COVID, Jury Selection and Item Fifteen

Over the course of the past couple of months, there has been a significant amount of time and effort spent by some of the powers that be to figure out a way to resume jury trials in Harris County in a COVID world. 

It’s a noble goal and one that, in principle, everyone should be on board with. 

It hasn’t been something I’ve blogged about because, quite frankly, every day something in the news has shifted the plan.  Multiple plans have come from multiple sources.  The Texas Supreme Court has issued order after order, steadily pushing back the date before counties are even permitted to summon jurors.  As I begin this blog post, there is a tentative rule that says no juries may be called until September 1st.  That may change by the time I'm actually done writing the post.

But September 1st isn’t an all-encompassing date.  There are exceptions for different scenarios where a jury might be summoned.  There’s a little something for everybody if you ask when trials are going to start up again.  The only thing lacking is consistency.

Over these few months, despite the unknowns, some people have been working to develop a plan to return to jury trials in Harris County. Judge Susan Brown, the Presiding Judge of the 11th Administrative Judicial District (and for those of you brand new to Harris County, the former judge of the 185th District Court) has begun implementing a plan where the juries are picked at NRG Arena.  The idea is that the jury assembly building and the courtrooms of our piece of crap beloved Harris County Criminal Justice Center are too compact to allow for social distancing when sixty-five potential jurors are brought to court for jury selection.  That's true if we provide for the recommended social distancing of six feet between each other.   The standard felony jury panel is usually spread out with fifteen jurors across and five rows back.  Mathematically, one would need a space that is 84 feet wide and 24 feet deep (at a minimum) to accomplish this. 

Now, before I proceed ahead any further, I need to acknowledge something -- I like Judge Brown and I consider her a friend.  My favorite trial war story of all time was in her court.  I consider her husband, Judge Marc Brown, a good friend as well.  (Somewhere Sherlock Hooper is screaming "I knew it!" but I digress.). That being said I have disagreed with Judge Susan Brown on many occasions, and to her immense credit, she has simply pointed out that I am wrong, maybe a little stupid, and we have continued being friends.  

This is going to be another one of those instances where we disagree sharply.  

I think the idea of doing jury selection at NRG Arena is terrible. I also think it is dangerous to the degree that no amount of safety precautions can justify it.  I'm not alone in that opinion, either.  Pat McCann chimed in on this very issue with an excellent opinion piece in the Houston Chronicle earlier this week. 

In the court of public opinion, I'm keenly aware of the fact that the general citizenry usually doesn't care all that much about the welfare or rights of people accused of crimes.  I mean, we were all trained in our high school Government class that we are supposed to care, but how many folks outside of our Criminal Justice World are really losing sleep over that guy charged with Aggravated Robbery who can't afford to bond out of the COVID-filled Harris County Jail?  Sure, he deserves his day in court and all, but if the conditions for picking a jury aren't optimal, does General Citizen really care?

Well, defense attorneys care.  We care a lot.  Picking a jury is the most important part of a trial.  Weeding out the prejudiced, the foolish, the kill-'em-all-and-let-God-sort-'em-out crowd, and the sheep that will just nod along and do whatever the nice prosecutor asks them to do is the responsibility of the defense attorney.  If you believe a defense attorney's job description is merely to "help scumbags escape responsibility for something they did," then please understand that I think my job description is to protect my clients from people who think like you do.  

And I can't figure out whether or not you think like that if I'm having to run up and down the stands at NRG Arena like Bob Barker Drew Carey hosting the Price is Right just to hear how you answer a question.  I can't see your facial expression when I ask about the presumption of innocence when I'm on the other side of the arena and I'm 84 feet away from you.  I can't pick a fair jury in the middle of a place designed to host a concert or a game.

Because this isn't a damn game.

The counterargument to this is that delaying the beginning of trials any further jeopardizes a Defendant's Right to a Speedy Trial.   My response to this is that there isn't a client alive that wouldn't trade his speedy trial for a fair one. And a speedy trial that doesn't ensure the same level of fairness that a Defendant would have under normal conditions is no trial at all.

That being said, if you are one of those folks who still doesn't find yourself being too overwhelmed with concern about the Rights of a Defendant, let's shift gears and discuss your health and safety as a potential juror.  For the purposes of what I'm about to write, it is absolutely 100% safe for you to assume that I'm one of those Left Wing liberal whackos that believes that COVID is a totally real thing that can absolutely cause serious long term health issues or death.  If you want to debate me over this particular fact in the comments, bring it.  I've already had one friend from high school unfriend me (and my wife) on Facebook for all of my "COVID is real" bullshit when she REALLY needed her favorite restaurants and shopping spots to open up for the lifestyle she was accustomed to.  

Some people have no sense of humor.  I mean, I only posted this on her Facebook page once.

Again, I digress.

As of this writing, the COVID numbers are continuing to climb, along with the associated fatalities.  How bad is it?  It's so serious that our semi-beloved Governor Greg Abbott is contemplating shutting down Texas until the virus passes.  That's some pretty big doings for a guy who only two months ago was accusing Harris County Judge Lina Hidalgo of overstepping her authority by requiring residents to wear masks.   As I noted on Twitter, if Greg Abbott, one of the Right Wing's most ardent governors, is getting scared about what COVID can do, maybe EVERYBODY ought to be a little concerned.  

He's issued a statewide mask order (that's actually legally unenforceable, but whatever) and he's encouraging people not to congregate in large groups.  He's a little late to the party with that.  County Judge Hidalgo was all about the quarantining when quarantining wasn't cool.  Regardless, both Democrats and Republicans are saying that COVID should be taken seriously and mass congregations of people aren't conducive to stopping the spread of a deadly disease.

So, why is anyone even remotely entertaining the notion that having hundreds of people show up for jury duty starting September 1st is a responsible idea?

We are talking about pulling people from all corners of Harris County by the hundreds to be in an enclosed room with each other.  This is what some might refer to as a Super Spreader event, and now, thanks to Harris County, we will be holding them twice daily, five days a week!

You just thought you hated jury duty before.  Now, it might kill you!  And maybe your family too when you get back home from jury duty.

Harris County District Clerk Marilyn Burgess recently posted this video on YouTube that was designed to alleviate any fears that a potential juror might have about serving.  Take a minute and watch it.  I think it's hysterical.

If this image isn't showing up, you can find the video at

So, this is what jury service will look like, according to Marilyn Burgess.  That's a cute idea, but that's a complete load of crap.  In this video, Burgess and roughly about ten of her employees pretending to be potential jurors filing into NRG Arena.  Felony jury panels are comprised of 65 people.  Multiply that by multiple jury panels.  That spacious and wide open facility in Ms. Burgess's movie is going to be just a smidge more crowded when the real thing happens.  Her video is misleading and that's irresponsible of her to share.  

No defense attorney wants to pick a jury at NRG Arena.  I don't know what Harris County District Attorney Kim Ogg's official position on the issue is (we just don't talk like we used to), but I can tell you that I don't know of a single rank and file prosecutor that thinks picking a jury at NRG is a good idea.  Most judges I know (and I know quite a few of them) aren't pushing for the idea.  They all have control of their own dockets and can push the trial settings into next year if they want to.

Delaying all trials is the smarter thing to do.  It would be safer for the judges.  It would be safer for the judges' court staffs.  It would be safer for the defense attorneys and prosecutors.  It would be safer for the jurors and all of those folks who showed up for jury duty and didn't get selected to serve.

So, why am I bringing this up now?

I'm bringing this up now because on late Friday afternoon, this little item popped up as an addendum to the Harris County Commissioners' Agenda for their meeting on Tuesday, July 14th.

Check out Item Fifteen.  

Judge Hidalgo is asking for almost $2 million to fund security for jury selection at NRG Arena and she's asking for it Tuesday.

This absolutely terrible, no good, very bad, dangerous idea about picking juries at NRG Arena is about to become an absolutely terrible, no good, very bad, dangerous reality.  Otherwise, Judge Hidalgo wouldn't be asking for nearly $2 million in the middle of a pandemic to finance it.  It is my understanding that Judge Brown, as Administrative Judge of the 11th Judicial District, has the final decision regarding the implementation of this plan, and her opinion is that we should proceed full steam ahead towards it.

I could not disagree with her more, but I have no power to stop the plan or persuade Judge Brown otherwise.

But I think Judge Hidalgo could.

I think Judge Hidalgo could say that she's not going to utilize Harris County funds to facilitate something that would be so unfair to the Accused and so dangerous to the citizens as a whole. I hope the Commissioners will back her up on it.  I hope somebody will listen to those of us who know what picking a jury in NRG Arena is going to truly look like.  I can't believe that our county government is going to fund a plan that orders its citizens (upon threat of contempt of court) to leave the safety of their own homes and congregate together en masse.  

I think Judge Hidalgo could remove Item Fifteen from Tuesday's agenda if she so chose.  I think she could effectively stop this plan by pulling the funding for it until such a time as it was safe to resume some semblance of normal operations.  

She has made bold and controversial decisions before in the interest of community safety and I hope she will do so again here.  


Anonymous said…
What can we do to contact Lina Hidalgo about this? Have you written to her? Do you know how we can?
Murray Newman said…
Anon 10:58 p.m.,

I put this post in a tweet to her. HCCLA is writing a letter to her. I feel comfortable that she will be made aware of it prior to Tuesday. I hope that she will strongly consider it.
Anonymous said…
Thank you!! This whole process has been unbelievably frustrating. For starters, no one in the DA's Office or on the Defense Bar has been properly kept in the loop about what is going on. Everything we "know" has been pieced together by rumors and one CLE that was prerecorded (so everything Abott's new EO addresses made half the CLE moot) and they didn't address a lot of questions and concerns both prosecutors and defense Attorneys had. The fact that not even ONE person representing the interest of the State and the Defense Bar was involved in the discussions is also unacceptable.

Secondly, there STILL seems to be NO information on which district courts are participating and on what trials! We have all seen multiple versions of lists from all 22 courts showing the 20 oldest custody cases that would be tried first. The problem is, these lists of the top 20 were created regardless of when the original trials were set. Many prosecutors and defense Attorneys saw that capitals and murder trials that were set later in the year were all the sudden pushed up as the #1 case to go on Aug 3. With no conference with the attorneys or the court. To force the Attorneys to push up major trials by months with no heads up is just another factor that leads to ill preparation and thus an unfair trial for a Defendant who's life and liberty is on the line. How hard is it for them to just send out ONE list that says "here's the district courts that plan on starting with NRG selection on Sept 1" These constant rumors of "this judge is a maybe on the idea" does not cut it. I understand that the judges and Judge Brown believe all the issues will be worked out before they start in Sept, but the Attorneys need to be made aware NOW if we will be forced to go to trial on a certain date.

This situation puts the State and the Defense Bar in a very difficult situation for multiple reasons. I have witnessed first hand that prosecutors and defense Attorneys WILL deal with inconveniences when we have to. When Harvey hit, prosecutors walked through waist deep water to relocate and keep intake functioning. Defense attorneys showed up and met with clients in make-shift "courts" and put themselves in dangerous situations day in and day out. Not to mention the defense Attorneys running around between 5 different buildings in Houston heat and rain, and Prosecutors traveling from offices spread all over Houston. And we ALL put up with the shitty conditions we were forced to work in with condemned buildings that violated health and fire codes full of asbestos. We did it because our jobs on both sides required it to see that justice was done! But this isn't the same. This is forcing the State and Defense to put the health and safety of ourselves and our family and all our witnesses forced to come testify at risk. And more importantly, it is NOT seeing that justice is done. This is the political PERCEPTION that justice is being done.

The most important issue is to ensure the defendant's rights are being protected and that we have a FAIR trial, and that all starts with VD! The defense bar and the Prosecutors need to stand together and unite in the message that this IS NOT JUSTICE! Commissioners court needs to hear that even the defense are saying this is a BAD idea, we will not advise our clients to go to trial under these unfair and dangerous conditions. Maybe if commissioner's court hears from the defense that we don't support this, we can stop them from wasting $2m that can be better used else where!!
Anonymous said…

Who determines whether or not to waive speedy trial? Is that the clients decision? If so, what happens when the client says, covid or not, they want their trial? (Assuming the Tx courts don't extend the orders currently in place.)

I know the feds are starting to ramp up trials again. Dallas feds already had two criminal trials.
Anonymous said…
As an employee for the HCDCO, I can honestly say that we also don't want to be at NRG for the clerks health safety reasons. Clerks are already getting exposed in the courtrooms of those judges who refuse to process zoom jail pleas.

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