Thursday, May 24, 2018

Pro Bono with Judge

By Eric Williams

I'm a former judge (elected official in Texas), former attorney, and military veteran. Currently, I am an inmate on Texas Death Row.  My objective with this column is to produce over time a series of short, informative articles with the goal of explaining some current legal concepts, examining select court opinions, provoking thought, and providing a forum for your questions.  However, I am no longer a licensed attorney. Therefore, please realize that none of the information posted is intended to replace actual advice from a licensed professional. Always seek the counsel of your individual lawyer before making legal decisions.  Please send your questions concerning legal concepts, analyses of published court opinions, and your thoughts, comments, and criticisms. 

Jury Issues I: 

What is a jury actually supposed to do?

A jury should:

1.)  Observe all of the evidence presented;
2.)  Determine the truthfulness (or not) of the witnesses;
3.)  Decide how much weight (if any) to put on the testimony and exhibits;
4.)  Consider the assertions of the lawyers;
5.)  Deliberate in a thoughtful and reasoned manner to resolve any disputes over the facts; and
6.)  Follow the written instructions of the judge in applying the facts to the law in a verdict.

More detail regarding each process listed:

Jury duties numbers one, two, and three on the list above should occur both continuously and simultaneously throughout the trial. Each juror should be making individual assessments of the evidence. Why? With varied backgrounds, education, and experience, each juror brings their unique perspective to their observation of the evidence. What one juror believes about the testimony and exhibits does not have to match what any other juror believes. 
Jury duty number four is typically referred to in regard to the opening statements and closing arguments of the attorneys. I believe the most important point to focus upon with jurors, at this stage, is that the words of the lawyers are not, in any way, to be considered evidence . 
Unfortunately, duty number five is almost never actually explained to a jury. Lawyers all too often assume that each juror knows and understands what deliberations include. That erroneous assumption can easily lead to situations in which jurors follow suit with a juror who has a strong personality rather than deliberating individually because they do not understand their own responsibility. Frequently, jurors do not actually discuss the evidence or make any sort of critical analysis. Why? No one properly explains to them their function, which is to carefully and impartially observe and evaluate the evidence, or their obligation concerning deliberations.
Interestingly, duty number six is the easiest to describe because so much case law has been written concerning the written instructions (the charge) to the jury. The judge will read the entire jury charge and send the document with them to their deliberation room. They are told to elect a jury foreman, read the charge, and proceed. However, many opportunities are lost at this stage because the lawyers fail to emphasize and educate jurors about the instructions defining the legal concepts of both the presumption of innocence and the State's burden of proof beyond a reasonable doubt. Again, many lawyers assume that jurors understand those ideas, when in fact, they do not. 
How is a juror to know what is expected of them and how to perform their function properly?
Different legal systems have some very different approaches. Some countries assign jury selection and education to a judge. Some states, such as Texas, allow the lawyers some form of interaction with potential jurors during the selection process. Ultimately, in most trial systems, the lawyers are responsible for educating the jurors. Sadly, this aspect of juror education is woefully neglected.
Until, or unless, a "professional juror system" is properly developed and applied, the prior education level and experiences of each individual juror are somewhat random. Which means that there is no consistent standard of education or understanding among jurors regarding their function and expectations in arriving at what should be a fair verdict.
In my experience, lawyers and judges tend to focus on the law -- the rules for the trial framework -- rather than on how the jury determines the facts. This is not surprising since lawyers and judges study the law, read the law, and argue about the application of the law. However, the facts of each case are critical, because those facts should form the basis of the final jury determination. Facts are the sole purview of the jury. Interpretation of the facts is the area in which one juror can have a huge impact. 

Simple answer -- what is the jury's function?

Judge the facts. 

Jury Issues II:

Can an appeal correct a factual mistake by a jury?

Most people, including jurors, believe the answer is yes.  After all, the appellate courts review the trial, and we´ve all heard of those media stories of cases being overturned.  So, if a juror believes that – “even if I make an error, the appeal will fix it,” – how can we be critical of them for not knowing the truth, since they were most likely never told?  The accurate answer is that, no, the facts are not re-interpreted by any reviewing court.

Appellate rules and case precedent do not generally allow appellate courts to review the factual findings of a jury decision, or to substitute their view for that of a jury.  A common view expressed in legal opinions is “The jury is the sole judge of the facts, the credibility of witnesses, and the weight to be given to the evidence, therefore, the jury may believe or disbelieve all or part of any testimony, or exhibits presented.”

Those statements also mean that once a jury has reached a verdict, that finding is very difficult to overcome, based upon the facts as presented in trial.  Newly discovered evidence, wrongly admitted evidence, and wrongly suppressed evidence all have their own unique requirements to be considered for a reversal of judgment.

However, a reviewing court does have to examine the facts, testimony, and exhibits in the trial record.  Legal arguments are not usually made in a vacuum.  Context and factual details will be part of any legal analysis.  Often, lawyers will highlight the facts that support their legal position, while downplaying conflicting facts.

One remedy potentially exists for the appellant, based on the factual evidence presented at trial.  The issue is referred to as a challenge of the “legal sufficiency of the evidence” claiming that no rational juror could make a finding of guilt, beyond a reasonable doubt, on the particular evidence presented at the trial. Success on this point is rare but can happen, if the prosecution fails to enter evidence sufficient to prove any required element of the offense charged.

What is the meaning, you may ask, of the standard “legally sufficient evidence”? It is the minimum amount of evidence, and reasonable inferences therefrom, required to prove each element of the offense as charged, beyond a reasonable doubt. Unfortunately, that definition has so many moving parts, its value as an empirical standard is quite low. In common-sense terms, the evidence is legally sufficient if a juror could look just at the prosecution´s evidence and think, “Yep, that´s good enough.” Is a confession sufficient? Perhaps. Is one witness sufficient? Again, perhaps. Is forensic evidence required? No. Can circumstantial evidence alone ever be legally sufficient? Absolutely. All these examples depend upon the underlying details.

An important problem, (I would say, flaw), with any appellate court looking at the legal sufficiency of the evidence, or any attempt at reviewing the factual findings of a jury, is the actual verdict form itself.  Current laws do not require, and some do not allow, any specific factual findings by the jury to be written onto the verdict forms.  Which means the jury verdict is a simple “guilty” or “not guilty” with no detail, no specifics, no written fact finding.

The following comparison is the best way I have found to expose the fallacy of not requiring every jury to make specific findings in order to render a guilty verdict.

Schoolchildren are required to attend and pass certain math courses.  At a certain point, that curriculum will include an algebra class, with some form of equation issues.  For assignments and testing purposes, students will be required to show the steps they took, in writing, to solve the equations presented, in order to obtain full credit.  How many of you can recall a teacher stating, “Class, remember, if you do not show all your work on each problem in this exam, you will not get credit”?

Now, knowing that in order to pass a simple grade-school exam, it was critical to show specific steps involved in reaching an answer to a math problem, do you find it odd that our court system allows a jury to indicate a summary answer on a verdict form that may even subject a defendant to the death penalty as a punishment?

As we´ve briefly discussed, jurors do not show, in writing, any of their underlying work.  When they complete their verdict form with “guilty”, we are left wondering – which part of the evidence did they believe, or disbelieve? Did they review the evidence in a reasonable, rational manner? Or did they just talk randomly and then vote?  Did they understand the elements of the offense that were to be proven – or not proven?  With a verdict of guilty, at what point in their determination of the facts was the presumption of innocence overcome, beyond a reasonable doubt?  None of these questions can be accurately answered based upon the current legal rules and practices.

Different jurisdictions have varied laws and rules in place to protect jury deliberations.  The most restrictive laws prohibit jurors from ever speaking about how they arrived at the verdict.  In a more reasonable jurisdiction, jurors are allowed to decide individually, after the trial is completed and they are officially released from juror service, whether to discuss their deliberations, or not.  In my experience, most jurors, even in a relatively short and simple case, do not want to..  I attribute this behavior, in part, to anxiety arising from not actually knowing what they were supposed to be doing in the first place.

And so you might be wondering “How can an appellate court effectively review a jury verdict if there are no specific factual findings?” The current approach is to assume that the jury, in a guilty verdict, must be believed all the evidence presented by the prosecution, and none of the evidence that might have supported a defense theory.  Unfortunately, because there are no requirements for a jury to “show their work” indicating the specific facts they used to arrive at their verdict, and the reviewing courts are prohibited from substituting their judgment of the facts, there is no other way to evaluate the legal sufficiency of the evidence.

Another concern with the logic the system uses to justify the prohibition mentioned above is that because the jury sees the evidence live, it is believed that they are in a much better position to determine it’s the truthfulness and weight to be placed on each piece of evidence. Could any appellate court make a fair and proper analysis of a witness´s truthfulness? Even if the entire trial is recorded with video and audio? Without actually being there, in the room at the time, any post-trial evaluation of a witness will be inherently incomplete. Does that limitation render any factual review by an appellate court unfair?

The final concern of this article is with the issue of appellate courts making an actual review of a verdict finality.  Once a trial is completed, if it was “fair enough”, then the result should be permanent.  Obviously, my use of the term “fair enough” is merely a short cut for a large body of legal claims.  If appellate courts were allowed to review every fact and piece of evidence in a trial to decide what to believe or not, and then what to give weight to, what would be “enough” review?

Civilized society must figure out how to balance those aspects of legal case decisions, between correctness and finality.  How many innocent people go to prison in this country every year? What number, if any, is acceptable? How do we, as a society, minimize the chance of sending another innocent person to prison?

I am convinced that one part of that answer should be to greatly improve juror service and specifically juror education.  During my legal career, the vast majority of potential jurors actually wanted to do a good job, and wanted to be fair.  Unfortunately, their real, practical knowledge of jury service is nearly non-existent.

As long as we allow the media to educate most of our population with sensational news stories, unrealistic television series, and replace actual learning with entertainment, any favorable changes in this area will be difficult, and will involve hard work.

You are making this change now.

Thank you for your time and thoughts.

Eric Williams 999598
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
To read more about Eric's case click here

Eric L. Williams

Status: Inmate of Texas’ Death Row, solitary confinement, Dec. 2014

Juris Doctorate (Law Degree) 1999
Texas Wesleyan School of Law

Bachelor of Science in Criminal Justice 1989
Texas Christian University

High School: Azle, Texas 1985

Justice of the Peace, Elected 2010

Private Practice of Law, focus on Texas Family Law
1999-2014 Board certified in Family Law by the Texas Board of Legal Specialization, 2008

Court Administrator, Texas District Court, 1994-1999

Reserve Officer Training Corps, 1985-1989

Commissioned Second Lieutenant, US Army, 1989

Army Reserves and Texas National Guard, 1989-1999

Texas State Guard, 2009-2012, Captain

About Me: Birthdate 07 April 1967, Catholic, interests include science fiction, suspense, military fiction, history, humor, cooking, and geography. Currently studying Spanish and German languages.


Ken said...

Hi Eric,
I found your article both thought provoking and incisive. It's very true that most juries don't have the level of expertise and knowledge that you mention. I've been summoned many times for jury duty, sitting once in a traffic jury but nothing as big as a death penalty trial or criminal proceeding of this magnitude. In my case, I was elected the foreman. Given that it was a traffic violation (speeding), we didn't have to really weigh to much evidence as the defendant admitted on the stand he was speeding. He was arguing that it was a "speed trap" and the citation should be invalid. However, since he admitted he was speeding on the stand he really gave us little choice in the verdict. I wonder, had he not admitted speeding, how we would have interpreted the law in regards to such "speed traps" but ultimately, I admit, we likely would have found him guilty due to the evidence presented us. (Radar gun, officer testimony, etc). I have never felt right in "judging" anyone, so I'm thankful I haven't had to do jury service again. Keep your articles coming, they are pretty interesting. Be well, Ken

Betty said...

Invaluable information and thoughts... thank for enlightening us!

Betty said...

Invaluable information and thoughts... thank you for sharing your wisdom.