Friday, July 17, 2020

NRG Arena and the Streisand Effect

I enjoy being a defense attorney.

At least on most days.  

It's not always easy -- especially when you find yourself in a jury trial.  

You often find yourself behind the 8 Ball.  Your client is charged with doing something unpopular -- sometimes really really unpopular.  Usually, the evidence is pretty strong against your client, so you're fighting an uphill battle.  In many instances, you find yourself trying to mitigate an outcome rather than avoid it.  When you're a defense attorney, home runs are far and few between.  Quite often, a base hit feels pretty damn good.

If the State asks for Life and you help convince a jury that 20 years is more appropriate, that's a win in most cases.  On those occasions where you get the big NG verdict . . . man, those are something.  If you have never been a defense attorney and you find it unseemly when you see a defense attorney crowing about a Not Guilty in trial, have a little patience.  Those are harder to come by than you might think.

More often than not, the job of a defense attorney is just doing everything in his or her power to ensure a fair trial.

And doing that begins with picking a fair jury.

Now, the idea of "picking" a "fair jury" is a misnomer if ever there was one.  First of all, as any trial lawyer can tell you, juries aren't selected.  Juries are the remnants of a jury panel where numerous potential jurors have been de-selected -- removed from consideration from serving on a jury because they either couldn't follow the law (and are stricken for Cause) or because either the prosecutor or defense attorney utilized one of their peremptory strikes to remove them from the panel.  Once those strikes are done, the first twelve remnants become the jury.  In many cases, the next one or two become alternates.

The art of that de-selection takes some work and brings a lot of dynamics into play.  The attorney (whether he or she is a prosecutor or a defense attorney) needs to be charismatic and convincing as an advocate.  As a defense attorney, you have to be cognizant of the fact that if the jury isn't going to like your client, you better be doing everything you possibly can to make them like you!  But more importantly, an attorney has to identify those potential jurors that are bad and sometimes fatal your case.

One of the few funny things I remember former-District Attorney Chuck Rosenthal ever saying was that if he was only allowed to ask a jury panel one question, it would be:  "How many of y'all came down here today just to f*ck me over?"  I get his point, but in more delicate terms, I've always considered jury selection to be the art of rooting out the time bombs -- finding those jurors who never ever ever were going to even remotely consider the possibility of giving you or your client a fair trial.

As a prosecutor, I ran into the occasional juror who was anti-establishment or had a bad experience with the police and couldn't be fair.  But it is far more prevalent to find jurors who can't be fair to the defense -- those who presume your client must have done something or else there wouldn't be a trial; those who presume that if your client doesn't testify that he must have done something; or those who would never consider probation (even when the law allows it) on a serious case.

As a defense attorney, you've got to find those jurors who are time bombs, identify them on the record, and get them removed from your damn jury.  The trial is going to be tough enough as it is, so it seems only right that you at least start off with a seemingly neutral jury, right?

It is not possible to overemphasize just how important jury selection is and how much goes into it.  An attorney has to ask the right questions, act the right way, read the jurors body language, their facial expressions, and make note of them for when it comes time to make those strikes.  And keep in mind, on felony cases, the lawyers are talking to (usually) 65 potential jurors and they have about thirty minutes to an hour to ask all their questions and get their analysis done.

The reason I bring this up is that I got invited to check out the facilities at NRG Arena today and get a feel for how Harris County plans to select juries in a post-COVID world.  I guess you get fancy invites like this when you do a lot of complaining on your blog like I was doing last Saturday with this post.  I wasn't the only one invited to attend.  Texas Criminal Defense Lawyers' Association President Grant Scheiner and Harris County Criminal Lawyers' Association President Mark Thiessen were there, along with criminal defense attorneys Joe Vinas and Chris Tritico.  The Harris County District Attorney's Office was represented by Colleen Barnett, Paul Fortenberry and Tanisha Manning.

The de facto hosts of the tour were Harris County District Clerk Marilyn Burgess and 152nd District Court Judge Robert Schaffer, who is the Local Administrative District Judge (as I pointed out in my last post).  There were several other representatives of the District Clerk's Office who also hosted and answer questions.  It was quite informative and all of us guests had our cell phones out and taking pictures.  No one seemed to be bothered about us taking the pictures and/or videos.  Why should they be?  As I mentioned in my earlier post, Burgess has already made a YouTube video of what the process would be like, and the Houston Chronicle ran an article with photographs of everything inside on July 6th.

I'll come back to that in a minute.

So, my thoughts on the theoretical process were . . . not positive.

I'm no doctor or epidemiologist, but there were several things that seemed problematic to me.  

For starters, there are two lines leading to two metal detectors for the potential jurors to go through on the way inside.  Each one has those little stickers on the floor to mark appropriate social distancing.

There are about twelve of those little social distancing stickers between the metal detectors and the door in each line, so mathematically, there will be twenty-four people in line in that area.  Everybody else will be lined up outside, waiting to get into the building.  I didn't get a close-up shot of it, but I'm talking about the area under the overhang in front of the building.

There are some signs there that tell people to stay six feet apart, but as of this writing, there isn't anything other than that to ensure social distancing outside the doors.

Once the potential jurors clear the metal detectors, they check in at a kiosk (using those single-finger condoms to register their presence) before going into the main pool room where they will wait to be called into smaller breakout panels.

The potential jurors will then be called out of this area into their panels for trial.  As of right now, there is only one room for actual jury selection that has been built out.  However, we were all told that they are building out this area into three individual rooms for jury selection.  The plan is to have 8 feet high partitions, with drop-down, soundproof "blankets" separating those three rooms.

As it currently stands, only one room is ready, and that's the room profiled in the Houston Chronicle where the Grand Juries were selected a few weeks ago.  The potential jurors who are guided to these rooms will be issued face shields to go over the mandatory masks that they will already be wearing.

Now, this picture doesn't really do the space justice.  It's looking dead on at the center section, although there are two additional sections to the left, and at least one section to the right (maybe two, I don't remember).  If you look closely, you may see little orange markers on every fifth seat, denoting where potential jurors will be seated in accordance with social distance.

If you'll remember, this area needs to accommodate roughly 65 potential jurors on a felony panel, and given the spacing, that takes us up around fifteen rows.  If you look closely, you may see TCDLA President Grant Scheiner raising his hand on that last row.  If you think he's hard to see in this picture, you have no idea how hard he was to hear.

Have no fear, though.  We were told in a meeting the day before that there will be helpers running up and down the aisle with "boom mics" to help us hear what those folks in the cheap seats are saying.

Speaking of what people are saying, Judge Schaffer told us during our tour that jurors would be required to lower their face masks when answering questions, but it would be up to the individual judges as to whether or not they kept their masks up or down during those times when they were not specifically answering questions.  And by the way, everyone (including the attorneys) will be wearing the face shields at all times. 

So, let's take a gander at what this will effectively look like during jury selection.

A lawyer will ask a question of a juror and will need to run up those stairs to engage with them if he or she wants to see the facial expression of the juror when they answer that question,  In the meantime, rows and rows and columns and columns of jurors will be behind that lawyer while he gets the answer from the one he or she has posed the question to.  Making the (wildly presumptive) assumption that the other jurors can even hear the response from the queried juror, it will be utterly impossible to see how the other potential jurors react to that question.

Most lawyers have at least one additional lawyer sit with them during a trial to help them take notes on the panel, but under this system, a lawyer is going to need five to six lawyers sitting with him or her to take notes.  This doesn't even begin to factor in those questions or responses that might draw objections from the opposing side and rulings from the judge.  

Other things not factored in:  the role of interpreters for non-English speaking clients, accommodations for handicap jurors and/or attorneys, time limits, potential visual aids, jury charts, and common sense.

For anyone who has ever picked a jury, it is patently obvious that this set up is absolutely not conducive to effectively picking a jury.  There is no way to see those time bombs.  Not even when they are sitting right behind you. 

Any attorney who willingly agrees to this set up is committing malpractice, in my opinion.

So, here's where things get interesting.

Apparently, the Powers that Be who invited us out to this tour of NRG Arena assumed our reviews would be positive.  As I mentioned above, nobody blinked when we were all taking photographs and videos.  I posted that picture of Grant Scheiner in the back row on Facebook with a semi-sarcastic comment about not being able to hear.

So, I was kind of surprised when I got back home from the tour to receive a message from my answering service reflecting a phone call from Clay Bowman, the District Courts Administrator.

I'd gotten an e-mail from Clay, too.

So, I called Clay back.  He seemed a little nervous and just kept insisting that he was just relaying a message from Judge Schaffer. 

Apparently, that message was that if I didn't have anything nice to say, then I didn't have permission to use a picture of NRG Arena at all.    I responded that I found that pretty confusing in light of the pictures being utilized in the Houston Chronicle article and Marilyn Burgess's YouTube video.  But, those were different.  Those portrayed the use of NRG Energy in a positive light.  Mine did not.

So, I took my picture down and replaced it with a post explaining what had happened.  I think it ended up being a crystal clear example of the Streisand Effect. The reaction to that was far angrier than my original post of Grant in the back row.  I also talked about what happened on Reasonable Doubt.  I heard from several attorneys who expressed their opinion that while filming or photographing a criminal proceeding must be permitted by a judge, a still photo of a bunch of mostly empty seats didn't fall under that description. 

But to be on the safe side, I heard from a few judges on the misdemeanor and felony side of things who were more than happy to give me permission to use my photos, because they believed they promoted the transparency the system needed.  Shout out to Judges Andrew Wright and Brian Warren for the judicial blessings!

And to Judge Schaffer, I'm sorry for the misunderstanding.  I know you and a great many other people are doing the best you can to make this system work.  Respectfully, I just disagree that it will.  I think it puts jurors' health at risk, and I think it will deprive my clients of a fair jury to hear their cases.

I'm sorry to hear that you feel I need permission before I can use a picture of an empty bunch of chairs to express that.

It seems like there are much more important things at stake at the moment.


Anonymous said...

Look, I know there are no easy answers. This pandemic has wreacked havoc on every aspect of society and criminal justice has not been spared. But like you Murray and many other people said, an unfair trial is worse than no trial at all. As defense attorneys, we want more than anything for our clients to have their days in court and possibly get out of that germ-infested jail. However, I would be doing my client and my profession an injustice if I blindly accepted any trial process for the mere sake of having one. I know those involved have spent an extraordinary amount of time trying to come up with a way to have trials. And I commend them for thinking outside the box. However, my problem is that it seems more important to them to have a system, any system, in place than it does to make it fair. I'm sorry but anyone who looks at that photo of Grant on the back row of jury selection either must admit this system won't work or is wilfully blind to it's lack of fairness. That's absolutely ludicrous to think we can fairly represent our clients in that environment. The powers that be need to remember it's not about cranking out trials and keeping dockets going. There are human beings with families and people who love them who will be horribly affected if this process isn't fair. If protecting the rights of the accused is what these folks are most worried about, as they claim, they will accept the fact that this process will not allow for the fair trial that the defendants deserve and our constitution requires. And don't even get me started on the make-up of the jury panels who will show up for jury duty during a pandemic. Give me a break! And we could all discuss the health aspects of this forever. Bringing this many people together during a pandemic is dangerous, regardless of the precautions taken. Unfortunately, we're in unchartered water and the bottom line may be that there is no way to have fair trials right now. And if that's the case, we need to accept that reality and not try to force it. We MUST give defendants fair trials. It's a moral imperative. And we must protect the public. Sometimes the best answer is realizing there really is no answer, at least not right now.

Chris Daniel said...

I guess Marylin knows best. I still haven’t been asked to help with this mess despite all the disasters I helped the county through with Juries over an 8 year period.

Melissa Morris said...

Thank you. I could not imagine nor explain what it would look like to my clients. This is very helpful and fair, per usual.
Melissa Morris

Anonymous said...

Sounds like this system will be fairly unfair.

Jason Truitt said...

Do you know if any civil lawyers were asked to attend? I want to start with the fact that I have tried several cases in front of Judge Schaffer, and found him to be fair and follow the law. And he likes lively discussion. He will let you know when he's upset, and the next time you see him and think he's going to take it out on you again, you find out that he lets it go just as fast as long as you had a good faith reason for doing what you did. And he is charged with a difficult job.

But from what I have heard, civil lawyers (including me) are also pretty much universally against this plan. I know y'all see our cases as less important, and where liberty is concerned I do too, but not where my job is concerned. With every trial, civil lawyers are interviewing for their job all over again. Our clients take note and will look for a new firm to hire if they feel you dropped the ball. That's not to say my job is the most important issue to me here; it's certainly not. And in the larger picture, your criminal cases are where I have the greatest concern, but this system won't work for any type of case because even a civil litigant can be asking for something life-changing, or be accused of doing something that, if a jury agrees, will change their life if found liable.

I expected that trial lawyers (not just plaintiff's lawyers, who have co-opted that term) would have been given notice of this chance to see the facilities. I planned to attend, and would still enjoy a chance to see them and comment.

Judge Schafer knows I'll speak my mind. Hopefully he knows it will be constructive; that will certainly be my intent. But if not me, please find some diverse group of civil lawyers and get their input. I can tell you that Plaintiff's lawyers only make money if cases settle or go to trial, and nothing makes a case settle like a looming trial setting. If they tell you they don't like it (as many have told me), it is against their direct financial interest and bears credibility. Me? The longer I have a case the better it is for me, but I love trial. But not a trial done improperly--I've been involved in several of those, and left every one (even the ones I won) thinking justice wasn't served.

To The Hon. Mr. Daniel: Maybe your work during your eight years is why they have not asked you. If you have some information you think will help, this is a pretty good forum in which to reveal your brilliance. There have been several commissioner's court meetings at which you could have had your input. I've seen numerous open letters related to various pandemic-related issues, none bearing your name that I recall. We are all open to suggestions and most of us are willing to have our minds changed.

What we will not lay down for, however, is a system that is more dangerous than the last, that is more likely to render wildcard results for the sake of ticking the case count down a little bit.

Troy McKinney said...

I can hear court reporters screaming already. They need to be able to see people when they are talking just as much as they need to hear them.

Success in picking grand juries with this set up is no evidence that it is suitable for any trial.

Jury selection is going to be an all day event with this set up. Forget an hour per side.

The road to Hell is paved with good intentions. This set up is a bullet train to the depths of Hell. The real losers are not the lawyers, The real losers are the citizens in civil and criminal cases who will have their lives permanently affected by this man made and avoidable disaster.

"I cannot see or hear" is going to be the new "I cannot breathe." Catastophic results are just as systemically certain.

Jay Karahan said...

Excellent expose on the new jury “selection” courtrooms. I am hard-pressed to add to Troy’s and your observations other than to say this: there is a sixth sense that good trial lawyers and judges must have in addition to absorbing the sights and sounds of a robust jury selection, all of which enable them to exercise good judgment in the process. What Harris County now offers for jury selection at NRG leaves everyone charged with fulfilling their respective due process duties without the real working tools of trade necessary to exercise that good judgment - they are now expected to do their job mostly deaf, dumb, blind and perhaps even unaware. I dissent.

Anonymous said...

Great read, explains the problems well. I dread the day I'm called on to be a part of a jury selection in that venue.

Anonymous said...

This is ridiculous. Trial, especially for those in custody, need to happen ASAP. But it needs to be done right. This is an obviously well intended but completely unworkable approach. Karahan is absolutely right. As a prosecutor, I would absolutely join with the defense in objecting to these conditions.

Anonymous said...

I'm curious if anyone has consulted the court reporters who will have to endure -- yes, endure this torture. If anyone thinks it's bad for the attorneys and the judge to hear what people are saying, how ridiculous to think that a court reporter will be able to hear what's going on in the back where Grant is sitting, take all that is said down verbatim and most of all, produce a transcript without an incredible amount of "inaudible" in the record. Just a thought...that no one has really thought of or probably even cared to ask a reporter about.

Bernie Palmer said...

Man, I am so glad to be 50 miles from downtown Houston, never to return. What the court reporters, clerks, deputies, and of course the attorneys trying to be effective must be going through is hard for me to wrap my head around, for sure. I'm 66 now, and no one really likes to get older, but I'd rather load a beer truck in 95 degree heat than be anywhere near all this craziness. Some of you down there are left who were around in the "good old days", but not too many, I suspect. Those of you fresh out of law school or brand new to county employment, my heart goes out to you. The good news for you is that this "new normal" will be all you know in the CJ system. Those who came before, yet still need to work down there have even MORE of my sympathy. To those who remember me, I miss you guys. Be safe, and hang in there.

MDW said...

Murray, During your tour, did anyone mention how much the NRG Arena (owned by Harris County Sports Authority)was charging Harris Cty Clerks Office? I can only imagine the millions being 'reprogrammed' for a system that needed more input from more folks at the table! And oh my goodness I completely agree with Jay and Bernie, and Murray-your letter was way more than informative. thank you Bud


Anonymous said...

Okay, so everything being proposed is horrible, somehow or another will reduce the effectiveness of the defense but not prosecution, and is just plain unfair in regards to the Constitution (exaggeration of course)? I'd like to hear about reasonable solutions more than bellyaching and given the brain trust of local lawyers, some of whom are literally geniuses in a way few casual observers ever give them credit for, what would you do differently? On other blogs, some that are linked to here, the suggestions amount to letting the inmates run the asylum or handing out free passes. So lets hear some better ideas.

Anonymous said...

So, Murray give us your plan.

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