Makes You Wonder About Your Jury

I saw this video the other day and it got me to thinking about jury selection and jury deliberations.  How much can we really learn about the folks that sit in judgment of our clients?  Are we ever really getting truthful, candid responses to the questions we ask in a group setting or are they just following each other's lead?  Of course, there is never a way to select a perfect jury.  Our adversarial system ensures that.  But perhaps, if we follow Bennett's simple rules, we will achieve some level of success.  And hopefully, if you end up with an "elevator" scenario, the folks on the elevator end up facing in the direction of reasonable doubt.

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

If You Don't Have Anything Nice to Say...

After the defendant was convicted in the case of State v. Lucio, and the case proceeded to the punishment phase, the jury noticed something conspicuous about the defense case…nobody from the defendant’s family came to the witness stand to testify on his behalf. No poor momma with tears in her eyes. No sister or brother to testify about what a good person the defendant is at heart. Nothing. Just crickets. Curious about why nobody from the defendant’s family testified, the jury sent a question in to the trial judge while they were deliberating on the sentence:

Does the law prevent a family member from speaking during the sentencing phase, for the defendant?

Over defense counsel objection, the trial court provided the following response to the jury:

The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.

Of course, there were two inferences that the jury could reasonably draw from the instruction: (1) none of the available family members could provide relevant information, or (2) the defendant did not want to call any family members because they would not provide favorable testimony.

On appeal, the defense argued that the trial court’s instruction was an improper comment on the evidence. The 2nd District Court of Appeals (Fort Worth) disagreed and the Texas Court of Criminal Appeals granted discretionary review to settle the issue. Here’s what the CCA held:

We conclude that the general rule that prohibits the court from singling out a particular piece of evidence in its instructions to the jury given prior the jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury.

The court noted that the court’s instruction was a correct statement of the law that did not improperly convey a “personal estimation of the strength or credibility” of evidence. The CCA affirmed the court of appeals.

Judge Meyers dissented, opining that:

the trial court’s instructions indicate to the jury that it is permissible to focus on the fact that the defendant’s family did not testify at punishment. In doing so, the judge expressed an opinion as to the weight of the evidence…

What To Do With the Alternate Jurors?

Back in June, I posted HERE about the Texas Court of Criminal Appeals decisions in Trinidad and Adams regarding whether, under the amended article 33.011(b) of the Texas Code of Criminal Procedure, the trial court should allow the alternate jurors to join the regular jurors in the deliberation room during deliberations.  In both cases, the CCA held that allowing the alternate jurors to be present in the jury room during deliberations did not violatethe constitutional prohibition against deliberation by more than 12 jurors. 

On 13 August 2010, the 3rd District Court of Appeals (Austin) released another case dealing with this exact issue. In Castillo v. State,  the Court cited that CCA precedent in Trinidad and Adams and, as lower courts are expected to do, held accordingly.  The Court explained that, because "there is no indication in the record that the alternate jurors voted on the verdict" it could not "conclude...that there was a constitutional violation."  Further, like the CCA opinions, the 3rd Court also declined to address the question of whether article 36.22 of the Code of Criminal Procedure, which provides that “[n]o person shall be permitted to be with a jury while it is deliberating,” was violated.

The Court handled the article 36.22 question by stating that

even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). Thus, unless the error affected Castillo’s substantial rights, it must be disregarded.

So, in short, nothing has changed on the alternate-jurors-in-the-jury-room-during-deliberations front.  Maybe I should have simply stated that up front and then you wouldn't have wasted your time reading this entire post.  Oh well - sorry.  As you can probably tell, the cases (at least the published cases) are not too sexy right now. I’ll try to dig up some good stuff to post about, but I’m just writing about what the Courts give me.

Who Let Him in Here?!?

Lots of action from the Texas Court of Criminal Appeals today.  The first case on the list of those designated for publication is a combo case - Trinidad and Adams v. State.  This case dealt with the propriety of allowing an alternate (13th) juror to accompany the other 12 jurors in the deliberation room while they reached a verdict.


You would think that this issue would be long settled - Texas courts have been around for quite a while, as has the requirement of a 12-person (and only 12-person) jury.  However, in 2007, the Texas legislature amended the Code of Criminal Procedure (Article 33.011(b)) to provide that:

an alternatee juror in a criminal case tried in the district court, if not called upon to replace a regular juror, shall no longer be discharged at the time that the jury retires to deliberate, but shall now be discharged after the jury has rendered a verdict.

The problem with this amendment, the CCA notes, is that the legislature was silent regarding whether the alternate juror should be allowed to be present for, and participate in, the jury's deliberations. 


In both Trinidad and Adams, the trial judge allowed the alternate juror to be join the jury during deliberations, and in both cases, the defendant did not object to this practice.  On appeal, however, the 4th District Court of Appeals (San Antonio) reversed the convictions, holding that it was constitutional error for the trial court to allow the alternate juror to be present during deliberations.  The 4th Court further held that the Appellants could not forfeit the right to a 12-person only jury, as that right is a "waiver-only" right.  See Trinidad v. State, 275 S.W. 3d 52 (Tex. App.--San Antonio 2008) and Adams v. State, 275 S.W. 3d 61 (Tex. App.--San Antonio 2008).


"Not so fast, my friend," said the CCA today.  Reversing the judgments of the Court of Appeals in both cases, the CCA held:

In neither of the appellants' cases was the alternate juror allowed to vote on the ultimate verdict in the case, at either stage of trial.  As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were, judged by a jury of more than the constitutionally requisite number.

On the issue of waiver/forfeiture, the CCA also disagreed with the 4th Court.

The appellants had every opportunity to object that the trial court's attempts to comply with the recent amendment to Article 33.011(b) of the Code of Criminal Procedure, would run afoul of Article 36.22, but they did not do so.  Under these circumstances, we sustain the State's assertion that these appellants have procedurally defaulted their statutory arguments on appeal, and we hold accordingly that the court of appeals erred to reach the merits of their statutorily based claims.

So where does this leave us on the alternate-juror-in-the-deliberation-room fiasco.  From reading this opinion (between the lines in some places), it appears to me that, had the appellants objected at trial that by allowing the alternate juror in the deliberation room the trial court would be "allowing an outside influence to be brought to bear on the constitutionally-composed 12-member jury," the CCA would have come down on the other side and affirmed the reversal of their convictions.


Takeaway:  OBJECT at trial (and on appeal) under Article 36.22 of the Texas Code of Criminal Procedure, if any outside person (alternate juror or otherwise) is allowed to enter or remain in the deliberation room with the 12 jurors.  At least you will have preserved error if the trial judge allows this to happen.


Judge Johnson concurred, admonishing that "having the alternate juror remain outside [the deliberation room] would avoid just the situation we address here."