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Winning Worriors

TDCJ Then ond Now

Spend Time With Your Kids Now, So We Dont Have To Later

The 30 Minute Voir Dire: Applying Jury Research and Psychometrics

HCCLA Annuol Bonquet

Motion of the Month

The Science ond Art of Jury Selection: Port One

FAll 2005

THEAMERICAN CIVIL LIBERTIES UNION

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SATURDA~ SEPTEMBER 24, 2005

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Distribution 450 copies per lSSue. for articles and other editor~1 contributions, contact Showna LReagin al7132241641 1To place an ad, call Shawno LReagin at 7132241641

For those of you who don't know, in July Ibecame the new Editor of The Defender. We all owe

big thanks to Oaucie Shefman for her many years of hard work putting together this magazine; grudgingly, we'll allow her to retire and focus on her own wants and needs for awhile.

The Defender now will be published on a regular quarterly basis. Expect the Fall issue in Seplember, Winter in December. Spring in March and Summer in June.This should allow us to establish acertain degree of reliability wilh regard to limesensitive news and announcements, so please let us know about your upcoming, lawrelated events.

This issue's articles emphasize various voir dire techniques and includes amotion in limine we hope you find useful. Part II of Kevin Fine's learned treatise will appear in the December magazine his knowledge exceeds the scope of asingle issue. Steve Rubenzer, Ph.D" weighs in on voir dire from a psychological slandpoint. Joe Varela provides an interesting update on TOCJ statistics and DaVid Kialta warns parenls against steering their children into the criminal justice system.

We not only welcome your contributions in the form of articles, advertising, letters and announcements, we DEMAND them.Everyone of you has some special knowledge or area of expertise that we would all like to share. This is your forum for teaching and learning - use ill

We enviSion aprovocative, intelligent and controversial publication.Not everyone will be happy with every issue, unless we are doing something wrong. But remember - if you believe your point of view is being overlooked, jump right in and offer it. [We may not print it. but feel free to submit it.]

I look forward to hearing from you.

Shawnal. Reagin slreagin@aol.com

The stotements ond YH!wp{lInts elpresSI!d herem ore the IndlYlduol authors' and do not Oet:fssol'lly reFlect the pOSition of HCClA os DO orgoouo~OIl.

--

WINNING WARRIORS

WARRIORS WHO HAVE ACHIEVED SUCCESS ON BEHAL~ O~ THEIR CLIENTS:

Robb Fickman finally prevailed with a grand jury no-bill on an indecency with a child case he fought for about a year - intelligent tenacity pays off once again for Robb.

Hats off to Tom Stickler, who got a lO-minute Not Guilty on a OWl habitual in Brazoria County on July 19,2005 .

Dan Cogdell was victorious in one of the first Enron cases to go to trial, achieving a two-word verdict in United States of America v. Sheila Kahanek. Shortly thereafter, he gained an acquittal from the Hon. Caprice Cosper in an Aggravated Assault/ deadly weapon and Official Oppression trial.

Jim Lavine and Jack Zimmermann likewise bested the government in a 3-1/2 month-long Enron trial, United States v. Kevin Howard: The jury hung on all 15 counts of conspiracy to commit securities fraud, wire fraud and related offenses, and Judge Gilmore of the Southern District ofTexas declared a mistrial on all counts . Despite over 190 counts and four co-defendants, there were NO guilty verdicts.

Jack Zimmermann and Kyle Sampson obtained Not Guilty jury verdicts in the court-martial of an Army surgeon [U.S. v. Granger] charged with distribution of controlled substances, obstruction of justice, false official statement, violating orders and general regulations, dereliction of duty and conduct unbecoming an officer and a gentleman.

Kyle Sampson also won Not Guilty jury verdicts in a OWl case in CCCL #6 and a family violence/ assault in CCCL #9, involving a mother accused of assaulting her 16-year-old honor student child.

In a very rare type of victory, Sean Buckley obtained habeas relief from the Court of Criminal Appeals on an "actual innocence" claim out of Tarrant County: Ex parte John Michael Harvey, No. Ar74,955, December 8, 2004 [unpublished, of course]. Mr. Harvey had served 13 years of a 40-year sentence for aggravated sexual assault of a child .

Raise a glass to Mark Bennett for his Not Guilty on a 15 -years-tolife possession of cocaine with intent to deliver [2 kilos] in the 338th District Court.

James Stafford and Sherra Miller obtained a pretrial life sentence on a death capital in the 183rd District Court, despite some bad priors, bad facts and no classic mitigation. Jim credits his great legal team, including Danalynn Recer and Aimee Solway from Gulf Coast Regional Advocacy Center [GRACE], mitigation expert Gina Vitale and investigator Waymon Allen. Congratulations on an excellent result.

Continuing the family tradition, Deborah Keyser scored a Not Guilty on an aggravated robbery case by using experts to present a "confabulation" defense to rebut the complainant's claim that the

person who robbed and beat him almost to death was a street kid he had befriended.

Gulf Coast Regional Advocacy Center [GRACE] has been instrumental in obtaining favorable results in several death capital cases: State v. Kelvin Jackson and State v. Melvin Hughes, bOtll with Mack Arnold, Sherra Miller, JJ Gradoni , Gina Vitale and Aimee Solway and ending in pretrial life pleas; and State v. Ramon Gonzales, with James Stafford, Cynthia Henley and Aimee Solway - case dismissed less than mree months after it was ftled . Tremendous team work and great la\V)l ering!

Congratulations to Scott Pawgan for pulling a manslaughter conviction out of a murder charge in Trinity County; rumor has it that his client is the first African-American in decades to be convicted of a lesser-included on a murder case in that county. The 20-year sentence also beat the State's offer of 40 years.

Rick Detoto won a 5-minute Not Guilty on a OWl in CCCL #3 on July 26, 2005, even though his client had an open container in me car and refused SFSTs on video. Rick got the HGN and oral statements suppressed and received instructed verdicts on twO drug paragraphs. Way to go, Rick!

Kudos to JJ Paull for his IS-minute Not Guilty on a D\VI in CCCL #6 - his wicked cross-examination carried the day.

Steve Baxley has been on a roll in federal court, with three recent victories : Not Guilty on felon in possession of a weapon, Not Guilty on conspiracy to possess a controlled substance and Not Guilty on conspiracy to transport stolen articles .

Jim Sullivan saved his client from a possible felony theft conviction on trial date by convincing the prosecution to reftle the case as a misdemeanor, to which his client pled "no contest" and received a one-year deferred adjudication, with no fine and greatly reduced restitution . One co-defendant had already pled to pen time, and another one was lined up to testifY against Jim's client, so good call.

Danny Easterling topped off an impressive string of victories by winning two Not Guilty verdicts in the 174th District Court back in April, on a sexual assault of a child and indecency \vith a child. Danny also got a Not Guilty on a no-test OWl in CCCL #6 in January and a Not Guilty on a no-test OWl in CCCL #3 in March. Keep up the great work!

The "Give Thanks She's on Our Side Now" award goes to Joanne Musick: Following about four months of work, she obtained a nobill on an arson case by presenting the issue of a coerced confession to me grand jury; a OWl \vith accident/ FSGI and blood test results was dismissed on the day of trial in CCCL #8, manks to her diIigent pn::paration, despite her client's lengtlly criminal history; a juvenile Robbery case was dismissed after Joanne proved her client was only a mere presence; and she and Brett Ligon managed to have an

aggravated assault/deadly weapon dismissed on a self-defense claim, two days before trial in the 17 6th.

Mark Hochglaube and Joanne Musick won an indecency case in the 178th District Court back in January. The same month, Mark also got an acquittal on an aggravated sexual assault in the 338th.

In a case with international attention, a winning team of HCCLA members gained a reversal in the Andrea Yates capital murder conviction by establishing that perjury by the State's expert impermissibly tainted the trial: Daucie Shefman wrote the appellate brief, Troy McKinney presented oral argument and George Parnham and Wendell Odom laid the necessary groundwork at trial, then continued on the case.

The Amazing Silverman Brothers strike again: Jed Silvennan, along with cocounsel Steve Gonzalez, defeated an intoxicated manslaughter charge at the grand jury by engaging in immediate investigation, accident reconstruction and wimess interviews; the grand jury returned a misdemeanor OWl, instead. On the same day, another grand jury no -billed Nonn Silvennan's client in an aggravated assault case, based on wimesses Norm brought to the prosecu tor.

Thomas Berg achieved amazing results for a client charged in federal court with Kidnapping [mandatory minimum of 20 years], violation of the Mann Act [mandatory minimum of 5 years] and enticing a minor to travel in interstate commerce for sexual purposes [57-71 months, per the guidelines], by convincing the government to agree to a plea for two years on just the "enticing" charge.

Hooray for Todd Dupont, who got a IS-minute Not Guilty on a OWl in Judge Karahan's court on August 11, 2005. Todd reportedly delivered a stellar summation.

David Breston provided at least temporary respite for a client with four prior felonies by hanging the jury in a habitual DWl felony trial in the 300th District Court of Brazoria County, Visiting Judge Ogden Bass presiding. David also won a Not Guilty on an assault/family violence in CCCL #14 two weeks earlier.

Grant Scheiner triumphed in an aggravated sexual assault trial in the 230th District Court on August 11, 2005, thanks to excellent preparation and talented cross-examination . Rumor has it the jury was out only 40 minutes, making the Not Guilty verclict a real shocker [for the State, that is].

Masterful cross-examination also yielded Robert Scardino's client an acquittal on a breath test DWl in CCCL #12, August 11,2005 .

Overlooked in the last issue was Bo Hopmann's Not Guilty on a felony injury to a child in the 262nd District Court in October, 2004. The client rejected 4 months deferred adjudication on a Class A with no fine and termination after 3 reports on a plea without a recommendation and endured a harrowing, uphill battle at trial, but his innocence was rewarded in the end. Good job, Bo.

Winning Warriors salutes Terri Jacobs, who was recently promoted to the rank of Lieutenant Colonel of the United States Maline Corps. Semper Fi, Terri!

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FAll 2~DEFENDER

THEN AND NOW BY JOSEPH W. VARELA

In the May/ June 1992 issue of "Docket Call,"!

this publication's precedessor, there appeared an

article I wrote based on TDCJ's 1992 Fiscal Year

Statistical Report. Recently I unearthed my copy

from a box of old files, quite by accident. I

thought a comparison Witll the present situation

at TDCJ might be illuminating, given the

dramatic changes in the scale of imprisonment in

Texas. So here are some basic facts about TDCJ's

current status. All me recent figures come from

the Fiscal Year 2004 Statistical Report available at

TDCJ's website.2

INMATES ON HAND. The first thing we notice is that the total number of prisoners has almost precisely trebled in twelve years . On August 31, 1992 tllere were 51,592 offenders3 on hand, housed in 40 units . On that same date m 2004, mere were a total of 150,709, including prison,4 state jail, and substance abuse such as SAFPF, housed in 106 units, not including parole violator incarceration facilities. 132,366 (88%) of these were prison, 15,089 (10%) were state jail, and 3,254 (2%) were substance abuse . About 18,800 were in any of seven privately operated facilities .

NEW RECEIVES. Whereas in 1992 TDCJ received 35 ,720 new inmates, in 2004 it more than doubled the inmates it received, to 77,315. But the proportion of parole violators has changed. In 1992 19,896 were admitted on new sentences, and 15 ,192 (43% ) were parole or mandatory supervision violators . Of the 45 ,060 new admissions to TDCJ-ID (prison, excluding state jail, to which parole does not apply ), 33,749 (74.9%) were admitted on new crimes, and only 11,311 (25 .1%) were parole or mandatory supervision violators. In other words, me number of parole revocations as a proportion of new admissions has declined drastically.

RELEASES. Discharges, which occur when a prisoner serves all of his sentence, have increased substantially from nearly notlling in 1992. 1992 releases totaled 29,860, wim only 196 discharges. In 2004 there were 72,130 releases. Prison released 41,028, with 7,445 discharges (not counting state jail) . So even backing state jail out of the releases, a lot more inmates had to serve aLi their time in 2004 (18%) compared with 1992 (

Texas . So much for the complaint that Harris County has become disproportionately efficient at incarcerating its population in recent years. The big change was recorded by Dallas County, which accounted for 22% in 1992 but only 12% in 2004.5

AGE. The average age of inmates on hand rose from 32.4 years to 36.0, not surprisingly in a time of flat-one-half terms for 3G offenses 6 and fewer unscheduled releases due to overcrowding. Excluding state jail, where sentences are short and turnover is high, the average age of prison inmates is 36 .5. This bodes ill for future imprisonment costs. As of August 31, 2004, 3,437 inmates were sixty years old or older. The oldest was 88 . A total of 13,413 were serving life, capital life, or 60+ . I have not seen a curve, but in ten or twenty years we may be operating the world's largest geriatric facility for aging, chronically ill inmates with long sentences. The cost of this will be enormous.

CRIME OF RECORD. In case an inmate is serving several sentences, "crime of record" is defined by TDCJ as the case with the longest sentence. Of inmates on hand, drug cases lead the pack with 22,765, edging out robbery's 21,897 and sexual assault's 17 ,663, the nearest competitors. Drugs thus account for 19 .8% of inmates on hand now. The length of sentences, of course, skews the on-hand statistic; "violent" crimes are more likely than drug or property crimes to garner long and/ or 3G sentences. But the "War on Drugs" is shO\ving up in the admission statistics; of new admissions in 2004, 35 .1 % are for drugs.

SENTENCE LENGTH. The average sentence length of inmates on hand is 19.5 years. I don't have the fIgure for average length of sentence for inmates on hand for 1992, but the average sentence of a person released in 1992 was 11.1 years. In 2004 the average sentence of a releasee was only 8.4 years (excluding state jail).

PERCENTAGE OF SENTENCE SERVED. Now we come to a statistic where the difference is truly dramatic. In 1992 the average releasee served but 17% of the time assessed. In 2004 the average releasee had done 59.8% of his time (excluding state jail, where there is no early release ). These figures include 3G sentences. So whereas the average releasee in 1992 did about 2 months per year of sentence, 2004's releasees did about 7.2 months on a year. So the percentage of actual time served has more than trebled, reflecting the public's desire for "truth in sentencing.".

3G OFFENSES. In 1992 33% of all inmates were serving a 3G sentence. In 2004 the figure (excluding state jail) was 54,779, for 41.4%. But if we add in state jail inmates, the proportion of 3G inmates has held more-or-Iess steady at 36%.

CUSTODY TYPE. There are four basic levels of custody: In order of onerousness, Administrative Segregation, Close, Medium and Minimum. In 1992, about 70% of inmates were classified as minimum security inmates. That hasn't changed, as in 2004 74% were so classified. The public might flOd this surprising given that TDCJ classifIed 48% of its inmates as imprisoned for a "violent offense" (down hardly at all from 51 % in 1992). Administrative continued on page 20

1 This was the issue with a vcry serious~looking Dan Cogdell on dlC cover. 2 http://W\\w.tdcj.state .tx.us/ publications/publications-home.htm. This website gives the curious an eye -glazing series of table. but almost no graphic summaries. 3 There seems also to be an evolution in nomenclature associated wi.th incarceration in Texas. [n days of yore, the institution was caUed the: "'Texas Prison System" and its denizens were called "'convicts." Then it was renamed the "Texas Dcparonc:nt of Corrections'" and housed "'inmatcs," Now it is me "Texas Dcparollcnt of Criminal Justice Institutional Division" and contains "offende~,"

" By "prison," both the TDCJ and I mean the TDC/ instinltionai Di,ision , as distinct from the State Jail Division. Because state jail sentences arc day-for-day without parole, they sometimes should be treated differendy.

5 Oddly enough, Harris acconnted for 6,187 new prison and 9,186 new state jail admissions in 2004. Dallas, in sharp contrast, sent 4,093 to prison and only 3,239 to state jail. Either Dalla.

fAll 2~DEFENDER

"SPEND 11 E WITH YOUR KIDS NOW,

Open Letter to All Parents: I am writing this letter because some observations I have made, some involving my own children and some

involving children I do not know. I feel compeUed to write not only the parents I know, but also those I don't know. Not long ago, one of my children was involved in a potentially dangerous situation. Fortunately, my child chose to call a parent for help rather than surrender to peer pressure. My child and I had previously discussed this possible scenario and I am proud of the decision my child made . I know that possible danger looms in every child's future and I'm uncertain how my child wiU react next time. However, we have discussed nearly every possible event. As parents, it is our duty to have open and honest communication with our children. It is extremely important that we discuss uncomfortable topics such as alcohol, drugs and sex. The consequences of not having these discussions and not giving our children the opportunity to make good decisions are too grave to ignore.

Times have changed since we grew up . Houston now has a very aggressive DWl Task Force that actively seeks drivers who may be intoxicated. Drugs are cheaper, easier to obtain and more common then ever among today's youth . Not only are there natural consequences of taking drugs or drinking, such as an overdose or a car wreck, the criminal and/ or civil liabilities can be severe . As a criminal defense attorney, I can assure you that the criminal justice system will not educate your child or "teach them a lesson ." It is our job as parents to educate and protect our children.

I have represented children from the most prestigious schools in Houston and children from some of the poorest areas of town. GeneraUy, one of the things these children have in common is parents who are not engrossed in their children's Jives. Whether the parents are rich or poor, children who are not educated about dangerous situations or not close to their parents tend to get into trouble by making poor decisions. However, all children, including my own and no matter how well raised, are susceptible to making errors in judgment. As humans we will make mistakes. However, it is important that our children know that we will be with them if they get in trouble. The relationship between parent and child must be strong enough so that our children will not hesitate to summon our help when needed .

Another reason for writing this letter is to remind people that the bond between parents and their children starts early and my experience as a father and an attorney has taught me that children need much more from their parents than a quick glimpse at bedtime. For example , as a parent who has coached my kids' sports for several years, too often there are parents who never attend a game or even go out and play catch with their kids. At other times, I see parents who only occasionally show up for a game, then criticize and berate their child's efforts, but you never see these parents come out to a practice to work constructively with their child . In these and so many other ways, parents miss important opportunities to bond with and educate their children. Whether it's your child's sports activities , recitals, school plays, or just being there at home to give them some one-on-one, undivided attention for a few minutes, I urge you to take an active role in your children's lives . It is one of the most important aspects of their emotional well-being.

Recently, one of my children got in some trouble and my initial reaction was to protect my child from any consequences from his actions. It is a natural reaction for parents to protect their children . There is a fine line though between protection and overprotection. Children must also have consequences for their actions. I am not here to tell you what to do in any given situation but without clear, consistent consequences, children rarely learn from the poor decisions they make. Disciplining our children can be difficult but consequences are essential to learning. If you do not want tile criminal justice system to attempt to educate or discipline your child then you must do it now.

We all want to trust our children and have our children feel they can trust us. It is important to realize that full trust is earned and comes with a demonstrated ability to think and act responsibly. We can and should exercise a certain level of "healthy mistrust." By this, I mean that part of our responsibility to our children is to hold them accountable to be truthful and take steps to verifY their truthfulness. This may include driving by to see they are where they said they would be, spontaneously and unexpectedly showing up, being in close communication with other parents about our children's plans, activities, and about our expectations regarcling supervision, alcohol and drug use, age-appropriate mixed gender activities, to name just a few. The point, I believe, is that it is important for us to ask questions, verifY facts, and know the people involved in our children's lives.

The best way to influence our children is by example. The phrase "do as I say and not as I do" does not work weU. Probably like many of you, I have not always been the example I hoped to be for my children. But whether the issue is drinking and driving, excessive use of alcohol, use oftobacco or other drugs, using vulgar language, prejudiced views, telling the truth, or driving safely, we can be sure our children are watching, learning, remembering, and are much more likely to copy our behaviors than comply with our lectures or double standards. We need to be a Joving authority and a safe place to turn for honest answers.

We must talk to our children in advance about how to handle clifficult decisions and situations; to provide clear, consistent consequences; to spend consistent quality time with them on a reguJar basis and be involved in their interests and activities; to exercise "healthy mistrust" so that they learn that trust is earned through responsible living; and that we provide them a livi.ng example of the values we hold and behaviors we expect.

PLtASt TALK TO YOUR CHILORtN NOW SO THAT NO ONt ASSOCIATto WITH THt CRIMINAL JUSTICt SYSTtM HAS TO lATtR.

Sincerely,

David W. Kiatta Attorney at Law Parent of Four Children

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Clinical and Forensic Psychologist APPLYING JURY RESEARCH AND PSYCHOMETRICS

The primary purpose of voir dire is to gather case-relevant information about prospective jurors (Frederick, 1995). However, research shows that lawyers spend most of their time uying collecting demographic data and exhorting jurors on the ideals of the juror system and the need to be fair. Even assuming that these pursuits are worthwhile, they are subordinate to identifying which jurors to suike.

Psychometrics is an applied area of statistics that analyses the qualities of tests and questionnaires (Nunnally & Bernstein, 1994). Although questionnaires are not practical in the thirty-minute voir dire practiced in Harris County non-death penalty cases, a psychomeuic approach can guide question development and choice of answer formats.

Questions can be open-ended or closed. Open-ended questions illow for an infinite variety of answers and can be much more informative than a yes-no answer-if the respondent is willing to respond and fully articulate his or her thinking. Open-ended questions are also useful in voir dire through "looping," which involves asking an open-ended question, getting a response, and asking what other jurors think. It encourages discussion and gets people talking . However, open-ended questions take time. Often, even a successful looping maneuver will yield information from only a fraction of the jury pool. Potential jurors who are shy or tired may fail to speak up . Looping may also inadvertently identifY defensefriendly jurors who \.vill then be struck by the prosecution. Lastly, looping may expose the jury pool to strong sentiments contrary to the defendant's interests.

An alternative approach, often used in civil tria.ls, is to administer questionnaires. Although impersonal, questionnaires have many advantages. Responses are private. Each potential juror is asked the same questions and, if the answer format is standardized, can be compared on the same basis . Most importantly, information is obtained from ill potential jurors. Given ill these factors, I estimate a questionnaire would yield five times the tOtal amount of information as a typical looping session in the same amount of time. (Although a few jurors may reveal more information during a looping session, the vast majority would reveal much less. )

Many of the advantages of questionnaires can be adapted to verbal group questioning format. The simplest scenario would be to ask a question and ask for a show ofhands for those that agree. From what I have seen, lawyers seem to prefer "yes-no" answers . Al= though getting a clearly interpretable answer is important, questions that must be answered yes -no or true -false yield the least possible information about the potential jurors: Only one distinction can be made, as the original group can only be divided once based on their answers. Allowing a "neutral" response produces twice as much information (two distinctions) by dividing the jury pool into three groups. Psychologists have researched response formats in depth, as many psychological tests ask the subject to indicate his or her with an attitude statement or personality description. Gene rill y, three response options provide more reliable data than two options, five options give more information than three options, and nine options

produce more reliable data than five options. There are Limits of the benefits to be gained, however, and the voir dire setting poses some practical constraints .. I recommend using at least four options (e .g. , strongly disagree, disagree, agree, suongly agree) .

Scores on many psychological variables, such as IQ, have no natural divisions-they are continuous. The normal curve illustrates that most people wiJl fall near the average (for IQ, between 90-110), and the more extreme the score, the more rarely it wilJ be observed . The normal curve can be useful to illusuate the strategy advocated here. Assume for the moment that potential jurors can be ordered on a single dimension of being defense- vs. prosecution-friendly. Let's assume that these attitudes are distributed in a normal curve, with more moderates than exuemists at either end . The goal of the defense attorney is to identifY potential jurors in the upper third1 (shaded area ) of the curve, and if possible, to rank order tllem in terms of undesirability. There are two basic ways to do this . One could ask a yes or no question, worded in such a way as to get about 33 percent of the jury pool to agree with it. For example, you could ask, "How many people here believe that defendants should prove their innocence? " (Surveys indicate substantial portions of tlle population agree with this position). Or one could ask the same question, but ask jurors to respond on a one to fIve scale, where fIve is strongly agree, four is agree, etc. ("How many people suongJ}r agree with this statement?: When someone is charged with a crime, he should take it on himself to prove his innocence.") If using tlle latter approach, the attorney can first ask how many people strongly agree, which could be taken as grounds for challenge for cause. A follow-up question wouJd be "How many of you just "agree" (not "suongly agree" ) that a defendant shouJd prove he is innocent?" The attorney could ask tllese two questions in either order. If your question gets just a few hands in the hair, modif)r it to get more . Conversely, if you get twenty hands, make it more suingent . But record the responses to both, giving one point to the more

moderate response and two to the extreme response. Although one could ask how many potential jurors agree with your position, this will tend to identify which jurors are most desirable to you and lead your opponent to get rid of them . The defense attorney will want to mine the 20-30% of the population most favorable to the prosecution (see diagram). Conversely, the prosecutor wil.! want to focus on the 20-30% of the jury pool most favorable to the defense . Although the information in the entire upper 50% (and theoretical.!y the entire curve) is potentially useful, identifying the top fifty percent implicirly identifies the other fifty percent for your opponent. The fewer hands that are raised for your questions, the less information is revealed to the prosecution . Ten to fifteen hands will maximize the ratio of information you get to that revealed to other side. However, if you can sing.le out one or two hostile potential jurors on a challenge for cause, this is weU worth doing.

CHART 1

THE NORMAL CURVE

Because the data obtained depends on the cooperation of the potential jurors, it is essential to overcome reticence, resentment, or self-consciousness. Apologize for the impersonal approach. Emphasize the importance of knowing what everyone thinks or feels. Ask if anyone is uncomfortable raising their hand or making their opinions known publicly. Ask to accommodate them (perhaps by having them write down the question and their answer). Ask a sample question or two that will allow you to check that everyone is responding (" How many people here are under 30? Over 30? 30?") . Make note of anyone who didn't raise their hand and encourage them.

The attorney should vary rl1e format and direction of the questions to prevent boredom, self-consciousness, and the onset of response styles (such as tendency to agree or disagree with everything) that interfere with getting good data. Begin with less sensitive topics .. Ask some questions which invite a large portion of the group to raise their hands. For example, "How many people think a person should be punished only for their current crime, not for what they have done in the past?" The defense attorney will be interested in the minority (hopefuUy) that do not raise their hands, and again, litrle useful information is leaked to one's opponent. Do not pose several questions in a row that elicit only a few hands.

A psychometric approach assumes that you will have to ask multiple questions about a topic to get a reliable measure . However, the need to do so varies with how complex and multifaceted the attitude or trait is you are trying to measure . If a particular attitude or trait is important to you and not easily summed up in one question, try formulating four to ten questions. Do not make them too specific. Each should come close to the heart of the subject .

AITITUDES AND TRAITS THAT PREDICT VERDICTS

Studies in the 1970's explored many different personality and attitudes as possible predictors of criminal verdicts .. Only nvo variables have shown to have good predictive power in multiple studies and types of offenses. Authoritarianism is the tendency to value and respect power and traditional authority. Normally, these are potential jurors defense attorneys wil.! want to eliminate. However, there are some types of cases in which authoritarian jurors are desirable. Because they value order and respect authority, they are supportive of police officers and high public officials as

defendants. They will tend to favor people similar to them (in terms of race, background, education, attitudes) at the expense of those who are not. However, they are relatively less likely to convict for rape than for murder or other felonies, apparenrly because of cynicism toward the victim.

Legal authoritarianism is a more specific concept that grew out of the initial research as it was applied to the legal arena, and it is an even stronger predictor of verdicts than general authoritarianism. Legal authoritarianism consists of two correlated sets of beliefs: that a defendant that is brought to trial is probably guilty, and 2) "reasonable doubt" means something like "more likely than not." (See Table 1 below for some sample items). Scores on legal authoritarianism have been demonstrated to predict jurors' verdicts in hypothetical criminal cases . The impact of legal authoritarianism can be appreciated by two sets of statistics. One study divided its subjects into low and high scorers (on a legal authoritarianism scale) and presented them with four sample criminal cases to judge. High scorers produced a 72% conviction rate, while low scorers returned a 44% conviction rate . Both groups were also asked to respond to this item: "A defendant should be found guilty if there is at least a _ _ % chance that he/ she committed the crime ." High scorers were wi.lling to return a guilty verdict on the basis of 83% certainty, while low scorers required a 91.5% certainty. Although these differences are sizable, they are conservative estimates of the differences between extreme groups. In this study, the entire group of subjects was divided in two, so both groups contained many people that scored near the average. If the top 20% of scorers were compared with the bottom 20% (which are the people that voir dire might eliminate ), the differences would probably have been considerably larger. It is quite possible that most prosecution-friendly 20% of the jury pool would endorse convicting a defendant on a 60 or 70% level of certainty.

Researchers have created voir dire questionnaires for several specific legal issues. A measure of attitudes toward the insanity defense was found to predict mock jurors' verdicts. A similar scale, developed by one of the same authors, failed to predict outcome in an eyewitness case. This failure may be because jurors do not have strong feelings on this issue and because there was no expert testimony to weigh in the decision . It is likely that an effective voir dire in an eye\vitness case would examine a potential juror's interest in hearing about the research in this area and willingness to accept a new viewpoint.

continued on page 13

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TABLE 1

Sample Authoritarianism and Legal Authoritarianism Items from Questionnaires

CONCEPT

Do you like bossing people around? I enjoy and feel good wearing a military uniform. Presumption of Guilt

Defense lawyers don't care about guilt or innocence, they are just in business to make money.

Generally, police only make an arrest when they are sure about who committed the crime.

Relaxed Standard of Proof Extenuating circumstances not be considered-if a person commits

a crime then that person should be punished. Too many people are wrongfully imprisoned. (R)

Once legal authoritarianism and case specific attitudes are gauged, the defense attorney may want to consider other personality characteristics that wiU increase the probability a juror will resist group pressure to vote guilty. Such people are likely to be stubborn, independent thinkers who care more about being right than being popular. Some might just be contrary. Although leadership/assertiveness is desirable if the person subscribes to your position, it cuts the other way if he does not . Therefore, the defense attorney should identify people who are agreeable, conventional, concerned with consensus, and defer to others in making their decisions-and consider striking them .. Since the law requires jurors make their own decisions, and someone who is highly dependent on others is unlikely to be able to change their personality in the pressure cooker of jury deliberations, a dismissal for cause might be pursued.

SAMPLING

The best predictor ofa person's performance is to have them do a sample test. In other words, a prospective typist will be given a typing test, a prospective pro football player a try-out. The best predictor of juror's voting tendencies will be verdicts for other similar cases. In voir dire, one might briefly pose several hypothetical cases and ask how many would vote for guilt. Research has shown that initial polls among jurors are highly predictive of final verdict. The cases should be as similar to the actual case as will be permitted, but should also produce about a 1:2 split among jurors (as with other questions), always concealing the jurors most favorable to you within a larger group. Again, identify hard core prosecution jurors by asking who would be absolutely sure of their guilty verdict. One or more hypothetical cases might incorporate judge's instructions and constitutional principles. It might be possible to pose a challenge for cause if the juror repeatedly votes in a way that suggests he did not follow the law or operate under a presumption of innocence.

PERSUASION

The above method allows for advocacy by the potential jurors that the prosecution has identified as least desirable for its case. These are the defense's temporary spokespeop\e-" temporary " because they are likely to be struck at the end of the voir dire ..

Defense-friendly potential jurors can relate their experiences and explain why they are skeptical of the police, DA's office, etc. This allows moderate jurors, who have not had similar experiences, to hear fresh, first-person accounts of possible official misbehavior. Allow these jurors to justif)r their perceptions and sound reasonable so they will be credible and to prevent them from being struck for cause. Before questioning a potential juror \vith a passionate distrust of the police, you might acknowledge the emotion attached to their perception (" I can see that this issue creates strong feelings for you. Can you help me understand why?). If you can't get the juror to agree to put aside his or her bias, then paraphrase the position using your most powerful rhetoric for the benefit of the other potential jurors. (" So you believe so strongly, based on your experiences \vith your uncle and brother, that the police will plant evidence that you would tend to assume that was the case in a similar case?"). If you 're going to lose the juror, get his message out first.

It is vital that you confine this sort of questioning to those jurors the prosecution has already identified as defense-friendly. Unlike looping, you do NOT want previously unidentified jurors with similar attitudes to jump in and make themselves known. Those that would do so are likely to be the best remaining jurors for the defense. However, you could ask if anyone disagrees strongly with what the defense jurors say and again ask for a show of hands.

CONCLUSION

A thirty-minute voir dire constrains the type of questioning that may be done, but should not discourage information gathering. A tremendous amount of data can be gathered from ten or fifteen thoughtful, well-constructed questions addressed to all members of the panel, but answered by only a portion.

REFERENCES

Frederick, R. (1995) Mastering voir dire and jury selection.

American Bar Association.

Nunnally, J. C. & Bernstein, 1. H. (1994). Psychometric theory.

McGraw-Hill.

STEVE RUBENZER, PH.D., ABPP BOARD CERTIFIED FORENSIC PSYCHOLOCIST

Competency & sanity assessment; DWT (SFST Instructor); eyewitness factors; risk!

dangerousness; voir dire; malingering; personal injury; child custody

[[914 Astoria Blvd., Suite 490, Houston, TX 77089 Ph: '28J-481-5715 www.SteveRubenzerPhD.com

Fax: '28J-9'2'2 - 5903 steverubenzer@sbcglobal.net

CAUSE NO. ____

STATE OF TEXAS }{ IN THE DISTRICT COURT

v. }{ HARRIS COUNTY, TEXAS

JANE DOE }{ JUDICIAL DISTRICT

MOTION IN LIMINE: PROHIBIT PROSECUTOR

FROM ADVISING VENIRE SIHE REPRESENTS COMPLAINANT ANDIOR "VICTIM{S)"

TO THE HOI\JORABLE JUDGE OF SAID COURT:

COMES NOW JANE DOE, Defendant in the above-styled and numbered cause, and files this Motion to Prohibit the Prosecutor from Advising Venire s/he Represents the Complainant and/or "Victim(s)", and in support thereof she would show the following:

I. Prosecutors' comments that they represented the "State of Texas and the family of [complainant]" in a capital

murder trial constituted clear error, and the trial judge "clearly erred in overruling appellant's . .. objections to the statements." Rougeau v. State, 738 S.W.2d 651, 656-657 (Tex.Crim.App. 1987). Although the Court found that, on the facts of that particular death penalty case, the remarks were not egregious enough error to require a reversal , it described the statements as "extremely improper," and commanded: "... remarks that the prosecuting attorney represents the family of the deceased in the prosecution of the accused should never again be uttered by any prosecuting attomeyofthis State in a court oflaw ofthis State . .. ". Id. at 658. [Emphasis added]. Even if the case does not involve murder, the prohibition can be logically extended to include all criminal prosecutions.

II . Defendant further contends that the State's attorney should refrain from use of the word "victim" when

referring to the complaining witness alleged in the indictment. The term "victim" is not proper legal terminology, and its prejudicial effect is comparable to use of the objectionable phrase "rape kit" in a sexual assault prosecution. Also, "victim" connotes one who has been criminally acted upon, which is a matter of proof at trial, and therefore not properly assumed as a matter of fact during the voir dire examination. Defendant asserts that to permit the State to utilize this term during voir dire will deprive him of due process and a fair trial as guaranteed under the Texas and United States Constitutions.

WHEREFORE, PREMISES CONSIDERED, Defendant prays this Motion be GRANTED and that the Court issue its order accordingly.

Respectfully submitted,

SHAWNA L. REAGIN 1305 Prairie, Suite 300 Houston, Texas 77002 (713) 224-1641 TBN 16634900

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion was hand-delivered to an Assistant District Attorney assigned to this case on this the _ day of , 20_.

SHAWNA L. REAGIN

CAUSE NO. _ _ _

STATE OF TEXAS }{ IN THE DISTRICT COURT

v. }{ HARRIS COUNTY, TEXAS

JANE DOE }{ JUDICIAL DISTRICT

ORDER

On this the __ day of _ _______, 20_, came on to be heard Defendant's Motion in

Limine to Prohibit the Prosecutor from Advising the Venire S/He Represents Complainant and/or

"Victim(s)" , and having duly considered same, this Court is of the opinion said Motion should be:

__ GRANTED

__ DENIED

SIGNED and ENTERED this ___ day of _ ______, 20_.

JUDGE PRESIDING

fALL 2~DEFENDER

A. VOIR DIRE IS ACONSTITUTIONAL RIGHT

The Sixth Amendment guarantees the assistance of counsel and a trial before an impartial jury. U.S. CONST. amend. V1. Part of this constitutional guarantee is an adequate voir dire to identify unqualified jurors. Morgan v. Illinois, 504 U .S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Raby v. State, 970 S.w.2d 1, 10 (Tex. Crim. App. 1998). It is essential to the Sixth Amendment's guarantee to the right to counsel that the defendant have the right to question prospective jurors in order to intelligently exercise peremptory challenges and challenges for cause. Raby, 970 S.W.2d at 10; Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim . App. 1996); Dinkins v. State, 894 S.w.2d 330,344- 45 (Tex. Crim. App. 1995). The Court in Raby stated that "the light to propound questions on voir dire, in order to intelligently exercise peremptory challenges, is of the greatest importance" in consideration of the Sixth Amendment's right to counsel. (quoting Hernandez v. State, 508 S.w.2d 853, 854 (Tex. Crim. App. 1974)) .

B.IHE JURY SHUffiE

The jury shuffle is designed to ensure randomness in the list of jurors. Jones v. State, 833 S.W2d 146, 148 (Tex. Crim. App. 1992); TEX. CODE CRlM. PROC. art. 35.11 (Vernon 1991). Either party can ask for a shuffle and only one shuffie is required, regardless of which party makes tl1e request. Id. at 149. Although a jury shuffle may sometimes be used as a strategic tool, the actual purpose of the statute is merely to ensure that the members of the venire are listed in random order.

C. TIME LIMITATIONS

The trial judge may impose reasonable restrictions on the exercise of voir dire examination. Boyd v. State, 811 S.W.2d 105, ll5 (Tex. Clim. App. 1991). However, the judge cannot restrict proper questions that seek to discover a juror's views on relevant issues. McCarter v. State, 837 S.W.2d 117, 121-22 (Tex. Crim. App. 1992); Rios v. State, 4 S.w.3d 400, 401 (Tex. App. -Houston [1 Dist.],1999) pet. dism'd, improvidently granted, 122 S.W.3d 146 (Tex. Crim. App. 2003) (where defense counsel responded to the court's termination of voir dire as follows: ".. . I have to question on jobs that involve entry into homes . .... Also, I have to ask the following question: Anti-crime organizations .. . And I also need some more time so that I could touch on tile punishment issue. . . . And I would be asking people about punishment and individual jurors as to what they would consider for

punishment, what tl1ey could, and then get their opinions, more specific opinions than they have expressed about punishment. For that reason I would request more time"); cf. Rios v. State, 122 S.w.3d 194, 195-202 (Tex. Crim. App . 2003) (Price, J., and Cochran, J., dissenting from denial of State's p.d.r. as improvidently granted, each finding error was nOt preserved because defense counsel's offer of proof was not sufficiently specific). Defense counsel would be wise to state for the record the specific questions he wishes to ask the venire, rather than simply stating tl1e general topics he wishes to discuss.

D. PROPER AND IMPROPER COMMITMENT VOIR DIRE QUESTIONS

The scope of voir dire is broad and an accused is generally entitled to question the panel on any matter that will be an issue at trial. Dinkins, 894 S.W.2d at 344 . As discussed above, error in the denial of a proper question, which prevents the intelligent exercise of peremptory challenges, is an abuse of discretion. Atkins v. State, 951 S.W2d 787, 790 (Tex. Crim. App. 1997); Allridge v. State, 762 S.W.2d 146, 163 (Tex. Crim. App. 1988). The right to propound questions during voir dire is not unfettered, however. It is the propriety of tl1e question propounded that is determinative of the issue . Green v. State, 934 S.W.2d 92, 106 (Tex. Crim. App. 1996). Permissible questions include, for example, tl10se that probe into bias and prejudice against the applicable law, Hogue v. State, 711 S.w.2d 9, 27 (Tex. Crim. App. 1986), bias and prejudice against the defendant, Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1979), and opinions formed regarding the facts of the case, Cannady v. State, 11 S.W.3d 205,209 (Tex. Crim. App.) , cert. denied, 531 U.S. 850, 121 S.Ct. 125, 148 L.Ed .2d 80 (2000) (citing Curry v. State, 910 S.W2d 490, 493 (Tex. Crim. App. 1995)).

A litigant cannot, however, commit tl1e panel to their view of some specified testimony or the conclusion they would reach under a given set of facts ... Standefer v. State, 59 S.W3d 177, 179 (Tex. Crim. App. 2001). The test as to whether a certain question is proper was set forth in Standefer as follows: (1) does the question ask the prospective juror to commit to a resolution of an issue in the case?; and (2) does the question include only those facts necessary to lead to a valid challenge for cause? If the answer is no to either question, then the question is proper.

Examples of improper commitment questions include asking the panel or a prospective juror:

(1) whetller they would have an automatic predisposition to find a person guilty because he refused to take a breath test. Standefer supra.

[A proper way to ask this question is to phrase in terms regarding the State's burden of proof. For example, could you foUow the law and hold the State to its burden if you the only evidence you heard was that the accused refused to take a breath test?]

(2) whether, if the evidence showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, they could not convict a defendant. Standefer supra; Atkins v. State, 951 SW.2d 787, 789 (Tex. Crim. App. 1997).

(3) whether "assum[ing] ... some of the evidence ... shows that the victim's family was gready impacted and terribly grieved and gready harmed by the facts, .. would not prevent or substantiaUy impair [them] in considering a life sentence. Penry v. State, 903 SW.2d 715, 739-740 (Tex. Crim. App.) , cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed .2d 408 (1995).

(4) whether they would give mitigating affect to evidence of youth in punishment. Moore v. State, 999 S.W2d 385, 406-407 (Tex. Crim. App. 1999).

(5) whether they would give mitigating affect to evidence of drug use in punishment. Rhoades v. State, 934 S.W.2d 113, 122-123 (Tex. Crim. App. 1996)(pluralityopinion).

(6) whether they wou Id give mltlga ting affect to evidence of alcoholism, troubled family background, intoxication, and good jail record in punishment. Garcia v. State, 919 S.w.2d 370 (Tex. Crim. App. 1994) .

(7) whether \~ctirn impact evidence would affect their resolution in punishment. Stadnefer supra; Penry, 903 S.W2d at 739-740.

(8) whether evidence of potential rehabilitation would affect their resolution in punishment. Stadnefer supra.

(9) whether they could find someone guilty on the testimony of one witness. Stadnefer supra; CastiUo v. State, 913 S.W2d 529 (Tex. Crim. App. 1995).

(10) whedler they could fmd someone guilty on circumstantial evidence alone ... Stadnefer supra; Garrett v. State, 851 S.w.2d 853, 859- 60 (Tex. Crim. App. 1993) (venireman not subject to chaUenge for cause merely because he would require more evidence than the legal minimum).

(11) whether a given set of circumstances would warrant the imposition of the death

penalty or what circumstances, in their opinion, would warrant the imposition of the deadl penalty. Stadnefer supra; Allridge v. State, 850 S.W2d 471,480 (Tex. Crim. App. 1991), cert. denied, 510 U .S. 831, 114 S.Ct. 101 , 126 L.Ed.2d 68 (1993) .

(12) whedler they could consider probation in a case where the victim is a nun. Stadnefer supra.

(13) whether they could be fair and impartial in a case in which the victim was nine years old. Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002).

(14) whether the fact the victim was a two week old child would affect their verd ict or what effect that might have on their verdict. Freeman v. State, 74 S.W3d 913 (Tex. App. -- Amarillo 2002, pet. rerd).

Conversely, examples of proper questions include asking the panel or a prospective juror:

(1) whether the victim's status as a nun would affect dleir ability to be fair. Stadnefer supra.

(2) whether they believe a child, in a child molestation case, could or would lie about a sexual assault . Stadnefer supra.

(3) whedler they would presume someone guilty if he or she refused to make a statement to the police. Stadnefer supra .

(4) whether they "feel as though [they] could evaluate a witness and his testimony and decide if he's being trudlful \vithout automatically dismissing his testimony because of some criminal history." Lydia v. State, 117 SW.3d 902, 904 (Tex. App. Fort Worth 2003, pet. rerd).

(5) whether it would make a difference if the crime committed by the \vitness was against the defendant. Td.

(6) whether they believe a police officer would ever lie on the witness stand. Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978) (op. on reh'g).

(7) whether they would automatically disbelieve the testimony of a \vitness who was shown to lie in the past. Edwards v. State, 882 S.W2d 493, 495 (Tex. App . Houston [1st Dist.] 1994, no pet.).

(8) whether they would disbelieve a witness simply because there was a delay in the reporting of the crime. Harris v. State, 122 S.W3d 871 (Tex. App. -- Fort Worth, 2003, no pet.) (defendant charged widl falsely reporting a sexual assault to police ).

(9) whether they would not be able to find

somebody guilty of a criminal offense \vithout having medical evidence. Id ..

(10) whether they could not find somebody guilty based upon the testimony of just one \vi tness , even if they believed that one \vitness beyond a reasonable doubt. Td.

(11) whether they would disbelieve a defendant in a murder prosecution. Rivera v. State, 82 S.W.3d 64 (Tex. App. -- San Antonio 2002, pet. rerd) .

E. Absolute Disqualification is Not Absolute

Absolute disqualification, under TEX. CODE CRIM. PROC. art. 35.19, does not mean absolute reversal on appeal. Tn order to perfect the record, the defendant must object prior to verdict. If there is no objection, the defendant must demonstrate "significant harm." Nelson v. State, 129 S.W3d 108 (Tex. Crim. App. 2004). In Nelson the court conducted a bench conference on the parties ' strikes for calise. During the conference, the court and the lawyers discussed a theft conviction of one of the prospective jurors. The venireman was called up and he related that he paid a fine on a Class C misdemeanor theft years before . Although the cOllrt and the parties reviewed the law together and discussed whether the venireman was qualified to serve, it was ultimately determined that he would be allowed to serve. The defense counsel acquiesced and never lodged an objection to the disqualified juror. After raising the issue for the first time on appeal, the Seventh Court of Appeals reversed. On the State's petition for discretionary review, the Court of Criminal Appeals reversed the court of appeals.

First, dle Court addressed whedler the defendant waived the issue for appeal by failing to object to the venireman's service on the jury. It found that the conference at the bench evidenced the trial COllrt'S awareness of the disqualification and, thus, the issue was preserved. The Court then addressed whether, notwithstanding the mandatory language of Article 35.19, a harm analysis was required. The Court held that where there is no objection prior to the verdict, the defendant is required to show significant harm from the service of dle disqualified juror. On the other hand, if the defendant raises the issue before dle verdict is entered, no sho\ving significant harm is necessary. The Court reasoned that, although the trial court was aware of the issue and the venireman should have been excused, the defendant, by failing to object, failed to raise the issue before the verdict was rendered and, hence, had to demonstrate the requisite harm.

F. Batson Challenges Under the Equal Protection Clause of

the Fourteenth Amendment, a litigant may not exercise a peremptory challenge based on the juror's gender (J .E.B ... v. Alabama ex. reI. T.B., 511 u.s. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994)), ethrUcity (Hernandez v. New York, 500 U.s. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991 )), or race (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,90 L.Ed.2d 69 (1986) ) See also Fritz v. Texas, 946 S.W.2d 844 (Tex. Crim. App. 1997) (gender); Wamget v. State, 67 S.W3d 851 (Tex. Crim. App. 2001) (ethrUcity); TEX.CODE CRIM. PROC. art. 35.261 (race ).

There are three prongs to a Batson challenge. First, defense counsel must establish a prima facie case of discrimination . Second, the burden of production then shifts to the proponent of the strike to offer a neutral explanation for that strike. Third, if the proponent offers a neutral explanation, the trial court must then decide whether the opponent has proved purposeful discrimination . The burden of proof in a Batson challenge is by a preponderance-of-the-evidence. Williams v. State, 767 SW.2d 872, 874 (Tex. App. - Dallas 1989, pet. ref'd) (en banc).

When the motives behind the prosecutor's chaUenge is mixed, that is, the reasons for the strike are both permissible (neutral ) and impermissible (discriminatory), then the Equal Protection Clause is violated only when the prosecution is unable to satisfy the court that the juror would have been struck based solely on the neutral reason. Guzman v. State, 85 SW.3d 242 (Tex ... Crim. App. 2002) . As an aside, it is interesting to note that Guzman was a five (5) to four (4) decision and that Judge Womack wrote the dissent. His dissent is worth reading .

Obviously, it is not difficult for a prosecutor to proffer a neutral reason for the strike. Defense counsel, therefore, must be prepared to rebut the neutral basis offered. For example , in Gibson v. State, 117 SW.3d 567 (Tex. App. -- Corpus Christi 2003), defense counsel pointed out that other (white) panelists gave the same answers to questions as did the (black) panelist who was struck. The court of appeals held that "where the prosecutor offers only one reason for a challenged peremptory strike, the accused may discharge the burden of persuasion on a claim of disparate treatment under Batson on the basis of race to rebut the state's facially neutral explanation by showing that the state struck a panelist of one race but did not strike a panelist of a different race who presented the same reason. Gibson, 117 S.W3d at 571. Counsel should also be leery even when the prosecutor accepts a

juror who is of the same race as the panelist struck. Simply because the prosecutor allowed one black person on the jury, does not mean that his strike on another is not race-motivated . Defense counsel should also be able to point out to the court that allowing a minority on the juror is not alone sufficient to demonstrate the strike was not racially motivated.

The standard of review on appeal is "clearly erroneous." Hill v. State, 827 S.W2d 860, 865- 66 (Tex . Crim. App. 1992) (plurality op.). A ruling is clearly erroneous when, after examining the record, the appellate court has the "defmite and firm conviction that a mistake has been committed ." United States v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989) (citing and quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.C t. 1504, 84 L.Ed.2d 518 (1985 )); Id . In reviewing the trial court 's ruling, the appellate court does not determine whether the prosecutor's explanations were credible , but rather whether the trial court's ruling was supported by the record. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995 ); Guzman, 85 S.W3d at 254. If supported by the record, the trial court's decision was not clearly erroneous. Id.

G.IHE "ONE WITNESS" RULE

A panelist who" categorically refuses to render a guilty verdict on the basis of only one wimess is not challengeable for cause on that basis so along as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt." Zinger v. State, 932 SW.2d 511,514 (Tex. Crim. App. 1996); see also Castillo v. State, 913 S.W2d 529, 534 (Tex. Crim. App. 1995 ). In other words, if the panelist relates that the State could not meet its burden with only one wimess, then he is not challengeable for cause . On the other hand , if the prospective juror refuses to return a guilty verdict, even if he found the defendant guilty beyond a reasonable doubt, then such a challenge would be valid. Note also that, altllough the State can make inquiry as to the latter, it is an improper commitment question to inquire into the former.

H. SECURING STRIKES FOR CAUSE

When a prospective juror is equivocal as to their ability to follow the law or set aside any bias or prejudice against one side or tile other, the appellate court is required to defer to the trial court's judgment. Brown v. State, 913 S.W2d 577, 580 (Tex . Crim. App. 1996). In Brown, Judge Maloney stated for the court:

[NJoiliing is left to the discretion of the trial court when the venireperson is unequivocal as to their ability to follow the law. If they testif)1 unequivocally that tlley can follow the law despite personal prejudices, the trial court abuses its discretion in allo\ving a challenge for cause on that basis. Likewise, if they testify unequivocally that they cannot tallow the law due to their personal biases, the trial court abuses its discretion in fai.ling to grant a challenge for cause on that basis. However, when the venireperson vaci.llates or equivocates on their ability to foLlow the law, the reviewing court must defer to the trial court's judgment.

Brown, 913 S.W2d at 580 (emphasis in original) . It is, therefore, imperative tllat defense counsel tie down those prospective jurors who are objectionable by forcing (politely ) a "yes" or "no" answer to the question. Usually it is best to do so by using leading questions. Counsel's questions should accurately state the law, the prospective juror's bias and prejudice against the law, and the fact that the venireperson cannot tallow the law. If the prospective juror vacillates, a su bsequent motion to strike is subject to being overruled.

I. PRESERVING VOIR DIRE ERROR

Voir dire error can amount to constitutional error. When the error deprives an accused of his Sixth Amendment right to counsel, the error is of constitutional dimension. U.S. CONST. amend. VI; TEXAS CONST. Art . 1, 10; Rios, 4 S.W3d at 402-03 (Trial court's error in limiting defense counsel to 45 minutes to conduct voir dire at aggravated robbery trial was not harmless, but amounted to constitutional error requiring reversal, where counsel still had proper voir dire questions to ask venire after allotted 45

minutes had passed). Regarding strikes for cause, a trial

court 's error amounts to constitutional error "[ 0 ]nly in very limited circumstances ." Jones v. State, 982 S.W.2d 386,391 (Tex. Crim. App. 1998 ). In Jones, the Court identified the following as errors of constitutional dimension: "when a juror is erroneously excused because of general opposition to dle death penalty;" and when a juror is excluded for an "impermissible" reason "such as race, sex, or ethnicity." Id. To show error when a trial court erroneously grants the State 's challenge for cause, a defendant "must demonstrate one of two things : (1) the trial judge applied the wrong legal standard in sustaining the challenge, or (2) the trial judge abused [his] discretion in applying the correct legal standard." Jones at 388-89 (citing Vuong v. State, 830 SW.2d 929, 943 (Tex.Crim.App.), cw. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). The Court also adopted a pre-rules harm analysis to the non-constitutional voir dire error of granting the State 's improper challenge for cause. Id. at 392-94 (overruling Payton v. State, 572 S.W2d 677 (Tex. Crim. App.1978 ), which had held that an erroneous grant of the State's challenge for cause was tantamount to aUowing the State an extra peremptory strike). "The erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury." Id.

To preserve error based on a trial court 's denial of a defendant 's challenge for cause, the defendant must: (1) assert a clear and specific challenge for ca use; (2) use a peremptory strike on the complained -of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) show that he would have struck the objectionable juror. Nelson v. State, 848 S.W2d 126, 134 (Tex. Crim. App. 1992 ), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed .2d 66 (1993). This hoopjumping must take place before the jury is sworn. Credille v. State, 925 S.W.2d 112, 115 (Tex. App. -- Houston [14th Dist.] 1996, pet. refd). Although a defendant need not specify why a particular juror is objectionable, his must at least state which particular juror is objectionable. Allen v. State, 108 S.W3d 281,282-83 (Tex. Crim. App. 2003); Fuller v. State, 827 SW.2d 919, 924-25 (Tex. Crim. App. 1992). A mere statement that certain jurors, without designation , are objectionable is not enough. Moreno v. State, 587 S.W.2d 405, 408 (Tex . Crim. App. 1979).

Following all the steps discussed above will not preserve error in all cases . In Loredo v. State, _ SW.3d _ 2004 WL 743833 (Tex. Crim. App. April 7, 2004 ),

the Court of Criminal Appeals held that failing to correct the trial court's memory of a prospective juror 's statement, regarding whether she could consider probation, waived error even though the defendant had followed all the necessary steps set forth in Nelson. The trial court granted three out of four challenges made by the defense for the veniremembers' inability to consider probation. The court, however, denied a fifth challenge, without further discussion. After defense counsel requested an additional peremptory, naming the problematic juror, the court responded by stating: My recollection of Mrs . Band is dlat while she did tell you at one time that probation would not be a possible punishment in her mind that when I asked her a question she recanted and said that she could. Does anybody disagree with that? Or have I screwed the numbers up again?

Loredo, 2004 WL 743833, slip op. at 2. The record on appeal clearly showed the venireperson in question was unequivocal about her inability to consider probation. However, the Court found that the defendant "did not express doubt or disagreement with dle court's statement of the facts on which the court was basing its decision to deny the additional peremptory strike." Id. The Court held that "[p]reservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them. " Loredo, 2004 WL 743833, slip op . at 3 (citing Young v. State, 826 SW.2d 141, 149 (Tex. Crim. App. 1991) (Campbell, J., dissenting)).

AI'PEi\lDIX

TEXAS CODE OF CRIMINAL

PROCEDURE

Art. 35.01. Jurors called

Art. 35 .02. Sworn to answer questions

Art. 35 .03. Excuses

Art. 35 .05. Excused by consent

Art. 35.10. Court to try qualifications

Art. 35.11. Preparation oflisr

Art. 35 .12. Mode of testing

Art. 35.13. Passing juror for challenge

Art. 35 .14. A peremptory challenge

Art. 35 .15 . Number of challenges

Art . 35 .16. Reasons for challenge for cause

Art. 35.17. Voir dire examination

Art. 35.18. Other evidence on challenge

Art. 35.19 . Absolute disqualification

Art. 35.20 . Names caIJed in order

Art. 35 .21. Judge to decide qualifications

Art. 35 .25. Making peremptory challenge

Art. 35.26. Lists returned to clerk

Art . 35.261. Peremptory challenges based

on race prohibited

KARIN SCALISE

EOREN.8IC DNA CONSIlLIANI

9 YEARS EXPERIENCE AS A FORMER FORENSIC DNA ANALYST WITH

THE TEXAS DEPARTMENT OF PUBLIC SAFETY AUSTIN CRIME LABORATORY

Phone 512-302-4274 Fax 512-323-2855

E-mail karinscalise@shcglnbal,nej

Austin, Texas

available internationally

I

conrinued from page 7

THE

DEFENDER

segregation is single-cell lock-down incarceration for gang members and especially violent inmates. It has held steady at about 7%.

DEATH ROW. There were 344 inmates on Death Row back in 1992. In 2004 there were 454, of whom eight were women This represents an increase of 30% in 12 years. Too much should not be read into this figure, however; more people going to Death Row are offset by more frequent executions of sentence (12 in 1992 vs. 23 in 2004), making this statistic misleading .

EDUCATION. In 1992 TDCJ published a hard figure for the educationa.llevel of inmates on hand. The average grade completed was 10.1, and about 85% cLid not finish high school. This figure is now replaced with an Average Educational Achievement figure, not defined.

THE BOTTOM LINE. The ultimate figures for the Texas criminal justice system are truly astounding. TDC] spent, in flsca.l year 2004, $1,936,793,366 on incarceration of felons out of a total TDC] budget of almost $2.5 billion. Incarceration accounts for about 77% ofTDC],s budget. This works out to $12,851.21 per inmate. There were a.lmost 32,000 TDC] employees working in incarceration in 2004.7 There were in Texas, as of August 31, 2004, 235,975 persons on felony probation and 76,577 on parole supervision, in adcLition to the 150,709 incarcerated .s In alJ, 463,261 people in Texas alone are either on felony probation, parole , or serving time for a felony.9 And this figure does not include pretrial confmement, misdemeanor probation or county jail sentences. The Census Bureau estimates the population of Texas in 2003 at some 22 million. This means that about two percent, or one out of fifty, of aU Texans are on some kind of felony imprisonment or supervision.

7 I seem to remember that dus was about the total population ofTDC when I starred practicin g in 1983 .

8 12,736 are ~sred as abswnders. 9 ComJY.lre this figure to the Qnsus Bureau's population for the City of El Paso, at 563,662.

r~ nli!~I!" lillill JII iI

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