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

Setting a Case For Trial In Harris County Criminal Courts

They will do just about anything to keep a lawyer from setting his case for trial, and I love it.  I have a brave client.  He was charged with possession of marijauna and the State gave him a nice offer, a.k.a. a conviction, of time served.  That means he would plea and his case would be over with, except for a six month license suspension.  My client was having none of it.  If they want to prove that he is guilty, go ahead and make them prove it, he says.  The ADA, takes the case to her boss makes her enhance the case.  Why was this done?  Most likely to dissuade my client from making the ADA work and try a "stupid marijuana case."  Guess what?  We agree, it is stupid.  So then we have to approach the judge to get a trial setting.  This judge doesn't believe that me, in my youth, has informed my client of the risks of trial.  She expresses concern that I have a trial fee and that my bar card is at risk.  I mean, really, what business does she have being concerned with my financial circumstances and the structure of my contract?  She was very nice, but also "paternalistic."  I suppose part of a judges duty is to encourage compromise; to encourage cases to settle.  However, I feel like that has a place more so in the civil courthouse than the criminal courthouse.  I said at least three times that my client just wants his story heard by six members of the community.  This is the second case I tried to set for trial in two weeks, and each time the judge urges me to urge my client to plea.  I am glad the judge told me she never was a defense lawyer, but that just begs the question: how can any judge be neutral who hasn't worked both sides of the docket?  She didn't seem to grasp that my client made up my mind to exercise his right to trial, and that he does not care that it will take time out of the court's more important time, or as the property folks say, highest and best use.  If a DA wants a convictions, make them work for it.

Take that **** to Trial! Crash the System!

Crash the System

End the Plea Mill
A Response of Michelle Alexander's Opinion Piece in the New York Times

     What happens when you throw a wrench in into the gears?  The machine stops working!   The criminal justice system we have is a machine.  The police over police impoverished and minority areas.  Prosecutors charge the suspects under laws that criminalize addictions.  Then the judges set unreasonable bonds.  Finally, most poor defendants are given court appointed lawyers, and about 90% of the time, defendants plead.

    When I was at Gideon's Promise Summer Institute we heard from a man that is revolutionizing the criminal justice system in North Carolina that suggested taking just 5% more of our cases to trial would crash the system.  Sean Maher, the former Bronx Public Defender ingrained a saying our minds "Take That Shit To Trial.  Take That Shit To Trial."  Now we have Michelle Alexander, one of the foremost experts on the civil rights problem of mass incarceration joining the crowd.  The time is now.  The time is now to put a wrench into the gears of the criminal justice system.

     Before we can do that, there needs to be a few major changes.  First, judges need to set reasonable bond.  Here in Harris County, there is a standard bond schedule, and we as lawyers need to make sure it is followed.  I get sick when I speak to a potential client who has a $30,000 bond for his first offense, when the schedule says his bond must be set at $5,000.  Second, there needs to be a statistical analysis of every lawyer who takes court appointments. What does their record look like? Is Lawyer A feeding the plea mill as if the mill needed a plea to stay alive?  What percentage of Lawyer A's clients are pleading on their first setting?  The plea mill lawyers needed to be weeded out. Once that happens, defendants will start to gain confidence and respect for their court appointed lawyers.   Third, prosecutor's need to cut out the "first offer, one day only" crap, as if they are furniture salesmen.   First, it puts me in an ethical dilemma as as a defense lawyer, because I have an obligation to conduct an independent investigation, and I have no ability to do that after only briefly looking at an offense report shown to me moment before the offer.  Second, a decision to plea, even a decision to plea time serviced and a $400.00 fine on a misdemeanor possession of marijuana charge can have life-lasting effects. 

     My motto is "Client Centered | Trial Ready."  I want my clients to know that if I take their case, I will be ready to take it to trial.  I expect my clients to take their cases to trial.  I am bitterly disappointed when they take a plea offer.  We should all be client centered. As lawyers, it is our duty to inform clients, appointed and retained, of what the process looks like and the consequences of every potential play.  I understand that most defendants want to plea guilty, do their days-months-years, and move on with their lives.  Its time for this generation of lawyers; its time for this generation of (non) citizens  accused to challenge the system. We can break the system. We will break the system.  Before long, the police, courts, prosecutors and legislatures will reevaluate and change their practices.  We will end Mass Incarceration. 

 

Winning a Felony Motion to Suppress in Houston County, Texas

LISTENING IS KEY...AND GAMBLE

My luck continues with another win.  This time, it was a motion to suppress.

I took the relatively scenic drive north from Houston to Crockett, Texas in Houston County, Texas, color changing leaves and one stop light towns and all.

I was asked by a fellow lawyer to conduct the examinations and argument in a motion to suppress into what was clearly a race based traffic stop that resulted in felony charges of tampering with a government document.

Mexican client was driving down a two lane highway in a pickup truck with aftermarket tail lights. Local Trooper was driving in the opposite direction when he claims he sees that wire was obstructing client's license plate.  Trooper pulls my client over, who is driving between two trucks, each towing trailers without license plates (Trooper doesn't pull them over, obviously).

Trooper immediately takes client out of the truck and asks him a barrage of questions. Client gives a false name in tattered English and cannot provide a license.  Insurance does have his name on it. Trooper tells client to stand near the back of his truck on the driver's side and immediately searches the cabin of the truck.  I am talking about everywhere: seats, under seats, behind seats, map pockets, and glove compartments. Trooper testifies he is conducting this search for his own safety. Trooper then cuffs client and leaves him in the same spot before going to the passenger sides of the truck to continue his warrantless and search.  Finally, Trooper finds pay stubs for several different people.  Trooper then calls client's employer and dutifully brings the social security card my client used to get his job several years ago.

This cop was your typical trooper/former trooper near the end of retirement.  He was smart, but he was too smart for his own good.  He spoke too much for his own good.  On direct by the state, he babbled and babbled and babbled.  I had to come up with a strategy. Do I try and control this seasoned cop in this rural courthouse?  Or do I risk letting him get himself into trouble by speaking too much?  Well, I did a little bit of both.

My opening question poked fun at him for thinking my client may have been a terrorist.  After pissing him off, I sort of let him go because he was now hell-bent on beating me.  He was so focused on talking and his elaborate story that when I asked him in a leading manner if my client was under arrest when he was cuffed, he just said "yes, he was absolutely under arrest."

A moment later, he asked to correct something he said, and there was no way in hell I'd let him do that.  I simply confirmed that he continued to search the truck after my client was placed under arrest, and that during the continuation of the search is when he found the evidence that caused my client to be charged with a serious deportable felony.

The Honorable Judge up there did the right thing and granted my motion to suppress, not on the stop, but based on the search, which I take greater pride in.  It sure was a breath of fresh air to see a district attorney not make frivolous arguments based solely on her desire to make quota or one up his cohort in the office.

All in all, it was a good way to end a week.  I hope I can get the hat-trick.  Keep the opportunities coming.

Not Guilty - Solicitation of a Minor to Commit Sexual Assault - Montgomery County, Texas

First Trial = First Not Guilty Verdict!

Now that the dust has settled, I can reflect on my first trial and first not guilty verdict.

I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County.  Only around 1% of cases in Montgomery County get a not guilty verdict.

The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.

The problem with that story is that it was not supported by the evidence.  Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age.  Sure, his truck came to a stop on a dark dirt road in near the woods.  Sure, the girl had reason to be spooked when she saw his truck roll to stop.

BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!

You have to admit the bad facts.  You never know, your bad fact may be supported by your theory of innocence.  For example, our client said his truck ran out of gas and the battery died.  Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client's truck showed, you guessed it, a tow rope and jumper cables.

BOOM -- a fact beyond change turned into a fact that supports the theory of innocence.

A few words of advice from this attorney who is now in his terrible twos:

1. Get the venirepersons to educate each other during voir dire.  
2. Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see.  NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
1. You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses.  You want objective pieces of evidence that support the specific intent.
3. Ask questions that support your theory.
4. Listen for answers that might alter your theme in closing and support your theory of innocence.
5. MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in.  It is cheesy but it is the truth:
1. this is not China, North Korea or Iran.
2. We are presumed innocent/ cloak of innocence.
3. We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
4. I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror's fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin.  When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.