Trial 101: For you, Lisa Falkenberg

Yesterday must have been National Integrity in Journalism Day, because I didn't see a single article bashing the D.A.'s Office for racism. Did I dare let myself believe that this was the entry into a new era of good feelings between the Chronicle and the D.A.'s office?

Nah, I'm not that stupid.

Lisa Falkenberg rode back into town this morning on her old dead horse that she's been beating, with an article about Kelly Siegler and the Lakewood juror. Except, this time she has a new twist on it. Apparently, Kelly had not exercised a peremptory strike on two other Lakewood Church members, but (gasp) they were Hispanic, and not African-American. Falkenberg clearly believes she has now found the smoking gun that proves that Kelly is a racist.

Falkenberg opines that these two dastardly potential jurors even put on their juror cards that they thought the propensity to commit violence could be linked to race. And Kelly still, didn't do her civic duty as a prosecutor and use her peremptory strikes.

So here's the deal, Lisa, because you clearly don't understand trial. Both sides have a certain set of peremptory strikes. If I recall correctly, in a death capital, each side gets 15 peremptory strikes that they can use to strike a juror for any damn reason (as long as it isn't about race).

Now, here's the deal, Lisa, which you don't seem to understand. The number "15" is a long way from infinity. Both sides tend to horde their peremptory strikes and not use them unless they have to. If one side is certain that the other side will have to "burn" one of their strikes, all the much better.

Now, Kelly and her trial partner Luci Davidson, being no dummies, read that two jurors in their questionnaires felt that "blacks are more violent than other racial groups". And, Kelly and Luci also realized that their opponents in the case were also, no dummies. Kelly and Luci knew that there was no way in Hell that Loretta Johnson Muldrow and her trial partner were going to allow those two jurors on the jury.

Does it really stretch a columnist's mind so much to see the strategy here? Okay, let me spell it out to you, Lisa. Kelly and Luci knew that Loretta would have to burn defense strikes on those jurors (if Loretta wasn't able to get the two jurors for cause). Why on earth would they use strikes?

Now, Lisa, I gotta say that I appreciate you for keeping your articles in the Columnist section, and don't pretend to be writing "real news" like Alan Bernstein does on his editorials.

But Loretta, I'm disappointed in you. You know damn good and well how a capital murder voir dire works, and you are manipulating the press to make Kelly Siegler and the D.A.'s Office out to be racists. Where's the article on you for striking not one, but two Lakewood Church members? There's not one? Why is that? Maybe because you had good, sound reasons to?

Does it really stretch the imagination so much to think that maybe Kelly and Luci had some sound reasoning in their trial strategy too?

They did win the trial, after all.

Lakewood Church & Rick Casey

I woke up earlier than I usually would this Sunday morning in an attempt to watch the TV broadcast of Lakewood Church services that air at 10 a.m. I wanted to see what, if anything, was said about Kelly Siegler's comments. While I was waiting for the show, I took time to read Rick Casey's column which listed Kelly's comments as part of a three-part column bashing Republican disingenuity in our county officials.

I came to a conclusion: Backseat Drivers irritate me.

Casey's column cites the fact that the juror that Kelly struck off of her panel had listed that he was "in favor of capital punishment, except in a few cases where it may not be appropriate". Casey then argues by inference that Kelly would only want a juror who would be so strong on the death penalty that they would even give the death penalty where it was inappropriate.

For those of you out there who have worked on death penalty cases, you know that Casey is twisting things that he clearly doesn't know enough about. He's backseat driving just like his comrade Lisa Falkenberg likes to do in her articles.

Here's a pop-quiz for both Falkenberg and Casey:

1. In capital jury selection, what does the terminology "5/5", "1/1", or "4/3" mean?
2. Name one prosecutor or defense attorney who would accept a juror on a death capital based solely on their questionnaire, without interviewing them?
3. What keys on a court reporter's machine capture tone and inflection?

I've been involved with multiple capital murders over my career (NOTE: the term "involved" can mean a lot of different things, and I acknowledge that). I know that attorneys on both sides go through the numbers "5/5" through "1/1" first off before even reading a juror questionnaire. It isn't unusual at all for a questionnaire to not even be read at all, if they are a "5/5" and a "1/1". They usually become the victims of trades.

A prosecutor or a defense attorney would be absolutely incompetent if they accepted a person based on questionnaire only and didn't talk to the potential juror. I don't know how many of the seasoned attorneys are reading this blog, but I'd love to hear from you if you've tried a DP case. How many times has a juror that seemed to be a "2/2" ended up being a "5/5" or a "4/3" ended up being a "2/1" after individual voir dire? My point is that for those who have worked on these cases know that the questionnaire is often a good preview of what you are going to get when you speak to them, but it is (by no means) dispositive, is it?

Finally, a record is a flat recording of words. I've never read one that illustrated the tone of someone speaking while they were talking. It would be pretty damn funny if they did, because a record would read more like a romance novel.

Picture two situations:

#1 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?" and the answer is an emphatic "Yes."

#2 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?". The juror frowns and then takes a deep breath. Looks at the defendant, who is looking at him, and then looks down at their hands, before softly answering "Yes."

How do they both read in the record?

Q: Can you consider the death penalty as an option in the appropriate case?
A: Yes.

Until we get a transcript written by Danielle Steele, I don't know that you can properly catch the mood of what is going on through just a transcript.

After watching Lakewood Church this morning, I came away with a couple of conclusions.

#1 - Pastor Joel Osteen may be just about the best public speaker that I've ever watched.
#2 - the show made me feel good and it made me feel optimistic and good about my fellow man.
#3 - these feelings conflicted very much with my usual jaded personality.
#4 - I'd be concerned over whether or not this was the type of outlook I'd want on a DP jury.

Folks, the people of Lakewood are good people. Probably better people than I am. I'd gladly have them on the vast majority of my juries.

I just don't know how I would feel about putting them on a death penalty case. I'm much less ambiguous about whether or not I'd put Rick Casey on.

Sorry dude.

Racism in the D.A.'s Office?

I opened today's Houston Chronicle this morning and nearly died of shock. For the first time since December 27th, something that the D.A.'s Office had dropped the ball on wasn't the front page news.
But after the week that the Office has had, I guess they (at a minimum) deserved Sunday off. It seems like the media has finally given up on anything happening with Chuck Rosenthal. I guess he is firmly planted in his office and he ain't coming out. The new focus of the media seems to be part of a one-two punch: Kelly Siegler's "nuts and screwballs" comment about Lakewood Church, and the "Canadians" e-mail sent by Assistant D.A. Mike Trent. The poor ADAs seem almost punch-drunk after the bad publicity that they've had all week.
I don't really know that there is more that can be said about either of these two stories, because they both pretty much speak for themselves.
What I do find interesting is that the source of both stories seem to track back to defense attorney, Alvin Nunnery. He appeared on the Fox 26 news story about the Canadians e-mail and said the Office needed to be cleaned from "the inside and out" and that such a cleaning could not be done by someone from within the Office (a slam at Siegler's candidacy). What many don't realize, however, is that Nunnery was directly involved in the case that spawned the "nuts and screwballs" comment from Siegler, as well.

Is there a personal vendetta that Nunnery has for Siegler?

Well, maybe.

It seems that at some point during the Guidry trial, Alvin got cross-ways with Siegler and her co-counsel, Luci Davidson. This altercation led to him recusing himself from involvement in the trial, and apparently some degree of anger and/or embarrassment for him. I'm guessing that revenge is a dish best served, but damn, it sure is effective. Nunnery may single-handedly sink the whole D.A.'s office. I wonder if he realized how many people's lives would be affected by these news releases.
Is there racism running rampant in the D.A.'s office? Not that I've seen, but then again, I'm not African-American, either. I can't imagine in this day and age that any government institution would be blatantly and outwardly racist and expect to get away with it. Say what you want to about the ADAs, but they aren't dumb. Well, the vast majority of them aren't.

More on this later.