Driving While Intoxicated Jury Trial Selection of a Jury

I’m going to tell you a little bit about how the Jury selection works, and tell you a little bit about what jury selection is. And then we’re going to talk about the law a little bit.

But here is how the jury selection works, for those of you who don’t know: Essentially, what happens is there are several rules that apply in jury service. One of the most obvious ones is that the defendant has a right to remain silent. And a jury will be instructed at the end of the trial.

A jury can’t consider that as any evidence of guilt. And, for example, does anybody feel, even if the Judge gives you an instruction to the contrary, if an accused doesn’t testify, would you consider that at least some evidence of guilt?

Now, we know that there are people that feel that way. Okay. All right. Well, if anybody would say, yes, I’d consider, if someone doesn’t testify, I would consider that as some evidence of guilt even though the rules say I shouldn’t?

Well, if you’d say that, then the Judge should excuse you from jury duty. So does anybody want to change their answer now? Okay. That’s supposed to be funny.

You laughed; you smiled. But the point is, if a juror says that he or she cannot follow the law, then it’s the Judge’s job to excuse you from jury duty.

The first thing we do once you all go out in the hallway, is we talk about, well, did any juror say something that basically is a statement that I will not follow the law? The Judge would disqualify those jurors. Then once that part’s done, each side gets three, what’s called peremptory or wild card challenges, where basically we get to strike three more people.

Now, why am I telling you this? Well, number one, you might be interested in how it works. But number two, there is a direct corollary to that: We can’t tell by looking at you if you’re going to be good for our side. No matter what you look at, I can’t tell. Some of you are better looking than others. But that doesn’t tell me if you’re going to be a good juror in my case. I can tell which ones are good-looking and which ones aren’t, but unless you say — no one gets to select a juror.

Like, for example, if I like Ritchey, there’s nothing I can do to select him other than not exclude him. But if I like him a lot, they’ll probably get rid of him, and there’s nothing I can do about it.

The direct corollary is this: To get kicked off this jury, you have to say something that someone doesn’t like. If you say nothing, what does that do for your chances of getting on this jury? They go up extraordinarily. So the quieter you are, the more likely you are to be on this jury. And you can take that for whatever you want. But if you want to be on the jury, stay quiet.

Okay? Now, so that’s how the jury selection process works. And we kind of hint at that at times, but usually after the trial the jury will stick around and talk to the lawyers, and usually the first question they ask is, well, how did I get selected for this jury? You don’t get selected; you didn’t get eliminated. And you were leftover. The jurors who serve were leftovers; they’re the ones who didn’t get struck. So now you know. Now, that’s how the jury selection process works.

Now, we’ve talked about the jury — the history of jury service. Does anybody know when in this country the right to a jury trial came into being? I wouldn’t expect anybody to know this, but you can surprise me, if you did. All right. All right. In 1789 — the Constitution was passed in 1788, ratified. And then in 1789 we added the Bill of Rights, and the 6th Amendment is — guarantees the right to a jury trial. Now, it’s a little bit of a trick question, because we’ve always had the right to jury trials, even before we put it in the Constitution, but in the Constitution — because we brought that over from Great Britain, we used their trial process, and they had the right to a jury trial. But we made it official in this country in 1789. Okay.

Does anybody know when the first census was in the United States? Of course not. It was 1790, the next year. Anybody know who was president then? George Washington. Okay. Well, in 1790 we did a census, and you can look it up, it’s — you can go online and find it, in 1790 — can anybody tell me how big you think the tenth largest city in the United States was in 1790? Anybody want to try a wild guess.

JUROR: 20,000.

DEFENSE LAWYER: Close. Six thousand. It was 5,664, I think. So the tenth largest city was less than 6,000 people. Did anybody grow up or spend any time in a city with less than 6,000 people? None of you did? You did. All right. So did I. Did everybody know everybody’s business in a town that size?

DEFENSE LAWYER: If you didn’t know someone, you knew their family or you knew where they worked. I mean, it’s a dinky little town. And the idea of a jury, at that time — remember, that’s a big city. That’s one of the ten largest cities in the United States. The idea was that when the government would come in and charge someone in one of those small towns with a crime, those jurors all knew that person. And we set up a system saying, well, if the government’s going to say someone committed a crime, you know, against one of us, it was supposed to be one of us — them against us, and they had to really prove it to a high degree. And at least the idea was the jury wouldn’t convict unless they were pretty darn sure the guy was guilty.

Now cities are so big, you know, you’ve never met this guy, and you’ve probably never — no one has ever met him, have you? Anybody ever heard any — anybody know anybody named District Attorney that lives in Tarrant County? So you probably don’t know — Hill might. But you probably don’t know him, probably don’t know his family, you’ll probably never run into him, you’ll probably never meet him, and it becomes very impersonal.

But it’s supposed to be a very personal thing. And the jury that we get, according to the rules are, the jury is — we’re supposed to get six people who will start the trial saying he’s innocent; we presume him innocent. And you guys have got to prove to us that he’s not; prove to us that he’s guilty. And so we kind of look for — to be a fair juror or to get a fair jury, fair doesn’t mean you start the trial going, like, well, I’ll keep an open mind to both sides. Fair means, no, he’s innocent until you prove otherwise. Does that make sense to everybody.

Anybody — other than that historical background, does everybody know why that should be the case? Or does anybody disagree with that, that it shouldn’t be that way? Like Longcrier, if I say that maybe on the way out for the lunch break or whatever, that you assaulted me and took my wallet, should it be your job to prove you didn’t or my job to prove that you did?

JUROR: Your job to prove that I did.

DEFENSE LAWYER: Right. Because it’s hard to prove you didn’t do something, right? And that’s part of the same process here.

Now, does everybody agree with that? Now, look at another thing. Now, you don’t — anybody — now, nobody knows anything about District Attorney, right? Okay. But in this lawsuit, in this case, this is the State of Texas vs. District Attorney. Someone give me a wild guess, who do you think — who do you think has more resources, the State of Texas or the District Attorney?

(Jury panel answers, “State of Texas,” collectively)

DEFENSE LAWYER: Would you say that’s by a two to one margin?

JUROR: At least.

DEFENSE LAWYER: They have an overwhelming financial advantage. They can bring as much money and resources to bear on an individual prosecution as they choose. Now, it may look like he’s spent a lot of money on this defense team, but kind of let me explain a little bit about what’s going on here.

Ms. Tucker is an acquaintance of mine from years ago. She was a paralegal. I met her at the courthouse in Dallas County several years ago. And she decided she might want to try being a jury consultant or a jury selection specialist.

This is the first time she’s done this, so she’s over here taking notes, trying to be helpful. We’ll see later if she is or not. But she’s volunteering. She’s not getting paid. District Attorney didn’t pay her. In fact, he didn’t even know she was going to be here, I just kind of brought her. Ms. Carter, she’s not getting paid either.

She’s just a friend of mine over here, and she wanted to come watch me do a trial. So there’s only one lawyer, only one person paid to be here for the Defense team, and that’s me. We’ve got two people paid here for the prosecutors.

So now, the State has a lot of advantages. For example, their offices are in this building. Mine are 40 miles away or so. If they need to look something up on the computer, they can get to their computer or go get a book. Or if they need help, there’s at least 60 other lawyers who work for the DA’s Office. They can make a phone call or step outside. They have a lot of resources that I don’t have. So there’s a lot of advantages that the State has in any of these criminal trials that the Defense doesn’t.

The two things we have that try to even that up is, number one, if they make an accusation, they have to prove it. We don’t have to prove he didn’t do it; they’ve got to prove he did. Okay?

The other thing is that we get to start with the jury on our side; we presume him innocent. Other than that, they have almost every advantage you can think of. So it’s always an unfair fight, if you will, when these things start. Does that make sense to everybody? Does it make sense why they should have to prove it? Okay.

Now, I’m going to jump ahead a little bit — oh, wait, I just came up with this cool idea. I’ve done this a lot, but I’ve never thought of it in these terms, and for some reason today I’m way over, time wise. What you are doing now is kind of the oddest job interview you will ever do, because we’re like interviewing you for this job that pays virtually nothing, has no future to it, has no benefits to it, and you don’t want the job. But that’s what we’re doing, we’re interviewing you saying, okay, who do we want, who are the best people for this? So this is your job interview, you know, thanks for coming.

All right. Let’s jump to the very end of the trial for a minute, then we’ll come back. If — we have chosen that this jury, whichever six of you it is, is going to set the punishment, if it’s a guilty verdict. Now, we’re hoping it’s going to be not guilty. Kind of thinking maybe it will be a not guilty, but if it’s not, the jury is going to set the punishment. And that’s kind of an exception to the rule. Usually people have the judge set the punishment. But I’ve — for years I’ve had the jury set punishment. For that reason, we need to tell you what the range of punishment is and make sure you can consider the full range.

On this particular offense, basically, if the Defendant is found guilty, he can be sentenced anywhere from zero days in the county jail to 365 days and fined anywhere from zero to $4,000. Okay? That’s the range. Is there anybody who couldn’t consider the minimum there? What is the minimum sentence, Hill?

JUROR HILL: Did you say zero days, zero fine?

DEFENSE LAWYER: Zero days, zero fine, that’s the minimum. Now, if you sit through this trial, you’re selected, and six of you decide, yeah, they proved he was guilty, is They’re anybody who says, I couldn’t consider giving zero, zero, no matter what the facts were? (Show of hands)

DEFENSE LAWYER: Okay. I’m seeing a couple of hands. Ritchey, you could not consider that, no matter what the facts were?

JUROR RITCHEY: I just think that if he is proven guilty, then there needs to be some form of punishment. There can’t be just a zero, zero for a guilty charge.

DEFENSE LAWYER: Okay. All right. And Bird?

JUROR BIRD: Yeah, I was deterrence, so there needs to be deterrence.

DEFENSE LAWYER: Okay. Hang on a second. Who else raised their hand? Mister — is it Soderstrom?

JUROR SODERSTROM: Yes.

DEFENSE LAWYER: Yes, you had a question?

JUROR SODERSTROM: I’m wondering what criteria do we use to determine where in the range do they –

DEFENSE LAWYER: If there’s a guilty verdict, then there is like a follow-up trial. There is more evidence where they get to put on any evidence they have of any bad acts they have a history of him doing. We get to put on evidence of what a great guy he is, and then the jury gets to decide.

JUROR SODERSTROM: So it’s just whatever information is available?

DEFENSE LAWYER: Well, it’s — the information — just like in all the evidence, the Judge determines what evidence is relevant, you know. If we put on evidence and he says that’s not relevant, it doesn’t come in. But, yeah, we put on what we think is relevant evidence of what he should do — of what the punishment should be.

JUROR: So it could be anything, like in the case of my sister who was impaired, largely due to –

DEFENSE LAWYER: Medication –

JUROR: — medication that she wasn’t aware –

DEFENSE LAWYER: Now, would you think that if someone was impaired on medication more than alcohol, that might be somewhat mitigating?

JUROR: Yes.

DEFENSE LAWYER: Okay.

JUROR: Somewhat.

DEFENSE LAWYER: Some people do, some don’t.

JUROR: Not terribly, but –

DEFENSE LAWYER: Okay. Now, what is — I started asking this question about a month ago. I think it’s interesting. We know the defendant could be sentenced up to a year in jail and fined up to $4,000, or both, if the jury finds him guilty. What can the State get if the jury finds him not guilty, what is their punishment?

JUROR: Nothing.

DEFENSE LAWYER: Nothing.

JUROR: They had to pay for all this.

DEFENSE LAWYER: Did they pay for any of this? Did you guys pay for any of this? That would be a first in my experience. They may have paid for their pens, right? Anybody gamble at all? That’s what we call free rolling, all right? That means when you’re making a bet and you can’t lose, because no matter what the outcome, they lose nothing.

So we can lose a whole lot. In fact, if you get convicted of DWI, might that cost you your job? Might it cost you your driver’s license? If we pass some laws — we have some dumb laws in Texas.

Every state has dumb laws. You may have heard of them sometime or seen them on the internet or whatever, but let’s say that they passed a law — and they don’t always tell us these laws, especially the dumb ones; they say let’s keep them quiet. Well, let’s say they passed a law that says — what color is your shirt, Ms. Davis, would you call it orange?

JUROR DAVIS: Yeah.

DEFENSE LAWYER: Burnt orange? Or just orange?

JUROR DAVIS: Burnt orange.

DEFENSE LAWYER: Burnt orange. All right. Let’s say they passed a law a couple of years ago that said it is illegal to wear a burnt orange shirt to jury duty. And it’s punishable by up to 180 days in jail and a $2,000 fine. Now, I’ve never heard of any law like that; I’m sure you didn’t. But let’s say, oh, by God that’s the law; the bailiff takes you under arrest, you go to jail, you get out, you go hire a lawyer, you spend thousands of dollars on your defense, you go to trial, and that jury says, we’re not going to follow that law; it’s a stupid law, we’re finding you not guilty. The next time you go to jury duty, are you going to wear an orange shirt because of the good result?

JUROR DAVIS: No.

DEFENSE LAWYER: Why not?

JUROR DAVIS: Because I wouldn’t want to go through the process.

DEFENSE LAWYER: Really? So what if they found you guilty, and they said your punishment is zero days and zero dollars. Said we think it’s a silly law, but you are guilty of it, would you do it again? Would any of you do it, would any of you wear an orange shirt to jury duty again? (Jury panel answers “no,” collectively)

DEFENSE LAWYER: Why not? There was no punishment: Zero days and zero dollars.

JUROR: Still a hassle.

DEFENSE LAWYER: Still a hassle. Still a conviction on your record. You still went to jail. You still hired a lawyer for thousands of dollars, right? Can you see how that plays in? So you can consider that sort of thing in jury punishment if there’s evidence of that sort of stuff: Of how much he paid for a lawyer, was he arrested, did his car get impounded, did he lose his job? All that can be considered. Does that make sense to everybody? Those are the types of things you can consider in jury punishment.

Now, we all know that sometimes drunk drivers kill people, right? That’s the worse thing that happens. Now, we can’t get into the facts of this case, but I can tell you that if you kill someone, that’s an intoxication manslaughter case, it is not a DWI misdemeanor. So by virtue of the fact of what he is charged with, we know he didn’t kill anybody. If he hurt someone seriously, it’s an intoxication assault case. So because this is a misdemeanor, you know there is no serious injuries or no deaths.

All of you — did anyone not drive here today? (Show of hands)

DEFENSE LAWYER: You did not. You did not. Okay. All right. A couple of you. But for the rest of you, y’all drove here. Can you assure me that on your way home tonight that none of you that drove will commit a traffic violation of any sort? No laughing out loud of my questions. You can’t assure me of that, can you?

Now, would you agree with me that failing to signal a lane change generally is a pretty minor traffic offense, right? Okay. Now, if you go home tonight and you fail to signal a lane change, you might cause an accident, correct? It’s possible. And if it happens in the right place, it could cause an accident, and under the right circumstance, it might kill someone; is that fair to say? So would it be fair to treat everybody who gets a ticket for not signaling a lane changes like they killed someone?

JUROR: No.

DEFENSE LAWYER: Why not, they could have? Why not? Ms. Schemmel, you say no, that wouldn’t be fair. Why wouldn’t it be fair?

JUROR SCHEMMEL: Because they didn’t.

DEFENSE LAWYER: That’s the most obvious answer: Because they didn’t. That’s not the facts of that person’s case. Now, why am I saying that to you in this case?

JUROR: Because he didn’t –

DEFENSE LAWYER: Every defense lawyer is afraid that the jury’s going to go back and say, he could have killed someone. And what’s the proper response? He didn’t kill anybody. If he killed someone, you’d punish him for that, right? Unless you’re Eric Crouch (sic), apparently. Right? But you make the facts — make the punishment fit the crime and fit the facts of the crime.

If they didn’t hurt anybody, that’s not as bad as if they did hurt someone. If they didn’t kill anybody, you know, if they didn’t have an accident — and there’s all sorts of things you can take into consideration. Does that make sense to everyone? All right.

Now, for a misdemeanor case, here is a set of bad facts, I have used an example. Let’s say someone is driving at 8:00 in the morning, 120 miles an hour through a school zone, an active school zone, and crashes into a school bus full of children, of second graders. Now, for it to be a misdemeanor, you couldn’t hurt any of them, because if you hurt them, then its intoxication — assault or intoxication manslaughter.

But it’s possible that you could hit a school bus and not hurt anybody, right? The car is down here, the bus is up here. Under the right circumstances sometimes freaky things just happen. Now, this is just a misdemeanor case, but I think most people would say those are bad facts. You would probably want to punish someone found guilty with those facts at the high end of the spectrum; am I correct on that? Okay.

Then there’s cases that aren’t so bad, and those people get something towards the low end of the spectrum. Does that makes sense? You just take a look at the facts of the case. Some people get stopped for speeding 130 miles an hour in a school zone. Some people get stopped because their inspection sticker is out of date. You know, some people are just pulled off on the side of the road asleep in their car. Every case is different, and the jury gets to take consideration of those facts.

All right. Has anybody ever been a hundred percent convinced about something and then later found out they were wrong? That’s happened, right? Any of you ever been divorced? No? Presumably you’re not getting married unless you’re a hundred percent convinced, right? You say it’s forever? Then, oops. All right. So what we’re really looking at in these trials is we want the juries, if there’s doubt in the case, if there’s reasonable doubt in the case, we want them to acquit. Out in the street, police officers don’t have to have proof beyond a reasonable doubt to make an arrest. If they are suspicious and they have reason to think someone may be guilty of driving while intoxicated, our law says you take them in because it’s a safety issue for everybody. If the officer has a doubt, an arrest needs to be made. But if a jury has a doubt, what’s their decision? Not guilty. It hasn’t been proven. All right? Do you see how that all works? And Hill, I’m sure you can answer this. Sometimes there are cases that are kind of iffy that come to court, right?

JUROR HILL: That’s correct.

DEFENSE LAWYER: You’ve seen a lot of them, right, on both sides, Prosecution and Defense?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Have you ever seen officers appear to be less than truthful with the facts?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. That happens sometimes, too, right?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Can someone tell me what needs to be done, what do we need to do as a country or as a state, if you will, to make sure that there are no more DWIs, that people quit driving intoxicated?

JUROR: Kill everybody.

DEFENSE LAWYER: Kill everybody that would do it.

JUROR: Nuclear war.

DEFENSE LAWYER: Nuclear war. Total devastation, that would do it. Is there anything short of that, does anybody have any ideas?

JUROR: Uber.

DEFENSE LAWYER: Uber? Uber will make sure nobody ever drives — drinks and drives.

JUROR: It makes it easy not to.

DEFENSE LAWYER: It makes it easy not to. Is that going to stop it? Because seriously, if there’s a way to stop it, I would like to know what it is. I want our legislators to do it. If you convict District Attorney, is that going to stop anybody from driving intoxicated again? Is that going to send such a resounding message that people everywhere are going to say, we’re no longer going to drink and drive because District Attorney was convicted? Who thinks that’s going to happen? Is it going to make any difference at all if he’s convicted or found not guilty?

JUROR: Hopefully, in his life it will.

DEFENSE LAWYER: In his life, it may.

JUROR: And maybe in somebody else’s.

DEFENSE LAWYER: And maybe in somebody else’s, sure.

JUROR: I think it’s all about, you know, being aware and educating the public about the dangers if you drink.

DEFENSE LAWYER: Do you think the public doesn’t know the dangers of drinking and driving?

JUROR: Sometimes they don’t take it into account.

DEFENSE LAWYER: Well, sure. But we all know about it, don’t we? Really? Did y’all have to come here and — did anybody walk in here and not know drunk drivers kill people sometimes? Is that a revelation to anyone? We all know that, don’t we? Sure we do. But people, when they drink, a lot of times when they drink, they don’t think they’re going to get drunk. A lot of times they get drunk, they don’t think they’re driving, but then their friend leaves them.

Only got to get — it’s only two miles; I can make it two miles. There are all sorts of reasons someone might take that needless chance. But the bottom line is there’s nothing anyone can do to stop it. And I’ve had people say, we ought to outlaw alcohol. Really? Well, how did that work in Prohibition? You know, outlaw driving. Well, that doesn’t — take us back to the Stone Age. That seems a little inefficient way to handle that problem. That’s shooting the elephant with an — or shooting an ant with an elephant gun. So there’s just no way to do that.

This — your decision in this case is not about solving the problem of DWI. You can’t. Our best minds can’t solve that problem. This is simply about this case, did these guys prove beyond a reasonable doubt that he was driving while intoxicated on the night in question? That’s all it’s about. Nothing more, nothing less. Make sense to everybody. Does anybody have any questions or you want to share anything about your background that the Judge or the lawyers might use in order for us to properly decide who we want on this jury? Yes, sir, Robinson?

JUROR ROBINSON: Well, you asked if anyone would be all right with doing a zero, zero –

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: — but you didn’t ask the opposite spectrum, and that’s one thing that, for a misdemeanor where nobody got hurt, DWI, I do feel that a year and $4,000 is ridiculous.

DEFENSE LAWYER: Okay.

JUROR ROBINSON: Just speaking from a lot of personal experience in the past and everything like that, I think that’s outlandish.

DEFENSE LAWYER: Okay. Well, let me ask you this: What about the guy that goes 120 in a school zone and hits a school bus full of children and emotionally traumatizes them all and has no physical injuries?

JUROR ROBINSON: I’m a bad person to ask about that.

DEFENSE LAWYER: Why is that?

JUROR ROBINSON: I think all human life is equal. Just because they are younger, doesn’t make them any less valuable than anyone else.

DEFENSE LAWYER: I don’t think that makes you a bad person to ask that question. And don’t let me put words in your mouth. But are you saying that there are no circumstances under which you think you can give the maximum punishment?

JUROR ROBINSON: For a misdemeanor, nobody got hurt, that’s what I was saying, yeah. That’s a ridiculous amount.

DEFENSE LAWYER: Well, I tend to agree with you so far. That’s kind of my job to, but nonetheless — but let me add a couple other factors. One of the things you get into in punishment is the defendant’s prior record. Now, you generally don’t hear anything about the defendant’s prior record during the guilt/innocence phase.

Because, for example, let’s say that this was his 27th DWI, which obviously it’s not. He’s not old enough to pick up 27 DWIs, probably. But if the State could start the trial by saying, all right, this is the 28th time this guy has been charged with DWI, could anybody find him not guilty, no matter what the facts were?

JUROR: Yeah.

DEFENSE LAWYER: You could? All right.

JUROR: Each trial is its own beast.

DEFENSE LAWYER: Well, I agree. But a lot of people would say, man, if this is his 28th time, he’s guilty. I don’t need to hear — what’s that?

JUROR: Start thinking about the probability based on –

DEFENSE LAWYER: Yeah. But the point is, even a career drunk can drive sober once. And so the law says, you don’t get to hear about his prior record unless they find him guilty. Now, if it was a third offense or more, it would automatically be a felony DWI, so you know it’s not a third offense or more. But you don’t know if he’s got any priors. And you won’t hear about that.

And you shouldn’t hear about that, because it doesn’t matter. It doesn’t matter. The question is: On this day was he driving while intoxicated? It doesn’t matter if it happened once before. It doesn’t matter if it never happened before. Probably a majority of these cases the person has no previous record.

I had a jury one time come back and find my client guilty, and I said, okay, I thought this was like the weakest case ever. How did you do that? And they go, well, we knew he had to have a prior record or the State wouldn’t have brought this crap. And my guy didn’t have a prior record. They just assumed it had to be, why else would they prosecute this piece of crap case?

A jury is not allowed to presume he’s got a prior record. You only can go on the facts of the case. And if you can’t tell — I’m still mad about that case, and it happened like 20 years ago. It’s the most — well, I’ve seen a lot — one of the worst things I have ever seen. That guy has a DWI on his record for life because he had six idiots on a jury panel. And they said, there’s no way they’d prosecute a garbage case likes this unless he had a prior DWI. Okay. You can’t presume a record unless there’s evidence of a record. But if there’s a guilty verdict, you get to hear a person’s entire record. To my knowledge Adolph Hitler never had a DWI.

Osama bin Laden never had a first offense DWI. If they were alive today and tried and convicted of a first offense DWI, the State would be able to go, well Hitler, weren’t you responsible for over 26 million deaths by starting World War II, and prove evidence of that, and that jury could say, we’re going to take that into consideration, and we’re going to consider giving you a $4,000 fine and a year in jail because of your prior record. Do you think you would give Adolph a maximum fine in this case.

JUROR: What does all of this have to do with a DWI?

DEFENSE LAWYER: I’m just asking. It means whatever it means to that jury. In other words, if the State can prove that he’s just a really bad character, someone you really maybe — you know, you really want to put him away, the law says you can do it, if they can prove that. If they can’t, then they can’t. So — and it’s just — in other words, you never know what background someone has until you hear about it. But it might be really bad.

So are you saying it doesn’t matter? No matter what the situation is, I couldn’t consider giving him a year in jail and a $4,000 fine?

JUROR ROBINSON: Just — again, if you’re doing a trial and you only have the facts of what happened, that’s it.

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: And nothing else to be considered, that’s too much for that particular occurrence.

DEFENSE LAWYER: Okay. All right. And you –

JUROR HOLLEY: I agree with that.

DEFENSE LAWYER: You agree. Anybody else agree with that?

JUROR SODERSTROM: I agree with it.

DEFENSE LAWYER: Quit agreeing, y’all.

FERGUSON: Who said that?

JUROR SODERSTROM: I did.

DEFENSE LAWYER: Holley.

MS. CARTER: Who was the second person?

DEFENSE LAWYER: That was Soderstrom.

Soderstrom, you also said you couldn’t consider the minimum.

JUROR SODERSTROM: That’s true.

DEFENSE LAWYER: You’re on both sides.

JUROR SODERSTROM: I am. If you’re convicted of a crime, you’re not just getting anything. But at the same time, that’s an astronomical punishment for, you know, an occurrence that happens all too often.

DEFENSE LAWYER: Yeah, well, and you know, you’re right on both.

THE COURT: You’ve used 30 minutes.

DEFENSE LAWYER: Thank you. Anybody else?

JUROR: I think the operative word is “consider.”

DEFENSE LAWYER: Yes, it is the operative word.

JUROR: And you might consider it for a millisecond, and disregard it. But you think about it and disregard it. You think about this, and you disregard it. But you consider it. That’s the question, I think, that you’re asking.

DEFENSE LAWYER: And thank you. Does that make a difference? Because the question is: Could you consider it? Because if you can’t consider it, then it disqualifies you as a juror. If you can consider it then disregard it, that’s fine.

Change anybody? Change anybody’s mind? And thank you for pointing that out. It doesn’t change your mind, Holley? Soderstrom? And Robinson? Okay. All right. I believe that’s all I have.

Unless anybody else has anything for me? Does anybody think you have something you want to talk to the Judge about in private, something you think we would all want to know? All right. Thank you for your time.

Driving While Intoxicated Jury Trial Selection of a Jury

I’m going to tell you a little bit about how the Jury selection works, and tell you a little bit about what jury selection is. And then we’re going to talk about the law a little bit.

But here is how the jury selection works, for those of you who don’t know: Essentially, what happens is there are several rules that apply in jury service. One of the most obvious ones is that the defendant has a right to remain silent. And a jury will be instructed at the end of the trial.

A jury can’t consider that as any evidence of guilt. And, for example, does anybody feel, even if the Judge gives you an instruction to the contrary, if an accused doesn’t testify, would you consider that at least some evidence of guilt?

Now, we know that there are people that feel that way. Okay. All right. Well, if anybody would say, yes, I’d consider, if someone doesn’t testify, I would consider that as some evidence of guilt even though the rules say I shouldn’t?

Well, if you’d say that, then the Judge should excuse you from jury duty. So does anybody want to change their answer now? Okay. That’s supposed to be funny.

You laughed; you smiled. But the point is, if a juror says that he or she cannot follow the law, then it’s the Judge’s job to excuse you from jury duty.

The first thing we do once you all go out in the hallway, is we talk about, well, did any juror say something that basically is a statement that I will not follow the law? The Judge would disqualify those jurors. Then once that part’s done, each side gets three, what’s called peremptory or wild card challenges, where basically we get to strike three more people.

Now, why am I telling you this? Well, number one, you might be interested in how it works. But number two, there is a direct corollary to that: We can’t tell by looking at you if you’re going to be good for our side. No matter what you look at, I can’t tell. Some of you are better looking than others. But that doesn’t tell me if you’re going to be a good juror in my case. I can tell which ones are good-looking and which ones aren’t, but unless you say — no one gets to select a juror.

Like, for example, if I like Ritchey, there’s nothing I can do to select him other than not exclude him. But if I like him a lot, they’ll probably get rid of him, and there’s nothing I can do about it.

The direct corollary is this: To get kicked off this jury, you have to say something that someone doesn’t like. If you say nothing, what does that do for your chances of getting on this jury? They go up extraordinarily. So the quieter you are, the more likely you are to be on this jury. And you can take that for whatever you want. But if you want to be on the jury, stay quiet.

Okay? Now, so that’s how the jury selection process works. And we kind of hint at that at times, but usually after the trial the jury will stick around and talk to the lawyers, and usually the first question they ask is, well, how did I get selected for this jury? You don’t get selected; you didn’t get eliminated. And you were leftover. The jurors who serve were leftovers; they’re the ones who didn’t get struck. So now you know. Now, that’s how the jury selection process works.

Now, we’ve talked about the jury — the history of jury service. Does anybody know when in this country the right to a jury trial came into being? I wouldn’t expect anybody to know this, but you can surprise me, if you did. All right. All right. In 1789 — the Constitution was passed in 1788, ratified. And then in 1789 we added the Bill of Rights, and the 6th Amendment is — guarantees the right to a jury trial. Now, it’s a little bit of a trick question, because we’ve always had the right to jury trials, even before we put it in the Constitution, but in the Constitution — because we brought that over from Great Britain, we used their trial process, and they had the right to a jury trial. But we made it official in this country in 1789. Okay.

Does anybody know when the first census was in the United States? Of course not. It was 1790, the next year. Anybody know who was president then? George Washington. Okay. Well, in 1790 we did a census, and you can look it up, it’s — you can go online and find it, in 1790 — can anybody tell me how big you think the tenth largest city in the United States was in 1790? Anybody want to try a wild guess.

JUROR: 20,000.

DEFENSE LAWYER: Close. Six thousand. It was 5,664, I think. So the tenth largest city was less than 6,000 people. Did anybody grow up or spend any time in a city with less than 6,000 people? None of you did? You did. All right. So did I. Did everybody know everybody’s business in a town that size?

DEFENSE LAWYER: If you didn’t know someone, you knew their family or you knew where they worked. I mean, it’s a dinky little town. And the idea of a jury, at that time — remember, that’s a big city. That’s one of the ten largest cities in the United States. The idea was that when the government would come in and charge someone in one of those small towns with a crime, those jurors all knew that person. And we set up a system saying, well, if the government’s going to say someone committed a crime, you know, against one of us, it was supposed to be one of us — them against us, and they had to really prove it to a high degree. And at least the idea was the jury wouldn’t convict unless they were pretty darn sure the guy was guilty.

Now cities are so big, you know, you’ve never met this guy, and you’ve probably never — no one has ever met him, have you? Anybody ever heard any — anybody know anybody named District Attorney that lives in Tarrant County? So you probably don’t know — Hill might. But you probably don’t know him, probably don’t know his family, you’ll probably never run into him, you’ll probably never meet him, and it becomes very impersonal.

But it’s supposed to be a very personal thing. And the jury that we get, according to the rules are, the jury is — we’re supposed to get six people who will start the trial saying he’s innocent; we presume him innocent. And you guys have got to prove to us that he’s not; prove to us that he’s guilty. And so we kind of look for — to be a fair juror or to get a fair jury, fair doesn’t mean you start the trial going, like, well, I’ll keep an open mind to both sides. Fair means, no, he’s innocent until you prove otherwise. Does that make sense to everybody.

Anybody — other than that historical background, does everybody know why that should be the case? Or does anybody disagree with that, that it shouldn’t be that way? Like Longcrier, if I say that maybe on the way out for the lunch break or whatever, that you assaulted me and took my wallet, should it be your job to prove you didn’t or my job to prove that you did?

JUROR: Your job to prove that I did.

DEFENSE LAWYER: Right. Because it’s hard to prove you didn’t do something, right? And that’s part of the same process here.

Now, does everybody agree with that? Now, look at another thing. Now, you don’t — anybody — now, nobody knows anything about District Attorney, right? Okay. But in this lawsuit, in this case, this is the State of Texas vs. District Attorney. Someone give me a wild guess, who do you think — who do you think has more resources, the State of Texas or the District Attorney?

(Jury panel answers, “State of Texas,” collectively)

DEFENSE LAWYER: Would you say that’s by a two to one margin?

JUROR: At least.

DEFENSE LAWYER: They have an overwhelming financial advantage. They can bring as much money and resources to bear on an individual prosecution as they choose. Now, it may look like he’s spent a lot of money on this defense team, but kind of let me explain a little bit about what’s going on here.

Ms. Tucker is an acquaintance of mine from years ago. She was a paralegal. I met her at the courthouse in Dallas County several years ago. And she decided she might want to try being a jury consultant or a jury selection specialist.

This is the first time she’s done this, so she’s over here taking notes, trying to be helpful. We’ll see later if she is or not. But she’s volunteering. She’s not getting paid. District Attorney didn’t pay her. In fact, he didn’t even know she was going to be here, I just kind of brought her. Ms. Carter, she’s not getting paid either.

She’s just a friend of mine over here, and she wanted to come watch me do a trial. So there’s only one lawyer, only one person paid to be here for the Defense team, and that’s me. We’ve got two people paid here for the prosecutors.

So now, the State has a lot of advantages. For example, their offices are in this building. Mine are 40 miles away or so. If they need to look something up on the computer, they can get to their computer or go get a book. Or if they need help, there’s at least 60 other lawyers who work for the DA’s Office. They can make a phone call or step outside. They have a lot of resources that I don’t have. So there’s a lot of advantages that the State has in any of these criminal trials that the Defense doesn’t.

The two things we have that try to even that up is, number one, if they make an accusation, they have to prove it. We don’t have to prove he didn’t do it; they’ve got to prove he did. Okay?

The other thing is that we get to start with the jury on our side; we presume him innocent. Other than that, they have almost every advantage you can think of. So it’s always an unfair fight, if you will, when these things start. Does that make sense to everybody? Does it make sense why they should have to prove it? Okay.

Now, I’m going to jump ahead a little bit — oh, wait, I just came up with this cool idea. I’ve done this a lot, but I’ve never thought of it in these terms, and for some reason today I’m way over, time wise. What you are doing now is kind of the oddest job interview you will ever do, because we’re like interviewing you for this job that pays virtually nothing, has no future to it, has no benefits to it, and you don’t want the job. But that’s what we’re doing, we’re interviewing you saying, okay, who do we want, who are the best people for this? So this is your job interview, you know, thanks for coming.

All right. Let’s jump to the very end of the trial for a minute, then we’ll come back. If — we have chosen that this jury, whichever six of you it is, is going to set the punishment, if it’s a guilty verdict. Now, we’re hoping it’s going to be not guilty. Kind of thinking maybe it will be a not guilty, but if it’s not, the jury is going to set the punishment. And that’s kind of an exception to the rule. Usually people have the judge set the punishment. But I’ve — for years I’ve had the jury set punishment. For that reason, we need to tell you what the range of punishment is and make sure you can consider the full range.

On this particular offense, basically, if the Defendant is found guilty, he can be sentenced anywhere from zero days in the county jail to 365 days and fined anywhere from zero to $4,000. Okay? That’s the range. Is there anybody who couldn’t consider the minimum there? What is the minimum sentence, Hill?

JUROR HILL: Did you say zero days, zero fine?

DEFENSE LAWYER: Zero days, zero fine, that’s the minimum. Now, if you sit through this trial, you’re selected, and six of you decide, yeah, they proved he was guilty, is They’re anybody who says, I couldn’t consider giving zero, zero, no matter what the facts were? (Show of hands)

DEFENSE LAWYER: Okay. I’m seeing a couple of hands. Ritchey, you could not consider that, no matter what the facts were?

JUROR RITCHEY: I just think that if he is proven guilty, then there needs to be some form of punishment. There can’t be just a zero, zero for a guilty charge.

DEFENSE LAWYER: Okay. All right. And Bird?

JUROR BIRD: Yeah, I was deterrence, so there needs to be deterrence.

DEFENSE LAWYER: Okay. Hang on a second. Who else raised their hand? Mister — is it Soderstrom?

JUROR SODERSTROM: Yes.

DEFENSE LAWYER: Yes, you had a question?

JUROR SODERSTROM: I’m wondering what criteria do we use to determine where in the range do they –

DEFENSE LAWYER: If there’s a guilty verdict, then there is like a follow-up trial. There is more evidence where they get to put on any evidence they have of any bad acts they have a history of him doing. We get to put on evidence of what a great guy he is, and then the jury gets to decide.

JUROR SODERSTROM: So it’s just whatever information is available?

DEFENSE LAWYER: Well, it’s — the information — just like in all the evidence, the Judge determines what evidence is relevant, you know. If we put on evidence and he says that’s not relevant, it doesn’t come in. But, yeah, we put on what we think is relevant evidence of what he should do — of what the punishment should be.

JUROR: So it could be anything, like in the case of my sister who was impaired, largely due to –

DEFENSE LAWYER: Medication –

JUROR: — medication that she wasn’t aware –

DEFENSE LAWYER: Now, would you think that if someone was impaired on medication more than alcohol, that might be somewhat mitigating?

JUROR: Yes.

DEFENSE LAWYER: Okay.

JUROR: Somewhat.

DEFENSE LAWYER: Some people do, some don’t.

JUROR: Not terribly, but –

DEFENSE LAWYER: Okay. Now, what is — I started asking this question about a month ago. I think it’s interesting. We know the defendant could be sentenced up to a year in jail and fined up to $4,000, or both, if the jury finds him guilty. What can the State get if the jury finds him not guilty, what is their punishment?

JUROR: Nothing.

DEFENSE LAWYER: Nothing.

JUROR: They had to pay for all this.

DEFENSE LAWYER: Did they pay for any of this? Did you guys pay for any of this? That would be a first in my experience. They may have paid for their pens, right? Anybody gamble at all? That’s what we call free rolling, all right? That means when you’re making a bet and you can’t lose, because no matter what the outcome, they lose nothing.

So we can lose a whole lot. In fact, if you get convicted of DWI, might that cost you your job? Might it cost you your driver’s license? If we pass some laws — we have some dumb laws in Texas.

Every state has dumb laws. You may have heard of them sometime or seen them on the internet or whatever, but let’s say that they passed a law — and they don’t always tell us these laws, especially the dumb ones; they say let’s keep them quiet. Well, let’s say they passed a law that says — what color is your shirt, Ms. Davis, would you call it orange?

JUROR DAVIS: Yeah.

DEFENSE LAWYER: Burnt orange? Or just orange?

JUROR DAVIS: Burnt orange.

DEFENSE LAWYER: Burnt orange. All right. Let’s say they passed a law a couple of years ago that said it is illegal to wear a burnt orange shirt to jury duty. And it’s punishable by up to 180 days in jail and a $2,000 fine. Now, I’ve never heard of any law like that; I’m sure you didn’t. But let’s say, oh, by God that’s the law; the bailiff takes you under arrest, you go to jail, you get out, you go hire a lawyer, you spend thousands of dollars on your defense, you go to trial, and that jury says, we’re not going to follow that law; it’s a stupid law, we’re finding you not guilty. The next time you go to jury duty, are you going to wear an orange shirt because of the good result?

JUROR DAVIS: No.

DEFENSE LAWYER: Why not?

JUROR DAVIS: Because I wouldn’t want to go through the process.

DEFENSE LAWYER: Really? So what if they found you guilty, and they said your punishment is zero days and zero dollars. Said we think it’s a silly law, but you are guilty of it, would you do it again? Would any of you do it, would any of you wear an orange shirt to jury duty again? (Jury panel answers “no,” collectively)

DEFENSE LAWYER: Why not? There was no punishment: Zero days and zero dollars.

JUROR: Still a hassle.

DEFENSE LAWYER: Still a hassle. Still a conviction on your record. You still went to jail. You still hired a lawyer for thousands of dollars, right? Can you see how that plays in? So you can consider that sort of thing in jury punishment if there’s evidence of that sort of stuff: Of how much he paid for a lawyer, was he arrested, did his car get impounded, did he lose his job? All that can be considered. Does that make sense to everybody? Those are the types of things you can consider in jury punishment.

Now, we all know that sometimes drunk drivers kill people, right? That’s the worse thing that happens. Now, we can’t get into the facts of this case, but I can tell you that if you kill someone, that’s an intoxication manslaughter case, it is not a DWI misdemeanor. So by virtue of the fact of what he is charged with, we know he didn’t kill anybody. If he hurt someone seriously, it’s an intoxication assault case. So because this is a misdemeanor, you know there is no serious injuries or no deaths.

All of you — did anyone not drive here today? (Show of hands)

DEFENSE LAWYER: You did not. You did not. Okay. All right. A couple of you. But for the rest of you, y’all drove here. Can you assure me that on your way home tonight that none of you that drove will commit a traffic violation of any sort? No laughing out loud of my questions. You can’t assure me of that, can you?

Now, would you agree with me that failing to signal a lane change generally is a pretty minor traffic offense, right? Okay. Now, if you go home tonight and you fail to signal a lane change, you might cause an accident, correct? It’s possible. And if it happens in the right place, it could cause an accident, and under the right circumstance, it might kill someone; is that fair to say? So would it be fair to treat everybody who gets a ticket for not signaling a lane changes like they killed someone?

JUROR: No.

DEFENSE LAWYER: Why not, they could have? Why not? Ms. Schemmel, you say no, that wouldn’t be fair. Why wouldn’t it be fair?

JUROR SCHEMMEL: Because they didn’t.

DEFENSE LAWYER: That’s the most obvious answer: Because they didn’t. That’s not the facts of that person’s case. Now, why am I saying that to you in this case?

JUROR: Because he didn’t –

DEFENSE LAWYER: Every defense lawyer is afraid that the jury’s going to go back and say, he could have killed someone. And what’s the proper response? He didn’t kill anybody. If he killed someone, you’d punish him for that, right? Unless you’re Eric Crouch (sic), apparently. Right? But you make the facts — make the punishment fit the crime and fit the facts of the crime.

If they didn’t hurt anybody, that’s not as bad as if they did hurt someone. If they didn’t kill anybody, you know, if they didn’t have an accident — and there’s all sorts of things you can take into consideration. Does that make sense to everyone? All right.

Now, for a misdemeanor case, here is a set of bad facts, I have used an example. Let’s say someone is driving at 8:00 in the morning, 120 miles an hour through a school zone, an active school zone, and crashes into a school bus full of children, of second graders. Now, for it to be a misdemeanor, you couldn’t hurt any of them, because if you hurt them, then its intoxication — assault or intoxication manslaughter.

But it’s possible that you could hit a school bus and not hurt anybody, right? The car is down here, the bus is up here. Under the right circumstances sometimes freaky things just happen. Now, this is just a misdemeanor case, but I think most people would say those are bad facts. You would probably want to punish someone found guilty with those facts at the high end of the spectrum; am I correct on that? Okay.

Then there’s cases that aren’t so bad, and those people get something towards the low end of the spectrum. Does that makes sense? You just take a look at the facts of the case. Some people get stopped for speeding 130 miles an hour in a school zone. Some people get stopped because their inspection sticker is out of date. You know, some people are just pulled off on the side of the road asleep in their car. Every case is different, and the jury gets to take consideration of those facts.

All right. Has anybody ever been a hundred percent convinced about something and then later found out they were wrong? That’s happened, right? Any of you ever been divorced? No? Presumably you’re not getting married unless you’re a hundred percent convinced, right? You say it’s forever? Then, oops. All right. So what we’re really looking at in these trials is we want the juries, if there’s doubt in the case, if there’s reasonable doubt in the case, we want them to acquit. Out in the street, police officers don’t have to have proof beyond a reasonable doubt to make an arrest. If they are suspicious and they have reason to think someone may be guilty of driving while intoxicated, our law says you take them in because it’s a safety issue for everybody. If the officer has a doubt, an arrest needs to be made. But if a jury has a doubt, what’s their decision? Not guilty. It hasn’t been proven. All right? Do you see how that all works? And Hill, I’m sure you can answer this. Sometimes there are cases that are kind of iffy that come to court, right?

JUROR HILL: That’s correct.

DEFENSE LAWYER: You’ve seen a lot of them, right, on both sides, Prosecution and Defense?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Have you ever seen officers appear to be less than truthful with the facts?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. That happens sometimes, too, right?

JUROR HILL: Yes.

DEFENSE LAWYER: Okay. Can someone tell me what needs to be done, what do we need to do as a country or as a state, if you will, to make sure that there are no more DWIs, that people quit driving intoxicated?

JUROR: Kill everybody.

DEFENSE LAWYER: Kill everybody that would do it.

JUROR: Nuclear war.

DEFENSE LAWYER: Nuclear war. Total devastation, that would do it. Is there anything short of that, does anybody have any ideas?

JUROR: Uber.

DEFENSE LAWYER: Uber? Uber will make sure nobody ever drives — drinks and drives.

JUROR: It makes it easy not to.

DEFENSE LAWYER: It makes it easy not to. Is that going to stop it? Because seriously, if there’s a way to stop it, I would like to know what it is. I want our legislators to do it. If you convict District Attorney, is that going to stop anybody from driving intoxicated again? Is that going to send such a resounding message that people everywhere are going to say, we’re no longer going to drink and drive because District Attorney was convicted? Who thinks that’s going to happen? Is it going to make any difference at all if he’s convicted or found not guilty?

JUROR: Hopefully, in his life it will.

DEFENSE LAWYER: In his life, it may.

JUROR: And maybe in somebody else’s.

DEFENSE LAWYER: And maybe in somebody else’s, sure.

JUROR: I think it’s all about, you know, being aware and educating the public about the dangers if you drink.

DEFENSE LAWYER: Do you think the public doesn’t know the dangers of drinking and driving?

JUROR: Sometimes they don’t take it into account.

DEFENSE LAWYER: Well, sure. But we all know about it, don’t we? Really? Did y’all have to come here and — did anybody walk in here and not know drunk drivers kill people sometimes? Is that a revelation to anyone? We all know that, don’t we? Sure we do. But people, when they drink, a lot of times when they drink, they don’t think they’re going to get drunk. A lot of times they get drunk, they don’t think they’re driving, but then their friend leaves them.

Only got to get — it’s only two miles; I can make it two miles. There are all sorts of reasons someone might take that needless chance. But the bottom line is there’s nothing anyone can do to stop it. And I’ve had people say, we ought to outlaw alcohol. Really? Well, how did that work in Prohibition? You know, outlaw driving. Well, that doesn’t — take us back to the Stone Age. That seems a little inefficient way to handle that problem. That’s shooting the elephant with an — or shooting an ant with an elephant gun. So there’s just no way to do that.

This — your decision in this case is not about solving the problem of DWI. You can’t. Our best minds can’t solve that problem. This is simply about this case, did these guys prove beyond a reasonable doubt that he was driving while intoxicated on the night in question? That’s all it’s about. Nothing more, nothing less. Make sense to everybody. Does anybody have any questions or you want to share anything about your background that the Judge or the lawyers might use in order for us to properly decide who we want on this jury? Yes, sir, Robinson?

JUROR ROBINSON: Well, you asked if anyone would be all right with doing a zero, zero –

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: — but you didn’t ask the opposite spectrum, and that’s one thing that, for a misdemeanor where nobody got hurt, DWI, I do feel that a year and $4,000 is ridiculous.

DEFENSE LAWYER: Okay.

JUROR ROBINSON: Just speaking from a lot of personal experience in the past and everything like that, I think that’s outlandish.

DEFENSE LAWYER: Okay. Well, let me ask you this: What about the guy that goes 120 in a school zone and hits a school bus full of children and emotionally traumatizes them all and has no physical injuries?

JUROR ROBINSON: I’m a bad person to ask about that.

DEFENSE LAWYER: Why is that?

JUROR ROBINSON: I think all human life is equal. Just because they are younger, doesn’t make them any less valuable than anyone else.

DEFENSE LAWYER: I don’t think that makes you a bad person to ask that question. And don’t let me put words in your mouth. But are you saying that there are no circumstances under which you think you can give the maximum punishment?

JUROR ROBINSON: For a misdemeanor, nobody got hurt, that’s what I was saying, yeah. That’s a ridiculous amount.

DEFENSE LAWYER: Well, I tend to agree with you so far. That’s kind of my job to, but nonetheless — but let me add a couple other factors. One of the things you get into in punishment is the defendant’s prior record. Now, you generally don’t hear anything about the defendant’s prior record during the guilt/innocence phase.

Because, for example, let’s say that this was his 27th DWI, which obviously it’s not. He’s not old enough to pick up 27 DWIs, probably. But if the State could start the trial by saying, all right, this is the 28th time this guy has been charged with DWI, could anybody find him not guilty, no matter what the facts were?

JUROR: Yeah.

DEFENSE LAWYER: You could? All right.

JUROR: Each trial is its own beast.

DEFENSE LAWYER: Well, I agree. But a lot of people would say, man, if this is his 28th time, he’s guilty. I don’t need to hear — what’s that?

JUROR: Start thinking about the probability based on –

DEFENSE LAWYER: Yeah. But the point is, even a career drunk can drive sober once. And so the law says, you don’t get to hear about his prior record unless they find him guilty. Now, if it was a third offense or more, it would automatically be a felony DWI, so you know it’s not a third offense or more. But you don’t know if he’s got any priors. And you won’t hear about that.

And you shouldn’t hear about that, because it doesn’t matter. It doesn’t matter. The question is: On this day was he driving while intoxicated? It doesn’t matter if it happened once before. It doesn’t matter if it never happened before. Probably a majority of these cases the person has no previous record.

I had a jury one time come back and find my client guilty, and I said, okay, I thought this was like the weakest case ever. How did you do that? And they go, well, we knew he had to have a prior record or the State wouldn’t have brought this crap. And my guy didn’t have a prior record. They just assumed it had to be, why else would they prosecute this piece of crap case?

A jury is not allowed to presume he’s got a prior record. You only can go on the facts of the case. And if you can’t tell — I’m still mad about that case, and it happened like 20 years ago. It’s the most — well, I’ve seen a lot — one of the worst things I have ever seen. That guy has a DWI on his record for life because he had six idiots on a jury panel. And they said, there’s no way they’d prosecute a garbage case likes this unless he had a prior DWI. Okay. You can’t presume a record unless there’s evidence of a record. But if there’s a guilty verdict, you get to hear a person’s entire record. To my knowledge Adolph Hitler never had a DWI.

Osama bin Laden never had a first offense DWI. If they were alive today and tried and convicted of a first offense DWI, the State would be able to go, well Hitler, weren’t you responsible for over 26 million deaths by starting World War II, and prove evidence of that, and that jury could say, we’re going to take that into consideration, and we’re going to consider giving you a $4,000 fine and a year in jail because of your prior record. Do you think you would give Adolph a maximum fine in this case.

JUROR: What does all of this have to do with a DWI?

DEFENSE LAWYER: I’m just asking. It means whatever it means to that jury. In other words, if the State can prove that he’s just a really bad character, someone you really maybe — you know, you really want to put him away, the law says you can do it, if they can prove that. If they can’t, then they can’t. So — and it’s just — in other words, you never know what background someone has until you hear about it. But it might be really bad.

So are you saying it doesn’t matter? No matter what the situation is, I couldn’t consider giving him a year in jail and a $4,000 fine?

JUROR ROBINSON: Just — again, if you’re doing a trial and you only have the facts of what happened, that’s it.

DEFENSE LAWYER: Uh-huh.

JUROR ROBINSON: And nothing else to be considered, that’s too much for that particular occurrence.

DEFENSE LAWYER: Okay. All right. And you –

JUROR HOLLEY: I agree with that.

DEFENSE LAWYER: You agree. Anybody else agree with that?

JUROR SODERSTROM: I agree with it.

DEFENSE LAWYER: Quit agreeing, y’all.

FERGUSON: Who said that?

JUROR SODERSTROM: I did.

DEFENSE LAWYER: Holley.

MS. CARTER: Who was the second person?

DEFENSE LAWYER: That was Soderstrom.

Soderstrom, you also said you couldn’t consider the minimum.

JUROR SODERSTROM: That’s true.

DEFENSE LAWYER: You’re on both sides.

JUROR SODERSTROM: I am. If you’re convicted of a crime, you’re not just getting anything. But at the same time, that’s an astronomical punishment for, you know, an occurrence that happens all too often.

DEFENSE LAWYER: Yeah, well, and you know, you’re right on both.

THE COURT: You’ve used 30 minutes.

DEFENSE LAWYER: Thank you. Anybody else?

JUROR: I think the operative word is “consider.”

DEFENSE LAWYER: Yes, it is the operative word.

JUROR: And you might consider it for a millisecond, and disregard it. But you think about it and disregard it. You think about this, and you disregard it. But you consider it. That’s the question, I think, that you’re asking.

DEFENSE LAWYER: And thank you. Does that make a difference? Because the question is: Could you consider it? Because if you can’t consider it, then it disqualifies you as a juror. If you can consider it then disregard it, that’s fine.

Change anybody? Change anybody’s mind? And thank you for pointing that out. It doesn’t change your mind, Holley? Soderstrom? And Robinson? Okay. All right. I believe that’s all I have.

Unless anybody else has anything for me? Does anybody think you have something you want to talk to the Judge about in private, something you think we would all want to know? All right. Thank you for your time.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez