, or does it even matter?
VENIREPERSON: I can’t answer it.
MS. WASHINGTON: You can’t answer. Okay. Does everybody else hear that? Does it matter to you if it’s a spouse versus siblings? You feel the State should just back off if they want to settle it no matter what?
VENIREPERSON: No.
VENIREPERSON: No.
VENIREPERSON: No.
MS. WASHINGTON: No. Okay.
VENIREPERSON: Because one person doesn’t want to make charges doesn’t mean somebody else is going to get hurt.
MS. WASHINGTON: Okay. And that’s Mr. Hubbard?
VENIREPERSON: Yes, ma’am.
MS. WASHINGTON: Okay. We talked about the elements that I have to prove, and I have to prove each of those elements to you beyond a reasonable doubt, okay? That’s not 100 percent doubt; it’s beyond
reasonable doubt. And the way I was able to give you a definition of what was bodily injury, there is no definition for beyond a reasonable doubt because that varies from person to person. But what I can tell you is that it’s not all doubt 100 percent. What is the one way for you to know 100 percent what occurred?
VENIREPERSON: Be there
MS. WASHINGTON: You were actually there. I believe Ms. Wilson said it. You would have had to have actually been there. And if you were there, then you wouldn’t be on a jury panel; you would be an actual witness in the trial. Okay. So just looking at that, is there anyone in here who can tell me what that’s a picture of? Mr. Alexander, you know what that’s a picture of?
VENIREPERSON: Puzzle pieces.
MS. WASHINGTON: Puzzle pieces. Anybody take a guess at what that is? Because it’s kind of how you have to look at beyond a reasonable doubt. We’ll give you pieces of the puzzle. What about now? You have some more pieces?
VENIREPERSON: Okay. Some of those pieces are messed up.
MS. WASHINGTON: In my next slide, they won’t be.
VENIREPERSON: Okay.
MS. WASHINGTON: In my next slide, they won’t be. Can anybody take a guess now of what the picture is?
VENIREPERSON: They must fit.
MS. WASHINGTON: The must fit. Okay. What about now?
VENIREPERSON: A gun.
MS. WASHINGTON: Now, you see, there are still some pieces missing, but, Mr. Hubbard, what is that a picture of?
VENIREPERSON: A gun.
MS. WASHINGTON: It’s a gun. Is there anyone in here who doubts what that’s a picture of even though there are some pieces missing? That’s how you have to look at beyond a reasonable doubt. There might be some holes, but you know based on everything that you’ve heard and seen that that’s a gun, okay? You know it when you see it.
Okay. Now we go to the phases of trial. And the trial is bifurcated. Means we have a guilt/innocence phase, and then we have a punishment phase. In the guilt/innocence phase, the only thing you are to determine is whether or not you believe the State met its burden, whether or not the State proved each and every element beyond a reasonable doubt. It’s not a part where you consider any mitigating circumstances, okay? It’s whether or not the State met its burden. The punishment phase will come after, okay? So is there anyone in here who believes that they can follow the law and recognizes we have the guilt/innocence phase, as well as the punishment? Okay.
VENIREPERSON: I think the punishment should be justified as to the amount of hurt put on the person.
MS. WASHINGTON: Right. In punishment, we get to — you get to think about sympathy. The punish — the guilt phase is just whether or not they actually did it. Punishment, you get to think about sympathy, things — how it can affect a person and so forth. But in the punishment, it’s just whether or
not — I’m sorry — the guilt/innocence is just whether or not the person actually did it. Everybody can follow that?
VENIREPERSONS: Yes.
MS. WASHINGTON: Okay. Now, that concludes the end of my voir dire, and I just have this one follow-up question: Is there anything that maybe I should have asked and I left off and you guys say: You know, if the State had just asked me some more questions, it probably would have made a difference? Anything that I should have asked that I didn’t ask, but you think I should know? On the first row, anything you think maybe you need to tell me? Mr. Hubbard?
VENIREPERSON: What I said about the person that got hurt didn’t want to press charges —
MS. WASHINGTON: Uh-huh.
VENIREPERSON: — and somebody else can get hurt —
MS. WASHINGTON: Uh-huh.
VENIREPERSON: — you need to look at that, what frame of mind they’re in.
MS. WASHINGTON: Okay.
VENIREPERSON: I kind of agree with that,
too.
MS. WASHINGTON: Okay.
VENIREPERSON: Me as well.
MS. WASHINGTON: Ms. Lemoine?
VENIREPERSON: Yes.
VENIREPERSON: Ma’am, I don’t think I’ll be able to do this case because my brother got killed in a situation like this.
MS. WASHINGTON: Okay. You had a family member got killed in a situation like this?
VENIREPERSON: Uh-huh.
MS. WASHINGTON: And about how long was that? I’m sorry.
VENIREPERSON: That was in 1990.
MS. WASHINGTON: Okay.
VENIREPERSON: And I was fixing to get ready to graduate.
MS. WASHINGTON: Okay. And so you don’t believe that you could be fair if you were chosen to serve on this case?
VENIREPERSON: I’m going to consider him guilty because my brother got killed, and no justice was for him.
MS. WASHINGTON: Okay. Okay. Okay. That concludes my portion of the
voir dire. Thank you.
THE COURT: All right. Before the Defense starts, does anybody need a break, or are y’all ready to go forward? Ready? All right. Who’s going to do jury selection for the Defense?
MR. FACTOR: Judge, I need to get set up with a —
THE COURT: With a PowerPoint?
MR. FACTOR: Yes, Your Honor.
THE COURT: All right. So rather than sit here watching him do that, why don’t y’all take about a five-minute break in case you need to go to the restroom. Okay. Don’t come back in until the bailiff calls you. And watch your step back there on the back row.
(Jury panel leaves the courtroom.)
(Recess.)
MS. WASHINGTON: Judge, I was just told my witness Cathleen Young is refusing to come, so I’m working on the writ now.
THE COURT: Okay. Y’all can bring them back in. I think Dustin is still working with the victim
on the other case, so we’ll start without Dustin.
(Jury panel enters the courtroom.)
THE COURT: All right, Mr. Factor.
MR. FACTOR: Okay. I’ll skip the introduction part. I don’t believe that I — I have three boys, and I don’t believe I ever got through 30 days without one of them having some bodily injury at the hands of the other. But like I said, they’re all grown and seem to be okay now. There are questions that we ask at this part of the trial sort of to find out your suitability for your — for your ability to answer questions that will be asked at the trial and about whether you can take the oath as jurors. Because right now you have not taken an oath as a juror. And when you take an oath as a juror, you have to take an oath to follow certain principles. And some people can’t, as you’ve already told us. And so we — that’s why we have more than six people. Some days we need more than 20. And — because we want — we want everybody to tell us exactly how they feel. And I’ll tell you, we don’t really care what you say, if you’re telling us the truth, okay? But you’re telling us the truth, I don’t care what you say,
okay? I thought I would start with, like, you know, the easy subjects like — I don’t know – the Confederate flag, same sex marriage, the Pope’s ideas about the environment, and then maybe move on to something else. But, anyway — so, like I said, we kind of hear — want to hear what you have to say. And a fact that we have discovered through studies is that people who talk less during jury selection have a tendency to be jurors. So, therefore, the more you tell us, the less likely we are to be — doesn’t always work that way, but only — but a lot of times it does. And one of the things that we try to find out — I mean, we use this word, and it’s the word we have to use, and it’s the word for strong feelings for or against one side or the other in the lawsuit now, okay? And I think you told us you have some strong feelings?
VENIREPERSON: Correct.
MR. FACTOR: Okay. And you’re
Mr. McConnell?
VENIREPERSON: McDonnell.
MR. FACTOR: McDonnell. Sorry.
And, Mr. Ruiz, did you tell us something about that? You were — you were telling us you’ve been in this court recently.
VENIREPERSON: That’s correct.
MR. FACTOR: Okay. Sorry. I had written that down for — for you, even though it’s not true. It’s not — it’s just dyslexic. Okay. And Mr. (sic) Ricard, I think you had some questions about whether you could be a fair and impartial juror. You put a question mark.
VENIREPERSON: I put a question mark?
MR. FACTOR: Okay. On your questionnaire, you put a question mark. So I guess that meant you had a question about whether you could be fair and impartial.
VENIREPERSON: I don’t actually remember doing that.
MR. FACTOR: You don’t?
VENIREPERSON: I did. I did.
THE COURT: Yeah. No. —
MR. FACTOR: Okay. Ms. Sandoval?
VENIREPERSON: No. Peterson.
THE COURT: Peterson, No. 17.
MR. FACTOR: I got that you put no.
VENIREPERSON: Yeah, I did put no.
MR. FACTOR: You put a no. Okay.
VENIREPERSON: Yes. Should be a question mark.
MR. FACTOR: You put a no. You put a question mark. Okay. Just mistaken identity here.
VENIREPERSON: Yeah.
MR. FACTOR: Okay. So you’re not sure you can?
VENIREPERSON: Well, it was — I didn’t know it was — what kind of case it was.
MR. FACTOR: This is — it’s —
VENIREPERSON: If it was very law enforcement, I am very in favor for law enforcement.
MR. FACTOR: Okay. So you — so you have a bias in favor of law enforcement; fair to say?
VENIREPERSON: Yes. The police.
MR. FACTOR: The police, things like that. We ask questions about that. Okay. And you’re — you’re Ms. Peterson?
VENIREPERSON: Yes.
MR. FACTOR: Okay. And I think you, Ms. Sandoval, said you can’t be fair in this kind of case?
VENIREPERSON: Uh-huh.
MR. FACTOR: Okay. That’s fine. And, Ms. Roney, I think you also said that,too?
VENIREPERSON: Yes.
MR. FACTOR: Okay. And so I have
Mr. McDonnell. So did I miss anybody on — on that aspect, or is there anybody I need to — who wants to — by the way, you can — you can sort of change your minds anytime until we adjourn. Yes, sir.
VENIREPERSON: I —
MR. FACTOR: Are you Mr. Clippard?
VENIREPERSON: Yes, sir, I am. I really don’t understand domestic violence. I think people put themselves in that position sometimes.
MR. FACTOR: All right.
VENIREPERSON: And, you know, if you’re told no, it’s no. I — personally, of course, I’ve been married 40 — over 40 years. And I’ve raised five kids and got 15 grandchildren, but I do not understand domestic violence.
MR. FACTOR: You mean, like you don’t think, like, when you — like, when your two — like your two adult children got a little disagreement and push each other around, that we need to –
VENIREPERSON: Oh, one of my sons is a police officer, but I just think that if I’m put in a position and somebody tells me: Well, you know, this relationship is over; this isn’t working —
MR. FACTOR: Right.
VENIREPERSON: — I’m gone. That’s just the way I feel about it. I do not understand domestic violence at all.
VENIREPERSON: Can I say something?
MR. FACTOR: Hang on. We may — you may, but we may have limited time, so let me —
VENIREPERSON: So I really don’t understand domestic violence. I know that people get upset with each other. Being married over 40 years, my wife and I have argued, but it never came to domestic violence. I don’t understand it at all.
MR. FACTOR: Okay. So which side of the fence do I put you on here?
VENIREPERSON: As far as?
MR. FACTOR: As far as — well, do we think we have strong feelings for one side, this is one side, or against one side, or the other side, for or against our side?
VENIREPERSON: I’m going to be very partial to — how do I want to word this? I disagree with
domestic violence. How is that?
MR. FACTOR: Okay. So you don’t believe — this is their question. You don’t believe these cases should be prosecuted? That’s fine, whatever you say. So you have some — some qualm with the concept of it?
VENIREPERSON: Yes, I do.
MR. FACTOR: Okay. Okay. Well, am I getting it right? Because I am trying to put it into your words.
VENIREPERSON: Well, I don’t know how else to put it.
MR. FACTOR: No. That’s fine. However you put it is fine. We’re going with what you said. Yes, sir.
VENIREPERSON: I think what he’s trying to say is he doesn’t understand domestic violence because it doesn’t always happen like that.
VENIREPERSON: Well, I just don’t know.
MR. FACTOR: I don’t know what you mean when you say it like that.
VENIREPERSON: Well, I don’t know what kind of domestic violence we’re talking about.
MR. FACTOR: All right.
VENIREPERSON: I don’t understand, you know.
MR. FACTOR: That’s fine. We’ll — we’ll move on. But I think I’ve got you — I’ve got you clear. You don’t — you don’t understand it. That’s fine. That’s called nihilism. And, you know, a little nihilism can be good in the courtroom, you know. Most people prefer anarchism. But that’s good. All right. So — so — but there are — there are folks who — who say — I don’t know if they say this. There’s all kinds of cases. They say: Well, if the case has gotten this far, then I think it must be a legit case, and there must be some pretty good evidence that the person’s guilty. Otherwise, the Government wouldn’t come along and try to prosecute them. You’re — no? You don’t think that?
VENIREPERSON: I think accidents happen every day.
MR. FACTOR: Okay. And you think that?
VENIREPERSON: I think there’s a reason the State picked the case up.
MR. FACTOR: Okay. So — so for you, does that add some legitimacy to the State’s case?
VENIREPERSON: I’d have to see what they say, see their facts, see their evidence.
MR. FACTOR: Okay. Okay. Mr. Hubbard?
VENIREPERSON: Yes.
MR. FACTOR: Okay. Where are you on that one?
VENIREPERSON: Well, I can’t be for one side or the other side like her. I have to see the evidence.
MR. FACTOR: You can. You can. Several people are. And that’s fine. I can just say, you can be for one side or the other now, and you can still walk away with 6 bucks.
VENIREPERSON: What I’m saying is, I don’t understand it. I’ve been married for 35 years.
MR. FACTOR: Gee, I feel like a real lightweight here. Last week was my 27th anniversary.
VENIREPERSON: I’ve never hit my sister when we were kids. I don’t hit my wife. I have never hit my kids. So I just don’t understand — I just don’t understand it.
MR. FACTOR: Okay. All right. Okay.
VENIREPERSON: I’m sure it happens, but I’ve just never seen it —
MR. FACTOR: Okay.
VENIREPERSON: — with my own eyes.
MR. FACTOR: All right.
VENIREPERSON: Can I say something?
MR. FACTOR: Maybe, but later. Ms. Lemoine?
VENIREPERSON: Yes.
MR. FACTOR: Tell me where you are on the — this question: Like some people say, well – and we can get divergent opinions about this. Some people say: Well, if a policeman tells me something, I’m probably going to think it’s the truth because they’re a policeman. And I picked you out for this question.
VENIREPERSON: Yes, because my father is a motorcycle officer —
MR. FACTOR: Yes.
VENIREPERSON: — of 30 years for Mansfield.
MR. FACTOR: I understand. I picked you out for this question, okay? It’s not by accident.
VENIREPERSON: I know.
MR. FACTOR: So are you somebody who would have a tendency to attach more weight to the — to the — you think police are more likely to tell the truth than someone else?
VENIREPERSON: Yes.
MR. FACTOR: Okay. All right. And so in a
case that involved police officer testimony, you might — you might have a tendency to — because — because the person is a police officer, you might have a tendency to think they’re telling the truth as opposed to somebody else?
VENIREPERSON: That is correct.
MR. FACTOR: Okay.
VENIREPERSON: I disagree with that.
MR. FACTOR: Well, that’s okay. We’re — we’re good with disagreements. We’re here to find out everybody’s opinion. We are not trying to get uniform opinion, okay? We are not trying to get everybody on the same page. There is a page — same page we’re trying to get some people on, but we’ll see if we have some volunteers for that, okay? Okay. So a definite — definite bias in favor of law enforcement?
VENIREPERSON: Yes, sir.
MR. FACTOR: Okay. All right. Anybody else, anybody else like you? Don’t have – necessarily have to have a police officer father to — to have that opinion. Anybody else? Law enforcement, I’m inclined, you know — Doris Rhoten, have we asked you anything?
VENIREPERSON: (Shakes head.)
MR. FACTOR: Haven’t asked you anything. Since we haven’t asked you anything, if we could finish voir dire now, you would probably be the foreman since no one talked to you at all. You’ve said little. Let me start talking.
VENIREPERSON: If I’m selected, I’d like to hear both sides.
MR. FACTOR: Yeah.
VENIREPERSON: Make my decision from there.
MR. FACTOR: Okay. Okay. So no particular bias in favor for or against police officers?
VENIREPERSON: No.
MR. FACTOR: Okay. And Ms. Wilson?
VENIREPERSON: I have a tendency, just from experience, not to necessarily trust what they say.
MR. FACTOR: Okay. Now, can you —
VENIREPERSON: Elaborate on that?
MR. FACTOR: Yeah. No, you don’t have to elaborate. Just say, will you put that aside and take it — and come into the trial without regard for it?
VENIREPERSON: Considering that I am a tunnel vision person, no.
MR. FACTOR: Okay.
VENIREPERSON: I will always be skeptical.
MR. FACTOR: Okay. All right. Okay. And
David Vogel, have we asked you anything?
VENIREPERSON: No.
MR. FACTOR: Want to keep it that way?
VENIREPERSON: That’s fine with me. I will be impartial, and I would watch the evidence unfold and make my decision.
MR. FACTOR: Okay. I was going to ask you about Airbus. I’m — and this is just because I’m not sophisticated about it. I know there’s Airbus — there’s a company called Airbus that makes airplanes.
VENIREPERSON: Yeah. They bought the helicopter company I worked for.
MR. FACTOR: Okay. So it’s the same company.
VENIREPERSON: They’re now Airbus, Incorporated.
MR. FACTOR: Okay. And are they French or —
VENIREPERSON: French. Well, actually, German.
MR. FACTOR: Okay.
VENIREPERSON: French bought the German side, and now Airbus is — and they own the company.
MR. FACTOR: And —
VENIREPERSON: They were the biggest
seller, by the way.
MR. FACTOR: Well, I kwow they’ll make the biggest plane.
VENIREPERSON: No. Biggest helicopter.
MR. FACTOR: Well, I thought they had the biggest airplane.
VENIREPERSON: I mean, they — I don’t mean the biggest helicopter. We sell the biggest amount.
MR. FACTOR: Oh, okay. Okay. Then – but not related to a company called Bell?
VENIREPERSON: No. That’s Brand X.
MR. FACTOR: All right. Well, I mean, there’s probably a few Bell alumni here somewhere. They’ve been in business a long time.
VENIREPERSON: They’ve served the country well, too.
MR. FACTOR: Okay. So anybody who they feel has been — who knows somebody who’s been, you know, in an abusive relationship?
VENIREPERSON: I’ve been in an abusive relationship. It wasn’t fun.
MR. FACTOR: Okay. All right. So another reason you think you might not be a good juror for this case?
VENIREPERSON: Yeah.
MR. FACTOR: I understand. Okay. We won’t press you too much about it. We’ll just take it at that. Okay. And — all right. Has anybody ever been on a grand jury here?
(No response.)
MR. FACTOR: Okay. And let’s talk about this here. Now, one of the questions you were asked a little bit earlier was — this is the question. I had this one, but, you know, I don’t know if we need to hear this one, unless you happen to be in — I think you said you were in this boat, so that’s fine.
VENIREPERSON: Justice needs to be served.
MR. FACTOR: Okay. I understand. And anybody else? Anybody else in this boat? Yes. That’s you, too, Ms. Lemoine, right?
VENIREPERSON: Uh-huh.
MR. FACTOR: Yes.
VENIREPERSON: You were talking about as far as being bias?
MR. FACTOR: Yeah.
VENIREPERSON: Yeah, I don’t understand domestic violence. But me personally, I — the one that did the domestic violence, I would have a problem with.
MR. FACTOR: Okay. So somebody accused?
VENIREPERSON: Yes.
MR. FACTOR: Okay. So you would have a bias against the person accused?
VENIREPERSON: Yes.
MR. FACTOR: Okay. All right. And this is kind of the same question. Because some experience I’ve had, I can’t presume the person innocent, okay, or can’t take the — another that may — that requires me to take — presume the person innocent, okay? This is kind of similar. Some people say: Well, you know, probably guilty, but, you know, I’ll give you a chance to prove the opposite. Probably guilty, but I’ll give — and I’m sorry. Ms. Peterson, you’re shaking your head yes?
VENIREPERSON: Yes.
MR. FACTOR: Yes. And, Ms. Sandoval, you’re a yes on this one?
VENIREPERSON: What was the question?
MR. FACTOR: Probably guilty, but I’ll give you a chance to prove he’s not?
VENIREPERSON: No.
MR. FACTOR: Okay. And Mr. Boroff?
VENIREPERSON: Yes.
MR. FACTOR: Okay. I’m going to pick you for this one. Here’s my other question: You are asked — let me ask you this, and you can take in all of your experience. Do we — do we ever — do we know anybody who’s maybe said something that wasn’t true because somebody else in the family thought it was a good idea for them to say that? Yes. Do we all know that? Sure. Sure.
VENIREPERSON: On TV.
MR. FACTOR: On TV, yes. On TV, yes. Okay. Now, the question you were asked earlier is: Should we prosecute a case — should we prosecute a case if — if the person aggrieved says: I don’t want you to? And we’ve had some responses to that. So here’s my question: Should the State be allowed to proceed when the person aggrieved has told them: It’s not true; it’s not true? What do you think? Mr. Olivo, you acknowledge that everybody has the capability to somehow alter —
VENIREPERSON: Yes.
MR. FACTOR: Yes.
Ms. Ricard? Let me — let me give you an example.
Let’s say at some point, you know, you — you accuse somebody of something. You tell the — the DA, you say: Well, I want to let you know it’s not true. I only said it because my mother, sister, whatever, told me to. And, you know, I was hysterical at the time, so that’s why I said that. And at some point — Mr. Nourse?
VENIREPERSON: Yes, sir.
MR. FACTOR: Mr. Nourse, the DA says: Okay. So you’re saying it’s not true?
VENIREPERSON: Yeah.
MR. FACTOR: You’re saying it’s not true. Well, you know, I’ve got a federal grant to prosecute these kind of cases. I’ve got staff. I’ve got an upcoming performance meeting. I think we’re going togo ahead, okay? So — so, I mean, I think many of you said you would be sensitive to when a — when a — when a person says: I don’t want this case to be prosecuted. But you can certainly be sensitive to when a person says it’s not true.
VENIREPERSON: Well, if the person didn’t want to prosecute, then I don’t feel they should go further.
MR. FACTOR: I understand.
VENIREPERSON: However, if the person says it was not true, and they have hard evidence that this person was really injured, then that’s something totally different.
MR. FACTOR: Right. Right.
VENIREPERSON: So, I mean, it depends on the facts.
MR. FACTOR: So — so — so same question. Well, we have certain circumstances where — so I’m injured because my injury — but I don’t want to prosecute it. I’m injured, but this person didn’tcause my injury. And I’m telling you — I’m telling you they didn’t cause my injury. The DA says: I’ve got a case number and a file jacket, and like I said, federal grant, staff. I’ve got to — I’ve got to go ahead. So, question, willing to listen to all the testimony that comes forth in the case?
VENIREPERSON: Yeah.
MR. FACTOR: Okay. And not only testimony, which I don’t necessarily think we would anticipate – not only testimony says: Hey, it’s not — I don’t want to prosecute, but, hey, it didn’t happen. Didn’t happen that way. Will you listen to that kind of testimony?
VENIREPERSON: Yes.
MR. FACTOR: Okay. Ms. Saunders?
VENIREPERSON: Yes.
MR. FACTOR: Sure. Ms. Roney?
VENIREPERSON: Uh-huh.
MR. FACTOR: Okay. Ms. Wilson?
VENIREPERSON: I — repeat the question, because I got —
MR. FACTOR: Okay.
VENIREPERSON: Because I was kind of bouncing off of what you were saying there were people that say it’s not true. In my line of work — and I’m talking about in the travel industry, when people need to get what they want. They lie out of convenience. So some of your most upstanding folk be just lying to get whatever. So I have to be able to kind of look past what you’re saying, you know, that kind of thing, because there’s always some truth to it. Yeah. Yeah. There’s always some truth to it. It’s just a matter of you guys being — to get to that point. So, yeah, I’m probably one of the hardest ones to convince either way.
MR. FACTOR: Okay.
VENIREPERSON: Because I’ve been on the
path of what you’re saying with your lips.
MR. FACTOR: Okay. And Ms. Holdridg
VENIREPERSON: Yes.
MR. FACTOR: I have that you’re a safety director?
VENIREPERSON: Yes.
MR. FACTOR: And tell me about being a safety director.
VENIREPERSON: I deal with truck drivers all day long.
MR. FACTOR: Oh, okay. So you tell them about signaling turns and thing like that, how to set up flares?
VENIREPERSON: Uh-huh. Yeah. Well, I do a lot more than just that, but yeah.
MR. FACTOR: Okay. So thoughts, you don’t — you don’t think the State should be able to proceed when they have knowledge that the case is no longer legit, do you? Or do you think they should be able to proceed? Well, we’ve got a government, got to keep it going. Who here thinks that’s true?
VENIREPERSON: I said earlier, they get involved for a reason, so there’s a reason why we’re here.
MR. FACTOR: Okay. So that’s right. And I think you said earlier the reason we’re here, you think there’s some legitimacy to the case.
VENIREPERSON: Yes.
MR. FACTOR: Okay. Okay. And Mr. Ruiz?
VENIREPERSON: Uh-huh.
MR. FACTOR: If you wind up on the jury, the allegation, the way it’s printed and all that, not evidence of guilt, you can follow that?
VENIREPERSON: I can.
MR. FACTOR: Okay. All right. And,
Mr. Porter, you’re fine with the concept of —
VENIREPERSON: Over here.
MR. FACTOR: — loss of short-term memory, that loss of short-term memory, right? How about this one? How about I would presume David Minze innocent and the process that brought him here is no evidence of his guilt; if I have a reasonable doubt about it, whether any element of the offense is proved, if I am even undecided about whether one element is proved, I must vote not guilty? What do you think about that concept?
VENIREPERSON: That’s quite hard.
MR. FACTOR: Well, let me put it in my words, okay? Those are my words.
Here’s what the law says: The law says they actually — the — the law doesn’t say anywhere — it’s not a hundred percent, okay? That’s not the law. But he gets to say that in voir dire, okay? And the law says that they have to convince you by a standard we call beyond any reasonable doubt, okay? That’s the only thing we do that’s beyond a reasonable doubt. And the law says, if you’re undecided about whether the person’s guilty or not guilty, you must vote not guilty. And some people say: Well, I don’t like that. If I’m undecided about whether he’s guilty or not guilty, I’m going to vote for lower punishment or something. So that’s why we’re asking this question now. Because if it’s a difficult — if you cannot take the oath, then we say: All right. You won’t have to. Want to think about it?
VENIREPERSON: Yeah. I’m — to me, a lot of — to me, everything depends on what comes out. I –it’s hard making —
MR. FACTOR: You’re right. Everything does depend on what comes out, but this principle doesn’t change.
VENIREPERSON: Yeah.
MR. FACTOR: This principle doesn’t change. The principle that we’re presumed innocent and that the process that brought us here is no evidence of guilt, that doesn’t change. And that’s why for all the people who say, well, you brought your — you came here through a process, and we think it’s some evidence of guilt, we say that’s fine. We’re going to respect your views.
VENIREPERSON: I — yes, I guess so.
MR. FACTOR: Okay. Is it Mr. Foreman — Freeman?
VENIREPERSON: Yes, sir.
MR. FACTOR: Freeman. What do you think about this concept?
VENIREPERSON: I agree with it.
MR. FACTOR: Don’t —
VENIREPERSON: No. I’m just saying, you said be honest, and I’m being honest.
MR. FACTOR: I appreciate that. I appreciate that. Okay. And Mr. Vogel?
VENIREPERSON: Yes, the same.
MR. FACTOR: Okay. The Judge, by the way, hasn’t heard the facts, and the Judge, in essence, doesn’t really care about the facts. The Judge rules on the facts
based on rules of evidence, okay? Let me give you an example. Mr. Boroff?
VENIREPERSON: Yes.
MR. FACTOR: Okay. If I can prove that I have a degree and I’m recognized in my area, then I can give an opinion as an expert because the law says, if you can qualify as an expert, you can give an opinion. An opinion is kind of not necessarily about a physical fact, okay? So if you can — has anybody ever heard the expression “an expert is somebody with a briefcase and more than 50 miles from home”? Okay. Well, anyway, so if I — if I could prove that I had a degree, and I’ve been published, and I’ve also been qualified, you know, I — on the topic, I could get up and say: I am an expert, and I’m telling you the moon is made of green cheese, okay? Now, the Judge will look at the – the evidentiary requirements for an expert and say: Okay. If you meet the evidentiary requirements, you can testify, okay? Now — but the Judge isn’t commenting on the weight of the evidence. Not — the Judge doesn’t — is never ever saying, hey, this is important; this is unimportant. This is true; this is not true. The Judge
never says that, okay? The Judge has never said that. The Judge is saying meets the requirement for evidentiary admissibility. Which, by the way, not necessarily has anything to do with the truth or reliability, it has to do with some — some very specific rules.
VENIREPERSON: Right.
MR. FACTOR: So — all right. Let’s go. Let’s try this again. I think we’ve gotten the questions out on this one. Let’s see. Question. People say this all the time. People say: I want to hear both sides. I won’t make up my mind. As the Judge will tell you, don’t make up your minds until you’ve heard all the testimony in the case. And a lot of people say, well, all right. I’ve heard what they have to say. What do you have to say? And they look over at the defendant. We have a law — we have a law. It’s a very important principle of law, and here’s what it says. It says that the person on trial is not required to produce evidence or — or not required to testify or produce any evidence at all. And our law says that if the person on trial chooses not to testify, that cannot be taken as a
circumstance against the person. Now, some people, say: Don’t agree. Some people say: Okay. That’s the law. So tell me how you feel about that, Mr. Luther.
VENIREPERSON: No, I would not hold it against a person for not wanting to prove his case. That’s not the way the law is written.
MR. FACTOR: Okay. Mr. Hubbard?
VENIREPERSON: Yes.
MR. FACTOR: What do you think about that law?
VENIREPERSON: If he doesn’t want to say anything, he doesn’t have to, but that might help him if he does.
MR. FACTOR: Okay.
VENIREPERSON: He does not legally have to do it. That’s his choice.
MR. FACTOR: Right. Well, my question is: What do you think about the instruction that says you cannot consider it as a circumstance against him under any circumstances; cannot mention it, refer to it, allude to it or take it into consideration whatsoever? And many people say: I can’t do that.
VENIREPERSON: I wouldn’t hold it against
him. You know, like I said, it’s his choice. If he doesn’t want to, he doesn’t have to.
MR. FACTOR: Okay. Okay. Ms. Holdridge?
VENIREPERSON: Yes, sir, same.
MR. FACTOR: All right. And anybody back here think, you know, well, if he doesn’t testify, that’s suspicious? I’ve heard people say that. Mr. Olivo, you’re a little closer to —
VENIREPERSON: I don’t know. I don’t think — I cannot put it out of my mind.
MR. FACTOR: Okay. So to you, it would be significant? To you, you might consider it?
VENIREPERSON: Yes.
MR. FACTOR: Okay. So you might consider it against the person?
VENIREPERSON: Yes.
MR. FACTOR: Okay. Okay. And Ms. Ricard?
VENIREPERSON: I understand it’s the law, but I feel like that gentleman over there. I feel, if he could, he should say something.
MR. FACTOR: Okay. So you —
VENIREPERSON: I mean, I’m not against it. You know, I understand it’s the law.
MR. FACTOR: Okay. All right. Mr. Nourse?
VENIREPERSON: I’d have — probably have a
tough time with someone not —
MR. FACTOR: Sure.
VENIREPERSON: — saying anything, because I know, if I was up there, I would want to say something.
MR. FACTOR: Okay.
VENIREPERSON: I think by not saying something, I think you could be saying something.
MR. FACTOR: And I understand. And like I said, we’re — we’re here to get everybody’s opinion, and we’re trying not to bark at anybody for whatever opinion they give us.
VENIREPERSON: Sure.
MR. FACTOR: Okay. So you think you probably would hold it against him?
VENIREPERSON: (Nods head.)
MR. FACTOR: Sure. Okay. And Mr. Boroff?
VENIREPERSON: Yes.
MR. FACTOR: Let me ask you about that question.
VENIREPERSON: If he’s innocent, then I would think he would want to testify.
MR. FACTOR: Okay. So if the Judge gave you the instruction and said, if he chooses not to testify, you can’t consider it, mention it, refer to it,
or hold it against him, or think of it as a circumstance against him in any way, shape, or form?
VENIREPERSON: I would — yeah, I would agree with — I would do what the Judge asked.
MR. FACTOR: Okay. So you would follow the Judge’s instruction? You would not —
VENIREPERSON: (Nods head.)
MR. FACTOR: Okay. And Ms. Roney?
VENIREPERSON: Yes. Repeat the question.
MR. FACTOR: Well, the —
VENIREPERSON: I don’t — I don’t – if you’re asking me if there’s a problem with him not testifying, there’s not a problem.
MR. FACTOR: Okay.
VENIREPERSON: You’re his lawyer. I’m sure you’re going to represent him.
MR. FACTOR: Okay. I don’t know. Maybe the — the question may have already been called into doubt. And, Ms. Saunders, the law —
VENIREPERSON: I wouldn’t hold it against him, no
.
MR. FACTOR: Okay.
THE COURT: All right. Mr. Factor, you need to start wrapping it up.
MR. FACTOR: Okay. So — so question. Does anybody here have something that they might need to do later today or tomorrow? I don’t anticipate us being here Wednesday, but possibly on Wednesday, something that we need to know about? Ms. Lemoine, you have some appointment?
VENIREPERSON: Well, actually, I go pick up my sister in the afternoon, to get her from school.
MR. FACTOR: Okay. All right. Yes, sir. And Mr. Olivo?
VENIREPERSON: I have an appointment on Wednesday.
MR. FACTOR: Okay. And Mr. Nourse?
VENIREPERSON: I travel for my job every Wednesday.
MR. FACTOR: Okay. Okay.
VENIREPERSON: I have an appointment for Tuesday, and I’ve got to take my wife to the doctor Wednesday.
MR. FACTOR: Okay. All right. Yes, sir Mr. Porter?
VENIREPERSON: Yes. I have an appointment on Tuesday. It’s my first appointment to see a new dentist so I — maybe I can — I can reschedule.
MR. FACTOR: No. It’s funny, because,
normally, when we have physicians, they say they have patients coming in. You’ll be a patient
.
VENIREPERSON: I need to go to work tomorrow.
MR. FACTOR: Okay. Well, the question is: If you were chosen for the jury, would you be able — would wanting to go to work be distractive such that you might not be able to listen to the testimony?
VENIREPERSON: No. I’ll still be able to listen to the testimony.
MR. FACTOR: Okay.
VENIREPERSON: I’m retired. I don’t have anything to do.
MR. FACTOR: Yes, ma’am.
VENIREPERSON: We’re in the crutch of a murder trial —
MR. FACTOR: Well, that’s fine.
VENIREPERSON: But, yeah, me being here is — I would rush to judgment.
MR. FACTOR: You would rush to judgment?
VENIREPERSON: Yeah.
MR. FACTOR: So you might be distracted?
VENIREPERSON: Most definitely.
MR. FACTOR: Okay. All right. Anybody have anything they want to tell us before we — okay.
gentlemen, if you would go out in the hall while they make their strikes. When I bring you back in, I’ll tell you who the six that get to come back after lunch.
(Jury panel leaves the courtroom.)
THE COURT: Okay. State have any challenges for cause?
MS. WASHINGTON: Yes, Judge. The State would challenge — I believe it’s No. 6, Mr. McDonnell. He said that he was recently in court. He couldn’t be fair.
THE COURT: All right. Defense agree with that?
MR. FACTOR: We do.
THE COURT: All right. 6 is gone.
MS. WASHINGTON: I believe it’s No. 2, Ms. Roney. She said that she had a family member that was killed, and she couldn’t be fair.
THE COURT: Defense agree with that?
MR. FACTOR: We do.
THE COURT: Okay. 2 is gone.
MS. WASHINGTON: I believe No. 7.
THE COURT: All right. That’s the young girl?
MR. FACTOR: Yes.
MS. WASHINGTON: Mr. Boroff —
THE COURT: Wait. Let’s go back to 7. Are you challenging 7?
MS. WASHINGTON: The State’s not challenging.
THE COURT: Okay. All right.
MS. WASHINGTON: No. 15, Mr. Boroff, I think it was the proof. He said that he would require the State to prove more than what was on the screen. He would require some type of serious injury.
THE COURT: Defense agree with that?
MR. FACTOR: I don’t recall that. I just don’t recall that.
THE COURT: Okay. We may have to call him back in because I don’t have notes about that either, that specific one.
MS. WASHINGTON: Okay.
MR. FACTOR: Although he did say, if he was innocent, he would testify.
MS. WASHINGTON: And I think No. 20, Mr. — I don’t know if we’ll get that far, but he said that he couldn’t consider a boyfriend/girlfriend relationship. I just don’t know if he’s in the strike zone even.
THE COURT: Okay. All right. Defense
agree to that strike?
MR. FACTOR: 20?
THE COURT: Uh-huh.
MR. FACTOR: Yes. We’ll agree on him because he said he couldn’t follow the instruction on failure to testify.
THE COURT: Okay. 20 is gone. So is that it from the State?
MS. WASHINGTON: Yes, Your Honor.
THE COURT: All right. From the Defense?
MR. FACTOR: Okay. Judge, we challenge Juror No. 4, Ms. Holdridge, who stated on two different occasions that she believes he’s here for a reason and that the process that brought him here is some evidence of his guilt.
THE COURT: I’m going to — any response?
MS. WASHINGTON: Judge, I would ask that she be called in. I couldn’t agree to that.
THE COURT: I’m going to deny that. I think she said she would wait and hear the evidence.
MR. FACTOR: Okay. We challenge Ms. Lemoine. She also said she had — she said she had a bias in favor of the State and in favor of police testimony.
THE COURT: The young girl, you agree with
that? Red hair, young girl.
MR. FACTOR: And she also stated that she had a friend who was — she was in an abusive relationship.
MS. WASHINGTON: Yeah, I’ll agree to that.
THE COURT: All right.
MS. WASHINGTON: Yeah, she sure did.
THE COURT: 7 is gone.
MR. FACTOR: We challenge Mr. Clippard who kept saying, I don’t understand domestic violence, but if there’s somebody here accused, I’m biased against him.
THE COURT: All right. Does State have any response to that?
MR. FACTOR: He’s also the guy who I think will have — I can put on Ms. Campbell to prove he said, how long does it take to find him guilty, in the hall.
MS. WASHINGTON: You said something was said in the hall?
MR. FACTOR: Yes. I mean, I think he’s that guy. But I think he stated on the record, he’s not qualified. Like I said, he said: I don’t understand domestic violence, but if there’s a defendant here, I’m biased against him.
MS. WASHINGTON: I don’t recall that. Me personally, I don’t recall it.
THE COURT: All right. He said it. It’s granted. Next?
MR. FACTOR: Marissa Sandoval said she could not be fair and impartial, has a bias — has a bias against the defendant. Can’t follow the presumption of innocence.
MS. WASHINGTON: State doesn’t oppose.
THE COURT: Okay. So 16 is gone.
MR. FACTOR: Ms. —
THE COURT: Hang on.
MR. FACTOR: Sorry.
THE COURT: Okay.
MR. FACTOR: 17, Ms. Peterson, said she could not be a fair and impartial juror and that she had a bias in favor of law enforcement, could not follow the presumption of innocence.
MS. WASHINGTON: I don’t have her saying anything, but that’s just me.
THE COURT: All right. I may have to call 17 back in. Okay. Anybody else?
MR. FACTOR: 18, Paul Nourse, said he could not follow the Court’s instruction on if the person chose not to testify.
MS. WASHINGTON: I don’t think he said that. I would ask that we call him back in, because I don’t think he said anything one way or the other. I think he just kind of shrugged his shoulders. THE COURT: That’s fine. I’m sorry. What did you say to 18?
MS. WASHINGTON: As far as I remember — recall from 18, he didn’t say yes or no; he just kind of shrugged his shoulders. So I would ask that we call him in.
MR. FACTOR: Well, Judge, I recall because of —THE COURT: 18 is granted. Okay. Let’s see if we busted it.
MS. WASHINGTON: Judge, I think No. 13 — and that was one I left off — I think she said that she didn’t trust cops.
THE COURT: Wait. Let Mr. Factor finish.
MR. FACTOR: Yes, she did.
MS. WASHINGTON: I’m sorry.
MR. FACTOR: She did say that. I agree. She said that.
THE COURT: Okay. So are y’all saying y’all are agreeing to 13?
MS. WASHINGTON: Yes.
MR. FACTOR: We’ll agree. She said she would rush to judgment, doesn’t believe police, doesn’t believe IP.
THE COURT: Okay. Any more from the Defense?
MS. WASHINGTON: That’s it.
MR. FACTOR: No.
THE COURT: Okay. All right. We go all the way through 19.
MR. FACTOR: Judge, I thought we were going to talk to Jurors 4 and 17.
THE COURT: Oh, I’m sorry. 4 and 17. Okay. Bring in 17 first, Mr. — Ms. Peterson. 4, I denied, I believe, didn’t I, Terry?
MR. FACTOR: No. I thought you said we’ll — we’ll ask her.
MS. WASHINGTON: I thought you denied No. 4.
THE COURT: I denied 4, so 17.
(Venireperson Peterson enters the courtroom.)
THE COURT: Ms. Peterson, if you would have a seat in the jury box anywhere, I believe Mr. Factor has some questions for you, just a couple more.
MR. FACTOR: Ms. Peterson, I thought – it has been some time since you said — I thought you said you had a bias in favor of the State in this kind of case.
VENIREPERSON: Not this kind of case. I was thinking more about like — I, like, meant hitting somebody and the police saw that, or it was a totally different case.
MR. FACTOR: Okay. And did you say that you had a bias in favor of law enforcement?
VENIREPERSON: Enforcement as you mean?
MR. FACTOR: Police, district attorney.
VENIREPERSON: Bias as to lying versus not lying or - MR. FACTOR: Yes. Question. Do you – if you have someone who’s testified, who’s a policeman, are you more inclined to think they’re telling the truth?
VENIREPERSON: Depends on the evidence, but just the words, then, yes, I would trust policemen.
MR. FACTOR: Okay. And one of the – one of the parts of the law is that the process that brings the person here when the case is filed, whether the case has been — is going to be prosecuted is not evidence of guilt, will you be able to follow that instruction?
VENIREPERSON: Sure.
MR. FACTOR: Okay. So just back to – but you do — back to you — you do have a tendency to think police are more likely to tell the truth than, perhaps, someone else?
VENIREPERSON: Unless I see the evidence, if it’s just words, yes.
MR. FACTOR: Okay. So just going in, until you hear otherwise, you think the police are more likely to tell the truth?
VENIREPERSON: Yes.
MR. FACTOR: Okay. All right.
MS. WASHINGTON: Judge, may I ask? The Court’s going to give a set of instructions asking you to follow the law. Do you believe that you could follow the law as the Court instructs you?
VENIREPERSON: Sure.
MS. WASHINGTON: And you’re saying that you would hold off on any judgment until after hearing the evidence as it comes in from the stand?
VENIREPERSON: That’s exactly what I’m saying.
MS. WASHINGTON: Okay. So you’re not in favor one way or the other towards law enforcement or towards the Defense; you’re neutral at this point?
VENIREPERSON: Yes.
MS. WASHINGTON: Okay. No further
questions, Your Honor.
THE COURT: All right. Ma’am, you may go back out in the hall.
(Venire person Peterson leaves the courtroom.)
THE COURT: All right. 17 is denied. Anybody else?
MS. WASHINGTON: I think that’s it from the State, Judge.
MR. FACTOR: Okay.
THE COURT: Nothing else from the Defense? No more?
MR. FACTOR: Well, after we make our strikes, we’ll have to make a record, but, otherwise THE COURT: Okay. All right. All right. Make your strikes. Try to do it quickly, please, because I’m trying to get Dustin’s thing in today, too.
(Recess for strikes.)
THE COURT: Okay. I have received both sides’ strikes, but my understanding is the Defense is requesting to put something on the record?
MR. FACTOR: Yes, Your Honor.
THE COURT: All right. You may proceed.
MR. FACTOR: We’re requesting one additional strike. We have challenged Juror No. 4. We — we — we challenged her for cause. Cause was denied. We have used our preemptory on her. We have exhausted our peremptories. We’ve used all three. And we have had to leave other unacceptable jurors on. Mr. Porter, who’s a physician, who has an appointment tomorrow. Mr. Boroff, who stated that he thought the defendant was innocent, he would testify, but later said he could follow the Court’s instruction on Fifth Amendment. And Ms. Peterson, who has stated early in voir dire she was biased in favor of the State, who stated later in voir dire that she was — she believed police would tell the truth above other people. And Ms. Ricard, who said she would follow the instruction but was reluctant to do so. So in view of the fact that we have other unacceptable jurors and we have made one unsuccessful challenge for cause, we ask for one additional strike.
THE COURT: That’s denied. Okay. Here is your panel — your jury before I call them back in: Juror No. 1 is No. 1, Lanell — I mean, Luther Alexander. Juror No. 2 is No. 5, Gabriel Ruiz.
No. 3 is Juror No. 12, Doris Rhoten-Dawkins. Juror No. 4 is Ronald Boroff. And Juror No. 5 is Ms. Peterson, No. 17. And Juror No. 6 is Laura Ricard. All right. Anything else you want to put on the record before I call them back in?
MS. WASHINGTON: None from the State, Your Honor.
MR. FACTOR: Yes, Judge. We challenge the panel on the basis of Batson. The Government has used two of its three strikes on black males, and — we’ve used — there are five strikes. They’ve used all of their strikes on black males. So we object on the basis of Batson.
THE COURT: Okay. It’s — we’ll go off the record for a minute. (Discussion off the record.)
THE COURT: All right. You may proceed.
MS. WASHINGTON: There were three, and I didn’t use all of them on black males. I actually used one on No. — I believe it was No. 11, a white female who said that she was friends with the defense counsel. Mr. Porter and Mr. Freeman, I used because they both — well, Mr. Porter said that he would request an objective evidence, as far as pain goes. He would need
more than just the victim saying it. As well as Mr. Freeman, if I am remember correctly, stated that if a victim doesn’t want to prosecute, then the State should drop the charges. And he also said that he would require more than just the victim saying she felt pain.
THE COURT: All right. Anything else from the Defense?
MR. FACTOR: Yes, Your Honor. There were about 11 jurors who said, if the victim didn’t want to prosecute, that the case shouldn’t be prosecuted. So I don’t believe that’s a race-neutral reason.
THE COURT: State wish to put anything else on the record?
MS. WASHINGTON: No, Judge. I’m fine with what I said.
THE COURT: All right. Your Batson challenge is denied. Anything else before we bring the panel in?
MS. WASHINGTON: Nothing from the State, Your Honor.
MR. FACTOR: No.
THE COURT: All right. Here’s what I intend to do: I intend to seat the jury, but the only
instruction I will give them is not to speak to anybody about the case. When we come back in, I’ll do a more formal instruction after they eat lunch.
MS. WASHINGTON: And, Judge, just to note for the record, I do believe that there are two African-Americans on the panel, No. 19, as well as No. 1.
THE COURT: All right. All right. If you would bring the panel in.(Jury panel enters the courtroom.)
THE COURT: All right. If I call your name, if you would come have a seat in the jury box. Luther Alexander; Gabriel Ruiz; Doris Rhoten-Dawkins; Ronald Neal Boroff — and I believe sheput on there that I could call her Ms. Kacie Peterson — and Laura Ricard. All right. I will be back with the six of y’all in just one moment. To the rest of you, thank you so much for your time and your attention. I couldn’t have made it this far in the process if it wasn’t for people like you. I appreciate it a great deal. Once again, I apologize for the delay this morning, but you still have earned your $6. So thank you very much. If somebody would take these back
downstairs to the central jury room. And as soon as you get those cards, y’all are released. (Remaining jury panel leaves the courtroom.)
THE COURT: All right. So for the six of you, I am not going to give you your long instructions right now, since it’s so late, but I will tell you, ask you not to speak to anybody about the case, during your lunch break, and — but make sure you’ll keep your badges visible while you’re out and about. It’s 1:00 o’clock. So if you would be back here at 2:15. All right. So y’all are released until 2:15. If you would remain out in the hall until the bailiff brings you back in.
(Jury leaves the courtroom.)
(Other matters heard by the Court.)
(Lunch recess.)
(Proceedings continued in Trial on Merits volume.)
