School's in session

There are many ways to poison a jury pool.

Prosecutors can tweet the names of people arrested for DWI or post their photos on Facebook. Prosecutors can castigate jurors after an acquittal and give them information the judge ruled inadmissible at trial. Prosecutors can leak information to reporters about high-profile cases.

But the Dallas County District Attorney's Office has come up with an ingenuous way to poison potential jurors. It's called the Citizen Prosecutor Academy. It's an "intensive" ten-week course offered in both the spring and fall twice a week to teach citizens how the system malfunctions "works."

"Unless an individual has served on a jury or unfortunately been a victim of a crime, the average citizen simply does not know how the system works," said Dallas County District Attorney Craig Watkins . "Last fall, we were approached by James Tate, a graduate student in the Master of Public Policy program at the University of Texas at Dallas, about starting a Citizen Prosecutor Academy in Dallas County. Mr. Tate had participated in a similar program in another county and after he shared his experience with us we were inspired to create our own academy. The curriculum is being developed by a diverse team of seasoned prosecutors, so we are optimistic it will be a success. Our primary goal is for participants to graduate from the program with a realistic and informed perspective of the inner workings of the district attorney's office that we hope they will share with others."

A "realistic and informed perspective" of how the DA's Office works? Really?

The mission of the Dallas County District Attorney’s Citizen Prosecutor Academy is to enable Dallas County residents to be exposed to the numerous procedures within the Dallas County District Attorney’s Office.  This will provide Dallas County residents the opportunity to engage in open dialogue with prosecutors and leaders in the community, and discover the practices and methods of the judicial process.  Our goal is to inform citizens who will share their experience with neighbors, friends, and family in their communities.

Now I will give Mr. Watkins his just due. His office has been at the forefront of exonerating wrongly convicted inmates through the use of DNA testing. In fact, since 2001, there have been more DNA exonerations out of Dallas County (21) than out of any other county in the country.

But, back to the indoctrination course...

According to the press release:

Each week, participants will hear from guest speakers including assistant district attorneys within various divisions/units of the DA's office, and other key personnel in Dallas County's criminal justice system.

There's nothing in the press release about speakers from the criminal defense bar. Now, maybe that was just an oversight. Maybe "other key personnel" refers to criminal defense lawyers. But I doubt it.

I'm sure the folks who sign up for the academy won't hear much about illegal and repressive bond conditions, the abuses indigent defendants face in the courts, how junk science is used to obtain convictions or the ways in which Brady material is either hidden or never disclosed.

A master and his craft

The other day I was stuck in the Harris County Criminal (In)justice Center a bit longer than anticipated. There was a trial going on in the 232nd - a young man was charged with murdering another young man. The young man was convicted. The punishment hearing happened to be going on the day I was in there.

The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.

His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.

He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.

He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.

It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.

But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.

Mr. Moncriffe's client was sentenced to 10 years in prison.

That's ten years of asking yourself if there was anything else you could have done.

UPDATE:

I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.

Some more jury math

This past week I tried a DWI case in Harris County (that ended in an acquittal) and we used a series of scaled questions to obtain information from each of the jurors. The questions ranged from the jurors' attitudes toward police witnesses to their views on whether order is more important than liberty. Some of the questions pertain directly to trying the case and others seek to determine whether the juror is more individual-oriented or state-oriented.

The panel consisted of 20 people. The judge struck three for cause on his own motion (and made it quite clear during voir dire who they were). He told one juror that she was not going to be on the panel before I ever asked my first question. The judge also sustained an objection to my first question and pretty much instructed the panel how to answer it. Therefore, the results are based on 19 jurors answering five questions.

The panel consisted of 10 women and 9 men. Eleven of the panelists were white, six were Hispanic and two were African-American. There were three panelists in their 20's, three in their 30's, three in their 40's, three in their 50's and eight panelists were over the age of 60. On the actual jury there were five women and one man. Four of the jurors were white, one was Hispanic and one was African-American. Four of the actual jurors were over the age of 60, one was in his 30's and one was in her 40's.

A little word of warning - there were a few jurors whom I think answered with 5's for the last two questions because that seemed to be a reasonable position to take (in the middle).

The first question asked jurors to rate (on a scale of 0-10) how much weight they would give the testimony of a police officer solely because he wears a badge. The higher the number, the more weight they would give the officer's testimony.

The panel as a whole averaged a 0.2. The three jurors we struck, and the three jurors the state struck, averaged a 0.0. The six people (one man, five women) who heard the case averaged a 0.0.

The next question asked jurors to rate (on a scale of 0-10) whether they would hold it against my client if he didn't testify. The higher the number, the more they would hold it against him.

The panel as a whole averaged a 1.8. The three jurors we struck averaged a 1.3. The three jurors the state struck averaged a 3.0. The average for the actual jury members was a 1.7.

The third question asked jurors to rate (on a scale of 0-10) how much they agreed that it was better for 10 guilty men to go free than for one innocent man to be convicted. The lower the number, the more they agreed with the statement and the stronger they adhered to the presumption of innocence.

The panel as a whole averaged a 0.7. The three jurors we struck averaged a 1.0. The three jurors the state struck averaged a 0.0. The average for the actual jury members was a 1.3.

The fourth question asked jurors to rate (on a scale of 0-10) whether they felt that liberty or order was more important. The higher the number, the more they believed that order was paramount; therefore, the more state-oriented was the juror.

The panel as a whole averaged a 4.9. The three jurors we struck, as well as the three jurors the state struck, averaged a 5.0. The average for the actual jury was 5.0.

The final question asked the jurors to rate (on a scale of 0-10) which was a greater danger to liberty: overzealous law enforcement or criminals. The lower the number, the more they believed that overzealous law enforcement was the greater threat and the more individual-oriented was the juror.

The panel as a whole averaged a 5.6. The three jurors we struck averaged a 7.7. The three jurors the state struck averaged a 5.0. The average for the actual jury was 6.0.

The average answer for the panel as a whole (to all five questions) was 2.7. The average answer the three jurors we struck was 3.0. The average for the three the state struck was 2.6. The average for the six who sat on the jury was 2.8. Two of the actual jurors had previously served on a criminal jury. The foreperson indicated to me afterward that she found it harder to make a decision in this case case than in a murder case.

Both the panel as a whole and the six folks who served on the jury indicated that they wouldn't give a police officer "head start" and that there was little likelihood that they would hold my client's silence against him. They also indicated that they had no problem releasing a guilty man in order to avoid convicting an innocent man. The questions also indicated that this panel was a bit more state-oriented than individual-oriented.

Our decisions on strikes had more to do with the answers to other questions than they did with the answers to the scaled questions. In fact, we pretty much decided on our strikes before even considering the answers to the scaled questions.

When going back and doing the math, the panel was actually more favorable to our side than it seemed at the time.

Peeing in the pool

"Well I just can't believe you bunch of ignoramuses just voted to find that piece of shit defendant not guilty! Would y'all have voted the same way if I told you all the stuff the judge said I couldn't? Do y'all want to know just what this little SOB has done in the past?"

Okay, that's probably not how it goes down. It's more subtle than that. The prosecutor, still bothered that a jury acquitted a defendant, wants them to know what a bad decision they actually made. He wants them to know that there's a whole lot of stuff that mean ol' judge wouldn't let him talk about. So he lets loose with a tasty morsel of two.

Problem?

You bet.

Why would he do that?

Because he knows that the jurors have family, friends, neighbors and co-workers. He knows those jurors are going to talk about the case once it's over. He knows those jurors are going to tell everyone to be wary because they won't be getting the whole story. In short, he's doing his best to poison a little bitty piece of that jury pool.

In Wednesday's Houston Chronicle, Houston appellate attorney Brian Wice fired a shot across the bow of the Harris County District Attorney's Office when he publicly castigated the prosecutors who decided to pee in the pool after a famed Houston doctor, Michael Brown, was acquitted of assaulting his wife. 

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about "the real Michael Brown." In a matter of moments, and over DeGuerin's objection, the prosecutor tainted the jury with the details surrounding Brown's plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown's character and reputation - the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Simply put, in my opinion the prosecutor's comments crossed the line on both a personal and professional level. A former high-ranking member of the Committee for Lawyer Discipline said she thought these remarks violated State Bar Disciplinary Rule 3.06, which prohibits any lawyer from making any post-verdict comments to a juror "calculated merely to harass or embarrass the juror or to influence his actions in future jury service." By informing the jury about evidence that was clearly inadmissible in a thinly veiled attempt to make the jury feel badly about its verdict, the prosecutor's comments were calculated to influence not just the 12 folks who had acquitted Brown, but any of their friends with whom they might share the prosecutor's remarks, and who might find themselves on juries in the future.

There is little doubt what the prosecutor was attempting to do - and what he was attempting to do was unethical. He was caught red-handed standing in the yellow end of the pool.

Mr. Wice could have called out the prosecutor by name - but he chose not to. He was upset about what happened after the verdict was read and he voiced his displeasure in an op/ed piece. He was not interested in humiliating or embarrassing a prosecutor.

But it didn't take long for Nathan Hennigan, our antagonist, to make himself known.

I am the "out of line" prosecutor. My name is Nathan Hennigan. Wice didn't want to call me by name, but I feel a necessity to respond, as most don't know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn't a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from "Who Framed Roger Rabbit." Uncanny. What happened in the jury room is as follows...Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.

It's a shame that Mr. Hennigan couldn't have shown the same class that Mr. Wice did. Instead of a reasoned defense of his actions, Mr. Hennigan chose to resort to name-calling. He couldn't defend his actions so he attacked those who spoke against him. Mr. Hennigan is a true believer and he has gulped down the koolaid on the 6th floor of the Harris County Criminal (In)justice Center.

My colleague, Murray Newman, weighed in on Mr. Wice's op/ed piece yesterday. I like Murray. He's a good guy. I'd buy him a beer (or even give him one of my home-brewed brown or English ales). But Murray still has a place in his heart for the DA's office. I think there are times he loses a little bit of perspective -- and this one of them.

Mr. Wice pointed out a problem that we have been dealing with for years. It's a practice that's been allowed to continue because we haven't stood up and fought to change it. Jury members are exposed to the bias of the state from the minute they enter the Jury Assembly Room. Bailiffs make comments that cast aspersions on the defense. Judges conduct a voir dire that, in some cases, comes right out of the prosecutor's manual.  The citizen accused is not called by his name during the proceedings, he is labeled as "the defendant" in an attempt to dehumanize him. And then prosecutors do their bit after the verdict.

It all adds up to chipping away at the very presumption of innocence -- the only presumption you are allowed to make in a criminal courtroom. I don't know if Mr. Hennigan had "malice aforethought" before he spoke to the jurors. I don't know Mr. Hennigan. From what I've been told he's a nice guy. And I'm sure he is.

But just because he's a nice guy doesn't mean that he didn't do anything wrong.

We're at such a disadvantage from the beginning that the last thing we can afford to do is to allow the state to poison the jury pool any further. That's what Mr. Hennigan did. And that's what we've got to stop.

See also:

"A sore loser" Simple Justice (Sept. 29, 2011)

Googling our brains

A new study indicates that the internet has changed the way we remember things. It appears that if we know we can access the information on the computer (or internet) that we have less ability to recall the actual information -- though we certainly can remember where to find it.

Sparrow says her movie trivia failure reminded her of a concept called transactive memory, proposed 30 years ago by her Ph.D. adviser Daniel Wegner. According to the theory, people divide the labor of remembering certain types of shared information. For example, a husband might rely on his wife to remember significant dates, while she relies on him to remember the names of distant friends and family—and this frees both from duplicating the memories in their own brains. Sparrow wondered if the Internet is filling this role for everyone, representing an enormous collective act of transactive memory.

To test this idea, Sparrow devised a series of offline experiments to catch people in the act of relying on future access to information—say, a Google search—rather than memorizing the information themselves. “I didn't want them to actually have access to the information but just think that they would,” she says. For the first set of experiments, which involved 106 Harvard undergraduates working on desktop computers, Sparrow tested whether people thought of the Internet as soon as they were posed true-false questions such as, “An ostrich's eye is bigger than its brain.” She employed a psychological method called a Stroop task. After the trivia questions were posed, various colored words would appear on the screen. When those words matched topics that people were already thinking about, they tended to react more slowly when asked to name the words' colors. And indeed, when the colored words were Internet-related, such as Google or Yahoo, the students answered more slowly, indicating that they were already considering going online for answers.

Then Sparrow played a trick on her subjects. She presented 40 different trivia statements to the students and had them type the factoids on the computer. She told half of the group in advance that the computer would save what they had written so they could see it later; she told the other half that the computer would erase it. Then all of the students were challenged to write down the statements from memory. Those who had been told that the computer would erase their notes had by far the best memory of the statements, as if their brains had made an emergency backup. Those who were expecting to retrieve the information later performed more poorly.

"Transactive memory" is the phenomenon that Dr. Daniel Wegner says he seems with long-term couples. According to his research, couples who have been together a long time tend to rely on each other to remember things. You can think these long-term couples as parallel computers. One partner might be best at remembering the day-to-day activities of life while the other partner is the "encyclopedia."

So the concept isn't new, but what does it mean?

Does "transactive memory" affect jurors? Is it something that we need to be aware of during jury selection? Are jurors more or less likely to go home and do their own research? Or is this all much ado about nothing?

Is the internet just our instant library? When we went to school we certainly didn't memorize everything we were taught. We memorized our alphabet and our multiplication tables as well as some rules in geometry. But what we really learned was how to find the answer to a problem. Dr. Roddy Roediger at Washington University in St. Louis doesn't find the results to be all that alarming.

The study is “convincing,” and “there is no doubt that our strategies are shifting in learning,” says Roddy Roediger, a psychologist at Washington University in St. Louis, Missouri. “Why remember something if I know I can look it up again? In some sense, with Google and other search engines, we can offload some of our memory demands onto machines.” But Roediger says this trend started long before the Internet. “When I was a student, many years ago, we consulted books and encyclopedias to write papers. Now students can do it at home on computers. Is that a bad thing? I don't think so.”

Said Dr. Sparrow:

"I don't think Google is making us stupid - we're just changing the way that we're remembering things... If you can find stuff online even while you're walking down the street these days, then the skill to have, the thing to remember, is where to go to find the information. It's just like it would be with people - the skill to have is to remember who to go see about [particular topics]."

Might this be a reason to request that jurors be allowed to take notes during trial? If we are better able to process where to find the information rather than remember the information, would it be a benefit for jurors to write down their thoughts and observations during trial, rather than try to remember what they saw and heard afterward?

Or would it prove more of a distraction? Would jurors spend so much time taking notes that they miss the essence of the testimony or evidence presented? Would jurors then rely on other people's notes back in the jury room during deliberations?

Just a little something to think about.

Today on candid camera...

I guess sometimes the ol' eyes in the sky work to the benefit of the folks getting arrested.



Angela Horton, who was relieved of her duties as a police officer for the City of Houston, said she regrets hitting a suspect in the face while he was handcuffed. Ms. Horton's attorney said she let her emotions get to her when she slugged the suspect in full view of the camera in a news helicopter. Of course, she also wants us to know that  police officers must make split-second decisions out on the street.

I'm not sure that hitting a defenseless man in the face is one of those decisions.

Now for anyone who doesn't think police officers succumb to high levels of adrenaline following a chase, think again. For anyone who doesn't think that suspects are beaten by police, think again.

Judges, juries and prosecutors don't want to believe that the boys (and girls) in blue ever cross the line in doing their jobs. Judges, juries and prosecutors are wrong. It's just that most of the time it happens off camera. And if there's no video -- no one believes the defendant.

We are trained from a young age to trust the police. And, no matter what anyone on the panel says, jurors are going to give more credibility to the word of a police officer than to your client. We all know it. But we play the charade that something's that been burned into someone's brain can be erased by the judge saying a few words.

No one should be shocked by what Officer Horton did that night. We should only be shocked that someone got it on camera.

Juror sentenced for using Facebook during trial

Joanne Fraill of Manchester, England (probably a Man U. fan), found out the hard way that Facebook and jury duty don't mix well.

On Thursday, Ms. Fraill was sentenced to eight months in prison after being found in contempt of court. It would seem that, while serving on the jury, Ms. Fraill "friended" -- and the use of that word as a verb should itself be a criminal act -- one Jamie Stewart, a defendant in a felony drug case, on Facebook. While the jury was deliberating, Ms. Fraill made contact with Ms. Stewart and discussed the case with her. She even provided Ms. Stewart with details of the jury's deliberations.

Sentencing Fraill, Lord Judge said in a written ruling: "Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial."

Interestingly enough, the shenanigans occurred after the jury had informed the court that it was deadlocked. The court then gave the jury the option of deciding the case by a majority vote, rather than a unanimous vote.

Ms. Stewart, who was acquitted, was given a suspended sentence for her role in the online communications.

The widespread use of Facebook and Twitter (and other social media sites) is straining this artificial construct we call the trial. Unless we are going to sequester every jury in every case, someone is going to do a little "research" on the internet about the case. It may be pulling up maps of the scene of an accident. It may be looking at the online profiles of the attorneys involved. Someone might look for the defendant on Facebook or Twitter. Someone's going to go to Google to find out about the breath test machine or DNA testing or some other field of forensic (pseudo-)science.

The information they find might be helpful to the defense. It might be harmful to the defense. It won't, however, be subject to cross-examination. It won't be subject to relevancy or hearsay objections.

Most of us won't have to worry about it too much because most of our trials last no more than a day or two and none of the details of the case ever make it to the local paper.

But one thing is certain - technology has (once again) outpaced our legal constructions and conventions. I don't know what the answer is. Jurors may say they won't do any research outside the courtroom -- but jurors also state they won't allow their own biases to prevent them from being fair (even after they've admitted they will hold it against your client if she doesn't take the stand in her own defense).

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.