A Proposed Alternative to NRG Jury Selection

Over the weekend, I received a couple of comments on my last blog post wanting to know what my plan would be for getting jury trials back up and running.  Those are fair comments.  I try to suggest alternatives to plans I criticize, but I recognize that I don't always do so.

When I was walking around NRG Arena and looking at how woefully insufficient it was for the purpose of picking a jury, I mentioned to one of the prosecutors there, Paul Fortenberry, that sometimes there just isn't a solution.   Not having a solution doesn't reduce the urgency of the situation.  As humans, it is our nature to be averse to the idea that there may not be a viable solution in a crisis.  

The negative reaction from criminal trial lawyers (and by that I mean both criminal defense attorneys and prosecutors) to the NRG Arena Plan is two-fold. The first being that nobody bothered to make any attempts to gather input from any of us before diving headfirst into the plan.  I recognize that this is going to make the Powers That Be respond with "Oh, so you're just mad because you weren't included!"  But that's not where I'm going with this.

If the actual trial lawyers had been consulted from the beginning, maybe we wouldn't have ended up in a contract deal with NRG that was too big to fail -- or get out of.  I can't imagine a trial lawyer on earth who would have ever endorsed the idea of picking a jury with such bad audio and visual conditions.  Maybe if trial lawyer input had been invited (and given any weight) on the front side, the County wouldn't have been so quick to pull the trigger on NRG.  If they hadn't pulled the trigger on NRG, they wouldn't be so firmly entrenched against any other ideas.

The second factor in the negative reaction from criminal trial lawyers is based on the fact that we have a different set of factors at stake than civil trial lawyers.  Please understand that I'm not trying to diminish the importance of a civil trial.  I'm really not.  But the differences between a civil trial and a criminal trial are glaring when you put them to the test under the NRG Arena Plan.

To start off with, civil firms, especially the larger ones, might actually have the capacity to bring enough personnel to NRG Arena and deal with the extraordinarily wide layout where venire members will be seated.  They have associates and a stable of clerks that can spread out and pay attention to juror reactions and responses.  (NOTE:  Before my friend Jason Truitt starts indignantly telling me how he tries all of his civil cases alone, while fending off a pack of wolves with his bare hands, I realize that this isn't always the case.).  

Additionally, civil jury selection is a different animal than criminal.  I was on a civil panel one time and I was stunned at the differences.  The lawyers pretty much presented their cases during voir dire and got relative commitments from all of the potential jurors.  It was crazy!  They also seemed to be provided with as much time as they needed for voir dire.  Must be nice.

The biggest difference, however, is that a jury verdict in the civil world often seems (at least to an outsider) to be one of many steps to reaching the final resolution of a case.  It usually appears to be far from the last one.  For reasons that escape me, judges cut awards from juries or negotiations continue about what will actually get paid out after the jury has spoken.  For the criminal case, it ends when the jury renders its verdict in 99% of the cases.  If the Accused is found Not Guilty, the State doesn't get a second shot at it.  If he or she is found guilty, odds are slim that the case will come back on appeal.

The criminal jury trial is tried with (in most circumstances) irreversible consequences.

The reason that I'm revisiting all the reasons to hate the NRG Arena Plan is that what my suggestion would be as an alternative would be a radical departure from the NRG Arena Plan.  It would be expensive, controversial, flawed, and pretty widely disliked by the judges.  Please remember that when I began this post, I noted that sometimes there just wasn't a good solution.

My suggestion is comprehensive questionnaires and individual Zoom voir dire on all cases -- just like on a death penalty capital case.

For those of you who are outside of the Criminal Justice World, on almost all cases that do not involve the death penalty, juries are selected in a process where the attorneys ask a group of about 65 potential jurors questions over the course of a few hours.  The attorneys can ask individual jurors specific questions if they need to, but generally, the entire panel of 65 will be there when those questions are asked.  At the end of the process, strikes are made and the first 12 people left standing become the jury.

In a death penalty capital (under normal circumstances), more time is spent selecting the jury for obvious reasons.  In these cases, a large panel is generally brought over for an initial voir dire from the court, but then the individual venire members are scheduled to come back at designated times for some solo questioning from the lawyers.   Additionally, jurors on death penalty capital cases are provided with a fairly lengthy questionnaire containing questions relevant to serving on a death penalty case.  In many instances, the prosecution and the defense will read a juror's questionnaire and agree to strike him or her prior to the individual questioning.

My suggestion for selecting a jury in a COVID world is largely based on that model with a couple of relatively minor modifications.  Here are the steps:

1.  Jury summons goes out --  Just like during normal times, the notices will go out in the mail for "virtual jury duty."  Rather than being called into a jury assembly room as they would during normal times, the venire panel will be requested to check-in online prior to their service date and time.  Alternatives for those who do not have internet access will be provided at alternate sites around the county (like a Justice of the Peace courthouse or a library).

2.  Jury Duty Day --  On the day and time, the jurors who have checked in will then be parsed out to their individual courts.  They will then log onto a Zoom (or other conferencing platform) that is specific to the court they have been assigned to for jury service.   There, they will hear a general voir dire from the judge that covers certain issues relevant to the case to be heard.  This could be something pre-recorded or done live.  They will also be provided with an online questionnaire agreed upon by the State, the Defense and the Court.  If they have any type of scheduling, health, or other concerns, they can make note of them in these questionnaires.  

The individual venire members will then be given a date and time to log back in for individual voir dire.

3.  Behind the Scenes --  The State and the Defense will both have access to the venire members' questionnaires and have overnight to read through them and evaluate them.  Like in capital voir dire, agreements can be made by the parties on strikes.  Questionnaires can also cover scaled questions that lead to strikes for cause.  If the State and Defense agree that a juror is gone, they notify the Court for approval and that juror is notified that he or she doesn't need to report for his or her scheduled individual voir dire.

4.  Individual Voir Dire -- When I started to write this post, I envisioned individual voir dire being conducted on Zoom, but the more that I think about it, that doesn't really seem necessary.  If individuals were showing up at slotted times rather than en masse as a group of 65, it would be far easier to social distance.  Most members of the Defense Bar are opposed to Zoom, and this may be an area of compromise.  Personally, I wouldn't mind it either way.  An individual voir dire trumps the basketball arena-style proposed at NRG Arena, even if it is done by Zoom.

5.  Selecting the Jury --  Like with the death capital voir dire, there are two ways of doing this.  One option is that a decision is made after a venire member's individual voir dire over whether or not the State or the Defense wants to exercise one of their peremptory strikes.  If neither does, that person officially makes it on the jury.  The other way is to get a qualified pool of thirty-two potential jurors (that accommodates the 10 strikes each for the Defense and the State, plus 12 jurors, for those of you not accustomed to picking juries) and then making the peremptory strikes.

Personally, I like the latter version because the attorney can make more educated strikes knowing what the entirety of the eligible panel looks like.  However, the first version could potentially be faster.  Either way, it is safe to assume this method of voir dire would take several days, if not a week or so.

The Powers that Be would probably argue that the length of voir dire is too long and that's why using NRG Arena is the better method.  I disagree.  If this method was followed, theoretically, all the courts in the courthouse could pick a jury whenever they wanted to.  Since mass panels wouldn't have to show up in person, it wouldn't violate the rules of social distancing.  The current plan at NRG is to only call four panels at a time, at most.

Even if the argument over expediency is ultimately won by those who support the NRG plan, expediency isn't the most important goal.  Not by a longshot.  Safety is more important.  And more important than both expediency and safety is fairness.  

This method allows both the State and the Defense to accomplish a meaningful voir dire session with the venire panel in a way that the NRG plan doesn't come close to.  Even though I'm sure there are multiple logistical flaws that I'm glossing over, this system is fairer to both sides.

It also makes things a hell of a lot easier for security for inmates in custody to be brought to proceedings by the Sheriff's Office.   

It also might save a little more money than that $16 million (and counting) already approved by Commissioners Court for the NRG plan.  I'm just saying.

Then again, nobody asked me.  

Nobody asked any of us trial lawyers.

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.