Friday, March 29, 2013

My house, my rules

The other day out in one of the small towns on the Petroleum Highway (SH 225), I had a client who drove trucks for a living who had gotten a speeding ticket while driving his pickup truck. For those of y'all who don't keep up with traffic laws, commercial truck drivers aren't eligible to get a ticket dismissed through what we like to call deferred disposition.

A deferred allows a motorist to pay a fine post a bond and if he doesn't get another ticket within a certain number of days, the case is dismissed. For truck drivers the choices are plead it out or set it for trial.

And my client and I found ourselves in trial that day.

The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.

During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of the lynch mob jurors for cause as I could. After the prosecutor's rousing voir dire in which he didn't direct a single question to any member of the panel, I had little to go on. (In Texas you are entitled to a jury trial for any criminal offense - from speeding all the way up to murder).

My three questions were:

1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?

I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.

I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).

On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.

After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.

You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.

And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.

Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.

For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.


Anonymous said...

I lost a noise ordinance ticket where the officer who made national news stealing lunches from his fellow officers lied his ass off and was allowed to testify to previous calls to my clients home where no citation or warning was issued. I objected to it as improper propensity evidence and was overruled. It's all about the revenue. This officer was fired for. Petty theft, but rehired because he generates a lot of revenue. Kangaroo messed all over that place. Brad Walters

Adam Poole said...

I obviously don't know exactly how each person answered your question and many very well may have talked themself into a strike, but the law is clear that you cannot strike a venireman just for saying that they would "give a police officer more credibility" than a non-officer witness.

Ladd v. State, 3 S.W.3d 547

Paul B. Kennedy said...

If a juror states he will give more credibility to the testimony of a police officer solely because he is a police officer, that juror has indicated his bias and may be struck for cause.

Adam Poole said...

Paul you could not be more wrong on this one.

Nowhere in Article 35.16 does it say that a juror has to be struck for cause for having a bias. The question is whether they have a bias against the Defendant, and this is not automatically shown just when a juror has a bias in favor some particular class of individual that may testify.

Did you read the Ladd case I cited? Or these?

Leal v. State, S.W.3d, 2001 WL 892834
Harris v. State, 784 S.W.2d 5

A venireman is challengeable for cause under Article 35.16(a)(9) if he cannot impartially judge the credibility of witnesses. However, this means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. Veniremen are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, because “[c]omplete impartiality cannot be realized as long as human beings are called upon to be jurors.” Thus, McKay was not challengeable for cause because he would tend to believe policemen and doctors slightly more than others.