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.

The Nuts and Bolts of Reopening Jury Assembly

As I mentioned in my last post, I consider Judge Susan Brown to be a friend, despite the fact that I occasionally disagree with her (as I did in said last post).  So it was no surprise to me when I woke up this morning to find that she had already sent me a text message in response to my post from the night before.

So, I gave Judge Brown a call this morning and we talked for about an hour and a half about the often complicated (and confusing) details that are going on behind the scenes to manage the Criminal Justice System -- in Harris County and across the State of Texas.  I learned quite a bit of information that I didn't know before and I thought it was important that any attorney practicing in Harris County understand it.  

It's complicated so I will try to organize this in a way that makes sense.

1.   Judge Brown taking exception to this being labeled as "her plan" is understandable.  It is far more complicated than that.

When COVID first started taking hold around March, the Texas Supreme Court tasked the Office of Court Administration (OCA) with sending a letter to all of the individual judges (from Justices of the Peace on up), instructing those judges to formulate a plan that would ensure court operations were running safely before allowing in-person settings.  Personally, I don't consider that to be a controversial goal to pursue.  Obviously, the administration of Criminal Justice wasn't something that could be put on the backburner.  

According to Judge Brown, the OCA provided a template to the different jurists that they had to comply with.  That template required approval from both the local county governments across the State, as well as the Health Department before it could be considered for approval by the OCA.  Without the OCA's approval, the court in question could not have operations.

A chain of command was established to help facilitate the proposal of these plans to the OCA and the subsequent approval of them.  As the Presiding Judge (or "PJ" as the cool kids call it, apparently) of the 11th Administrative Judicial District, Judge Brown's role was to work alongside local judicial entities in communicating the plans.  In Harris County, 152nd District Court Judge Robert Schaffer holds the title of Local Administrative District Judge (LADJ -- I learned a lot of new acronyms today).  In this chain of command scenario, Judge Schaffer is tasked with being the coordinator for all of the District Court Judges in Harris County (Civil, Criminal, Juvenile, Family, Probate, etc.) and facilitating a plan between those judges and Judge Brown.

So, when Judge Brown takes exception to the NRG Arena Plan being called "her plan," it's because there are a lot more people involved in this than just her.  She described herself as more of a facilitator than a planner in the process, noting that she has also been tasked with facilitating plans for the other counties in the 11th Administrative District.

2.  There are Phases

The letter that I mentioned above (the one that went out to all the different judges in March) only addressed the first step of requirements holding in-person appearances.  It was compliance with those requirements set out by the OCA that allowed the individual District Courts to open courtrooms within the CJC and Civil Building for in-person appearances.  ("Yay!" said no one.)

Judge Brown pointed out that there had been a template that had to be filled out for the basic step of in-person settings, and that (as of this writing) no such template for jury trials is even in place yet.  In other words, there is still a lot to be accomplished before jury trials start happening. 

Additionally, there are two phases within the planning of jury trials, which Judge Brown described as the "Facilities Plan" and the "How to Do Jury Trials" plan.  The information regarding NRG Arena being procured for jury assembly is obviously part of the facilities plan, and that is the phase that those making the plans are still actively in the middle of.  

The phase of "how to do jury trials" is still to come and Judge Brown acknowledged that there were going to be a lot of kinks to work out.  For instance, the jury rooms in the CJC and the Civil Courts Building are two small mathematically to permit 12 jurors and an alternate or two to socially distance inside of them.  She noted that the plans being informally discussed involved trials occurring in one courtroom and an adjacent courtroom being utilized as a de facto jury room.  (NOTE:  remember this tidbit because I'm going to come back to it.)

3.  How we got to NRG

Judge Brown noted that our beloved underwater jacuzzi Harris County Jury Assembly Building is still undergoing repairs for damage sustained during Hurricane Harvey.  I was under the impression that Harris County had gone back to using the previous jury assembly room in the building that houses the Harris County Law Library.  Apparently, I was mistaken about that.  The jury assembly room is currently a hastily constructed room inside the Administration Building and it was deemed too small to be able to accommodate a panel larger than 40 people with social distancing in place.

She stated that there had been discussion of holding jury assembly at the George R. Brown Convention Center, but that idea had fallen through for some reason.  At some point, the people at the NRG facilities got in touch with Harris County officials and ultimately an agreement was made that NRG Arena would be the best place to conduct jury assembly when it came time to do it.

4.  The Texas Supreme Court reigns Supreme

Judge Brown repeatedly emphasized that all of this planning for jury service is an effort to be prepared when the Texas Supreme Court mandates that Texas Courts are allowed to resume jury trials.  As it currently stands, that target date set by the Supreme Court is September 1st.  I anticipate that as COVID numbers continue to increase, that date is going to be pushed back again.  And probably again and again for the foreseeable future.  

She noted that the plan of all those involved was to be ready when the Supreme Court announced it was time to go back to work.

5.  Yes, there are exceptions to that shifting date set by the Supreme Court

Judge Brown acknowledged that the Supreme Court's rules currently provide that jury trials can be held right now under certain circumstance, and noted that Bowie County had recently held jury selection in a school auditorium.  She noted that Bowie County didn't go rogue in doing this, but had formulated a plan that had been approved by the OCA prior to holding the trial.

We didn't talk specifically about NRG Arena being used for jury assembly purposes in the selection of Grand Jurors earlier this month, so I'm not sure if that was something that had to be approved by OCA or not.  She did indicate that normal jury assembly operations were not set to begin prior to September 1st and that if the Supreme Court pushed that date back, jury assembly would be pushed back at NRG Arena in compliance with the Supreme Court's order.

6.  Who all has input into how things are going to be done?

Judge Brown said that by virtue of the letters sent to individual jurists by the OCA in March, all judges across Texas and Harris County were per se invited to give their input.  She noted that not all judges were coming to regular meetings but assumed that their interests were being represented by Judge Schaffer in his capacity as LADJ.

She stated that there were two standing committees currently in Harris County -- a jury committee and a reopening committee -- and that both committees were open to all of the judges.  She acknowledged that these meetings were not open to anyone other than the judges.  Specifically, she noted that the elected District Attorney, Kim Ogg, was not a part of either the reopening committee or the jury committee.

Judge Brown said that immediately following the jury meeting and the reopening meeting, they have been holding a "Department Head Meeting."  She stated that at this meeting, non-judicial people are allowed to attend for the first time (in the scheduled chain of events).  She said that D.A. Ogg's first opportunity to be heard comes at this juncture and that Defense Bar representatives are welcome as well.

7.   Random thoughts and things of interest

Judge Brown noted that Impact Court as it currently operates will cease to exist (sort of) under the reopening plans, and logistically, that makes sense.  Since the idea of Impact Court (in theory) was to establish additional courts when all of the other courts were running at full capacity, it becomes unnecessary because "capacity" became drastically redefined by COVID.  

As I noted above (in that "tidbit" that I told you to remember), if courtrooms are being conscripted into duty as de facto jury rooms, it's going to be a really really long time before Harris County sees all four courtrooms on a floor of the CJC operating at the same time.  There isn't going to be a need for Impact Courts, because there isn't going to be any physical room for Impact Courts.  She did note that the entity known as "Impact Court" would continue to exist, but for different reasons.

Although she didn't completely confirm this, she indicated that those cases going to trial would be the oldest ones where the Defendant was still in custody, which makes perfect sense.  In a hypothetical situation, if the top three oldest cases were all filed in the same court, the judge of that court could go to trial on the oldest case, and an Impact Court judge might be called in to try the second oldest case.

She agreed with me that the District Court Judges would be hard-pressed to justify going to trial on a bond case while custody cases set for trial remained.

In the end, she stated that District Court Judges would still be in charge of their own trial dockets and nobody would be forcing them to go to trial if they didn't want to.  She laughed at the idea of her forcing judges to go to trial against their will and wondered why people would think she would do that if she could.  I told her that we all just remembered her excitement about going to trial from her days in the 185th.  She laughed and said she understood.

8.  Takeaways

Despite these clarifications, I still think it is important to encourage Harris County Judge Lina Hidalgo to remove Item 15 from Tuesday's agenda, as I covered in my last post.  My reasoning doesn't have anything to do with Judge Brown, however.

My reasoning is that, in my opinion, if Judge Hidalgo approves the almost $2 million for security at NRG (along with any other funding), she will be relinquishing any remnants of local control she has of how jury selection is done in Harris County.  In essence, she will have written a check to State control that can be cashed at any time.  

Throughout the COVID crisis, Judge Hidalgo has consistently erred on the side of caution when it came to governing in a pandemic.  She's faced relentless backlash from the State in the form of Governor Abbott saying she overstepped the bounds of her job.  She told people to put their masks on and he told them it was fine if they took them off.  Two months later, and now it is Abbott telling everyone to put their masks on and he's about to shut down the State.

She was right then.  If you disagree with me, feel free to come at me in the comments.  

I've got a lot more faith in her decision-making ability than I have in our State Government's, and I hope she doesn't give away that control 

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 1^st.  That may change by the time I'm actually done writing the post.

But September 1^st 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 11^th Administrative Judicial District (and for those of you brand new to Harris County, the former judge of the 185^th 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.  

Newman & Chapell, PLLC

For those of you who haven't heard already, I'm beyond excited to announce that former Harris County Special Crimes Prosecutor and Felony District Court Chief, Cheryl Chapell, has agreed to join me in forming a partnership as Newman & Chapell, PLLC.

I first met Cheryl several years ago when she was a new Felony Three and she was completely thwarting my attempts to persuade her chief to dismiss one of my cases.  Luckily, she ultimately moved into a different court and I was finally able to get the case dismissed.

A year or so later Cheryl had been promoted to Felony Two and she and I ended up trying what would be her first Murder case against each other.  As you can imagine, Murder cases can often be very complicated cases to both prosecute and defend, and the stakes are very high.  It can be an extremely stressful experience if you are new to it. 

But it never appeared to be stressful to Cheryl.  She was great to work with during the weeks leading up to trial.  She went above and beyond to make sure she had done everything she needed to in order to be ready.  She was professional and helpful in making sure that I had all the discovery available on the case.  She was ethical and above-board throughout.

When it came time to try the case, she didn't seem like a new Felony Two trying her first murder.  She was confident and in charge of her case.  She tried it strategically.  The jury loved her.  She tried the case like an experienced Chief, far more skilled than any other prosecutor at her level. 

And she was great to try a case against.  In stressful trials like Murders, it is very easy for the prosecutor and defense attorney to quickly get under each other's skin and end up ready to kill each other.  That wasn't the case with Cheryl, though.  She remained confident and pleasant throughout.  At the end of her closing argument, I was certain that my client was going to be convicted.

It was a tough set of facts though, and I had a lot to work with.  The case ended in a hung jury.

When the case was over, I was a big fan of Cheryl's.  As it turned out, pretty much every defense attorney I know that tried a case against her ended up being a big fan -- even when she whipped their butts in trial.  She quickly became a prosecutor within the District Attorney's Office whose reputation preceded her as one of the Office's most talented and formidable trial lawyers.

A year and a half ago, I had another case against Cheryl (and her co-counsel, Josh Raygor) that was a little less debatable than the Murder we had tried against each other before.  She was polite, friendly, courteous . . . and she beat my ass up one side of the courtroom and down the other.  The only saving grace that I was able to take away from the case was that the jury deliberated over a day before returning a guilty verdict.  

Last summer, I began thinking of expanding my law practice, which was a big move for me after having been a solo practitioner since leaving the D.A.'s Office at the end of 2008.  There were a lot of things to consider.  I thought about hiring a younger associate but ultimately decided against that.  I wanted to work with somebody that I didn't have to teach.  I wanted a partner -- somebody that I knew could do the job and I would never have to worry about.  I knew that I wanted a hardworking, kick-ass trial lawyer who could, at least, loosely tolerate working with a slightly obnoxious partner.

There was only one name that came to mind.

So, I met with Cheryl last summer and tried to recruit her to be my law partner.  I made her the best pitch I could possibly muster.

Unfortunately, she wasn't ready to leave the Office at that time.  She didn't turn down the offer, but she wanted to give it another year or so before even thinking of leaving a job that she loved and was good at.  We put the discussion of partnership on hold until mid-2021.

But then, Kim Ogg happened.

As I wrote in March, our elected District Attorney spent the early days of the COVID pandemic initiating a witch hunt into determining which prosecutors had received a text message deemed to be embarrassing by Ogg.  Cheryl was one of seven prosecutors who had received the unsolicited text message and had not forwarded it to anyone.  Despite this, she and the other prosecutors were interrogated, temporarily stripped of their county computers, and were asked to turn over their personal cell phones as proof of their loyalty.  

Cheryl refused to turn over her personal phone, as did the others.  As a result, she received a disciplinary letter in her personnel file.  Michael Hardy wrote this article in Texas Monthly about the entire embarrassing ordeal.

Cheryl had had enough.  Last week, she dropped her letter of resignation to Ogg and sent a corresponding All Prosecutors e-mail that you might have heard about.  Harris County lost one of its very best prosecutors and I gained a law partner a year earlier than I thought I would.  

I suppose I owe Kim Ogg a thank you note.

I could not possibly be happier to have Cheryl Chapell as my new law partner.  I'm especially glad that this pretty much guarantees that she won't be beating me up in trial anymore.  As Newman & Chapell, we both look forward to the future of representing our clients in Harris County and across the State of Texas.

Early Voting Has Begun for the 2020 Runoff

With everything going in the world, it is easy to overlook the fact that early voting began on Monday for all Texas runoff elections, including a few that affect the Harris County Criminal Justice System.  Election Day is officially on July 14th.

Voting locations have taken all the necessary precautions to ensure that voters have a safe experience while voting.  We've all changed our routine habits and safety precautions over the past several months because of COVID, but if you have felt safe enough to venture out to go to the grocery store, for fast food, or get gas for your car, you should feel safe enough to go vote.

As always, there are multiple voting locations open around Harris County, and you can find them by going to https://www.harrisvotes.org/ for more information.

IMPORTANT NOTICE:  You can vote in the runoff election EVEN IF you didn't vote in the primary back in March

There are no Republican runoff races on the ballot this year that directly affect the Harris County Criminal Justice World with the major exception of Sheriff.   Candidates Joe Danna and Paul Day are facing off against each other to see who will challenge incumbent Sheriff Ed Gonzalez on the ballot in November.  I'm not personally familiar with either Mr. Danna or Mr. Day so I don't have a recommendation here.  

Whoever wins the runoff will have a very uphill battle against Sheriff Gonzalez.

On the Democratic Ballot, there are a handful of contested races that deserve your attention. 

339th District Court

In the March primary, Harris County Assistant Public Defender Te'iva Bell garnered 44% of the vote in a three-person contest.  Her opponent, Candace White, received 36%.  As I noted in my earlier write up on the primaries, I don't know Candace White.  I see that she is a municipal court judge, which handles only low-level misdemeanor cases.

By contrast, I've known Te'iva Bell since she was a brand new prosecutor at the District Attorney's Office.  She was my friend then and I'm proud to say that she is still my friend.  After leaving the D.A.'s Office, she went on to become one of the original defenders at the Public Defenders Office.  She has become a leader and respected voice in that Office, handling some of the most serious cases.  She is by far the most qualified candidate.

My Vote:  Te'iva Bell

Justice, 14th Court of Appeals - Place Seven

My friend (and wife of my friend and fellow defense attorney, Lewis Thomas) Cheri Thomas is in a runoff for Justice of the 14th Court of Appeals against Tamika "Tami" Craft.

Cheri has an amazing legal resume after having graduated from the University of Texas Law School with honors.  She worked in a Federal clerkship for the Honorable Jorge Solis in the Northern District of Texas before going to work for Baker Botts.  From Baker Botts, she went on to become a partner with Stuart, PC.  In 2017, she became a staff attorney for the 14th Court of Appeals, where she has spent the past three years working on both civil and criminal cases.  She is uniquely qualified for the job.

Ms. Craft's campaign website does not list have a detailed list of her professional resume, but I found this interesting article on law.com that interviewed both candidates, and left me with a lot of questions about her background.  I encourage you to read it and come to your own conclusions, but I think it is pretty clear that Cheri has more experience for this position.

My Vote:  Cheri Thomas

And also . . .

State Senator, District 138

If you happen to live in District 138 (and if you don't know, go check,  You really should know these things), HCDA alumni, defense attorney and my friend Akilah Bacy almost avoided a runoff with an impressive 46.77% of the vote in a three-person race in the March primary.  If you are voting in the Democratic Primary in District 138, please go vote for Akilah!

Not my District, but my vote would totally go to:  Akilah Bacy

Whether you agree with my recommendations or not on these elections, please remember that ALL candidates on both sides of the ballot work their butts off on campaigns for the opportunity to serve the public.  They ALL deserve your consideration and they ALL deserve your participation in the voting process.  

Don't let COVID keep you away from voting.  

Boss Ogg Rides Again

As I've written many, many times before, Kim Ogg is no prosecutor.  

She's just another ambitious politician who currently holds a political office that happens to be that of the county's top prosecutor.  Long before her successful election in 2016, she had been a Republican and then a Democrat.  She shifts with the wind for whatever benefits her.  In her three and a half years as District Attorney, it is a wonder that she doesn't have whiplash as she has bounced back and forth between portraying herself as Ogg the Progressive and Ogg the Law & Order Prosecutor.

Kim Ogg has demonstrated time and again that she resembles Huey P. Long far more than Johnny Holmes when it comes to being a District Attorney.  

Ogg has unabashedly used asset forfeiture money acquired by the Office (that's the money the Office seizes from people charged with crimes under the theory that they were illegally gotten gains) to hire her political allies under the guise of them working in "community outreach" (see former Houston Police Department Chief and former HCDA Candidate Clarence Bradford, and former City Councilman Dwight Boykins, whose temporary tenure apparently only lasted through Ogg's contested Democratic primary this spring).  Then there was the hiring of former city councilman Mark Goldberg as a "baby" prosecutor who hung out in the misdemeanor trial bureau just long enough to do this before being promoted to the upper administration.

Speaking of Mark Goldberg, a quick check of the Harris County District Attorney's roster has him listed as belonging to the somewhat vague "Administrative Division."  However, Mark is signing off on his e-mails as "Community Outreach Committee Member" these days and that's where our latest story begins.

On Tuesday, an "All Prosecutor" e-mail went out to the Assistant District Attorneys employed by the citizens of Harris County, but under the supervision of D.A. Ogg.  The e-mail was from Boss Ogg herself.

The subject title had the all caps command to "VOLUNTEER" for an event arranged by The Ministers Coalition of Harris County.  As noted in the e-mail, the event was a "voter registration drive" coupled with a "food giveaway" where "DA Kim Ogg will be speaking."  According to Kim's e-mail, she was "looking for volunteers."

But here's the funny thing about the word "volunteer."  It's kinda-sorta a derivative from the word "voluntary," which means a free-will decision to do something.  Or at least, that's how I learned it, but then again, I am an Aggie.

But the next paragraph threw my entire understanding of the word into question by saying:  "Part of every employee's performance evaluation includes a grade for personal development.  This includes community activities and volunteering for projects like this."  She then encouraged people to "apply" (as if there was some sort of honor in being selected for this volunteer opportunity) with Mark Goldberg at his county-issued e-mail address.

Significantly, the e-mail was signed by Kim.

So what this e-mail was really saying was: "Hey, it's me.  Your boss, Kim.  I'm going to give some free stuff to people while registering them to vote so that they will have some real positive vibes toward me in November when it's time to vote.  I'm going to need some of my people to help me pull off this campaign stunt.  You are going to be graded on your performance evaluation by whether or not you help me.  Hugs and kisses, Kimbra."

Depending on how you look at it, that type of thing could be what we call "illegal."  Under some interpretations, it looks a little like Official Oppression.

At a minimum, it is insanely unethical.

It took a few seconds for someone to grab a screenshot and ultimately send to me.  I exercised my discretion for about three seconds before sharing that screenshot on Twitter.  It started popping up on Facebook pretty soon after that.  The condemnation of the e-mail was so strong that Kim did something she never does.

She walked it back.  

Well, I mean, she "walked it back" for her, by which I mean, she made somebody totally fall on the sword for the e-mail that she TOTALLY SIGNED WITH HER OWN NAME AND SENT FROM HER OWN E-MAIL ACCOUNT.  

That person was Misdemeanor Two, no wait, I mean Upper Administrator, no wait, I mean Community Outreach Committee Member Mark Goldberg, who wrote the most stunningly "Good God, how stupid do you think we are?" retraction e-mail in the history of retraction e-mails.

I mean, this e-mail has been out for a day and a half and I still can't read it without laughing.

"Late yesterday afternoon an email went out from DA Ogg that should have gone out under my name."  -- man, I wish I had a dollar for all of those e-mails that I've sent to people that inadvertently went out under somebody else's name.  It happens all the time.

"What you actually got was a draft form with some misinformation that was inadvertently distributed in that form."  -- You know what is worse than accidentally sending out an e-mail in the wrong person's name?  When you send out completely wrong stuff under that wrong person's name!

"Additionally, I would like to add that no one is ever required to volunteer."  -- please totally disregard that whole thingy we said early about volunteer or be punished.  You may now resume your original understanding of the word "volunteer."

To make matters even more interesting, the Houston Chronicle's Samantha Ketterer tweeted this about Goldberg's retraction:

I have to give Goldberg credit.  When he falls on the sword for his boss, he does it with gusto.  

His retraction basically reads like this:  "Hey Guys, Mark Goldberg here.  Yesterday, I went and got on Kim's e-mail and sent out a bunch of stuff that was completely made up,  I mean, all of it was totally fake.  I said there was this event.  I said Kim was going to be speaking.  I said you had to go volunteer for it or you'd get bad evaluations.  It was all bullshit.  Just kidding.  My bad.  Sorry for the misunderstanding.  Sincerely, Mark.  P.S.  Please believe me on this e-mail.  I really really need you to believe me."

I mean, damn, if what Mark said he did is really what he did, Kim Ogg should totally fire him, right?  I used to send practical joke e-mails from other people's computers back in the day, but I never had the guts to do that to the elected D.A!  Damn, dude.

Back in the old days, I used to call Pat Lykos' upper administration the Gang Who Couldn't Shoot Straight.  Kim Ogg's group makes them look like Seal Team Six.

The irony is that if what Mark said in his "retraction" is true, he's actually doing something worse than misinforming the assistant district attorneys.  He's acknowledging that he has the authorization to send campaign-style e-mails from Kim's e-mail account to all prosecutors.  Kind of calls into question what exactly the taxpayers are paying him for, doesn't it?  

It's just another day in the life at the Harris County District Attorney's Office under Boss Ogg.