Wednesday, July 22, 2015

Possession of Marijuana Jury Selection in Texas

Houston, we have a problem.

The problem is that tons of people are arrested annually in Texas for the crime of Possession of Marijuana, but very few people are choosing to go to trial.

Making a TV appearance after winning a Motion to Suppress and Not Guilty in a Possession of Marijuana Case

There are many reasons why one might not take a Possession of Marijuana case to trial:

  1. Defendant just doesn't care about his future life and job prospects.
  2. Defendant was offered Pre-Trial Diversion, is actually guilty, will admit to being guilty, will apologize, and will successfully complete a probation program.
  3. Defendant was offered First Chance Program in Harris County and will do the above.
  4. Defendant is afraid of a conviction or doing time.
There are also many reasons why one might take a Possession of Marijuana case to trial:
  1. Defendant is innocent.
  2. Defendant is not guilty (there is a difference).
  3. Prosecutor cannot prove the case beyond all reasonable doubt.
  4. Defendant was illegally searched and seized.
  5. Defendant thinks jury will 'nullify' based on the charge.
These are just a few reasons why a person might take or not take their case to trial.  I am of the personal opinion that just about every Possession of Marijuana case needs to be set for trial.  If we set all these case for trial, we will break the system and there will be few charges for Possession of Marijuana.

So, let's say you decide to take your weed case to trial.  Great.  What happens next?  Well, first you will decide whether you want to go to the judge or to the jury for punishment.   This is your decision, but I will help you make it.  What determines you punishment 'election' is basically the judges reputation and the facts of your case.  I will almost always recommend going with the jury for punishment in the event you are elected.

Next, we will do jury selection, or voir dire.  Prosecutors love to get up and teach the jury a lesson in French and philosophy about how 'voir dire' means 'to tell the truth' in French, and that jury selection is really 'deselection.'  Before the DA gets to talk to the jury, the judge will, and the judge will tell the jury panel (the venire) all about himself, his court, and some basic Constitutional rights, such as the presumption of innocence, your right to not testify, the burden of proof, and the useless 'one witness rule.'

Next, the prosecutor will do his or her best to ask questions and get answers.  The problem is that they are more like middle school algebra teachers than people with personality, generally.

Next it is my turn to ask the jury questions.  I always like to start by letting the jury panel know a little about myself, because we get to know so much about them.  I think the jury finds it welcoming that I am a human too, with good and bad things going on in my life.  It really makes them comfortable about sharing more personal feelings and opinions.  

This Slide Makes the Jury All Warm and Fuzzy and Talkative

It's worth noting, that many criminal defense attorneys do not use PowerPoints for their jury selection.  I use them because (a) that's how people learn best and (b) it helps keep me on track without using notes.

I immediately tell them why WE are at court.  ALWAYS ALWAYS ALWAYS the jury was dragged into court by the government because you and I disagree with the government's allegation that you possessed a usable quantity of marijuana on a given day in a given location.

I will then tell the jury why THEY are in court.  The jury is in court to decide the truth.  There is no arguing with these two points.

From there, we may do an example or ask a question to get the jurors talking.  We want to get them thinking about situations where everybody else was doing something, but they chose not to do it, for example.  Or maybe about a time where they were near someone who was in possession of something, but they were not in possession of that same property.

Once we get the brain juices flowing, we talk about your constitutional rights as a defendant.  The goal here is to find jurors to challenge for cause.  In any criminal trial, the court, prosecution, and defendant are able to strike any number of jurors if they are unable able to follow the law and give the defendant (and somehow the state) a fair and impartial trial.  In other words, they are biased and can't overcome their bias.  I am usually able to identify a few jurors that the judge or DA didn't identify who cannot give my client a fair trial.

Next, we break down the law that applies.  So, for a Possession of Marijuana case, I want the jurors to explain to each other what it means to knowingly or intentionally do something.  I want the jurors to explore what it means to exercise possession, which means care, custody, control, or management over an object.  

Throughout jury selection, I am also using my proposed jury charge to get ideas of how the jury might rule on specific jury charges such as destruction of evidence, 38.23 motions to suppress, and so on.

Finally, after making our challenges for cause, I sit down with you and my co-counsel (which you will usually get free of charge)  and determine who we want to strike.  In a misdemeanor case, both sides can 'strike' or get rid of 3 jurors for any reason or no reason at all.  Well, actually, the State cannot strike a juror for race or gender based reasons.  I will talk about challenges to this conduct (Batson Challenges) in a future blog post.  
In my last three juries, I got the exact jury I wanted.  I also got the exact result I wanted.

Until next time, 

Take Your Case To Trial