Thursday, May 15, 2014

To bust or not to bust the panel

Today I have a question on tactics. I think I made the right choice the other day but, despite my best efforts, I keep questioning my decision.

We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.

My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.

There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.

The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.

One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.

During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?

I chose the latter.

During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.

After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?

The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.

As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.

But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.

Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?


Carl H said...

Pardon my level of reading comprehension, but I have a question. In your post you write, "One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel."

Elements, plural, implies there is more than one element to misdemeanor assault. As I understand it, at trial the State must prove all elements of a crime beyond a reasonable doubt in order to get a conviction. The half of the panel that didn't raise their hands were the problem. Have I reached the correct conclusion?

Paul B. Kennedy said...


The answer in this case is no. The question the prosecutor asked implied that he had proven up the other elements of the assault - only there was no documented injury. The half that raised their hands were indicating that even if the prosecutor proved up the other elements that they could not convict if the only complaint was that the alleged victim felt pain. They wanted more.

A juror on the panel later told me that we were right to bust the panel.