In voir dire, both the prosecutor and the defense lawyer will ask various questions to the panel of potential jurors about their thoughts on punishment, if the defendant has elected to seek jury rather than judge punishment. Obviously, this can be tricky proposition for the defense, because you need to know their feelings on the subject, without making it seem like you are expecting a guilty verdict in the first place.

Not surprisingly, the defense often focuses on the potential juror’s ability to sentence his client on the low end of the punishment range. Prosecutors do their best to weed these people out.

The law now requires that a juror be able to consider the full range of punishment for any particular offense they sit in judgment on. Not that they promise to give the low end of the punishment range, simply that they could consider it an appropriate case.

According to Texas Code of Criminal Procedure Section 35.16, both the State and the Defense are allowed “challenges for cause” when a potential juror shows a bias or prejudice against any phase of the law upon which the [State or Defense] is entitled to rely for conviction or punishment”.

This means, for example, if a potential juror says he could never convict anyone of Possession of Marijuana, because he thinks the law is silly/stupid/immoral/whatever, the State is automatically allowed to boot that sane, forward thinking person off the jury. “Shows a bias against the law, your honor.” “Strike granted.”

And now, Grits for Breakfast points our attention to HB 1577 which is clearly intended to skew jury pools in the state’s favor. It would amend CCP Section 35.16 by adding this language:

(d)  The state or the defense may not make a challenge for cause against a juror solely because the juror indicates that, if the defendant is found guilty, the juror will be unable or unwilling to consider recommending to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision under Article 42.12.

Plain language translation? The defense lawyer would no longer be able to disqualify someone from the jury, “solely” for the reason that they said, “Yes, I could convict the defendant – but even though he was eligible for probation under the law, I could never give it to him.” (The amendment pretends to be fair by not allowing the State to disqualify someone for the same reason – however, it should be patently obvious that this rule would always benefit the State, and never the defense.)

As usual, Scott hits the nail on the head with some plain common sense (i.e., non-lawyer, non-legislator) thinking:

That’s a rotten idea. In death penalty cases, jurors are routinely disqualified because they don’t think they can support the full range of punishments on the high end.

If that’s acceptable, then jurors who say they couldn’t administer the LOW end of punishments should be similarly disqualified for the same reason – they cannot promise to consider the full range of penalties available under the law. What’s good for the goose is good for the gander.

  • Donna

    This is not surprising. The ORS/OAR laws are all written with clear distinctions in the State’s favor, where the State and defense are included in the limitation, but the State WOULDN’T argue in favor of the defendant!!?? As to Jury selection – it’s important to read what the American Prosecutor’s Reasearch Institute has to say on Jury selection. In cyber-related crimes [when referencing why a prosecutor MUST exclude computer savvy people at almost all levels]:
    The problem with computer savvy people is that they will take over your case during diliberations. They won’t see your case as a matter of the evidence you’ve presented, but rather, a problem to be solved. And, it is for this reason, that they could sway the jury against you.
    That is what the APRI tells the nation’s prosecutors. Don’t choose a technically savvy person, because they WILL see the holes in your case and be able to educate the other jurors. The APRI doesn’t want educated jurors. Educated jurors would make educated decisions – and realize that the prosecution is lying. And, of course, in the pursuit of justice, we do not wish to punish the guilty, only get that monthly paycheck! (oops.. I said that out loud, didn’t I?).
    More proof to the ORS laws being in favor of the State in such a way that will help guarantee an innocent person’s conviction – during a closing argument, neither party may make any mention or inclusion of the amount of time of incarceration that would result from a guilty verdict. So, would the prosecutor REALLY tell the jury, ‘go get ’em and send em to jail for the next 1000 years!!’ Or would the defense be the ones to bring up the point – ladies and gentlemen, if you convict this person based on the shaky evidence presented to you, you will send them to prison for no less than 1000 years!!! Well – we know now, who is REALLY writing the laws. But, that means that the representatives in Gvt. are no longer representing the majority of the people when making laws FOR them, but I’ll save the Capitalist vs. Democratic argument for later 🙂