Liberty and Justice for Y'all brings word of an important new case from the Texas Court of Criminal Appeals (Cardenas v. State), holding that jurors must be excluded if they say they cannot consider the full range of punishments available under the law.
In a case of aggravated sexual assault of a child, a defense attorney asked potential jurors whether they could consider the minimum punishment if the defendant were found guilty, then moved to strike the 50+ people who said they wouldn't consider probation or the minimum confinement period. The judge said "no," seating several of the jurors anyway. But the Second Court of Appeals agreed the jurors were seated improperly and the CCA affirmed, declaring the trial judge abused his discretion: "Jurors must be able to consider both a situation in which the minimum penalty would be appropriate and…a situation in which the maximum penalty would be appropriate," wrote Judge Cochran. "A question committing a juror to consider the minimum punishment is both proper and permissible."
The takeaway, says LJ4Y: "Questions like the one asked in this case should be common for defense attorneys. If a venire member cannot consider the minimum punishment, the trial court should ALWAYS exclude them from the panel. Period."
It is important, but I think this case comes as little surprise to criminal law attorneys. It's rare for that question not to be asked and rarer for a judge not to exclude a juror for "failing to keeping an open mind to the full range of punishment." But it's good to see the Court of Criminal Appeals not gut another long standing right.
ReplyDeleteGood point, Barry, though your observation makes me wonder why the CCA took the case instead of just letting the 2nd Court of Appeals decision stand.
ReplyDeleteMy guess would be that the CCA wanted to write on the "commitment question" aspect.
ReplyDeleteI'm just speculating of course.
...and the flip side is would you consider the death penalty, if "appropriate" leading to exclusion for anyone opposed to execution for fear an innocent person may be killed.
ReplyDeleteJust as in death-penalty cases (where jurors are dismissed if they say they wouldn't consider imposing death) and drug cases (where jurors are dismissed if they don't consider it wrong to disobey drug laws), this ruling is just another attempt to rob defendants of their right to a jury trial. (Because the whole point of trial by jury has always been to enable the public to impose a reasonableness test on every law and on every application of a law to an accused person.)
ReplyDeleteIf so questioned the next time I am called for jury duty, I will just have to lie, so that the defendant can have his rights.
4:47 is right"(Because the whole point of trial by jury has always been to enable the public to impose a reasonableness test on every law and on every application of a law to an accused person.)
ReplyDeleteI was called to serve a case where the individual was charged with possession of cocaine Just enough to make the 10 year sentence point. The Prosecutor wanted 10 years and had a sharp power poin presentation. many pool members said no to the 10 years and were excluded. Me included, Since the charge was "2.5 grams of a measurable amount and it's adulterates", I had some questions about the percentage of Cocaine in the sample. I guess this would have been a good case to question the law and Nulification.
Ham2mtr
Gotta love that nullification as long as our drug laws/penalties are so bonkers.
ReplyDeleteIn a case of aggravated sexual assault of a child....
ReplyDelete...the 50+ people who said they wouldn't consider probation or the minimum confinement period.
This is Texas. Some don't favor minimum for aggravated sexual assault of a child.
The only importance I see to to this case is that Keller didn't find a way to dissent.
ReplyDeleteThere is nothing new in this case at all.
ReplyDeleteI was pretty surprised to see the CCA issue this opinion as well. This seems to be well-established law, but I guess it never hurts to remind the trial judges that jurors that cannot obey the law should not remain on the panel (especially over defense objection). No harm in a friendly reminder.
ReplyDeleteThis does seem well-established so I'm also curious why the CCA took the case rather than just letting the Court of Appeals decision stand on it's own. Asking whether the jury can follow the full range of punishment is standard in just about every voir dire I've ever seen.
ReplyDeleteI disagree that this is a blow against a defendant's right to a jury trial. As a defense attorney myself, I want my client to have a jury of fair-minded people who can consider the minimum range of punishment. Otherwise - if the defendant (or the judge) allows all those potential jurors who said they couldn't consider the minimum end, the jury starts out stacked against the defendant in a big way. The way I see it, considering the minimum is a double-sided question: 1) it tells me how this person is going to be on punishment, and 2) it gives me a pretty good indirect view of how likely this person is going to be to give my client a fair shake at the guilt/innocence stage of trial. Of course someone can give a fair trial but then give a whopper of a punishment sentence - but typically those unwilling to even consider the minimum start out as state's oriented/anti-defendant.
Let's say a firm has two employees. They come to work in the morning and each has 20 calls on their call list. Ten require no reply, 8 are each 10 minute matters, one will take about 1/2 hour and the final is a several day, complicated matter. Employee A, lets call her Sharon, begins her day by responding to the 10 calls that require no reply, she then responds to the 8 10 minute matters, spending 45 minutes on each. After lunch and breaks her work day is complete. Employee B, let's call him anyone who does not sit on the Court of Criminal Appeals, begins with the most complex problem, he skips lunch and works late, getting half way through the matter. At the end of the day the boss, let's call him John Q. Public, comes into Sharon's office, she tells him of her progress, and he responds "Good Job" ... the then goes into employee B's office, learns of his day and promptly fires him!!! I agree with Mr. Barnett, a friendly reminder does not hurt, but wasting valuable time in a bogged down court system doesn't make sense ... unless you're trying to pad your pathetic statistics, and trying to look like you are doing more work than you actually are. And spending 15 pages on an opinion regarding law 101 makes me question the motives of the court
ReplyDeleteAt least one District Court Judge thought the jurors should not be struck for cause, and it is possible this issue is currently being heard by 3 other appelate courts and the CCA wanted to be clear. Of course it is also possible that this is an image rehabilitation case to show the CCA will not knee jerk rule for the prosecution.
ReplyDelete11/16 4:47 - Wow. You'll lie to make sure a defendant gets his rights because you disagree with the law? Then I suppose you'd support someone else who lies to get on the jury so that they can ignor the law and convict on insufficient evidence and then impose the maximum punishment because they think the defendant is a bad guy who deserves prison regardless of whether he committed the alleged crime?
ReplyDeleteIf the system doesn't work, it's because of people like you.