Picking a Jury in Harris County on Resisting Arrest Charges as a Second Chair

The adage is that you win trial in jury selection.

I meandering into Harris County Court 14 the other day expecting to pick a jury for my client's case. It was the ninth trial setting, after all.  Instead, the court chose to go with an a resisting arrest case on its first trial setting. 

No Rhyme.  No Reason.

I just so happened to know the lawyer who was defending the young Puerto Rican accused of resisting arrest.  The poor kid was jumped by a cop and sent to the hospital for some stitches and bruised ribs before he was booked in jail.  Of note, the 5'5 cop who was clearly inflicted by Napoleon Syndrome, was working an extra job at twin peaks.  Knowing the lawyer, and having helped him before in a DWI trial, I helped him pick the jury.

I knew nothing about the case until about 15 minutes before jury selection, but what I did know was my obligation as a second chair.  For any new lawyers that may stumble upon my blog, a second chair is a lawyer who assists another lawyer during trial.  Sometime second chairs take the role of observer and whisperer of ideas.  Other times, second chairs may have the opportunity to conduct examinations and arguments.  I have second chaired murders and sexual assaults to DWIs and simple assaults.  

No matter what, when second chairing, you have to be actively participating by seeing what there is to be seen, hearing what there is to be heard, and sharing your observations and ideas with the first chair.

In this particular resisting trial, my job was to determine who in the jury panel was ineligible to serve on the jury due to a bias or prejudice I identified two issues early on.  First, officer credibility. Second, how might an officer act after he worked a long shift on the job for HPD, then immediately worked a second shift as security.  The first chair, Paul Kendall, had the rest set up perfectly.  

I took tabs on who could not serve on the jury, and the judge agreed that I got them all correct.

As Paul was about to finish his voir dire, he asked me if there was anything else he needs to cover. I said, "Yes, ask the jury how an officer might feel after working his main job then going directly to his extra job.  Ask the jury what might effect the cop's judgment."  He asked and the answers followed. In fact, the first juror to speak said the exact word I was looking for, "cranky."  It was all gravy from there.

We got the 6 jurors we wanted on the panel.  Hell, we even got the guy who was previously convicted of resisting arrest on jury!

It certainly helped that Napoleon Dynamite testified it was as if his commands (to leave the parking lot) fell on deaf ears, because, well, the client was partially deaf.

Two Words:  Not Guilty.  

Congrats, Paul.

The One Witness Rule -- What a Waste of Time!

I spent this morning reading the voir dire section of a record for appeal.  My client was charged of aggravated sexual assault of a child.  I did not represent him at trial.  He was sentenced to life in prison.   Voir dire is the phase of trial where the jury is selected from a larger pool of potential jurors. During voir dire, the judge will speak and as questions, as well as the government attorney and defense attorney. 

In every trial I have watched or participated in, and in every record I have read, I see the most annoying waste of time ever during voir dire.  The big waste of time goes something like this:

Government:  Ok folks, so, let's just say, I don't think it will happen but let's just say there was only one witness. Right? Ok? Just one witness.  And let's say this witness testified.  And let's just say she was the only witness to testify.  And let's just say you believed her beyond a reasonable doubt.  Here, we go, here we go, this is the question.  And remember, voir dire is my only chance to speak to you and in French it means "to speak the truth." So, if we put on only one witness, and you believed that witness beyond a reasonable doubt, could you convict the defendant?  COULD YOU CONVICT THE DEFENDANT BASED ON THE TESTIMONY OF ONE WITNESS WHO YOU BELIEVED BEYOND A REASONABLE DOUBT?

The prosecutor will then go person by person or row to figure out who is not capable of doing this.

This is the biggest waste of time, ever, in a court room.  The government lawyers knows darn well whether he intends to present one witness.  Now, these line of voir dire questioning is especially common in sex cases.  As one judge explained it, the one witness rule exists because there is usually only two witnesses to a sex crime: the complainant and the defendant.  I would like to note, however, that his interpretation of "the legislature's intent" is wrong.  There is a different between witnesses and eyewitnesses.  In that case, why don't they call it the "one eyewitness rule?"  That may take care of some of the confusion.

But why waste time?  Why waste the jury's time?  Why make a frivolous claim?  I suppose the government lawyers are looking for people actually want good, reliable, independent evidence so that they can exercise a strike on those individuals.  

But hey, it could work out for us.  Hopefully, some juror, subconsciously is thinking, "Why the hell did that government lawyer waste my time and ask me a stupid, question when he knew darn well there was going to be more than one witness?  Ef him, I don't trust him."

(Steps down off soap box.)  Ladies and gentlemen of the audience, thank you.   Next time a government lawyer asks you this question, go Socratic on his ass and ask why he is asking a pointless question and wasting your time.