After a Travis County jury found David Tran not guilty of driving while intoxicated - and disregarding a .10 breath test in the process - Judge Ray took it upon himself to berate the jurors. And, just to make it that much more special, he did it in open court on the record.
From Texas Lawyer we have this account of Judge Ray's rant:
You know, and I've been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did," Ray told the jury, according to a transcript printed on Nov. 11. "The note that you sent out says, 'Can we ignore the Intoxilyzer.' And you have the definitions of intoxication . ... "Keep in mind that we're talking about a .10 breath test - a test score that is barely higher than the legal limit of .08. Judge Ray apparently forgot the instructions he read to the jury just before he sent them off to deliberate.
Ray went on to accuse the jury of engaging in "jury nullification," according to the transcript.
"And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It's called jury nullification. It's when a jury decides to ignore the law or ignore evidence. And they maneuver until they get there. Perfect example, the O.J. Simpson trial. ... "
"I've been around for over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I've ever seen," Ray said, according to the transcript. "Thank you for your service and you are excused."
He told the jury that they were the exclusive judges of the evidence presented and that they were the ones to decide how much weight to give any one piece of evidence. They were instructed that it was up to them to determine the credibility of the witnesses and the evidence (and that includes the test slip).
What those jurors did was not jury nullification. What they did was their duty under the law. I can almost guarantee you that the prosecutor told the jury panel during voir dire that he or she could prove up intoxication in one of three ways - loss of normal use of mental or physical faculties or a blood alcohol concentration of .08 or higher. In Harris County, prosecutors also like to tell the jurors that they don't even have to agree on the theory of intoxication.
That breath test score is close enough to the legal limit that it can be attacked in a variety of ways. You can attack the accuracy of the machine. You can attack the assumptions the programmers of the machine made. You can argue tolerances and margins of error. You can even throw in that the machine isn't warranted for breath testing.
Judge Ray may not have liked the verdict - but so fucking what?! His job is only to preside over the trial and ensure that the defendant's right to a fair trial isn't violated. If the defendant wanted Judge Ray to decide the case he would have asked for a bench trial.
But the bigger problem is the message Judge Ray is sending out to the community. His actions only serve to poison the jury pool in the future. A juror's only job is to listen to the evidence, follow the law and render a verdict. It isn't a juror's job to convict or to acquit. Once that verdict is entered, the jurors have done their job and they sure as hell don't deserve to be berated in public by the person sitting on the bench who is supposed to be a neutral arbiter.
And maybe that's why most judges prefer to go back into the jury room and talk with the jurors after the trial. That way there isn't a record of them poisoning the panel.
Perhaps Judge Ray should review the judicial canons of conduct before he next steps to the bench.