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

POSSESSION OF MARIJUANA NOT GUILTY... SORT OF... CASE DISMISSED MID-TRIAL

This is a week late, at least.

Where to start...

Maybe I should start off by saying, thank you. 

 Thank you to the Harris County District Attorney and minions for not dismissing a case that never should have been charged in the first place.

Thank you. Harris County Court 14 and Judge Fields for hauling my client to court for 11 trial settings.

Thank you to the court for finally allowing me to try my case on the one year anniversary of my client's wrongful arrest.

Thank you to my client for sticking with me, even though she was incredibly frustrated and could not understand why I could get the case dismissed. 

Thank you to Judge Fields for following the law and granting my motion to suppress.

For those of you that have read some of my prior posts, this is my possession of marijauna case involving an overzealous cop and his failure to follow the HPD bodycam policy.

Let's recap:  My client was sitting in the driver seat of a parked car at a park in Acres Homes. Her friend was sitting in the passenger seat.  Both doors were wide open.  The cops, which a Juror referred to as "Officer Handlebars" due to his ridiculous stylish mustache, were conducting a "park check."  In other words, they were out to do warrantless searches that frequently violate the Fourth Amendment. Park searches are a treasure trove of constitutional violations, and I wish lawyers did more to challenge them.  Needless to say, if you have been arrested for drugs or weapons in a public park, CALL ME.

So the cops allegedly see a pile of loose tobacco outside the passenger door.  The cops then park their cop car right in front of the car my client was in, and boxing her in.  The cops then see the codefendant reach towards the center console and place something there.  The cops then exit the car and when they get right up next to the car they smell the week.  One cop puts my client in handcuffs while she is still sitting in the car.  The cop then forces her to stand against his front bumper in the searing July heat.  The cops then search the car and find a joint in the codefendant's side of the ashtray leaning towards the codefendant (the joint they saw the codefendant place).  They then claim to have found a second joint in plain view.  Well, the bodycam (which the police did not want me to have) showed that the second blunt was deep inside the codefendant's side of the center console.  The cop then searches my client's purse, without PC, and finds nothing linking her to the marijuana. The cop then searches the seat where my client was sitting and finds nothing linking her to the marijuana.  Finally, the cop searches the trunk.  Funny thing is that he says in the offense report that he could smell weed form outside the vehicle, but his body camera reflects otherwise.  The body camera shows the cop opening the trunk and then saying "smells like weed in here" 15 seconds later, and then saying "oh fuck yeah" when he finds the weed.  The cop then asks my client whose car it is and she says it is the codefendants.  The cop then turns off his body camera every time he talks to my client, including when she denied it was hers, and the turns it on when he talks to the obviously and admittedly high codefendant to get him to rat on my client.  Didn't work.

Nine months later we have a out first trial setting.  Two trial settings later, I finally get the body camera footage. Thank the good lord for that.

At the 10th trial setting, my client was told she did not have to show up unless we were called to trial.  Of course, we were called for trial, weather was horrible and she showed up 2 hours later, not one hour as she told the judge she would.  Lo and behold, we were given the best looking, most diverse, youngest jury panel in the history of Harris County.  It was so defense friendly, the judge wanted to take a picture with them.  OF course, though, because my client was late (DONT BE LATE), the jury was sent home.

We finally went to trial, picked a jury, got the jury we wanted, gave my opening then the cop got on the stand and I filed my motion to suppress.  Judge Fields disagreed with why all of the marijuana should be suppressed (I was right), but he suppressed all of the weed anyways under affirmative links (not permissible at a motion to suppress, but ok).  All that matters is that I got the not guilty.  Also, being on TV was pretty cool. Make sure to check back and read the next few posts that will go more in depth about my jury selection method and the Houston Police Department Body Worn Camera Policy (PS I'm the first in the county to have it).

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.

When You Try To Help A Cop And...

He is a total jerk.

I was driving down a dark highway in Cypress when I noticed a bunch of flashing emergency lights.  I slowed down, but I couldn't tell if the center lane was open, and I have bright Xenon headlights.   As I get close to the flashing lights I see some flashlights.  It was two cops.  They were telling me to turn around.

I kindly say, "Officer, I think the Sheriff's car in the center lane needs to be parked in the lane like the others, not parallel. I could not see the car at all."

Cop replies,  "We're just a a bunch of dumb ass cops.  Get the hell out of here!"

What prick.

All I was trying to do was keep the officer's safe, their cars safe, and the public safe.

Cops, if you can't handle the stress of your job, make the world a safer place and quite.

Assault Family Violence Case Dismissed

While I'm in the groove, I might as well share my latest dismissal with you.   I don't want to get into the details, but the allegations are that it starts with your typical booze-filled evening and ends with a few hits to the face of the driver.  While the car was moving.

The complainant, which is the legally accurate term for a "victim,"  pulls off the highways.  Client allegedly take the car keys and chunks them over a fence.  Complainant flags down officers who slap cuffs on my client and throw her in the slammer, and leave her there for WAY TOO LONG.

So, this is your typical misdemeanor assault case.  There are some relatively bad allegations, o independent witnesses, no eye witnesses, and bad presumptively bad police work.  

What does a criminal defense lawyer do in this scenario.  First, I have a thorough interview with my client at my office, which sometimes includes a scene reenactment so I can see first hand, as good as possible, what went down.   Next, I get and review the offense report.  I don't just skim it an make a recommendation like many lawyers.  I go through with a fine tomb comb.  No mistake, error, or misstatement is to small to matter, at least not as a starting point.  Next, I reach out to the complainant and attempt to speak to him or her.  

If possible, I will get a sworn affidavit recounting the events. Why go through the trouble of getting a sworn affidavit?  Well, the rules of evidence determine how a case can be tried.  A sworn affidavit is made under oath and threat of perjury.  That means that if the person lies under oath when giving the affidavit, that person may be subject to criminal charges for perjury.  The promise to tell the truth and threat of criminal charges makes the document more credible.  Finally, if the witness gets on the stand and testifies differently, I am able to impeach the witness.  What does it mean to impeach a witness?  Impeaching a witness is attacking the credibility of a witness.  Being able to properly impeach a witness is a very important skill that most lawyers do not actually know how to do. Properly.   I do plenty more than this when preparing for a case, but I will leave it here for now.

The good news is that my client's case was dismissed, and she can move on with her life, which includes getting an expunction and clearing her record.

The Ballad of Marijuana Defendant

The Dope Defense Attorney

This case has become unreal.  Just unreal. My client was charged with possession of marijuana.  I don't want to give away too much here because I know the prosecutor, who I believe to be lovely and reasonable in her soul, has at the very least looked up body cameras in the local news.  In fact, I think she was kind of impressed that I was quoted in the Houston Chronicle about this particular case. 

Note:  The Pic Is Not Me Or My Client

Credit where credit is due.  She researched the matter, and dare I say me (although I doubt it), and then tried to get any reference to the article excluded from trial through a motion in limine.  

So, just why has this case become unreal.  Harris County Court 14 works in a peculiar way.  Clients only have three or four court dates, spread out over about 6-9 months before their first trial setting.   Personally, I like this set up.  Your client doesn't get pointlessly dragged into court, and I don't find going to court every month for the same case a useful exercise for attorneys either.  In theory, there should be more cases being dismissed in Court 14, and also more cases going to trial due to the scheduling.  The problem is that cases are not actually being dismissed at the rate they should be.

Well I can tell you what, a whole ton of cases are set for trial in that Honorable Court everyday. While I'm not important enough for court staff to read my blog, I still take a risk by saying that showing up for trial TEN TIMES is inexcusable. It is a war of attrition to get the defendant to plead guilty by tearing away at their finances, will power, and soul.  

My client is innocent and she will not plead guilty for something she did not do.  Hell, there are defendants who may be guilty that want to go to trial, but feel like the government can't make there case, and that is their constitutional right.

Back to the topic.  At my client's 9th trial setting, yes ninth, my client was told to return the next day (third day in a row), only if the judge called her case to trial.  In other words, she didn't have to be at court like the rest of the defendants.  So, I showed up in her stead. Judge Fields, who is truly a likable and well thought judge, calls my client's case to trial.

Ok, so I don't announce that I am ready.  I don't have witnesses and I don't have my co-counsel with me at that exact moment.  The was kind enough to say,  "Counselor, you are great.  You know what you are doing and know the facts of your case very well.  You don't need co-counsel.  You don't even need to go get your file."  As flattering as his statement may be,  commercial pilots don't fly solo, and neither do I.  He reaffirms that my case is going to trial, so I run outside and call my client.   Like the rest of Houston, she had trouble getting downtown in the tail end of a tropical storm.  Too much trouble.

Meanwhile, we have a GREAT jury panel.  I am talking about young and diverse.  It was a beautiful thing.  Two hours later, the judge tells the jury to go home. Judge Fields even proclaimed he had never seen such a good looking jury for the defense and jokingly said he wanted to take a picture with them. The times, they are a changing.  However, My client finally arrives and Judge Fields graciously and justly did not revoke my client's bond because she had been on time the previous 9 trial settings. 

I was so ready to try this case.  Witnesses would have been great, but I won a good couple of battles during pretrial motions, not least including getting a spoliation instruction granted, should I present evidence warranting the instruction, which was likely to happen.  I saw Mike DeGuerin in the elevator and got some words of advice from that legend, and I had some great attorney''s helping me at trial.  The stars were aligning.  It's a shame my client wasn't on time.  

Lesson learned, don't give your client's the chance to mess things up, because they will, and at the worse of times.

The Life of Young Criminal Defense Lawyer

It sucks.  Sometimes.  Well, most of the time.  One second you are driving to court in a tropical storm in you 1999 Miata, roof somewhat secured.  The next millisecond, your roof flies off, your arms nearly goes with with it, and you are surprised at how well your car handles under those conditions.

Before (sorta)

After

"1999 Mazda Miata?! Yeah right!  You're a lawyer!  You're rich!"  No.  No, I am, not.  You see, I try to charge prices that are fair for me and fair for my clients.  The prices I try to charge won't make me rich.  The problem with this game is that my potential clients are always lying to me about their ability to pay, and there is always some asshole skeezbag baby lawyer or older lawyer undercutting me.

It's a fucking race to the bottom 'round here.

Let's talk about one of those skeezbag lawyers for a second.  This particular young lawyer does not appear to do any of his own work.  Anytime he has a question, he asks it on the listserve.  It's as if he has no idea what he's doing, and even worse, he has no idea how to find the answers for himself and be a real fucking lawyer.  The sad thing, the sad thing is that all the numbnuts on the listserve are praising him as some sort of great lawyer.

Let me ask you this, my friends.  How in the WORLD does this baby lawyer who just started his own practice have so many fucking clients?!  Not just clients, but client's already in jail?  Clients just getting out of jail?  Felony clients?  There is only ONE fucking way, and its that he's up to some shady shit, other than wearing fucking jeans to court every day.  Not even nice jeans.  This guy has an inside man.  Someone inside jail and prison getting him clients.  FTMF.

For the record, I think he has been licensed two years but just started criminal defense.  Also,  I used to smash his fiance.

So, back to what I intended to write about.  The type of shit that directly effects me, other than the undercutting skeezbags in the profession.  But before I get there, it's sad that your success rate doesn't necessarily determine your income.

So, I represent a girl charged with prostitution.  Apparently every girl between 17-25 who is charged with prostitution is assigned a special SAFE court prosecutor.  My particular girl was a suspected victim of human trafficking.  So the big problem with SAFE court is that it exists only in Court 7, but the girls are not all assigned to court 7.  In fact, probably 90% of the girls are assigned to the other 14 Harris County Courts.  But wait, there's more.  It get's worse.  There is only one prosecutor that handles all these cases.  Mind you, that Houston is the human trafficking capital of the United States, and one of the prostitution capitals of the world.  ONE FUCKING PROSECUTOR.   But wait, there's more!  The courts on on different floors, and the elevators in the courthouse are horrible.

So if that nonsense isn't enough NO ONE KNOWS FUCKING ANYTHING ABOUT SAFE COURT.  The normal prosecutors know absolutely nothing.  But, I mean, of course the ACT like the know everything!  All they know how to do is hand you a blue pamphlete and misdirect you.   Let's continue.  The court coordinators know nothing.  The probation officers know nothing.  The judges probably know nothing.

So let's think about this.  There is one prosecutor, 14 courts, 5 floors of courts, and dozens of clients each day.  The OBVIOUS SIMPLE SOLUTION is assign all girls charged with prostitution to the freaking prostitution court.  But that would be to easy.  Well, let's think about this.  Maybe the prosecutor would go to the oldest case first.  Nope, can't do that.

So, my client was charged 6 months ago.  We have been to court 6 times.  Each time, has been a pain in the ass.  First the case with with human trafficking.  Then it was transferred to the proseuctors of the court it was actually in.  And back and forth over and over again.  So finally, my girl gets in to the SAFE program which requires her to take an eligibility interview.

So, I arrange the interview, my client shows up on time and does what she needs to do.  Which brings us to my last court setting on this case.  I am not stupid or niave.  I don't show up early.  So I show up when I show up, around 9 930.  My client shows up at 8 when she is supposed to.  I arrive and check in to see if the human trafficking prostitutor had arrived.  Naturally, she hadn't, so I email her.  Or at least the prosecutor from the last 5 times.  You see, these pains in the ass at the district attorney rotate all the fucking time.  So there was a new prosecutor on the case.  Does anyone care to tell me that? No.  Does any one care to let me know how my client did at the interview?  No.

So when I find out who the new prostitutor is, I email her.  I kindly let her know we're in court waiting, and to email me when she arrives.  She tells me she is in court 4, and will be up soon.  I email back saying thank you.  An hour and a half later I email her again.

This is the exact email.

I really can't wait two-three hours every time I have a "human trafficking" case.  This case is six months old and its been played like a yo-yo. I have literally waited over 10 hours just for prosecutors to show up to court. This is beyond disrespectful to both me and my client. 

 This email is not an exaggeration.   Meanwhile, I am across the hall doing some recognizance for an upcoming trial.  When I cross the hall to go back to the court where my alleged prostitute is, I see the human trafficking prosecutor talking to one of her 'girlfriends' all casual and shit in the hallway, while I have been WAITING FOR OVER TWO FUCKING HOURS!

She walks into court a few MINUTES later and sits at counsel table.  Defense counsel table.  She plops down in a big leather chair, then swings around, turning AWAY from me.  So I say "good morning, can we please get to work on this case?"  She swings around like like a bat out of hell and at the top of her lungs, like all female prosecutors, says, "That was the nastiest, rudest thing any defense lawyer has ever said to me!  You don't know me.  You have never done any work with me.  You are completely ridiclous.....blah blah blah."  The second I open my mouth to defense myself to say I have been waiting over two hours she bitches about her job.  I suggest that she be a little repsectful and try to resolve old cases first.  At this point gaggle of geese co-prosecutors who are the normal prosecutors in this particular court jump in and gang up on me.

They were so effective that a defense attorney jumped in and started patronizing me.  To her I said, "You are a court appointed lawyer, basically one of them.  Don't talk to me."  She said no I'm not and tried to talk me down for 10 minutes.  I looked this prosecutor up.  She is one of the top 20 attorneys in the county.. in the sense that she is plea mill lawyer of the day extraordinare.  To her credit, when I showed her the nasty rude email I sent to dea prostitutor she spoke to the the prostitutor.

So, finally to the business.   The prostitutor tells me, "You're client did not go to the interview.  She didn't do what she's supposed to do.  She's not getting in the program."   To which I called out her lie and said, "See, I was right,  you have not worked on this case at all."  She steps outside comes back a few minutes later, without appolizing for lying, which is the least she could do and also the least likely thing she could do, and tells me ok your client has her orientation on whatever date.

It sucks being a young criminal defense attorney at times.  It doesn't matter if your dismissal rate is way above average.  It doesn't matter if you win all your trials and hearings such as I have.  It doesn't matter if your clients are all happy.  One day I will figure it out.