Thursday, April 9, 2009

The Transcript Is In

Prior to weighing in on the validity of the Batson challenge being granted in the Ricky Whitfield case, I decided to take a very un-Pat Lykos like approach and actually read the transcript. I only ordered the portion of the transcript that dealt with the Batson challenge being made by Eric Davis and Jacquelyn Carpenter and the responses to the challenge to by Rifi Newaz and Mark Donnelly.

It took about one day to get the transcript, and it only cost about $25 for that particular portion. I guess that Lykos really has screwed her budget up pretty damn badly if she couldn't spend the $25 before she decided to try and ruin Mark and Rifi's careers.

So, here's a synopsis of the bench conference regarding the Batson challenge:

Ms. Carpenter objected to the striking of Juror Numbers 2, 3, 10, 13, 18, and 43 and properly made a Batson claim because those six venire members were African-American. As I've mentioned before (for the non-lawyers out there), that once the Batson claim has been made, it becomes the prosecutor's duty to explain their race-neutral reasons for striking the jurors.

Regarding Juror Number 2, Rifi Newaz cited the fact that this potential juror had a previously dismissed theft charge, and currently had charges pending on a Class C-Issuance of a Bad Check case. In addition, Rifi noted that when the entire panel had been asked their opinion of "what should the main purpose of the criminal justice system be - punishment or rehabilitation?", the juror had difficulty making a decision. Rifi made the argument to the court that the State didn't want an indecisive juror.

Regarding Juror Number 3, Rifi noted that the juror had successfully completed a deferred adjudication for the offense of theft in 2006, and that the juror's case seemed to be involving an employee theft.

Juror Number 10 was also struck for being indecisive on the issue of whether or not the focus of the criminal justice system should be punishment or rehabiliation, and again the cited race-neutral reason was based on wanting to avoid a juror that could not make a decision.

Juror Number 13 was struck for having seven Class C Issuance of a Bad Check cases, and also could not make a decision on punishment versus rehabilitation.

The prosecutors had tried to have Juror Number 18 struck for Cause regarding that juror's inability to follow the "One Witness Rule". This juror, however, did not make a firm enough stance on the issue for Judge Barr to have granted the challenge for cause, but it certainly gave prosecutors grounds to be concerned over her ability to follow it. They used a peremptory strike on her.

And finally, Juror Number 43 also stated that they could not follow the One Witness Rule. On this particular juror, the State had moved to have her struck for cause, but the request was denied. This left the prosecutors with only the option of striking her from the panel.

NOTE: If you are still reading this post at this point, congratulations. You are now officially more informed about this case than Lykos was when she called the Chronicle on her people.

Look, the bottom line is that when six out of ten peremptory challenges are used on African-American venire members, it absolutely looks bad. That is further compounded when it leaves absolutely no African-American jurors. It looks absolutely horrible, and I completely understand Judge Barr being very aware of that fact. I also sincerely doubt that Judge Barr had anticipated what Lykos would do in response to the Batson challenge.

Then again, most sane people do generally have trouble anticipating what Lykos will do next.

But the bottom line is that Rifi and Mark fulfilled their obligation and provided race-neutral reasons for every last African-American juror that they struck. Eric and Jacquelyn did their jobs by making the challenge, and I imagine that Judge Barr was being very well-intentioned by granting the challenge rather than risk that bad perception. I think she meant well.

But, what she didn't count on was Lykos and her speed-dial to the Chronicle.

I've said it before and I will say it again. When decisions start getting made based on perception rather than the actual facts, the Judicial System becomes no better than a lynch mob. Rifi and Mark felt this in full effect two weeks ago - first in the Batson ruling itself, but then more importantly, when Lykos offered up their heads to the Chronicle.

So, folks, how are we feeling about an elected-D.A. that still believes in Lynch Mob Justice?


Life after Esq. said...

That's so depressing

Rage Judicata said...

Yeah, looks good to me. The softest spot in their argument is the "indecisive juror" argument--is that jjust the catch-all for "he's black, but here's the reason according to Batson? Still, absent that particular issue being ruled upon by the courts in the past, they did what they were supposed to.

However, for completeness it would be good to read their responses to his questions during voir dire itself. How accurately his race-neutral reasons match the actual venire members' responses would be the next step.

That being said, I'm with you on this onem, the judge screwed the pooch and Lykos went ape shit for no reason at all.

Anonymous said...

Print the whole thing ver batim and let us decide for ourselves.

Anonymous said...

Dang it Murray....don't let facts, common sense, and the truth get in the way of a good political smear......

A Harris County Lawyer said...

It is worth pointing out that Rifi and Mark also struck two white jurors for being indecisive on the punishment/rehabilitation question. I understand your point, but I always asked the same questions on serious cases like this one.

Anon 12:13,
I'm not going to print the transcript on the blog. Court reporters work very hard for their money and are entitled to get paid for each copy of a transcript that produce. I'm not going to deprive the court reporter of that by putting it in printable form on the internet. That being said, anyone who wants to come on over to my office is welcome to look at my copy.

Anonymous said...

How many indecisive white jurors did they leave ON the panel? That's the serious question.

If they struck every "indecisive" black juror, and only a small minority of the "indecisive" white jurors, then one would be hard-pressed to give a racially neutral explanation for the difference.

Rage Judicata said...

Well, "I struck a white guy for that too" isn't part of a Batson analysis, although it may be race-neutral, but I see what you're saying. I can also understand why the state would want someone who can pull the trigger, and would view that as race neutral whether or not they only asked black jurors that question.

I have no idea where these black jurors fell in the panel, but one of my tricks is that I always decide where the last of the 12 can possibly fall and don't strike any minorities after that point so I can say "look, I didn't strike all the black people." That's not truly a Batson defense either, but you'd be amazed at the number of Harris County judges who think it is.

And good move not publishing the transcript. There's nothing I hate more than a plaintiff's lawyer who doesn't buy it from the reporter, but expects me to fax them a copy. I always make them waste their time filing a motion to compel and go to a hearing on it. Or I charge them what I paid, and send it to the reporter. Times are tough for them, especially post HB4.

Anonymous said...

Anon 1213 I'm with you.Get the whole thing and there will be no question about what the white jurors said.Did any of them have similar answers?

jigmeister said...

There is no question now that these prosecutors appropriately did their job. Lykos ought to reinstate them to their old positions and publicly apologize ala George Patton.

Rage Judicata said...

Jig, do you really think Lykos' apology will be any more sincere than Patton's was?

And while I'd say it looks like they're safe, without the whole transcript we still can't be 100% sure.

jigmeister said...

Probably not Rage. Too bad their is no Ike to sack her.

Anonymous said...

WTF Murray, save it. The only ones at the criminal court house making more money than the court reporters are the criminal defense attorneys....not the judges and definitely not the ADAs.
You already paid for your copy....should we all pay their exploitative photocopy fees as well?
Just post the damn transcript verbatim so we can each draw our own conclusions without your interpretation muddling things up.

A Harris County Lawyer said...

Anon 4:35 p.m.,
My position on publishing the transcript is not up for debate.
My interpretation is exact.
Your request is denied.

Rage Judicata said...

Come on now jig, you weren't watching the movie. Ike sacked him as a ploy to hold him in reserve to keep the Germans guessing as to when they'd use him for the invasion. So along those lines, if she were sacked from DA, she'd wind up as governor next.

You may not care about life outside the DA's office, but I sure as hell do.

Anonymous said...

Senor Newman,
The arrogance of your response is more suited to Lykos or Leitner. I'm disappointed.

A Harris County Lawyer said...

Anon 5:02 p.m.,
I'm a pudgy bald man. How can I help myself from being arrogant?
The difference is I'm not an elected official in charge of running the D.A.'s office.

jigmeister said...

It's one of my favorite movies. I should apoligize to the memory of Patton. Unlike Patty, he was a warrior who lead from the front. He did share a personality trait with Patty though. Loved to see his name in print at the expense of others.

Murry: Perhaps more important than the transcript. What did the court reporter tell you about the jurors? I often learned alot from court personnel.

Anonymous said...

There is no excuse for arrogance. Period.
Leitner was never elected dog catcher and we both condemn his arrogant demeanor.
You're better than that.

A Harris County Lawyer said...

Oh come on Anon,
Just because we disagree over what I'm going to do doesn't make me arrogant. I listed my reasons for why I won't post the transcript. If I was truly arrogant, I would just say "because I said so", like Lykos and Leitner do.
You are welcome to come by and take a look at it. I'll even keep your identity a secret.

I didn't ask the court reporter her opinion as to the jury, because I didn't want to put her in an awkward position. I appreciated her promptness and efficiency in getting the report to me.

Anonymous said...

Murray,you are giving answers evasive to the questions being asked. Are you hiding something or practicing to be in politics? For the readers to understand what really happened then publish the voir dire.If you only paid 25 dollars then you did not get everything or did you? Like the others we all want to see and then decide. From Missouri

A Harris County Lawyer said...

What am I being evasive about? I told you what was in it. I told you that I'm not publishing it. What questions do you have?

I believe that I've been very clear that I only got the portion of the voir dire relating to the Batson challenge, which addresses the reasoning. Quite frankly, I don't have the money to purchase the entirety of the voir dire. That's still more than Lykos and the Gang that Couldn't Shoot Straight have done, isn't it?

If someone thinks that there is something more that is relevant in the remainder of the transcript, they are going to need to contact the court reporter in the 182nd.

Seriously, I'm not going to publish the transcript. It is open and available for inspection. Hell, I will bring it to the CJC on Monday. If you want to see it, flag me down.

Michael said...

Unfortunately, the transcript won't tell the entire story. The ADAs struck two non-black witnesses for being indecisive on punishment/rehabilitation? How can you verify that? I can't imagine it would be in the transcript, but maybe it was perhaps to reassure the court and opposing counsel that this reason for striking black jurors was not pretextual.

But that is my next point. The DAs did not have an obligation to provide a race-neutral reason to strike a black juror; they actually had to have one. In other words, the reason they offered the court could not be pretextual. The defense was free to argue that the proffered reasons were pretextual, and the Court was free to reach that conclusion. What's more, we don't know everything we need to second-guess the Court. How many white check-bouncers would have been on the jury?

Now, with regard to Lykos, I'm sure you know by now that I wouldn't pee on her ass if it was on fire. That doesn't mean the DAs here didn't do something wrong. What's my standard for a Batson challenge -- preponderance? They did it, then.

With regards to printing the transcript: I don't think it will help. Court reporters earn their money taking dictation with a ten-key machine during a trial, not making $1.10 a page photocopies in their office. As for Rage and not providing plaintiff lawyers a copy of a deposition, a deposition is a witness statement. I can't remember the last time I had to go to court to compel production of a deposition copy, but it was the 20th century. The cost to photocopy the depo would have been about 6 bucks, instead of $230 in attorney's fees assessed by a judge who hates discovery motions.

Rage Judicata said...


Not once have I ever had to pay money to a plaintiff's lawyer. Ever. Primarily because I've never asked a judge to award me money against another lawyer, and the old ones know it. The new ones will learn. In court, if you act like a jackass and whine and cry about me not giving you a copy of something that you had the opportunity to order for your damn self, the judges e-mail each other and let them know. I'm sure your name has popped up in one of those e-mails, but mine never has.

Sure, it's a witness statement, but it's equally available to them. And if you'd only get $230 for drafting and attending a hearing on a motion to compel, well, I'm sure your clients are getting their money's worth.

Don't be a cheap bastard and steal from a court reporter.

Michael said...

Rage, I don't doubt that you've never had to pay a plaintiff's lawyer, "ever". There's a reason I practice law in Austin, and not Houston. Actually, there are about 12 reasons, but I digress. The civil judges in this county don't like chickenshit lawyers any more than I do. If they are going to waste my time flaunting discovery rules that are designed to keep attorneys from wasting time, I am damned sure going to ask to be paid for the time I wasted. If you want to come to Austin to tell a judge I'm a whiner, you can watch me whine all the way to the bank. At the last two motion to compel hearings I had, the first question the judge asked me was how much I wanted in attorney's fees.

If you think I'm being a cheap bastard because I think $110 is too much money to pay a court reporter to spend five minutes photocopying a depo, there's nothing I can do about that. My first thought is it's your clients who are getting their money's worth (maybe they ooh and aah over those nice, shiny covers). But, like I said, I haven't had, or had to have, a motion to compel hearing since 2000. Maybe folks are shooting emails about me, but they don't say what you think they do.

This is so far off OT, I'll let you have the last word. Looking forward to Murray's next post about Lykos.

Anonymous said...

To those out there giving Murray crap for not posting the transcript verbatim -- the solution is easy ... get off your butt and fork over the money for your own transcript or go over to his office. Seriously -- stop blaming him for your own laziness and having the balls to do the right thing because it is the right thing. It is not right to post it verbatim when folks out there work hard to type these things up, make copies, etc.

Rage Judicata said...

My only last word is that I've probably tried more cases in your county than you have.

Anonymous said...

Focus on the issue, there is no reason for Lykos to have punished these two fine prosecutors. She was only looking for publicity for herself. She does not care if she destroys the lives of others. She does not seek justice.

Jason said...

Great post, I'm going to link this at blog houston because people need to know the whole story.

Anonymous said...

ANON 9:10:
OMG, it does not take a lot of balls or effort to pay a scribe an obscene amount of money to xerox some pages that are quadrupled spaced with huge margins under the ruse that court reporters are over worked and under paid.
It'll be public record soon enough anyway....the statute for defamation is only one (1) year.

Anonymous said...

Print the whole thing and let us decide for ourselves.