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 https://www.youtube.com/watch?v=dyC9r1tY-48
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.