Tuesday, January 29, 2008

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.


anon c said...

From the Chronicle's (dreaded) blog by COPlaw, in regards to the "Canadian" story, but appropriate in this case, as well...

"I will continue to encourage others who are upset regarding your irresponsible words to speak out. Hopefully the Chronicle will take the appropriate action. You did a lazy job and a hack job in order to move up the ladder of the Chronicle. Maybe one of these online dictionaries can add the word:

Falkenberg - newpaper reporter/employee who throws out unsubstantiated and ill-researched opinions in order to grab publicity for herself and the paper."

Anonymous said...

Winning the trial isn't everything. Fairness should at least have a glancing appearance in these criminal death penalty trials, don't you think?

anonymous c said...

Anonymous 10:13am, just what are you alleging wasn't "fair" about what Kelly and Luci did in this case?

And Anonymous 10:15am (although seemingly all the same person), interest in a trumped-up, tabloid-style, politically-driven, non-issue like the years-old "Canadian story" is not evidence of anything, in my (very humble) opinion.

Anonymous said...

Well, didn't Kelly say that she and Ms. D have a running agreement to strike any Lakewood panelist because they are all screwballs and nuts? And here, we have not one but two panelists in the same trial, not being struck. Is that not unusual and in fact, a departure from the previous nuts and screwballs policy?

Just curious.

anonymous c said...

Okay, well, I'm not a fan of the "screwballs and nuts" comment myself, but AHCL very clearly explained the legal tactics behind why certain, possibly undesirable jurors are not struck by the prosecution. Re-read. Falkenberg even backs it up in her story when she says "The defense ended up burning two of their pre-emptory challenges to keep the two jurors off the panel".

Anonymous said...

I am so upset that people still think that Dr. Siegler sent a racist e-mail. Typical Chronicle, Casey published this as fact. The next day the Chronicle printed a retraction in a tiny article buried in the middle of the paper. The Chronicle couldn't care less about the truth. I haven't yet made up my mind if they are simply lazy or have an agenda. Bernstein's article was typical. A small country girl who never met a Jewish person gets basically labeled as anti-Semitic. What she has done as an adult means nothing to Bernstein. Judge Lykos, as an adult judge, forbids a witness from wearing a yarmuka in the courtroom and gets a free pass.

Anonymous said...

What did the good Doctor send?

A Harris County Lawyer said...

Anon 7:57 pm, please see my latest post.

And by the way, it seems that several Chronical posters have come to this website to put on their dog & pony show for for us. If they have something thought-provoking or worthwhile to write, then more power to them. If they are going to just blather on like they do on the Chronicle blogs, I'm probably going to delete them.

This website is seeking intelligent conversation, and I believe that Leviathan, PJ, and Bennett will all agree with me that I'm not adverse to running opinions different from my own. However, mindless posting with no substance can be left to the Chronicle blogs.

A Harris County Lawyer said...

And by the way, Anon 7:57 PM, thanks for the heads up on the issue with Judge Lykos. I didn't give you proper credit in my above response.

AFHCP said...

Anon 12:46pm - well put. And AHCL, thanks for this posting. It was right on. --AFHCP

Jason said...

Remember who wrote the article. A woman who believes that two illegal immigrants who (allegedly) were part of a burglary ring were not worth Joe Horn defending his neighbor's house over.

PJ said...

There's a bigger problem here.

The State, having seen that the jurors had beliefs about inherent criminal tendencies of particular races, should have agreed to strike the jurors for cause (or moved for it on their own if the defense did not). This was a capital case in which the (black) defendant's propensity to commit violence in the future was a special issue that determined life or death. Doing justice would have required that they not sit, and the State was ethically and legally obligated to seek that end, regardless of strategy.

And I am disturbed that one commenter believes that "a trumped-up, tabloid-style, politically-driven, non-issue like the years-old 'Canadian story' is not evidence of anything." Have some lost all sense of perspective?

A Harris County Lawyer said...

I agree with you that both the prosecution and the defense need to work together to restore faith in our criminal justice. However, there are two sides to a criminal case. I wasn't there for the Guidry trial, but as I've said before, a juror questionnaire is just a preliminary look into how a juror truly feels.
There was no way that those two jurors were going to end up on the jury based on what they stated in their questionnaire, however. But the defense still has a job to do. Based on their answers (and my admitedly limited understanding of the case itself), it wouldn't seem to difficult for those two jurors to be struck for cause with a little questioning by Loretta. If that failed, a peremptory would need to be used.
Capital voir dire is a strange occasion, and sometimes agreements like the one you call for, are, in fact made. That's usually when both the State and the Defense are working on the case amicably. That wasn't the case in Guidry. The Defense isn't in the business of handing the State "free strikes" and the State isn't going to do that for the Defense either. It may seem unjust in the real world, but that's just how the System works sometimes.

TxGoodie said...

Jason, what happened to the Cigars, etc.?