The Motor-Voter Effect

Terry McEachern, the prosecutor made famous by the Tulia debacle, was proud of his high conviction rate. Journalist Richard Orr did a Plainview Daily Herald article on the pugnacious DA back in the 90s (long before Tom Coleman hit the streets of Tulia) in which McEachern attributed his success to careful preparation and tough law-n-order juries.

Most defense attorneys who ever faced McEachern know the Plainview prosecutor generally came to court unprepared and won his more challenging cases with crude appeals to local prejudice. Wally hatch, McEachern's quiet, soft-spoken successor, doesn't play the game that way (although his assistant has been known to).

As the article below indicates, the drop in conviction rates can partially be attributed to the new "motor-voter" policy which has greatly expanded the pool of potential jurors. It is now more likely that more lower income whites, African-Americans and Latinos will be part of the venire and these folks are more pro-defense than their better educated, middle class counterparts.

The article hints that a pro-prosecution stance is highly correlated with education. But what kind of education are talking about? Our criminal justice system is primarily designed to control the folks who will not or cannot find a place in an increasingly high-tech economy. Training in the school of the streets becomes more arduous with each descending rung of the social ladder. People who have been arrested a dozen times for a long list of nickel-and-dime offenses know the courts can be capricious, vindictive and arbitrary. They know police officers can be highly creative on the witness stand. As the social status of a jury drops the evidentiary standard rises and it becomes harder for prosecutors to gain a conviction. This explains why prosecutors like Terry McEachern routinely strike the names of blacks and Latinos from the venire unless they have reason to believe they will be pro-prosecution. If you're looking for a high conviction rate this makes sense. If you're looking for justice . . .

http://www.myplainview.com/site/news.cfm?newsid=16928824&BRD=517&PAG=461&dept_id=473182&rfi=6

07/16/2006
DA 2/3s numbers below average 07-16-2006
The Herald Staff , From the Plainview Daily Herald
By RICHARD ORR

Herald Correspondent

District Attorney Wally Hatch won 58 percent of the felony cases he took to trial during his first year as DA 21 points below the statewide conviction rate of 79 percent.

Hatch assumed office Jan. 1, 2005. According to a Herald summary of district clerk records, he lost 10 of the 24 cases he prosecuted before Hale County juries a 42 percent loss ratio. The summary does not include Swisher County cases.

Former DA Terry McEacher's record stood at 91 percent during his first year in office having won 10 of the 11 felony cases he tried, and beating the 1985-86 state rate of 81 percent.
McEachern served as county attorney in Swisher County prior to becoming district attorney in 1985. Hatch's prior experience primarily consisted of 14 years as city attorney. He's a Plainview native and a 1991 graduate of Texas Tech law school.

The 10 acquittals he sustained as DA included a forgery case, an arson trial and several DWIs. Some weren't slam dunks, he said. But I felt they should be tried in front of a jury and let the community decide if the defendant should go free.

During 2005, his office returned 422 indictments compared to a 5-year average of 385 during the period 2000-2004.

A good 75 to 80 percent of defendants plead out for probation, a sentence we feel comparable to what a jury would give, or a dismissal in return for a guilty plea in a related case, said Hatch.
Prosecutors across the state point to problems they've encountered with the motor-voter registration law, which was mandated by the Federal Voter Registration Act in the mid-1990s.
Designed to increase the number of registered voters, the law allows people to register to vote automatically when they get a drivers license and requires state judicial districts to summon prospective jurors from a list of drivers as well as voters.

Prior to the law, jury panels were drawn solely from registered-voter lists.

A mistrial was declared in an Andrews County capital murder case in late 1997 after it was learned a prospective juror had a felony drunk-driving conviction on his record and had served on the grand jury that indicted the 20-year-old defendant.

The idea (behind motor-voter) was good, a special prosecutor in the case was quoted as saying at the time. The more diversity you can get in your jury pool, the better.

But problems arise because felons and non-citizens who aren't allowed to vote are allowed to get drivers licenses, requiring prosecutors to more thoroughly check the backgrounds of potential jurors.

In an undated USA Today story, jury consultant Jo-Ellen Dimitrius who helped defense attorneys pick jurors in the O.J Simpson murder case said voter rolls generally reflect fewer minorities and basically contain people with a higher socio-economic level and more education.

We know that very typically, a pro-defense juror is most often from a lower socio-economic status and is more likely to be less educated, she said.

A new wrinkle facing prosecutors of late is known as the CSI Effect.

Jurors these days have very high expectations of the state, Hatch said. In terms of scientific evidence, for instance, they see unrealistic or untrue depictions on TV. It distorts even how evidence can be collected.

Recalling his move from city attorney to district attorney, Hatch said of McEachern: Terry was very helpful in the transition from his administration to mine. I certainly appreciated it.