Jury Selection Driving While Intoxicated

FRANCISCO HERNANDEZ: Thank you, Judge.DEFENSE VOIR DIRE EXAMINATIONFRANCISCO HERNANDEZ: May it please the Court,
counsel.How about everybody stand up for a secondand just stretch.(court at ease)FRANCISCO HERNANDEZ: Like the Judge said, we’re going to try to keep this somewhat short and brief. Appreciate that. And he’s going – – Judge, please cut me off in 30 minutes if I’m not done. THE COURT: Sure. FRANCISCO HERNANDEZ: Thank you, Your Honor. Ms. Crafton, when you think about social drinking, tell me, what do you think about? VENIREWOMAN CRAFTON: Going out to dinner, having a drink with my dinner. Going over to somebody’s house for a visit and having a drink with them. FRANCISCO HERNANDEZ: Well, since you brought up
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going out to dinner and having a drink with your dinner, what’s your favorite restaurant? VENIREWOMAN CRAFTON: My favorite? FRANCISCO HERNANDEZ: Your favorite restaurant. VENIREWOMAN CRAFTON: Oh, On The Border maybe. FRANCISCO HERNANDEZ: On The Border. That’s a good one. VENIREWOMAN CRAFTON: I’m a margarita gal. FRANCISCO HERNANDEZ: You’re a mind reader. Okay. So when you go out to eat at On The Border, you want to have a margarita, do you just get up and help yourself to the margarita, or how do you get your margarita? VENIREWOMAN CRAFTON: I ask the waiter and the waiter brings it to me. FRANCISCO HERNANDEZ: Why is that? VENIREWOMAN CRAFTON: Because they won’t let you go mix your own drink. FRANCISCO HERNANDEZ: Right. Okay. Very good, Ms. Craf ton. Well, I just want to clarify, in this courtroom, who brings the margarita, Mr. Davis? JUROR DAVIS: The waiter, right here. FRANCISCO HERNANDEZ: So the – – so the – – in terms
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of in a criminal case, the party that has the burden of proof, the party that must bring the evidence to convict, would be which table? JUROR DAVIS: This table here in front of me. FRANCISCO HERNANDEZ: Very good, Mr. Davis. And I just want to clarify that. It’s not that I don’t want to bring evidence. It’s not that, you know, we don’t have any evidence to bring, but technically speaking, just like when you go to On The Border, a nice restaurant, you don’t just help yourself to the kitchen. The social custom is you ask the waiter or waitress, they bring the drink. In a criminal courtroom, the social custom is – – if you want to call it that – – the State of Texas, they bring the evidence. And if they don’t bring enough evidence beyond a reasonable doubt, then what do you do, Mr. York? JUROR YORK: Innocent. Not guilty. FRANCISCO HERNANDEZ: Okay. And, Mr. York, you’ve = served on a jury before; is that correct? JUROR YORK: Yes.
FRANCISCO HERNANDEZ: Okay. As a matter – – did you guys reach punishment? JUROR YORK: No. Well, we – – not
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guilty. FRANCISCO HERNANDEZ: Okay. Well, what I was going to ask was, Judge Coffey — and I really love that about the Judge, he always talks about everything that’s important – – Judge Coffey talked about the word innocent. Now, Mr. York, being on a criminal jury before, does – – is there a word ~innocentnonn the verdict form? JUROR YORK: Huh-uh. FRANCISCO HERNANDEZ: Very good. Now, why do you think – – Mr. Smith, why do you think in a criminal case we don’t have – – we have
guilty and we have not guilty, but we don’t have the word “innocent”? Why is that, Mr. Smith? JUROR SMITH: Because you’re not finding them innocent; you’re finding them guilty or not guilty. FRANCISCO HERNANDEZ: Very good. Did you watch the 0. J. trial?
JUROR SMITH: No. FRANCISCO HERNANDEZ: Do you remember when Johnny Cochran said — or he had 0. J. try the glove on, and then he said — what did he say? Do you remember that? JUROR SMITH: “If it doesn’t fit, you
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must acquit . ”FRANCISCO HERNANDEZ: BOY, you’re good.Now, I call it “if you have a doubt, you throw it out.” You may think, and many people in this country believe – – not everybody — but that 0. J. was as guilty as sin. But when you’ve got the Prosecutor standing there saying “this is, ladies and gentlemen, the glove of the killer,I1 and the glove doesn’t fit, you may think that he’s as guilty as sin, but if you have a logical, reasonable doubt, as the Judge said, it’s defined by the jury, then you acquit. So when we talk about a criminal case, we know that the standard is guilty or not guilty. It’s not innocent. We know that this table has to do their job, which is they’ve got to provide the evidence, because that’s the social custom in the courtroom. And when you’re on the jury – – Mr. Skaats, you’ve never been on a jury; is that correct? JUROR SKAATS: No. FRANCISCO HERNANDEZ: Okay. NOW, Mr. Skaats, what do juries have to do? JUROR SKAATS: (No verbal response) FRANCISCO HERNANDEZ: On a criminal case, you’ve got six people, and it’s really not a — please don’t be
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offended, it’s not a process of selection, it’s a process of elimination, so whoever is left over ends up on the jury. And it’s normally quiet folks. But anyway, Mr. Skaats, can it be four/two not guilty, or do
you – – or do you have to be unanimous in the American court system? JUROR SKAATS: I would think unanimous. FRANCISCO HERNANDEZ: And you’re exactly correct. Unanimous. And let me just touch on this real briefly and you’ll see the verdict form, the Judge will read it to you, it says it has to be a unanimous verdict. NOW, Ms. Strickland, if you really honestly believe in your heart of hearts, and you use your logic and your common sense, you had a very good feeling about how you felt about the law and the evidence, and everybody else is an eyewitness, everybody else disagreed with you, but that verdict form says that you have got to have a unanimous verdict, if you – – if it would violate your conscience, what do you do? VENIREWOMAN STRICKLAND: Well, I stick to my guns. FRANCISCO HERNANDEZ: A-plus. Now — and I just wanted you – – and 1’11
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move on. In a criminal courtroom, one, you have a unanimous verdict. The law does say it’s got to be unanimous. But if it violates your conscience, that means that nobody could tell you, Ms. Strickland, what to do, correct? Because you are – – honestly, you’re holding to what you – – you’re steadfastly holding to your convictions, and the law says if it would violate your conscience, then, of course, that’s a no-no; but if it doesn’t violate your conscience, then fine, you know, you should try to come to a unanimous verdict. Any questions about that, Mr. Stipp? JUROR STIPP: (No verbal response) FRANCISCO HERNANDEZ: And I’ll just move on. 1’11 stop at – – you’re on the jury, you guys should knowthat. Okay. JUROR STIPP: I don’t have any questions on it, no. FRANCISCO HERNANDEZ: All right. Now, Ms. Blanchard, you have children; is that correct? VENIREWOMAN BLANCHARD: Yes. FRANCISCO HERNANDEZ: And how many kids do you have? VENIREWOMAN BLANCHARD: I have three, and seven grandchildren. FRANCISCO HERNANDEZ: Wow. Okay. How would you – –
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do you ever help babysit the grandchildren? VENIREWOMAN BLANCHARD: Sometimes.FRANCISCO HERNANDEZ: NOW, Ms. Blanchard — how would you, Ms. Blanchard,define common sense? Do you think you have some pretty good common sense?VENIREWOMAN BLANCHARD: I think I haveexcellent common sense.FRANCISCO HERNANDEZ: And you’ve raised a successful family, correct? Kids and grandchildren.HOW —VENIREWOMAN BLANCHARD: They’re all doinggreat.FRANCISCO HERNANDEZ: Very good.Ms. Blanchard, how would you define commonsense? As a responsible citizen, how – – what is your definition of that?
VENIREWOMAN BLANCHARD: Make a responsible decision.FRANCISCO HERNANDEZ: Make a responsible decision. That is excellent. Is it pronounced Genz? VENIREWOMAN GENZ: Genz. I FRANCISCO HERNANDEZ: Genz. Ms. Genz, now Ms. I Blanchard said make a responsible decision. How would you define common sense?
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VENIREWOMAN GENZ: I would agree with her. FRANCISCO HERNANDEZ: I think that’s really good. Responsible means that we’re being logical and then you’re making a decision that just follows logic. Would that be correct? VENIREWOMAN BLANCHARD: Uh-huh. FRANCISCO HERNANDEZ: Okay. VENIREWOMAN GENZ: Taking responsibility for the decisions you make.FRANCISCO HERNANDEZ: Sure. Now, when we talk about taking responsibility, we, as citizens, need to take responsibility. Would everybody agree with that? Sure. When it comes to drinking and driving – – the Judge talked about social drinking — we want to be responsible social drinkers. Would we all agree with that? Sure. NOW, DWI laws are good, because we don’t want to have folks out there getting killed or whatnot. We all, as responsible social drinkers, want to make sure that, you know, we’re responsible and don’t put people in danger in terms of violating the law in DWI. Now, Ms. – – Ms. Genz, how about the police? How about the scientific programs that we have 12
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that, you know, look at DNA evidence and look at, you know, bullet evidence and forensics? Do — should we have a level of responsibility in our government agencies as well? VENIREWOMAN GENZ: Yes. FRANCISCO HERNANDEZ: Now, why? I agree with it. Why? VENIREWOMAN GENZ: Responsibilities in our government agency because no one is above the law. Everyone — everyone has to account for their decisions and actions, whether they’re good or bad. FRANCISCO HERNANDEZ: Very good. NOW, you’ve heard some mention about some experts, scientific experts. Mr. Davis, if someone accused you of something that you disagreed with and felt really strong about it, so, therefore, you wanted to go to court, have some justice, should the State be the only people that are entitled to use an expert? JUROR DAVIS: I would hope not. FRANCISCO HERNANDEZ: NOW, why not? Why – – when you say, “1 would hope not,I1 how many would agree with Mr. Davis, that as a citizen, you have a right to go and hire your own expert? Why is that important, Mr. Davis? Why
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should you have the right to hire an expert who may not agree with the State expert? JUROR DAVIS: Everybody’s got differing opinions. Every expert may have a different opinion on the same subject. FRANCISCO HERNANDEZ: Very good. Now, Mr. York, when we think about the Penal Code statutes, criminal law, getting arrested,
when we think about what responsibility is, in terms of having a conviction, is a person guilty just because they’ve been arrested? JUROR YORK: No. FRANCISCO HERNANDEZ: NOW, how is that, Mr. York? How is it that you can be arrested – – and you’re absolutely right, and a lot of people don’t understand that, Mr. York. How – – how is it that you can be arrested and not be guilty? JUROR YORK: Judgment. Judgment of the officer or whoever is arresting you. And there might be something of influence there that made them think you were, but it’s not necessarily what they charged you with. FRANCISCO HERNANDEZ: Very good. Judgment. Mr. Stipp, do you agree with Mr. York? JUROR STIPP: Yeah. You haven’t been
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proven guilty by a group of your peers. FRANCISCO HERNANDEZ: Now, Mr. Stipp, let’s say that you’re driving down the road and you’re — you’ re a citizen driver, and you see someone in front of you – – and I’m talking this car is just zigzagging all over three lanes of traffic. You’re about two football fields behind, but you’ve got some concern. You don’t know why. Could there be other reasons, besides alcohol, that is making them zigzagging around? JUROR STIPP: Without a doubt. FRANCISCO HERNANDEZ: Very good. Now, let’s say an officer pulls — you call 911, because you’re a little concerned. You want to make sure that nobody gets hurt. And so the officer shows up, and the officer smells alcohol. Should the officer investigate for DWI? JUROR STIPP: I would think so. FRANCISCO HERNANDEZ: Sure. And – –
JUROR STIPP: Amongst other things. FRANCISCO HERNANDEZ: Exactly. And would – – would you say that an officer’s job, he’s not going to lose his — his job as an officer if that person goes to trial and it turns out that they’re on a cell phone, it turns out that they just aren’t a coordinated person, and the person is
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found not guilty – – is that officer going to lose his job? JUROR STIPP: I seriously doubt it. FRANCISCO HERNANDEZ: Sure. As a citizen, wouldn’t you want that officer toif they – – if they’ve got to make a – – a decision on the bubble, trying to make a ecision that would benefit all the citizens is not abad idea, is it?
JUROR STIPP: No.
FRANCISCO HERNANDEZ: Very good. Thank you, Mr.
Stipp.
And I want to talk about what officers
do. Officers have a job to make an arrest decision on
probable cause, so – – and — and DWI, would you say, MS.
Strickland, that with your common sense you could
determine if somebody was intoxicated?
VENIREWOMAN STRICKLAND: If they were
right in front of me, yes.
FRANCISCO HERNANDEZ: Okay.
VENIREWOMAN STRICKLAND: If they were
driving down the road and I was in another vehicle, no.
FRANCISCO HERNANDEZ: Okay. Thank you for that
distinction.
Now, do you ever go out socially and
intermingle and have some cocktails?
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VENIREWOMAN STRICKLAND: Yes.FRANCISCO HERNANDEZ: Okay. Now, in that setting,you see someone come in, they are – – they are as sober as the Judge, you see them go out and they’ve had way too many. Do you believe that without testing them onan alcohol tester that you could determine if they were – – were intoxicated?VENIREWOMAN STRICKLAND: Yes.FRANCISCO HERNANDEZ: Okay. NOW, being – – in DWI, would you agree, Ms. Strickland, that opinions can vary? Whereas you may – – you may say that somebody’s intoxicated, somebody else may say, oh, that’s Bubba and he just looks like that. Let’s say he’s only had just a couple. So — so when we talk about these arrest decisions, and the fact that people’s opinions – – Ibelieve, Ms. Blanchard, you said people can havediffering opinions. Would you agree with the State onthat?VENIREWOMAN BLANCHARD: (No verbalresponse)FRANCISCO HERNANDEZ: Sure. And that’s just commonsense.Police officers in a DWI make a decisionto arrest on probable cause.Could you read that to us, Mr. Denney.
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JUROR DENNEY: Which one?FRANCISCO HERNANDEZ: Probable cause.JUROR DENNEY: I’m sorry, I can’t seethat.FRANCISCO HERNANDEZ: Oh, I’m sorry.JUROR DENNEY: Reasonable andtrustworthy information that a particular person hascommitted a particular crime.FRANCISCO HERNANDEZ: How do you feel about that?Do officers need to be 100 percent foolproof? Dothey — do they have to be right every single time?Should they wait in making an arrest decision untilthey’ve gotten all the evidence they can possibly get?JUROR DENNEY: (No verbalresponse)FRANCISCO HERNANDEZ: So would you agree thatprobable cause is a good standard? It – – it’s for theprotection of all citizens, but it doesn’t necessarilymean that somebody is guilty. Would you agree withthat?JUROR DENNEY: (Moving head up anddown)FRANCISCO HERNANDEZ: Okay. When we talk aboutDWI, did anybody see in that definition, the three-partdefinition, Mr. Wright, when we talk about alcohol and
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intoxication, did you see standardized field sobrietytests in that definition, or something called thewalk-and-turn and the one-leg stand?MS. BADGER: I’m going to object toCounsel getting into the actual field sobriety tests.THE COURT: 1’11 let you talk aboutintoxication, Mimi, but don’t interject any facts inthis case. If you – – you can talk about the law, butdonut interject any facts.FRANCISCO HERNANDEZ: Sure, Judge. Thanks.Now, when we talk about the law – – and Idon’t want to go into facts about what may or may nothave happened on that night — but do you see ifsomebody fails the one-leg stand test that they’reintoxicated?
MS. BADGER: Ium going to object, again,to Counsel getting into the facts of the case.THE COURT: I think that’s interjectingfacts that you may have in this case, too.FRANCISCO HERNANDEZ: Okay. Let me just ask youthis, Mr. Wright. In that legal definition, we saw aperson normal mentally, correct?JUROR WRIGHT: (No verbal response)FRANCISCO HERNANDEZ: Okay. A person normalphysically. You didn’t see an exact definition as to
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what’s normal physically, did you?JUROR WRIGHT: (No verbal response)FRANCISCO HERNANDEZ: Do you – – can you think ofreasons why a person may not do well on specifichysical coordination exercises and being normal?JUROR WRIGHT: Certainly.FRANCISCO HERNANDEZ: What kind of reasons can youthink of, Mr. Wright?JUROR WRIGHT: Someone who has got aninjury could be, you know, off balance, I guess.FRANCISCO HERNANDEZ: Very good. An injury.How about — Mr. Skaats, Mr. Wright saidan injury. That’s an excellent reason why someone maynot be as coordinated as another person.Can you think of another reason why aperson may not be normal compared to other people? Forexample, alcohol not related?JUROR SKAATS: (No verbal response)FRANCISCO HERNANDEZ: And doing physical tests?JUROR SKAATS: No.FRANCISCO HERNANDEZ: How about age?JUROR SKAATS: Yeah.FRANCISCO HERNANDEZ: Have you ever playedbasketball with your granddad?JUROR SKAATS: No.
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FRANCISCO HERNANDEZ: No?You think you might do a little bit betterthan him?JUROR SKAATS: Yeah.FRANCISCO HERNANDEZ: Okay. So age, that’s acommon sense reason why some person may be better thananother. Would you agree?JUROR SKAATS: (No verbal response)FRANCISCO HERNANDEZ: Age. Injuries.Ms. Black?VENIREWOMAN BLACK: Medication.FRANCISCO HERNANDEZ: Medication. That’s reallygood.I just want to clarify that that’s whatthe law is. When the legislators got together inAustin, they had to determine what law would govern usall. And the law is real specific. There is nothing onthere about field sobriety tests. It’s are you normalmentally; are you normal physically; or at the time thatyou’re driving, are you .08 or more? And there’s beensome discussion about .08.NOW, Mr. Stipp, the State, as per socialcustom, they must bring the evidence in this case. TheState has got to prove what is .08 in terms of —they — if they’re going to get a conviction based on
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.08, and the legislature has determined that .08 is thenumber that we use here in Texas, if they prove that,would you be able to – – and just – – I just want toclarify, you – – let’s say normally (sic) mentally,normally (sic) physically, and they prove .08, would yoube able to come back and say conviction?JUROR STIPP: I don’t think so.FRANCISCO HERNANDEZ: Okay. And I just want toclarify that, because the State, of course, is entitledto a fair trial just as the Defense.But I want to clarify something. Now, Mr.Smith, let’s say — and this – – this is basically just ageneral education question here. Let’s say that theState has admitted into some evidence — I mean, if anofficer gets on the witness stand and talks, would youagree that what that officer is saying is evidence?Would you agree with that?JUROR SMITH: (No verbal response)FRANCISCO HERNANDEZ: Sure. Okay.Would you agree with the fact that if theState introduces some sort of chemical test specimen,the results of that chemical test specimen, that’sevidence, isn’t it?JUROR SMITH: (No verbal response)FRANCISCO HERNANDEZ: NOW, just because a piece of
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paper has been admitted into evidence, via protocol, butYOU have a doubt about that, oh, let’s say, for example,you’re concerned about that machine not being a goodmachine or whatever, if you’ve got a doubt about a pieceof evidence that’s been admitted, just like the lawsays, youhave a reasonable doubt, what is yourverdict?JUROR SMITH: I don’t know.FRANCISCO HERNANDEZ: Now, I guess just to pinpointyou — and I really don’t like to pinpoint — butoftentimes the State will ask a question: Well, youknow, if we just had one witness, and that witnessprovides evidence that would convince you beyond areasonable doubt, can you follow the law and convict?Some people — some people would say, no. One witness?You know, not for me. This one person’s opinion is notgoing to be good enough for me. And they’re entitled toask that. Just like I’m entitled to ask, if, in fact,the State admits a breath test slip, blood test slip,whatever chemical specimen, but the evidence showed thatthere is a reasonable doubt, that things just don’t hookup, they don’t sync up, you’ve got a reasonable doubtabout that number, then my question is, the law wouldsay your verdict would have to be what?JUROR SMITH: Guilty.
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FRANCISCO HERNANDEZ: Okay. So I guess – –JUROR SMITH: It would just depend onthe other evidence. I mean, – –RANCISCO HERNANDEZ: Okay. And – – and – –JUROR SMITH: — YOU know, that waspresented. I don’t know what to say. I mean, no – – yousay, no, not guilty, or, yes, guilty.FRANCISCO HERNANDEZ: Well, because if you saidguilty, if you were to say, Mimi, I tell you what, youknow, I can have a reasonable doubt, two, three, four,whatever, reasonable doubts, but if – – I’ve got a bias.If I see a chemical specimen and it’s printed in paperand it’s admitted into evidence, if I see that, I’m notgoing – – even though I have a reasonable doubt, underthe law, with the evidence, I’m not going to be able torender a not guilty verdict, then, of course, in allfairness wend have to know that because you would not bea suitable juror. Does that make sense?JUROR SMITH: We’re not supposed touse our biases, are we? Or try not to?FRANCISCO HERNANDEZ: Specifically — yes. Justlike – – when the Judge asked a question, is thereanybody here that would just automatically believe anoficer? Nobody raised their hand, right? Because ifyou did, the law says if you – – if you have a bias
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toward a cop, I mean, this – – this guy could be, youknow, Mark Fuhrman, whoever, whatever – – those people —some people don’t believe certain officers or somepeople do. I mean, if you had a bias, one way or theother, against a cop, then that means you have a bias.That means technically you would not be a fair andimpartial juror, because when you sit in that jury box,you are already starting one side above another, whichwould disqualify you as a juror. Does that make sense?Judge, did I explain that right?THE COURT: You’re fine.FRANCISCO HERNANDEZ: Okay. So the question onthe breath test is if anybody here would say, you know,I’m a careful listener and I’m going to consider all theevidence – – like you said, it would depend on all theevidence. And let’s say, Mr. Smith, you carefullylistened to all of the evidence, and at the conclusionof all the evidence, you, Mr. Smith, with your commonsense had a reasonable doubt, now the law says if youhave a reasonable doubt – –JUROR SMITH: Well, I have to vote notguilty if I had a reasonable doubt.FRANCISCO HERNANDEZ: Right. And so that’s my onlyquestion, and — and I just want to clarify this witheverybody on the jury. If, in fact, just to make sure
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that everybody is suitable as a fair and impartialjuror, if, in fact — the same question — 1’11 askeverybody, if, in fact, the State admits evidence, sayssomebody is over the legal limit at the time they weredriving, then – – but you have a reasonable doubt aboutthat evidence, what would your verdict be?JUROR DAVIS: Not guilty.FRANCISCO HERNANDEZ: Okay. And — and Iappreciate the honesty. If anybody – – and sometimes Iget jurors – – and I appreciate that honesty. This isall about being honest.Because if you were on trial, Mr. Denney,you’d want six fair and impartial people, wouldn’t you?You wouldn’t want somebody up here that has a bias,would you? Because it wouldn’t be right for you, wouldit?I mean, we all agree that if – – we want tobe as fair to Mr. Clark as we’d be to ourselves. Wouldwe all agree with that?Okay. So if anybody here would say, Mimi,I tell you what, you know, just for whatever reason, Iwould be biased if there’s – – if I saw that somebody – –a piece of evidence said that someone failed whatevertest, then we would need to know that, in all honesty,so that Mr. Clark could get a fair jury.
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Mr. York, the same question. You got areasonable doubt about the evidence that’s beenadmitted, and it’s a chemical specimen number, what’syour verdict?JUROR YORK: If I have a reasonabledoubt, it’s going to be not guilty.FRANCISCO HERNANDEZ: Okay. Very good.Mr. Stipp?JUROR STIPP: Not guilty.FRANCISCO HERNANDEZ: Okay. And, Ms. Crafton?VENIREWOMAN CRAFTON: Not guilty.FRANCISCO HERNANDEZ: Ms. Strickland?VENIREWOMAN STRICKLAND: (Moving head upand down)FRANCISCO HERNANDEZ: Okay. Mr. Wright?JUROR WRIGHT: Not guilty.FRANCISCO HERNANDEZ: Okay. And you’ve answeredthat for me. I don’t mean to pick on you really, Mr.Smith .Mr. Skaats?JUROR SKAATS: Not guilty.MR. COFFEY: Okay. Ms. Blanchard?VENIREWOMAN BLANCHARD: Not guilty.FRANCISCO HERNANDEZ: Mr. Denney?JUROR DENNEY: Not guilty.
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FRANCISCO HERNANDEZ: And, Ms. Genz?VENIREWOMAN GENZ: Not guilty.FRANCISCO HERNANDEZ: Ms. King?
VENIREWOMAN KING: Not guilty.FRANCISCO HERNANDEZ: Ms. Sweeney?VENIREWOMAN SWEENEY: Not guilty.FRANCISCO HERNANDEZ: And, Ms. Black?I VENIREWOMAN BLACK: Not guilty. IFRANCISCO HERNANDEZ: Ms. Strong?VENIREWOMAN STRONG: Not guilty.FRANCISCO HERNANDEZ: Okay. And, last but notleast, Ms. Martin?VENIREWOMAN MARTIN: Not guilty.FRANCISCO HERNANDEZ: Okay. Now, Ms. Martin, Iwant to ask you a question in terms of what it would belike to be in a situation where you may not have thenormal use of your mental and physical faculties, butit’s not due to alcohol. Have you ever been pulled overfor a speeding ticket?VENIREWOMAN MARTIN: Oh, yes.FRANCISCO HERNANDEZ: A traffic ticket?VENIREWOMAN MARTIN: Uh-huh.FRANCISCO HERNANDEZ: What was that experience likefor you?VENIREWOMAN MARTIN: Scary.
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FRANCISCO HERNANDEZ: On a scale of one to ten,ten being the most anxious, where would you say that youwere on that scale, Ms. art in?VENIREWOMAN MARTIN: Probably a ten.FRANCISCO HERNANDEZ: Okay. How many would agreewith Ms. Martin? I’m a lawyer and I – – I’d agree withyou.Now, Ms. Martin, have – – could you seeyourself, or have you ever found yourself in that typeof scary situation where you might be saying things ordoing things that you wouldn’t otherwise normally do?VENIREWOMAN MARTIN: Uh-huh.FRANCISCO HERNANDEZ: And why is that?VENIREWOMAN MARTIN: Because if you’rescared, you’re nervous, or whatever, you know, it’s likeI tend to stutter or whatever. You know – –FRANCISCO HERNANDEZ: Very – –VENIREWOMAN MARTIN: – – mumble.FRANCISCO HERNANDEZ: Very good.Now, would we all agree that being scaredor being nervous — I mean, with our common sense, wecan – – we can see that being scared or nervous is notthe same as intoxication. Would we agree with that? Imean, do we all feel confident that we can distinguishthat?
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Okay. Now, how about – – Ms. Sweeney,when you were in school, what was your favoritesubject?VENIREWOMAN SWEENEY: Band.FRANCISCO HERNANDEZ: Band. You must have been astraight-A band student. Would that be fair to say?VENIREWOMAN SWEENEY: (No verbal response)FRANCISCO HERNANDEZ: Now, what did you play?VENIREWOMAN SWEENEY: The flute.FRANCISCO HERNANDEZ: The flute. Okay.Did you go to those competitions wherethey rate you and —VENIREWOMAN SWEENEY: Uh-huh.FRANCISCO HERNANDEZ: Excellent.Now, it’s so interesting that you shouldsay that. My 7th grade son just did that the other day.He came back and he said he got a one. He said, mom, Igot a one. That means that – – you know, that’s thehighest that you can go. He plays the saxophone.NOW, when you went to those competitions,were there times where you would score — was it — onepetty good, or have they changed the system?VENIREWOMAN SWEENEY: (No verbal response)FRANCISCO HERNANDEZ: Okay. So when you score aone, did you have some buddies and some friends and
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some – – well, you know, some fellow students thatwouldn’t score a one?VENIREWOMAN SWEENEY: Uh-huh.FRANCISCO HERNANDEZ: Now, would you say that theywere pretty average flutists?VENIREWOMAN SWEENEY: (Moving head up anddown)FRANCISCO HERNANDEZ: So, Ms. Sweeney, how wouldyou define “averageM when we — when it comes to playing flute?VENIREWOMAN SWEENEY: One being – – wouldbe able to play the music as it needs to be played, notgoing above and not falling below what would be thenormal standard.FRANCISCO HERNANDEZ: NOW, Ms. Crafton, you’re ateacher, right?VENIREWOMAN CRAFTON: Yes.FRANCISCO HERNANDEZ: That was an excellentdefinition, wasn’t it?VENIREWOMAN CRAFTON: Wow.FRANCISCO HERNANDEZ: Okay. Now, Ms. Crafton,would you agree that there’s a range for normal? Imean, not everybody has to be a one in band, noteverybody has to be a straight-A student to be average.Would you — would you agree with that?
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VENIREWOMAN CRAFTON: Absolutely.FRANCISCO HERNANDEZ: Now, Ms. Crafton, do youbelieve that with reason and common sense, you could
determine if somebody is normal? Does that make senseto you?VENIREWOMAN CRAFTON: Yes.FRANCISCO HERNANDEZ: Okay. Mr. Davis, do youthink with reason and common sense, you could determinewhether or not somebody was normal or intoxicated?JUROR DAVIS: Yes.FRANCISCO HERNANDEZ: Okay. How would youdescribe, Mr. Davis, well, I mean, somebody who isreally intoxicated?JUROR DAVIS: Are they actually upalking?FRANCISCO HERNANDEZ: Yes. Yes.JUROR DAVIS: If they’re walking,they’re not walking very well.FRANCISCO HERNANDEZ: That’s very good.And is that just based on – – I mean, whenwe talk about observations of people being drunk – – andwe know that the legal definition is not drunk, thelegal definition is are you normal. Now, when we talkabout people who are on the high end of drunk, you saidthat they would be walking normally. Is this based on
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just life experience, that you could look at someone andtell whether or not they’re intoxicated?JUROR DAVIS: Yeah.FRANCISCO HERNANDEZ: Does that indicate you’ve been to a few frat parties?JUROR DAVIS: No, I’ve never been to afrat party. I can honestly say that.FRANCISCO HERNANDEZ: College experience?JUROR DAVIS: Yeah, a little bit.FRANCISCO HERNANDEZ: Okay. NOW, when we talkabout being highly intoxicated, now I just want toclarify that you said, Mr. Davis, with reason and commonsense, you could determine that. Still confident ofthat?JUROR DAVIS: (No verbal response)FRANCISCO HERNANDEZ: Everybody feel confident ofthat? That – – that even though the law of intoxicationis on a spectrum, means – – just that you’re not normal,but is there anybody here that would say I’m notcomfortable being able to determine levels ofintoxication? Just — either because you’re anondrinker, don’t allow it in your house, or any – –anybody that would say, you know, I wouldn’t be a goodjuror because, quite frankly, I’d – – you know, Iust – – I have a bias against alcohol. And I don’t mean
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to say you have a bias, but you’re just not around itenough to be able to use common sense. Anybody?JUROR DENNEY: Yeah, I am. I don’tdrink —FRANCISCO HERNANDEZ: Okay.JUROR DENNEY: — go to bars.FRANCISCO HERNANDEZ: Now, would you, Mr. Denney,have to commit murder to be a fair juror in a murdercase?JUROR DENNEY: No.FRANCISCO HERNANDEZ: No? That would be kind ofcrazy, wouldn’t it?So would you agree, Mr. Denney, thatnondrinkers can be just as fair as anybody else, andshould be just as fair as anybody else, on a DWI case?I mean, isn’t that —JUROR DENNEY: Yes.FRANCISCO HERNANDEZ: – – following the law?Okay. Now, Mr. Skaats, do you drink?JUROR SKATTS: Very rarely —THE COURT: Mimi, you’ve used 30 minutes.FRANCISCO HERNANDEZ: Okay. Thank you, Judge.I’m sorry?JUROR SKAATS: Very rarely.FRANCISCO HERNANDEZ: Okay. And, Mr. Skaats, just
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because you don’t drink or you drink very rarely, do youfeel that that might in some way inhibit you from beinga fair and impartial juror?JUROR SKAATS: (Moving head side toside. )FRANCISCO HERNANDEZ: Okay.Thank you, Judge.I appreciate your time. Thank you.
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