Sample Voir Dire-Real Case
The jury is still out on this case. Two days after this jury was seated and told to report back to court to hear the case, the trial judge inexplicably, and without notice to prosecution or defense, dismissed the jury. No reason given.
This was a favorable jury for the defense, in my opinion. We had a truck driver, two women married to truck drivers, one of whom was in the Air Force for many years.
My client was driving an eighteen-wheeler truck when a terrible accident ocurred and two other motorists died. My client had no drugs or alcohol in his system, which was verified by a blood test at a hospital. There is no allegation of excessive speed. His log book, which the police "lost" was examined by a State Trooper and everything was in order. My client also honorably served in the United States Air Force for almost 25 years and was honorably discharged. He has absolutely no criminal history.
When the judge summarily dismissed this jury, for no reason, we filed a motion to recuse the judge. That motion will be heard later this month. As you will see, it is sometimes necessary to fight for a client's right to get a fair trial. If a judge gets upset with an attorney the remedy is to sanction the attorney or hold him in contempt of court- neither of which happened in this case- you don't throw out a perfectly good jury. I couldn't find a single reported case in Texas history where a judge has done what was done in this case.
The names of the jurors and the defendant have been changed to protect their privacy.
REPORTER'S RECORD
CAUSE NO. 30, 467-CR
THE STATE OF TEXAS ) IN THE DISTRICT COURT
)
VS. ) 40TH JUDICIAL DISTRICT
)
JAMES SMITH ) ELLIS COUNTY, TEXAS
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * JURY SELECTION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
On the 9th day of January, 2007, the following proceedings came on to be heard in the above-styled and - numbered cause before the HONORABLE GENE KNIZE, Judge presiding, held in Waxahachie, Ellis County, Texas
Proceedings reported by computerized stenotype machine; Reporter's Record produced by computer - assisted transcription.
MICHELE McMANUS, CSR NO. 3567
Deputy Court Reporter
Ellis County 378th District Court
101 Main Street, Second Floor
Waxahachie, Texas 75165-3706
(972) 825-5064
A P P E A R A N C E S
Mr. Don Maxfield
Assistant District Attorney
SBOT No. 13243600
201 N. Highway 77, Suite 104
Waxahachie, Texas 75165
Phone: (972) 825-5035
On Behalf of the State of Texas
Ms. Lindy Michelle Tober
Assistant District Attorney
SBOT No. 24013641
1201 N. Highway 77, Suite 104
Waxahachie, Texas 75165
Phone : (972) 825-5035
On Behalf of the State of Texas
Mr. David Finn
MILNER & FINN
SBOT No. 07026900
International Center - Phase IV
2828 North Harwood Street, Suite 1950
Dallas, Texas 75201
Phone : (214) 651-1121
On Behalf of Defendant
Mr. Mark Griffith
GRIFFITH & ASSOCIATES
SBOT No. 00785928
108 West Main Street
Waxahachie, Texas 75165
Phone : (972) 937-9555
On Behalf of Defendant
C H R O N O L O G I C A L I N D E X
Jury Selection
January 9, 2007
Page
General instruction by the Court . . . . . 4
Voir dire by the State . . . . . . . . . . 11
Voir Dire by the Defense . . . . . . . . . 41
Jury Seated . . . . . . . . . . . . . . . . 63
P R O C E E D I N G S
THE COURT: All right. We're ready to go. The next case we're selecting a jury on will be for -- let me make sure I don't have any - - I've got one person that couldn't be here the 18th. This case will not be scheduled for the 18th, so that's -- shouldn't be any problem about that. Not be tried on the -- well, this one we have it on the 23rd. The 22nd and 23rd so you're okay. All right.
All right. This is cause number -- I've had no request for shuffle so we're going to proceed as you sit. Please do not change your seats. Keep the same order that you're in now because if you move around, move over a space to get more room or whatever you confuse the lawyers and if you do that the lawyers will all be confused, so please keep your position as you are now.
This is Cause Number 30,467, State versus James Smith. Mr. Williams is charged with the offense of criminally negligent homicide. That's Mr. James Smith standing up. Thank you, Mr. Smith. Representing her -- him is Mr. David Finn.
MR. FINN: Good afternoon, everyone.
THE COURT: And Mr. Mark Griffith. And
they're the defendant's attorneys. Representing the -- going to be lead prosecutor is Mr. Don Maxfield. Sitting over here with him is assistant DA Lindy Tober. And I guess she's riding shotgun, right, on this one?
MR. MAXFIELD: Yes, sir.
THE COURT: All right. And those are your players, or main players for this case. And as I said before, the defendant's charged with the offense of criminally negligent homicide. And I gave you some instructions earlier on the previous case about culpable mental state, intentionally and knowingly.
You can set that aside because the intentionally and knowingly part has no application in this case. The defendant is charged with the offense of criminally negligent homicide which means which he's charged with not committing the offense intentionally or knowingly.
He's charged with committing the offense by criminal negligence. And criminal negligence has a legal definition. And I'm going to read it real slow. The attorneys may go over it a little bit more with you.
But a person acts with criminal negligence or is criminally negligent with respect to
circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from an actor's standpoint. That is the defendant's standpoint.
That's the definition of criminally negligence homicide. The defendant is charged with two counts of criminally negligence homicide. That is by criminal negligence causing the death of two individuals arising out of the same transaction basically what it's alleging, two counts.
That the defendant by criminal negligence caused the death of one person named in count one of the indictment and another person named in count two of the indictment. And the defendant did it by criminal negligence, not intentionally or knowingly. Intentionally -- or excuse me, causing someone's death by criminal negligence in the state of Texas is a state jail felony.
That's probably going to be a new word to most of you. A state jail felony. That's something that's created by the legislature in 1994. That's kind of in between the county jail and the state penitentiary for want of a better term. I heard the previous lawyer mention TDC a couple of times.
TDC in 1994 went the way of Texas Unemployment Commission, went the way of Texas Welfare Department, went the way of probation department. They all got their names changed, but they're all the same thing. For whatever reason they changed the name of all these institutions.
So the Texas Department of Corrections is no more. It's an Institutional Division of the Texas Department of Criminal Justice. But it's the penitentiary. Same place it always was. Does the same thing it always did.
State Jail or the creation of the legislature in 1994 to handle offenses which were created in 1994, they changed some of the lower level felony offenses and called them state jail felonies and made special places for people to be committed in state jails who had been convicted of state jail felony.
If any of you have you been up - - down 45 going to Dallas on your right in Hutchins there's a
big lighted compound area. And if you look - - pay attention to road signs says do not - - prison area do not pick up passengers or hitchhikers or whatever it is. That is a state jail facility. And that's between places. The legislature created - - actually there's many, many state jail facilities around the state. If somebody's committed, convicted from here, sent to a state jail, that's where they go. They go to a clearing center which distributes them where they want to where there's room.
I just cite that Hutchins facility as a place that you know that's a state jail facility. It's got a fence around it, barbed wire fence, a high fence and it's in a building and that constitutes a state jail facility.
The range of punishment for the offense of state jail felony is not less than 180 days in a state jail nor more than two years imprisonment in state jail. And a fine can be assessed not to exceed $10,000. That's the range of punishment.
Earlier we talked about 2 to 20 for a second degree felony. State jail class offense has a range of punishment not less than 180 days and not more than two years imprisonment in a state jail facility.
Another difference, as I talked to you about earlier on the first time I told you how kind of parole is figured, a loose way of figuring parole -- parole is figured. Well state jail there are -- is no parole for state jail. If you're committed to state jail not less than a 180 days nor more than two years or 730 days, if you want to look at it that way. Whatever time is assessed, that's what's served. So it's a narrow range or punishment but it's a day-for-day service of the punishment.
Likewise, in this case, or excuse me, in state jail offenses where a defendant is convicted of a state jail offense and a defendant can prove that he's never before been convicted of a felony in this state or any other state the jury - - and the jury finds it's appropriate to recommend community supervision, a jury can recommend community supervision.
Again, you set the time, the Judge sets the length of time a defendant will be on community supervision. Except I can tell you it won't be because the law fixes it. They give me discretion but only within a certain limit. It won't be any less than two years on community supervision and no more than five years on community supervision.
So the amount of time not less than a 180 days nor more than two years in state jail you set. If you recommend community supervision then the sentence is suspended because you recommended it and the Court, the Judge decides whether it's going to be for two years, three years, four years, five years or something else in between. Between two and five.
Likewise, as I told you before, the jury does not set the conditions of community supervision. I would remind you that again you can't assess a fine in lieu of state jail time, nor if you recommend community supervision then any fine that you assess is also suspended.
It's not I recommend community supervision and the Judge can order the defendant to pay a fine. No, it's not the case. Whatever you assess you got the right to or the ability and authority to recommend community supervision or not recommend community supervision. But it's either all or none. And the Judge sets the condition.
And all those things I told you about earlier, I'm not going to go through them again, burden of proof, beyond a reasonable doubt, presumption of innocence, right not to testify, a grand jury indictment is no evidence of guilt nor can it be considered as a circumstance against the defendant, if he elects not to testify it can't be taken as a circumstances against him. All those are applicable to criminal law cases in general are applicable to this case. I'm not going to repeat that. I think you got the idea. You can't recite it back to me but you sure got the idea. Thank you. Mr. Maxfield.
MR. MAXFIELD: Thank you, Your Honor. May it please the Court, ladies and gentlemen. Again, I'm Don Maxfield. Does anyone here know me or think they know me?
PROSPECTIVE JUROR: You were involved - - both of y'all were involved in my son's and daughter's case. I mean, I don't know you.
MR. MAXFIELD: Tell me about your daughter's case.
PROSPECTIVE JUROR: My daughter's was a juvenile case. It was dismissed. It wasn't anything. But my stepson's was a -- had some drugs.
MR. MAXFIELD: okay. What was your stepson's name.
PROSPECTIVE JUROR: Matthew Jones.
MR. MAXFIELD: okay
PROSPECTIVE JOROR: But I mean, I don't know y'all. I mean, I've seen you in the courtroom.
MR. MAXFIELD: Okay. All right. You just know us from our duties as --
PROSPECTIVE JUROR: In the courtroom.
MR. MAXFIELD: - - In our office. Okay. Is there anything about that that you would hold against us in this case?
PROSPECTIVE JUROR: None whatsoever.
MR. MAXFIELD: All right. Anybody else? Okay. the defense attorneys have been introduced as well. Did you introduce them?
THE COURT: I did.
MR. MAXFIELD: Okay. Mr. Finn who offices out of Dallas and Mr. Griffith who offices out here in Waxahachie, anybody know either of them or think you know either of them? All right. Let's start with Mr. Spence.
PROSPECTIVE JUROR: Yes. I know Mr. Griffith. I done some dozer work for his dad.
MR. MAXFIELD: All right. Has he ever represented you?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Anything about -- are y'all personal friends?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Have you hung out together, done anything socially together?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: okay. Is there anything what you know of Mr. Griffith that causes you right now to either lien toward his side of the case or away from his side of the case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: All right. Thank you very much. Mr. Rover?
PROSPECTIVE JUROR: Yes. I went to school with his brother. I graduated high school.
MR. MAXFIELD: Which one?
PROSPECTIVE JUROR: Mr. Griffith.
MR. MAXFIELD: I know. which one?
PROSPECTIVE JUROR: Greg.
MR. MAXFIELD: Greg. All right. Did you hang out with Mark?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Did y'all ever do anything together?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: You ever been in his home, he in your home?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Okay. Anything about your knowledge of Mr. Griffith or his brother or his family that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Thank you, sir. Let's see. Who else? Right now I don't think we're going to get that far. I'm just going to mark y'all down. Mr. Manri and Mr. Brien. You both know - - who do you know, Mr. Manri?
PROSPECTIVE JUROR: Mr. Griffith.
MR. MAXFIELD: All right. And Mr. Brien?
PROSPECTIVE JUROR: Mr. Finn
MR. MAXFIELD: Okay. Okay. Anybody else? All right. Ms. Tob, who I am blocking, anybody know Ms. Tober besides you Ms. Melm? Thanks you very much. I take it by your silence that none of the rest of you know any of the folks up here.
Last, but not least of course, Mr. Smith. Does anyone here know James Smith? I take it by your silence that no one does. I want y'all to hold me to this. I'm going to do this in thirty minutes or less. I expect you to be very vocal if I get anywhere close to that thirty minutes.
Okay. The charge in this case - - the reason I can say that is because Judge Knize and the two attorneys that talked to you previously have gone over virtually everything in respect generally to criminal law that applies in this case. I think we all know what your answers are to those questions.
The only think I want to kind of zero in on is this concept of criminally negligent homicide. And I'm going to tell you exactly what criminally negligent homicide is. It is considered by the legislature the least egregious form of unlawfully taking someone else's life.
In Texas if you intentionally and knowingly cause the death of another you have committed the offense of murder. If you recklessly, that is if you engage in conduct that you know could result in someone's death or someone being seriously injured and someone dies, that's manslaughter.
Criminally negligent homicide is the least form in terms of egregiousness of the offense under the rules as the legislature gives it to you. It doesn't mean that it's any less serious an offense because we're still talking about the death of an individual.
It still is the most serious offense in the state of Texas or the most serious category of offense because someone has died. Criminally negligent homicide means that a person ought to have been aware of a risk, a substantial risk and an unjustifiable risk and because they engaged in that conduct death resulted in someone else.
Does everyone follow me on that? Does everyone agree that this is a crime which should be against the law? Now, I'm not saying that a person has to know there is a risk. The law only requires that a person ought to have been aware of the risk.
It's kind of hard to give you an example. I will tell you that ordinarily criminally negligent homicide involves traffic cases, that is, automobile or some kind of vehicle collision or a firearm in some manner. Let me give you an example.
Someone leaves a firearm loaded in a place in their house. A child finds that firearm, plays with it and someone dies. Now a jury in that instance could find that that person ought to have been aware that leaving a loaded firearm where a child could get to it could result in death. So a jury could find that person guilty of criminally negligence homicide.
And the jump here is it doesn't mean that a person intended a bad thing to happen. It doesn't mean that a person is not sorry that a bad thing happened. It just means that there was a substantial and unjustifiable risk that any ordinary and reasonable person should have been aware of and death resulted.
Mr. Ship, do you agree with that law?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: That should be punished under the laws of the State of Texas?
PROSPECTUVE JUROR: Yes, sir.
MR. MAXFIELD: Does anybody disagree? And this is real important because again we're not talking about someone that set out to commit a crime. We're talking about someone engaging in conduct in such a manner that they caused death.
All of you on the first row, you agree that you could enforce that law of criminally negligent homicide? On the second row?
PROSPECTIVE JUROR: Yes.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. Third row?
PROSPECTIVE JUROR: Yes.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Fourth row? Yeah, I'm back to the fourth row now. You guys got to answer too. All right. How about the fifth row just in case?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Great. Now another part of the definition is that the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the standpoint of the person charged.
Everybody understand that? I'm glad you did. What it means is that the risk must be a risk that failing to perceive it is so far a gross deviation from the standard of care an ordinary person would exercise from the defendant's standpoint.
So somebody has a heavy lamp in their house on a table and a child walks by and accidentally knocks it off and it lands on the child and the heavy lamp causes the death of the child, that's not a risk that is gross deviation from the standard of care, or at least the jury may find that that's not a gross deviation from the standard of care of an ordinary person. We all have lamps in our houses.
But you see how the gross deviation, that is a loaded firearm, would be a whole different matter. Make sense to everybody? Anybody feel like they'd have trouble enforcing that law? And it's okay if you do. We're not going to argue with you. We just need to know.
All right. The punishment, 180 days, two years in state jail and community supervision may be applicable. Okay. It's up to the jury whether to award community supervision. Is there anyone here who feels like they could not consider that full range of punishment, that is not less than a 180 days in jail, in state jail, up to two years in state jail and the possibility of considering community supervision? Anybody have a problem with that? Mr. Butler? No. what's your name.
PROSPECTIVE JUROR: Buller.
MR. MAXFIELD: Butler. Okay. Let's talk about you now. Anybody else? Anybody that - - and please just tell me. Please. Tell me now. Mr. Buller, you have a problem with a defendant not testifying?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And just not to belabor the point, but I need to find out if in this case, now that you know what this case is about, that, you know, it doesn't involve intentional or knowing conduct, do you - - are you still of that same frame of mind that if a defendant did not testify that you would in some way consider that as an indication of guilt?
PROSPECTIVE JUROR: Like I say, in all honestly that's the way I feel and - -
THE COURT: Mr. Finn, you want to - - you going to have a challenge?
MR. FINN: Not at this time, Your Honor.
THE COURT: Okay. What about you, Mr. Maxfield?
MR. MAXFIELD: I have no challenge, Your Honor.
THE COURT: Okay. All right.
MR. MAXFIELD: Ms. Orta - - oh, I think we have an agreement on that.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Thank you, Ms. Orta.
PROSPECTIVE JUROR: Am I dismissed?
THE COURT: No.
MR. MAXFIELD: Good try.
MR. FINN: So close. This close. Clean getaway.
MR. MAXFIELD: Okay. You folks on the first three rows can relax a minute. The fourth row, it's your turn in the spotlight. We haven't gotten to talk to you about your cards. Mr. Varig.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: How are you today?
PROSPECTIVE JUROR: I'm fine. How are you?
MR. MAXFIELD: I noticed on your card you stated that you didn't feel that you could be a fair and impartial jury. Now that you've heard what this case is about and you heard some of the other lawyers talk about what your duties and responsibilities would be, you still hold or still believe that you couldn't be a fair and impartial juror?
PROSPECTIVE JUROR: Well that may not be entirely true. What I'm trying to say, I guess, is I don't want to be responsible for ruining that man's life. You know, without knowing exactly the exact details and everything, you know, maybe nobody knows them. But I don't want be responsible for ruining his life or vice versa. I just - - I don't want to.
MR. MAXFIELD: Okay. You understand that a defendant on trial if he committed the conduct ruined his own life. And if he didn't commit the conduct then his life is not going to be ruined.
THE COURT: And we get into a lot of definitions about ruined. You know, we're not going to get into the collateral matters of things that have nothing to do with what you're to decide. You're deciding whether somebody's guilty or not guilty and then you're going to decide what the - - if you decide the defendant's guilty then you'll decide the punishment.
As to some things that you might consider ruined, I don't know what all you would consider ruined. Whether it's somebody's kid won't talk to them anymore or whether his wife's going to divorce him. You're not concerned with that. Okay. So I don't know exactly what you mean by ruined. If you mean by ruined sentencing somebody to the state jail, then that's ruined.
PROSPECTIVE JUROR: Well I don't know if this gentleman has a wife or children or whatever. I don't say - - okay. I say put him away for ten years. What's that going to do for his family? You know, that's - - I just don't want to - -
THE COURT: Are you going to be able to listen to the evidence and find somebody guilty or not guilty depending on what the evidence is or because you're so worried about some effect you may have on somebody's life you just won't e able to reach a decision?
PROSPECTIVE JUROR: I really - - I really don't feel I could.
THE COURT: You don't feel like you have a moral ability to sit in a jury box and make a decision whether somebody is guilty or not guilty? You know, finding somebody not guilty can ruin lives too.
PROSPECTIVE JUROR: Well, yes, sir, I understand.
THE COURT: So are you so worried about ruining somebody's life that you wouldn't be able to make that decision as to whether somebody's guilty or not guilty. And then make a decision as to whether they should be sent - - what the punishment should be?
PROSPECTIVE JUROR: That's - - I'm afraid I couldn't. I wouldn't - - I wouldn't want that on my mind.
THE COURT: All right. You got a challenge?
MR. MAXFIELD: Challenge.
THE COURT: Granted
MR. MAXFIELD: Mr. Wheat, I assume you know some police officers, law enforcement officers from the fact that you are a law enforcement officer?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: All right. As a law enforcement officer you understand that the importance of credibility of a witness, do you not?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And that judging I assume that every day in your line of work that you're talking to someone and you're trying to judge whether they're telling you the truth or pulling your leg; is that correct?
PROSPECTIVE JUROR: Yes, sir, it is.
MR. MAXFIELD: You understand that as a juror you would have the same function and that is to sit and listen to people and make a decision whether you believe them or not?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: That make sense to you?
PROSPECTIVE JUROR: Yes, it does.
MR. MAXFIELD: Okay. And as Mr. Hayes
told you in the voir dire earlier you can't let one class of people start out higher than the other class in the believability factor, right?
PROSPECTIVE JUROR: Right.
MR. MAXFIELD: Now is the fact that you're a police officer going to mean that any police officer that gets on the stand and testifies you're going to automatically believe them regardless of what they say, how they say it or how what they says fits in with the other evidence?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Are you going to automatically disbelieve a police officer simply because he's a police officer if he testifies and - - if he testifies?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Are you going to automatically disbelieve a police officer simply because he's a police officer if he testifies and - - if he testifies?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: So you can judge the testimony of a police officer or any other witness by the same standard or test as any layperson?
PROSPECTIVE JUROR: Yes, I can.
MR. MAXFIELD: Ms. Acker, school librarian over in Ennis; is that right?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Do you remember Mr. Griffith?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: What school are you in over there?
PROSPECTIVE JUROR: High School.
MR. MAXFIELD: The high school. Ms. Bail, I understand that you had - - this is the infamous question - - a relative, close friend, yourself be an accused, victim or witness of a criminal offense. You answered you to that. Can you tell me about it?
` PROSPECTIVE JUROR: Yes, sir. My husband is a retired police officer and had cases.
MR. MAXFIELD: All right.
PROSPECTIVE JUROR: And my daughter was involved in litigation with her apartment complex and - -
MR. MAXFIELD: So she was a witness?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Know anyone that's been a victim?
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: Okay. Close friend or relative?
PROSPECTIVE JUROR: Just acquaintance, friend.
MR. MAXFIELD: Okay. You also know some police officers. I assume that's through you husband?
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: All right. Anything about a police officer testifying that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Thank you, Ms. Bail. Ms. Kuykendall, what did you do before going with Southwest Diagnostic?
PROSPECTIVE JUROR: I worked at Texas Siani Health Center.
MR. MAXFIELD: In Dallas?
PROSPECTIVE JUROR: I worked for the Mesquite office.
MR. MAXFIELD: All right. So you've been in the medical field for some time now?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: All right. And are you a technician or --
PROSPECTIVE JUROR: No. I manage the switchboard at Southwest Diagnostic.
MR. MAXFIELD: All right. Is there anything that we've talked about here today that you think raises a question in your mind about whether or not you could be a fair and impartial juror?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Thank you, very much. Ms. is it Hen?
PROSPECTIVE JUROR: Yes, Hen.
MR. MAXFIELD: And you and your husband own First Floors?
PROSPECTIVE JUROR: I own First Floors. He does the on-site stuff.
MR. MASFIELD: All right. And how long have you had First Floors?
PROSPECTIVE JUROR: 18 months
MR. MAXFIELD: All right. What did you do prior to that?
PROSPECTIVE JUROR: I worked for my father.
MR. MAXFIELD: What kind of business was that?
PROSPECTIVE JUROR: Flooring covering
MR. MAXFIELD: Flooring. Okay. Thank you. I'm getting close?
THE COURT: you got about ten minutes.
MR. MAXFIELD: Your husband is retired Army? I'm sorry, Ms. Harold?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Your husband is retired Army?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: What rank?
PROSPECTIVE JUROR: I don't remember
MR. MAXFIELD: And where -- when did he retire?
PROSPECTIVE JUROR: 1990.
MR. MAXFIELD: And how long was he in?
PROSPECTIVE JUROR: 30 years.
MR. MAXFIELD: 20.
PROSPECTIVE JUROR: 30.
MR. MAXFIELD: 30. And were you married to him the whole time?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: How long have y'all been married?
PROSPECTIVE JUROR: 23 years
MR. MAXFIELD: All right. And where was he last stationed?
PROSPECTIVE JUROR: Fort Lee.
MR. MAXFIELD: Fort Lee, Virginia. Did he ever serve in combat?
PROSPECTIVE JUROR: Oh, yes.
MR. MAXFIELD: Whereabouts?
PROSPECTIVE JUROR: Vietnam.
MR. MASFIELD: All right. And what was his last -- last duties or last assignment?
PROSPECTIE JUROR: He was the safety man on Fort Lee jurisdiction?
MR. MAXFIELD: All right. You recommend being a military wife?
PROSPECTIVE JUROR: I like it.
MR. MAXFIELD: Okay. I just have a daughter who's dating somebody. Mr. Pratt, let's see, you know some police officers. Who would that be?
PROSPECTIVE JUROR: Greg Lowe. He's married to my cousin.
MR. MAXFIELD: What was his name?
PROSPECTIVE JUROR: Greg Lowe.
MR. MAXFIELD: Greg Lowe. He's married to your cousin?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. Who else?
PROSPECTIVE JUROR: Lester from -- I don't know which police department.
MR. MAXFIELD: Lester. Okay. Now it also says that you know someone that's either a friend, relative or accused -- either yourself, a friend or relative that's been a witness, a victim or an accused in a criminal proceeding and you answered yes.
PROSPECTIVE JUROR: I answered that wrong.
MR. MAXFIELD: You answered that wrong? All right. Let me -- I'm going to read it to you one more time. Have you, your relatives or close friends ever been an accused, victim or witness in a criminal case including a DWI case. And you checked yes but if it's no, tell me.
PROSPECTIVE JUROR: Right. No.
MR. MAXFIELD: Okay. All right. Did you grow up here in Ellis County?
PROSPECTIVE JUROR: Born and raised in Maypearl, Texas.
MR. MAXFIELD: In Maypearl. All right. And where is DMG Masonry?
PROSPECTIVE JUROR: Arlington, Texas.
MR. MAXFIELD: In Austin?
PROSPECTIVE JUROR: Arlington.
MR. MAXFIELD: Oh, Arlington. Okay. And you're a foreman for them?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. And what is GP? Your wife -- where your wife --
PROSPECTIVE JUROR: Georgia Pacific. Georgia Pacific.
MR. MAXFIELD: Georgia Pacific. Okay. Thank you.
MR. MAXFIELD: Mr. Pratt, you've heard me describe what criminally negligent homicide is in Texas. Do you think that you would have any problem finding someone guilty of crime that they did not intentionally or knowingly commit?
THE COURT: If it falls in the definition of criminally negligent homicide.
PROSPECTIVE JUROR: Say it again.
MR. MAXFIELD: Okay. Criminally negligent homicide does not require someone to intentionally or knowingly cause someone's death. It is if they caused that death by criminal negligence. Which I've explained to you is you should have known there was a risk. It's your conduct that caused the death. All right. could you find someone guilty of a crime based on criminal negligence if they did not intentionally or knowingly commit the crime?
MR. FINN: Excuse me, Judge. I'm going to have to object unless he adds that the State has proven it beyond all reasonable doubt.
THE COURT: overruled. I think that's a given as much time as we've gone over to take to convict somebody of a crime. Go ahead and answer the question.
MR. MAXFIELD: Do you understand the question?
PROSPECTIVE JUROR: Not really, no.
MR. MAXFIELD: Well it's pretty simple and --
THE COURT: Let me do it this way. If the states proves beyond a reasonable doubt that the defendant acted in criminal negligence and thereby caused the death of another individual, could you find him guilty of that offense or would you not because, hey, it wasn't intentional. They didn't mean to do it?
PROSPECTIVE JUROR: I can find them guilty.
THE COURT: Okay. Thank you. How's that?
MR. MAXFIELD: Thank you, Mr. Pratt.
THE COURT: Mr. Maxfield, you can do what you want to, but we're in the row. You got 36 less 12 is 24, you lost two for cause, plus nine.
That comes to 31 through that back row there, I mean that row, fourth row. So I don't know if you want to ask them anything or not.
MR. MAXFIELD: Fourth row or fifth row?
THE COURT: Fifth row. I'm sorry.
MR. MAXFIELD: Fifth row. Okay. Mr. Manri, you know Mr. Griffith. How do you know Mr. Griffith?
PROSPECTIVE JUROR: Back -- several years back there.
MR. MAXFIELD: In high school? Did y'all -- were y'all hanging out together in high school or --
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Just knew each other?
PROSPECTIVE JUROR: Right.
MR. MAXFIELD: All right. Anything about your knowledge of him that would affect you or cause you not to be a fair and impartial juror in this case?
PROSPECTIVE JUROR: Not at all.
MR. MAXFIELD: Thank you. You doing all right?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: You work for Vaught.
What do you do for them?
PROSPECTIVE JUROR: I'm a planner. Also a logistic engineer.
MR. MAXFIELD: Thank you very much. Mr. Petra.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Did I pronounce it, correctly?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: I couldn't tell from you card. It looked like that maybe you might know someone that was an accused, witness or victim in a crime.
PROSPECTIVE JUROR: Up here my graddaughter was sentenced for unlawful use of a motor vehicle.
MR. MAXFIELD: All right.
PROSPECTIVE JUROR: In this court.
MR. MAXFIELD: In this court. What was her name?
PROSPECTIVE JUROR: Brandy Bill.
MR. MAXFIELD: Well my office would have prosecuted that case. You feel like she was handled fairly by the criminal justice system?
PROSPECTIVE JUROR: Very fair.
MR. MAXFIELD: Do you hold a grudge against the Ellis County and district attorney's office or the 40th District Court for anything that happened regarding her case?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: You feel like you can put all that aside and base this case solely on the evidence that you hear?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Thank you. Mr. Brien, you served on a jury before?
PROSPECTIVE JUROR: Yes, I have.
MR. MAXFIELD: What kind of case?
PROSPECTIVE JUROR: It was case that you had, a mental hearing. Tried to determine if a person should go back to Terrell.
MR. MAXFIELD: Here in Ellis County?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: All right. You said I handled that?
PROSPECTIVE JUROR: I think you were the one there.
PROSPECTIVE JUROR: I think you were the one there.
MR. MAXFIELD: All right. Well, anything in the way I handled that case that -- that was in the trailer courts, right?
PROSPECTIVE JUROR: That was in the trailer courts.
MR. MAXFIELD: Anything about that experience that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: I believe you said you know Mr. Finn?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Is that through court and representing --his representing clients or is that in some other way.
PROSPECTIVE JUROR: I've been a witness in the court which he was the attorney.
MR. MAXFIELD: Mr. Strad, let's see, you has a relative, friend or yourself been a victim, accused or witness in a criminal case?
PROSPECTIVE JUROR: When I served on a grand jury?
MR. MAXFIELD: All right. Now when did you serve on grand jury?
PROSPECTIVE JUROR: Years ago.
MR. MAXFIELD: Was that here in Ellis County:
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Is there anything about that experience on the grand jury that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Okay. Ms. Hillman.
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: I believe on your card you had an issue about whether or not you could be a fair and impartial juror?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Could you explain that to me?
PROSPECTIVE JUROR: I had a case in this court. I had a case in this court. I felt like that it was unfair in that there was inattentiveness and failure to hear entire the testimony. So I do not feel that I will be fair and I'll be putting an extreme burden on both parties to prove their case.
MR. MAXFIELD: Okay. Well let me ask you, was it a civil case?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: All right. You were one of the parties?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And the testimony that was presented. You felt like that the trier of facts wasn't paying attention or the attorneys didn't put the case on very --
PROSPECTIVE JUROR: It was not a jury trial, sir.
MR. MAXFIELD: Okay.
THE COURT: She didn't like my decision, Counselor.
MR. MAXFIELD: I understand that. Was it -- you mentioned about the case, they way the case was presented. Did you have any concerns about the attorneys that were presenting the case?
PROSPECTIVE JUROR: No, sir, not against the attorney.
MR. MAXFIELD: Well you understand that that case is totally removed from this case?
PROSPECTIVE JUROR: I do.
MR. MAXFIELD: And that one of the things that we certainly need are attentive jurors in this case. Can you be an attentive juror?
PROSPECTIVE JUROR: Probably most definitely because I feel that there is a burden,that I'm not going to share with this Court, that is to adhere to everything and because of that I would be a very hard juror.
MR. MAXFIELD: Okay. Will you be hard on the defendant's side, the defendant’s counsel or will you be hard on the state's side, the prosecutor?
PROSPECTIVE JUROR: I'm going to be hard on both sides. So I might be the juror that you want back in the back.
MR. MAXFIELD: All right. Well, thank you very much.
PROSPECTIVE JUROR: Just being honest.
MR. MAXFIELD: I do appreciate it. Ms. Teeter.
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: You know some police officers?
PROSPECTIVE JUROR: Yes.
THE COURT: That might be far enough, Counsel. That takes it through 30 -- that's actually 35. That's 35 right there.
MR. MAXFIELD: Okay. Stop or go on?
THE COURT: Well if you can do it in five seconds. You promised thirty minutes so you can go ahead.
MR. MAXFIELD: Thank you so much for -- thanks you for your time -- I mean for your attention, Ms. Hill, for your attention. I appreciate it. My
parting comment will simply be that the most important qualification of a juror is to keep an open mind and I ask that you do that. Thank you.
THE COURT: Mr. Finn.
MR. FINN: Thank you, Your Honor. Folks, I'll make you a promise. You've been here all day. You deserve combat pay.
THE COURT: They're still just getting six dollars.
MR. FINN: I know that you're going to finish -- you're going to finish on top, right?
THE COURT: No. No.
MR. FINN: Okay. If you all will stand up and stretch your legs I promise I will make mine real short. Come on, move around, wake up, before Judge Knize wants to get this in writing.
THE COURT: Well you never said how short.
MR. FINN: You're right, I didn't. All right. Folks, if you would go ahead and grab your seats and I'll finish up here.
As the Judge said a little while ago my name is David Finn and I'm 43. I live in Dallas, got four kids and a wife.
THE COURT: No biographies.
MR. FINN: No biographies:
THE COURT: No biographies.
MR. FINN: But it's my time, Judge.
THE COURT: No biographies. I'm glad you won the war. Go ahead.
MR. FINN: Speaking of the war let me ask y'all this question. The prosecution asked you earlier if anybody would prejudge the credibility of any class of witnesses, remember that, whether it's a police officer, you're going to start him or her out ahead or are you going to start them out behind because of maybe a positive or negative experience you had. Y'all remember that?
All right. Let me ask you this question. Our country's engaged in a very volatile war in the Middle East. If it turns out that a witness is called who served in the Air Force for 25 years, career military, would you start that person off lower in terms of credibility than an average citizen?
THE COURT: Counsel --
MR. MAXFIELD: Objection.
THE COURT: -- is that one of your witnesses? Is that one of your witnesses?
MR. FINN: In all likelihood it is.
THE COURT: All right. Go ahead.
MR. FINN: Thank you. What I'm getting at would be some sort of activist or someone who would say to themselves I don't agree with the military, I don't agree with that we're doing as a country, the armed forces.
If somebody served in the Air Force or another branch for 25 years I don't like them, I don't trust them, I ain't going to believe them. Everybody understand my question? Is there anybody here that feels that way? If you do raise you hand. I need to know.
All right. Another thing that the Judge mentioned earlier which I think is actually a misstatement of the law, with all due respect, the Judge indicated that in the guilt/innocence or guilt/nonguilt phase you're normally not going to hear anything about you reputation or the credibility or any previous conviction the witness might have. And generally that's true.
You know in this case that we filed an application for probation. So by backing up my client will just deny that he has ever been previously convicted of a felony in this state or any other. Everybody with me so far.
If my client takes the stand the prosecution can then impeach him not only with prior felony convictions but misdemeanor convictions or crimes involving moral turpitude.
MR. MAXFIELD: Your Honor --
THE COURT: Not all misdemeanors involve -- involving or -- involving moral turpitude. You better tell them what moral turpitude is.
MR. FINN: I'm about to do that, Your Honor.
MR. MAXFIELD: Your Honor, I'm going to object to this line of questioning.
THE COURT: Proceed.
MR. FINN: Thank you. For example, a man assaulting a woman would an example.
THE COURT: First of all, I don't know any statement of the law I told you folks -- I think the law I told you was exactly right. I think you would -- normally and generally and usually that's what attorneys try to keep out.
And of course if they don't have anything they want to be up front and tell you everything is hunky-dory and my client has a clean slate, and I suppose that's what he's doing.But I'm going to cut it off right here,Mr. Finn, is that how a witness can be impeached and what the trial strategy of either side might be. You can't ask them -- commit them on that.
MR. FINN: I'm not trying to commit.
THE COURT: Move on. Move on. Move on.
MR. FINN: Let me ask you this question. How many -- well what would you call this? okay. Forget all the legal stuff that you've heard up to now. If I said to you Mr. -- I'm sorry.
PROSPECTIVE JUROR: Mr. Pulley.
MR. FINN: Mr. Pullen, if I said to you just, you know I met you out somewhere at the grocery store and I said, you know, what would you call it if somebody injured another person or caused the death of another person but they didn’t do it intentionally, they didn't do it knowingly, they didn't even do it recklessly, in other words, consciously disregarding it, but they did it -- it was negligent. They should have known, They should have appreciated something -- something tragic would happen, what would you call that Mr. Pullen.
PROSPECTIVE JUROR: I would call it an accident.
MR. FINN: I'm sorry?
PROSPECTIVE JUROR: An accident.
MR. FINN: An accident.
THE COURT: And that's not what it is.
It's criminal negligent homicide. If you find that it was committed it was criminal negligence -- criminally negligent homicide. It's not considered a, quote, accident.
MR. FINN: And if you don't think they proved it beyond a reasonable doubt it's called an acquittal.
THE COURT: There you go, Mr. Finn. Now you're on.
MR. FINN: Thank you.
THE COURT: If you want to get into it, we can get into it.
MR. FINN: Well I think we're going to, Your Honor.
THE COURT: All right. That's fine. Let's see who wins.
MR. FINN: If they don't prove every single element beyond a reasonable doubt, every single element, what is your verdict?
PROSPECTIVE JUROR: Not guilty.
MR. FINN: Let's do it again.
PROSPECTIVE JURORS: Not guilty.
MR. FINN: Right. Why is that true? They don't prove it -- the government's doing what they can because they got to do the proving. If they don't prove it to you beyond all reasonable doubt why do you have to vote not guilty? Why can't you just convict anyway?
PROSPECTIVE JUROR: That's why the law says.
MR. FINN: That’s what the law says. Anybody have any other answer to that? It ain't America. It doesn't follow our laws of our Constitution. The people doing the allegating, the alleging, the pointing have got to do the proving. And if they don't you vote not guilty. Everybody okay with that?
Let me ask you, Mr. Wilhelm, is that right?
PROSPECTIVE JUROR: Yes.
MR. FINN: Mr. Wilhelm, if there was somebody near and dear to you that got accused of something that they didn't do, that they did not do, what kind of lawyer would you want to represent that person?
MR. MAXFIELD: Objection. It's a commitment question.
THE COURT: Overruled.
PROSPECTIVE JUROR: Please rephrase that.
MR. FINN: Okay.
MR. MAXFIELD: Objection; relevance.
THE COURT: Overruled. I overruled the last one.
MR. FINN: If somebody that you cared for was accused of committing a crime, a felony that they were not guilty of, what kind of attorney, what type of lawyer would you want representing them?
PROSPECTIVE JUROR: I really don't know how to answer that question, I mean.
MR. FINN: Okay. Let me give you a multiple guess. A lay down lawyer or somebody that's going to be aggressive and try to bring all the truth if that's what it takes.
PROSPECTIVE JUROR: The latter.
MR. FINN: Okay. Will you give me permission to at least attempt to be that lawyer for James Smith?
MR. MAXFIELD: Ojection; commitment question.
THE COURT: Overruled.
MR. FINN: Okay. I’ll ask that question again. Will you give me permission to at least attempt to be that lawyer for James Smith in connection with this case?
PROSPECTIVE JUROR: I don't feel like it's my permission to give.
MR. FINN: Well I want your permission because this I predict is going to be a very interesting and very contentious trial. For those of you who have had prior jury service get ready. This isn't a DWI, it's not a hot check case. A man's life is on the line. And they're saying that he killed two people with criminal negligence.
It's important to my client and also his family. So I want your permission. Because what I don't want to have is somebody going back there saying, man, they got all over such and such witness in cross-examination and just really got after that person.
Now I'm not asking for permission to be rude, insolate, unprofessional, late. I'm not talking about, hey, give me a blank check to be lazy or something. That's not what I'm saying. What I'm saying is if Mr. Griffith and I, in cross-examination in particular, really hone in on some things I don't want you to hold it against James that we're really focused on getting to the truth. You get me now?
PROSPECTIVE JUROR: Yeah, that's your job.
MR. FINN: Are you okay with that?
PROSPECTIVE JUROR: Well certainly. You're doing your job.
MR. FINN: Okay. Does everybody agree with that? If anybody says, hey, hold on a minute there. I'm going to -- I'm going to hold it against you if you get after it like that. Again, I'm not talking about being rude, raise your hand right now because I need to know now.
Okay. Now judge Knize earlier I believe read you the definition of criminal negligence and I think the prosecutor also read the definition. I'm going to read it again. But before I do I'm going to ask you the following. You don't need to say anything but just kind of think about this.
How many of us have had family, loved one, friends, coworkers who have had tragedy strike in their life where, for example, a youngster falls in a swimming pool and drowns. A youngster goes to grandma and grandpa's place in the country and they fall in the stock pond.A youngster is in a bathtub and mom and dad are busy in different parts of the house. Mom is cooking, dad's trying to look at the stock show. They both think that someone's watching the little boy or little girl, they go in, oh, my God it's horrible, it's awful, it's a tragedy. It's heartbreaking.
Somebody leaves a youngster in a car. Imagine a scenario something like that and ask yourself the definition of criminal negligence. See if it fits. A person acts with criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the results of his or her conduct when he or she ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that a failure to perceive it constitutes a gross deviation from the standard of care than an ordinary person would use under all the circumstances as viewed from the actor's standpoint.
Now that's a bunch of legal mumbo-jumbo. After a while you kind of see what is it. But ask yourself, it's not intentional. It's not knowing. It's not reckless. Is it criminally negligent homicide if it is, in fact, pure and simply an accident. That's where the rubber meets the road.
How many of y'all might be hunters? Raise your hand. Deer, elk, anything. Okay. How many of y'all are dove hunters? Keep your hands up. Okay. Anybody go last season? Yeah. All right. Y'all recall an incident that occurred in the great state of Texas where somebody got involved in a little situation involving a dove hunting incident. Ma'am, can you elaborate?
PROSPECTIVE JUROR: The vice presendent accidentally shot someone.
MR. FINN: Vice President Chaney while hunting with one o his friends, right, accidentally shot the ivdividual, right? It was an older man, right? And the person, thank God, survived and lived bus was hospitalized for a while, correct?
You think that that Vice President should have been aware of that risk and maybe if somebody wanted to go after the Vice President for that criminally on an attempt they could.
THE COURT: Well, wouldn't it make a difference under what circumstances the shooting occurred?
MR. FINN: Sure.
THE COURT: All right. Thank you.
MR. FINN: Okay. Let's say I'm out hunting. You're my hunting partner. I know you're in the area and you know I'm in the area. There's no dog, the dog's away and we're moving around.
MR. MAXFIELD: Your Honor, I'm going to object.
THE COURT: No, we're just getting into a bunch of stuff here that we're not going to go into. It's your area, you're behind me, you're in front of me and I shoot over there anyway. We can get into a thousand scenarios on this. I'm just going to prohibit that.
MR. FINN: Okay. May I ask him a question?
THE COURT: Maybe. Ask it and we'll see.
MR. FINN: All right. Well I'll come over here so you can wring my neck before I ask it.
THE COURT: Well I might wring it before you ask it if you want to put it that way.
MR. FINN: Did he get prosecuted for anything? PROSPECTIVE JUROR: No.
MR. FINN: No?
PROSPECTIVE JUROR: Didn't get tried.
MR. FINN: Didn't get tried. I think
that we have also talked about a lot of different legal principles but there's one that I really want to finish up with. And I'm going to sit down here in just a second unless y'all have any question for me. And that's called the presumption of --
PROSPECTIVE JUROR: Innocence.
MR. FINN: -- innocence, right. Presumption of innocence. What does that mean to you? What's that mean, presumption of innocence? Here in the front row.
PROSPECTIVE JUROR: Presume that somebody's innocent until you see enough evidence or know they're not.
MR. FINN: Okay. That's right. To basically assume and presume that somebody's innocent unless and until the state proves otherwise beyond a reasonable doubt. Fair enough?
How many of y'all know when you came in today when you look around the courtroom and Judge Knize gets started, you looked over here as you're coming through and you think I wonder what he did. Right? I'm seeing some nods down here. Sure. You know, wonder what he did. He must have done something or he wouldn't be in the hot seat. Right? See some nods. Okay.
That's kind of putting the cart before the horse, isn't it? That's assuming or presuming guilt, that he did something illegal or wrong. So here's what I need you to tell me. And I'll abide by your answer. I don't know you and you don't know me. But you'll see it's dag-gum important to James Smith.
James, would you stand up? Can everybody tell me looking at James at this moment in time not having heard any evidence, any testimony whatsoever that you can assume and presume that he is one hundred percent not guilty or innocent at this point in time?
And if you can't, just raise you hand, because I need to know before we get started. Anybody at all? They cannot give James the presumption of innocence at this point in time? Okay. Thanks, James.
Judge Knize talked about the lack of a definition of beyond a reasonable doubt. You've heard that over and over again. But let me ask -- sir, let me ask you. You were in the Explorers, right?
PROSPECTIVE JUROR: Yes, sir.
MR. FINN: If we have a bunch of Waxahachie police officers coming in here and you may know them in some way, you've worked with them, can you still give me and James a fair trial and hold the State to their burden?
PROSPECTIVE JUROR: Yes, sir
MR. FINN: Even if it means seeing fellow officers out and they say, hey, why didn't you convict that guy. Two people died. Can you say the evidence didn't prove to me beyond a reasonable doubt?
PROSPECTIVE JUROR: Absolutely.
MR. FINN: I thought it was a pure accident. Sir, would you tell -- let me go on that. Can you tell me what beyond a reasonable doubt means to you? To you. There's no definition. It's not a trick question.
PROSPECTIVE JUROR: They prove that he did what the state is charging him with.
MR. FINN: Beyond a reasonable doubt, right? Officer Brien, you and I have dealt with each other before?
PROSPECTIVE JUROR: Yes. Professionally.
MR. FINN: okay. Did I deal with you when I was on the bench or in private practice, as a prosecutor?
PROSPECTIVE JUROR: No, it wasn't on the bench.
MR. FINN: Was I a judge at the time?
PROSPECTIVE JUROR: You were -- were you a prosecutor at one time
MR. FINN: Yes.
PROSPECTIVE JUROR: Okay.
MR. FINN: Did I treat you fairly and with courtesy?
PROSPECTIVE JUROR: Yes.
MR. FINN: All right. Is there anything that I need to worry about with you getting -- I know you're your police officer so obviously I'm going to take a good close look, ut anything you and I, any bad blood between us that you know about in you mind or in your heart?
PROSPECTIVE JUROR: No. I only remember three or four cases which was fair.
MR. FINN: Okay. All right. Thank you. And if a police officer is called, officer -- let me also ask fellow officer Wheatley. Officer, can you assure me that you will start every single police officer out on the same footing that you do with the other guys?
PROSPECTIVE JUROR: Sure.
MR. FINN: Sure. Have either one of y'all worked fatality accidents before?
PROSPECTIVE JUROR: Yes, a couple.
PROSPECTIVE JUROR: Numerous times.
MR. FINN: You've had a couple, numerous. Officer Brien, when you get to a fatality accident, what do you do? What's the procedure?
PROSPECTIVE JUROR: Upon arrival I check to see if I can help any of the victims.
MR. FINN: okay
PROSPECTIVE JUROR: Then I investigate the accident itself.
MR. FINN: All right. Officer Wheat, do you agree with that?
PROSPECTIVE JUROR: Yes.
MR. FINN: Take care of the -- what you do is take care of the needy and then begin your investigation?
PROSPECTIVE JUROR: Right.
MR. FINN: All right. Do you immediately just start moving things around?
PROSPECTIVE JUROR: No.
MR. FINN: Why not? Officer, why not?
PROSPECTIVE JUROR: Because it's all -- it's all evidence.
MR. FINN: It's all evidence.
PROSPECTIVE JUROR: Unless it needs to be moved for safety reasons.
MR. FINN: And you -- what do you do with this evidence? Do you mark it, photograph it, make sure that it is -- you know, report it in some way or do you call in an expert?
PROSPECTIVE JUROR: I'm sorry?
MR. FINN: Or do you call in an accident investigator.
MR. FINN: Would you start moving stuff before you brought them in if you didn't have to?
PROSPECTIVE JUROR: If I did not have to, no.
MR. FINN: Let me ask you, Mr. Pullen. You've been a good sport. Well let me ask this question to the entire panel. If it turns out -- let me back up so Judge Knize doesn't get on me.
In the front row any real negative experiences that you've had with somebody who's a professional driver, whether it's a UPS driver, a mail driver or somebody driving a cargo truck. Anybody in the front row such that, boy, got involved in any kind of truck, professional driver. I'm not going to like him because I got run off the road once by a UPS driver or something like that? Do you guys understand my question? Yeah. Any -- does that fit the bill with any of y'all? No. Okay. Second row. Yes, ma'am.
PROSPECTIVE JUROR: I'm actually involved in a lawsuit right now. It involves a trucking company.
MR FINN: Okay. And you're Ms. Rosen.
PROSPECTIVE JUROR: Yes.
MR. FINN: I really appreciate you telling me that. That's exactly what I'm getting at. If you didn't tell me that I wouldn't have known, but thank you. Do you think you can set that experience aside or do you think if it involves a truck, boy, I'm -- they're going to get something.
PROSPECTIVE JUROR: I don't see any problem.
MR. FINN: Okay. Thank you very much. Anybody else on that row? Third row, ladies and gentlemen.
PROSPECTIVE JUROR: 1990 I was a pedestrian and ran off by an 18-wheeler and he drug me a hundred yards down the road.
MR. FINN: Okay. In 1990. I've got -- my whole block on you, Mr. Green? I've written all around the side. I've got a lot of ink on your spot, but thank you very much. You think you could give us a fair trial?
PROSPECTIVE JUROR: Sure.
MR. FINN: Okay. Thank you. Ladies back there, let's see, the fourth row anything?
PROSPECTIVE JUROR: My husband is a truck driver. Also my husband is a retired Air Force.
MR. MAXFIELD: I'm sorry. I can't hear.
MR. FINN: Husband is retired Air Force.
PROSPECTIVE JUROR: He's retired from the Air Force also. He retired from the Air Force after 22 years and he was a security police officer. Then he went into civilian work. He is a truck driver.
MR. FINN: Ma'am, are you Ms. Bail?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Thank you, Ms. Bail. Can you -- I'm sorry. Your neighborhood there is Ms. --
PROSPECTIVE JUROR: Kuyke.
MR. FINN: Thank you.
PROSPECTIVE JUROR: My husband is a truck driver.
MR. FINN: He is. Okay. Can you give both sides a fair trial? If they prove enough to you, you convict him, if they don't you'll just sit back. Okay. Anybody else in that row? No. Back row anybody?
PROSPECTIVE JUROR: What was the question?
MR. FINN: The question is -- I think everybody answered it, but frankly I'm going to strike you anyway so -- all right. Judge, I turn it back to you. Ladies and gentlemen, thank you very much. You've been wonderful and it will be an interesting trial.
THE COURT: Am I supposed to bow and genuflect now?
MR. FINN: No, that's what I do. Thank you.
THE COURT: Thank you. Move it. Get over there. I would suggest you cut it out.
MR. FINN: Okay.
THE COURT: All right. Pick up your strike sheets. Turn them in in ten minutes. That means ten minutes. If they're not in, you don't have any strikes. Jury take a 15 minutes recess. Just a minute. This group here, you folks come back in 15 minutes. This group here come back in the morning at nine o'clock. We'll start that jury selection. Thank you.
(Break taken)
All right. Ladies and gentlemen, this case is going to begin January the 29th, Monday, January the 29th. The Friday before the clerk should call you but if she doesn't be here on January the 29th. If you got any doubts between now and then, give us a call and we'll confirm it for you.
Same thing I told all the rest of them, I hope you were listening, about where you assemble out there in the jury room outside. Don't discuss the case with anybody. Don't even discuss it among yourselves until you're all here present in the jury room.
You will discuss your verdict after you have received all the evidence, the jury charge and the argument of counsel. With that you're released for the day. Thank you. See you the 29th.
THE WITNESS: How many days will this last?
THE COURT: Oh, good question. About three days. I've been told that they're estimating three days. Okay. 29th, 30th and 31st. Thank you.
I need the attorneys on the last two cases need to stay. The attorneys on this case are released until the 29th of January at nine o'clock.
We're going to continue with jury selection tomorrow. We got one criminal case and one civil case. I've been told the criminal case is now going to be very, very short jury selection. The civil case we'll be switching hats on so it may take a little bit more detail than we went into on these criminal cases as they work.
So we got two cases tomorrow. Both sides anticipate they may be done by tomorrow at noon. 12:15 or 12:30, somewhere around noon tomorrow.
Okay. So come back tomorrow morning at nine o'clock. Is anybody going to request a shuffle?
MR. SLATON: I'm not.
THE COURT: Oh, goodness, I hope they remember where they were sitting. Look and see where you're sitting and be here tomorrow morning at nine o'clock in the same seat. Thank you.
(End of proceedings.)
This was a favorable jury for the defense, in my opinion. We had a truck driver, two women married to truck drivers, one of whom was in the Air Force for many years.
My client was driving an eighteen-wheeler truck when a terrible accident ocurred and two other motorists died. My client had no drugs or alcohol in his system, which was verified by a blood test at a hospital. There is no allegation of excessive speed. His log book, which the police "lost" was examined by a State Trooper and everything was in order. My client also honorably served in the United States Air Force for almost 25 years and was honorably discharged. He has absolutely no criminal history.
When the judge summarily dismissed this jury, for no reason, we filed a motion to recuse the judge. That motion will be heard later this month. As you will see, it is sometimes necessary to fight for a client's right to get a fair trial. If a judge gets upset with an attorney the remedy is to sanction the attorney or hold him in contempt of court- neither of which happened in this case- you don't throw out a perfectly good jury. I couldn't find a single reported case in Texas history where a judge has done what was done in this case.
The names of the jurors and the defendant have been changed to protect their privacy.
REPORTER'S RECORD
CAUSE NO. 30, 467-CR
THE STATE OF TEXAS ) IN THE DISTRICT COURT
)
VS. ) 40TH JUDICIAL DISTRICT
)
JAMES SMITH ) ELLIS COUNTY, TEXAS
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * JURY SELECTION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
On the 9th day of January, 2007, the following proceedings came on to be heard in the above-styled and - numbered cause before the HONORABLE GENE KNIZE, Judge presiding, held in Waxahachie, Ellis County, Texas
Proceedings reported by computerized stenotype machine; Reporter's Record produced by computer - assisted transcription.
MICHELE McMANUS, CSR NO. 3567
Deputy Court Reporter
Ellis County 378th District Court
101 Main Street, Second Floor
Waxahachie, Texas 75165-3706
(972) 825-5064
A P P E A R A N C E S
Mr. Don Maxfield
Assistant District Attorney
SBOT No. 13243600
201 N. Highway 77, Suite 104
Waxahachie, Texas 75165
Phone: (972) 825-5035
On Behalf of the State of Texas
Ms. Lindy Michelle Tober
Assistant District Attorney
SBOT No. 24013641
1201 N. Highway 77, Suite 104
Waxahachie, Texas 75165
Phone : (972) 825-5035
On Behalf of the State of Texas
Mr. David Finn
MILNER & FINN
SBOT No. 07026900
International Center - Phase IV
2828 North Harwood Street, Suite 1950
Dallas, Texas 75201
Phone : (214) 651-1121
On Behalf of Defendant
Mr. Mark Griffith
GRIFFITH & ASSOCIATES
SBOT No. 00785928
108 West Main Street
Waxahachie, Texas 75165
Phone : (972) 937-9555
On Behalf of Defendant
C H R O N O L O G I C A L I N D E X
Jury Selection
January 9, 2007
Page
General instruction by the Court . . . . . 4
Voir dire by the State . . . . . . . . . . 11
Voir Dire by the Defense . . . . . . . . . 41
Jury Seated . . . . . . . . . . . . . . . . 63
P R O C E E D I N G S
THE COURT: All right. We're ready to go. The next case we're selecting a jury on will be for -- let me make sure I don't have any - - I've got one person that couldn't be here the 18th. This case will not be scheduled for the 18th, so that's -- shouldn't be any problem about that. Not be tried on the -- well, this one we have it on the 23rd. The 22nd and 23rd so you're okay. All right.
All right. This is cause number -- I've had no request for shuffle so we're going to proceed as you sit. Please do not change your seats. Keep the same order that you're in now because if you move around, move over a space to get more room or whatever you confuse the lawyers and if you do that the lawyers will all be confused, so please keep your position as you are now.
This is Cause Number 30,467, State versus James Smith. Mr. Williams is charged with the offense of criminally negligent homicide. That's Mr. James Smith standing up. Thank you, Mr. Smith. Representing her -- him is Mr. David Finn.
MR. FINN: Good afternoon, everyone.
THE COURT: And Mr. Mark Griffith. And
they're the defendant's attorneys. Representing the -- going to be lead prosecutor is Mr. Don Maxfield. Sitting over here with him is assistant DA Lindy Tober. And I guess she's riding shotgun, right, on this one?
MR. MAXFIELD: Yes, sir.
THE COURT: All right. And those are your players, or main players for this case. And as I said before, the defendant's charged with the offense of criminally negligent homicide. And I gave you some instructions earlier on the previous case about culpable mental state, intentionally and knowingly.
You can set that aside because the intentionally and knowingly part has no application in this case. The defendant is charged with the offense of criminally negligent homicide which means which he's charged with not committing the offense intentionally or knowingly.
He's charged with committing the offense by criminal negligence. And criminal negligence has a legal definition. And I'm going to read it real slow. The attorneys may go over it a little bit more with you.
But a person acts with criminal negligence or is criminally negligent with respect to
circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from an actor's standpoint. That is the defendant's standpoint.
That's the definition of criminally negligence homicide. The defendant is charged with two counts of criminally negligence homicide. That is by criminal negligence causing the death of two individuals arising out of the same transaction basically what it's alleging, two counts.
That the defendant by criminal negligence caused the death of one person named in count one of the indictment and another person named in count two of the indictment. And the defendant did it by criminal negligence, not intentionally or knowingly. Intentionally -- or excuse me, causing someone's death by criminal negligence in the state of Texas is a state jail felony.
That's probably going to be a new word to most of you. A state jail felony. That's something that's created by the legislature in 1994. That's kind of in between the county jail and the state penitentiary for want of a better term. I heard the previous lawyer mention TDC a couple of times.
TDC in 1994 went the way of Texas Unemployment Commission, went the way of Texas Welfare Department, went the way of probation department. They all got their names changed, but they're all the same thing. For whatever reason they changed the name of all these institutions.
So the Texas Department of Corrections is no more. It's an Institutional Division of the Texas Department of Criminal Justice. But it's the penitentiary. Same place it always was. Does the same thing it always did.
State Jail or the creation of the legislature in 1994 to handle offenses which were created in 1994, they changed some of the lower level felony offenses and called them state jail felonies and made special places for people to be committed in state jails who had been convicted of state jail felony.
If any of you have you been up - - down 45 going to Dallas on your right in Hutchins there's a
big lighted compound area. And if you look - - pay attention to road signs says do not - - prison area do not pick up passengers or hitchhikers or whatever it is. That is a state jail facility. And that's between places. The legislature created - - actually there's many, many state jail facilities around the state. If somebody's committed, convicted from here, sent to a state jail, that's where they go. They go to a clearing center which distributes them where they want to where there's room.
I just cite that Hutchins facility as a place that you know that's a state jail facility. It's got a fence around it, barbed wire fence, a high fence and it's in a building and that constitutes a state jail facility.
The range of punishment for the offense of state jail felony is not less than 180 days in a state jail nor more than two years imprisonment in state jail. And a fine can be assessed not to exceed $10,000. That's the range of punishment.
Earlier we talked about 2 to 20 for a second degree felony. State jail class offense has a range of punishment not less than 180 days and not more than two years imprisonment in a state jail facility.
Another difference, as I talked to you about earlier on the first time I told you how kind of parole is figured, a loose way of figuring parole -- parole is figured. Well state jail there are -- is no parole for state jail. If you're committed to state jail not less than a 180 days nor more than two years or 730 days, if you want to look at it that way. Whatever time is assessed, that's what's served. So it's a narrow range or punishment but it's a day-for-day service of the punishment.
Likewise, in this case, or excuse me, in state jail offenses where a defendant is convicted of a state jail offense and a defendant can prove that he's never before been convicted of a felony in this state or any other state the jury - - and the jury finds it's appropriate to recommend community supervision, a jury can recommend community supervision.
Again, you set the time, the Judge sets the length of time a defendant will be on community supervision. Except I can tell you it won't be because the law fixes it. They give me discretion but only within a certain limit. It won't be any less than two years on community supervision and no more than five years on community supervision.
So the amount of time not less than a 180 days nor more than two years in state jail you set. If you recommend community supervision then the sentence is suspended because you recommended it and the Court, the Judge decides whether it's going to be for two years, three years, four years, five years or something else in between. Between two and five.
Likewise, as I told you before, the jury does not set the conditions of community supervision. I would remind you that again you can't assess a fine in lieu of state jail time, nor if you recommend community supervision then any fine that you assess is also suspended.
It's not I recommend community supervision and the Judge can order the defendant to pay a fine. No, it's not the case. Whatever you assess you got the right to or the ability and authority to recommend community supervision or not recommend community supervision. But it's either all or none. And the Judge sets the condition.
And all those things I told you about earlier, I'm not going to go through them again, burden of proof, beyond a reasonable doubt, presumption of innocence, right not to testify, a grand jury indictment is no evidence of guilt nor can it be considered as a circumstance against the defendant, if he elects not to testify it can't be taken as a circumstances against him. All those are applicable to criminal law cases in general are applicable to this case. I'm not going to repeat that. I think you got the idea. You can't recite it back to me but you sure got the idea. Thank you. Mr. Maxfield.
MR. MAXFIELD: Thank you, Your Honor. May it please the Court, ladies and gentlemen. Again, I'm Don Maxfield. Does anyone here know me or think they know me?
PROSPECTIVE JUROR: You were involved - - both of y'all were involved in my son's and daughter's case. I mean, I don't know you.
MR. MAXFIELD: Tell me about your daughter's case.
PROSPECTIVE JUROR: My daughter's was a juvenile case. It was dismissed. It wasn't anything. But my stepson's was a -- had some drugs.
MR. MAXFIELD: okay. What was your stepson's name.
PROSPECTIVE JUROR: Matthew Jones.
MR. MAXFIELD: okay
PROSPECTIVE JOROR: But I mean, I don't know y'all. I mean, I've seen you in the courtroom.
MR. MAXFIELD: Okay. All right. You just know us from our duties as --
PROSPECTIVE JUROR: In the courtroom.
MR. MAXFIELD: - - In our office. Okay. Is there anything about that that you would hold against us in this case?
PROSPECTIVE JUROR: None whatsoever.
MR. MAXFIELD: All right. Anybody else? Okay. the defense attorneys have been introduced as well. Did you introduce them?
THE COURT: I did.
MR. MAXFIELD: Okay. Mr. Finn who offices out of Dallas and Mr. Griffith who offices out here in Waxahachie, anybody know either of them or think you know either of them? All right. Let's start with Mr. Spence.
PROSPECTIVE JUROR: Yes. I know Mr. Griffith. I done some dozer work for his dad.
MR. MAXFIELD: All right. Has he ever represented you?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Anything about -- are y'all personal friends?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Have you hung out together, done anything socially together?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: okay. Is there anything what you know of Mr. Griffith that causes you right now to either lien toward his side of the case or away from his side of the case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: All right. Thank you very much. Mr. Rover?
PROSPECTIVE JUROR: Yes. I went to school with his brother. I graduated high school.
MR. MAXFIELD: Which one?
PROSPECTIVE JUROR: Mr. Griffith.
MR. MAXFIELD: I know. which one?
PROSPECTIVE JUROR: Greg.
MR. MAXFIELD: Greg. All right. Did you hang out with Mark?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Did y'all ever do anything together?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: You ever been in his home, he in your home?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Okay. Anything about your knowledge of Mr. Griffith or his brother or his family that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Thank you, sir. Let's see. Who else? Right now I don't think we're going to get that far. I'm just going to mark y'all down. Mr. Manri and Mr. Brien. You both know - - who do you know, Mr. Manri?
PROSPECTIVE JUROR: Mr. Griffith.
MR. MAXFIELD: All right. And Mr. Brien?
PROSPECTIVE JUROR: Mr. Finn
MR. MAXFIELD: Okay. Okay. Anybody else? All right. Ms. Tob, who I am blocking, anybody know Ms. Tober besides you Ms. Melm? Thanks you very much. I take it by your silence that none of the rest of you know any of the folks up here.
Last, but not least of course, Mr. Smith. Does anyone here know James Smith? I take it by your silence that no one does. I want y'all to hold me to this. I'm going to do this in thirty minutes or less. I expect you to be very vocal if I get anywhere close to that thirty minutes.
Okay. The charge in this case - - the reason I can say that is because Judge Knize and the two attorneys that talked to you previously have gone over virtually everything in respect generally to criminal law that applies in this case. I think we all know what your answers are to those questions.
The only think I want to kind of zero in on is this concept of criminally negligent homicide. And I'm going to tell you exactly what criminally negligent homicide is. It is considered by the legislature the least egregious form of unlawfully taking someone else's life.
In Texas if you intentionally and knowingly cause the death of another you have committed the offense of murder. If you recklessly, that is if you engage in conduct that you know could result in someone's death or someone being seriously injured and someone dies, that's manslaughter.
Criminally negligent homicide is the least form in terms of egregiousness of the offense under the rules as the legislature gives it to you. It doesn't mean that it's any less serious an offense because we're still talking about the death of an individual.
It still is the most serious offense in the state of Texas or the most serious category of offense because someone has died. Criminally negligent homicide means that a person ought to have been aware of a risk, a substantial risk and an unjustifiable risk and because they engaged in that conduct death resulted in someone else.
Does everyone follow me on that? Does everyone agree that this is a crime which should be against the law? Now, I'm not saying that a person has to know there is a risk. The law only requires that a person ought to have been aware of the risk.
It's kind of hard to give you an example. I will tell you that ordinarily criminally negligent homicide involves traffic cases, that is, automobile or some kind of vehicle collision or a firearm in some manner. Let me give you an example.
Someone leaves a firearm loaded in a place in their house. A child finds that firearm, plays with it and someone dies. Now a jury in that instance could find that that person ought to have been aware that leaving a loaded firearm where a child could get to it could result in death. So a jury could find that person guilty of criminally negligence homicide.
And the jump here is it doesn't mean that a person intended a bad thing to happen. It doesn't mean that a person is not sorry that a bad thing happened. It just means that there was a substantial and unjustifiable risk that any ordinary and reasonable person should have been aware of and death resulted.
Mr. Ship, do you agree with that law?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: That should be punished under the laws of the State of Texas?
PROSPECTUVE JUROR: Yes, sir.
MR. MAXFIELD: Does anybody disagree? And this is real important because again we're not talking about someone that set out to commit a crime. We're talking about someone engaging in conduct in such a manner that they caused death.
All of you on the first row, you agree that you could enforce that law of criminally negligent homicide? On the second row?
PROSPECTIVE JUROR: Yes.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. Third row?
PROSPECTIVE JUROR: Yes.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Fourth row? Yeah, I'm back to the fourth row now. You guys got to answer too. All right. How about the fifth row just in case?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Great. Now another part of the definition is that the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the standpoint of the person charged.
Everybody understand that? I'm glad you did. What it means is that the risk must be a risk that failing to perceive it is so far a gross deviation from the standard of care an ordinary person would exercise from the defendant's standpoint.
So somebody has a heavy lamp in their house on a table and a child walks by and accidentally knocks it off and it lands on the child and the heavy lamp causes the death of the child, that's not a risk that is gross deviation from the standard of care, or at least the jury may find that that's not a gross deviation from the standard of care of an ordinary person. We all have lamps in our houses.
But you see how the gross deviation, that is a loaded firearm, would be a whole different matter. Make sense to everybody? Anybody feel like they'd have trouble enforcing that law? And it's okay if you do. We're not going to argue with you. We just need to know.
All right. The punishment, 180 days, two years in state jail and community supervision may be applicable. Okay. It's up to the jury whether to award community supervision. Is there anyone here who feels like they could not consider that full range of punishment, that is not less than a 180 days in jail, in state jail, up to two years in state jail and the possibility of considering community supervision? Anybody have a problem with that? Mr. Butler? No. what's your name.
PROSPECTIVE JUROR: Buller.
MR. MAXFIELD: Butler. Okay. Let's talk about you now. Anybody else? Anybody that - - and please just tell me. Please. Tell me now. Mr. Buller, you have a problem with a defendant not testifying?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And just not to belabor the point, but I need to find out if in this case, now that you know what this case is about, that, you know, it doesn't involve intentional or knowing conduct, do you - - are you still of that same frame of mind that if a defendant did not testify that you would in some way consider that as an indication of guilt?
PROSPECTIVE JUROR: Like I say, in all honestly that's the way I feel and - -
THE COURT: Mr. Finn, you want to - - you going to have a challenge?
MR. FINN: Not at this time, Your Honor.
THE COURT: Okay. What about you, Mr. Maxfield?
MR. MAXFIELD: I have no challenge, Your Honor.
THE COURT: Okay. All right.
MR. MAXFIELD: Ms. Orta - - oh, I think we have an agreement on that.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Thank you, Ms. Orta.
PROSPECTIVE JUROR: Am I dismissed?
THE COURT: No.
MR. MAXFIELD: Good try.
MR. FINN: So close. This close. Clean getaway.
MR. MAXFIELD: Okay. You folks on the first three rows can relax a minute. The fourth row, it's your turn in the spotlight. We haven't gotten to talk to you about your cards. Mr. Varig.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: How are you today?
PROSPECTIVE JUROR: I'm fine. How are you?
MR. MAXFIELD: I noticed on your card you stated that you didn't feel that you could be a fair and impartial jury. Now that you've heard what this case is about and you heard some of the other lawyers talk about what your duties and responsibilities would be, you still hold or still believe that you couldn't be a fair and impartial juror?
PROSPECTIVE JUROR: Well that may not be entirely true. What I'm trying to say, I guess, is I don't want to be responsible for ruining that man's life. You know, without knowing exactly the exact details and everything, you know, maybe nobody knows them. But I don't want be responsible for ruining his life or vice versa. I just - - I don't want to.
MR. MAXFIELD: Okay. You understand that a defendant on trial if he committed the conduct ruined his own life. And if he didn't commit the conduct then his life is not going to be ruined.
THE COURT: And we get into a lot of definitions about ruined. You know, we're not going to get into the collateral matters of things that have nothing to do with what you're to decide. You're deciding whether somebody's guilty or not guilty and then you're going to decide what the - - if you decide the defendant's guilty then you'll decide the punishment.
As to some things that you might consider ruined, I don't know what all you would consider ruined. Whether it's somebody's kid won't talk to them anymore or whether his wife's going to divorce him. You're not concerned with that. Okay. So I don't know exactly what you mean by ruined. If you mean by ruined sentencing somebody to the state jail, then that's ruined.
PROSPECTIVE JUROR: Well I don't know if this gentleman has a wife or children or whatever. I don't say - - okay. I say put him away for ten years. What's that going to do for his family? You know, that's - - I just don't want to - -
THE COURT: Are you going to be able to listen to the evidence and find somebody guilty or not guilty depending on what the evidence is or because you're so worried about some effect you may have on somebody's life you just won't e able to reach a decision?
PROSPECTIVE JUROR: I really - - I really don't feel I could.
THE COURT: You don't feel like you have a moral ability to sit in a jury box and make a decision whether somebody is guilty or not guilty? You know, finding somebody not guilty can ruin lives too.
PROSPECTIVE JUROR: Well, yes, sir, I understand.
THE COURT: So are you so worried about ruining somebody's life that you wouldn't be able to make that decision as to whether somebody's guilty or not guilty. And then make a decision as to whether they should be sent - - what the punishment should be?
PROSPECTIVE JUROR: That's - - I'm afraid I couldn't. I wouldn't - - I wouldn't want that on my mind.
THE COURT: All right. You got a challenge?
MR. MAXFIELD: Challenge.
THE COURT: Granted
MR. MAXFIELD: Mr. Wheat, I assume you know some police officers, law enforcement officers from the fact that you are a law enforcement officer?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: All right. As a law enforcement officer you understand that the importance of credibility of a witness, do you not?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And that judging I assume that every day in your line of work that you're talking to someone and you're trying to judge whether they're telling you the truth or pulling your leg; is that correct?
PROSPECTIVE JUROR: Yes, sir, it is.
MR. MAXFIELD: You understand that as a juror you would have the same function and that is to sit and listen to people and make a decision whether you believe them or not?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: That make sense to you?
PROSPECTIVE JUROR: Yes, it does.
MR. MAXFIELD: Okay. And as Mr. Hayes
told you in the voir dire earlier you can't let one class of people start out higher than the other class in the believability factor, right?
PROSPECTIVE JUROR: Right.
MR. MAXFIELD: Now is the fact that you're a police officer going to mean that any police officer that gets on the stand and testifies you're going to automatically believe them regardless of what they say, how they say it or how what they says fits in with the other evidence?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Are you going to automatically disbelieve a police officer simply because he's a police officer if he testifies and - - if he testifies?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Are you going to automatically disbelieve a police officer simply because he's a police officer if he testifies and - - if he testifies?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: So you can judge the testimony of a police officer or any other witness by the same standard or test as any layperson?
PROSPECTIVE JUROR: Yes, I can.
MR. MAXFIELD: Ms. Acker, school librarian over in Ennis; is that right?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Do you remember Mr. Griffith?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: What school are you in over there?
PROSPECTIVE JUROR: High School.
MR. MAXFIELD: The high school. Ms. Bail, I understand that you had - - this is the infamous question - - a relative, close friend, yourself be an accused, victim or witness of a criminal offense. You answered you to that. Can you tell me about it?
` PROSPECTIVE JUROR: Yes, sir. My husband is a retired police officer and had cases.
MR. MAXFIELD: All right.
PROSPECTIVE JUROR: And my daughter was involved in litigation with her apartment complex and - -
MR. MAXFIELD: So she was a witness?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Know anyone that's been a victim?
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: Okay. Close friend or relative?
PROSPECTIVE JUROR: Just acquaintance, friend.
MR. MAXFIELD: Okay. You also know some police officers. I assume that's through you husband?
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: All right. Anything about a police officer testifying that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Thank you, Ms. Bail. Ms. Kuykendall, what did you do before going with Southwest Diagnostic?
PROSPECTIVE JUROR: I worked at Texas Siani Health Center.
MR. MAXFIELD: In Dallas?
PROSPECTIVE JUROR: I worked for the Mesquite office.
MR. MAXFIELD: All right. So you've been in the medical field for some time now?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: All right. And are you a technician or --
PROSPECTIVE JUROR: No. I manage the switchboard at Southwest Diagnostic.
MR. MAXFIELD: All right. Is there anything that we've talked about here today that you think raises a question in your mind about whether or not you could be a fair and impartial juror?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: Thank you, very much. Ms. is it Hen?
PROSPECTIVE JUROR: Yes, Hen.
MR. MAXFIELD: And you and your husband own First Floors?
PROSPECTIVE JUROR: I own First Floors. He does the on-site stuff.
MR. MASFIELD: All right. And how long have you had First Floors?
PROSPECTIVE JUROR: 18 months
MR. MAXFIELD: All right. What did you do prior to that?
PROSPECTIVE JUROR: I worked for my father.
MR. MAXFIELD: What kind of business was that?
PROSPECTIVE JUROR: Flooring covering
MR. MAXFIELD: Flooring. Okay. Thank you. I'm getting close?
THE COURT: you got about ten minutes.
MR. MAXFIELD: Your husband is retired Army? I'm sorry, Ms. Harold?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Your husband is retired Army?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: What rank?
PROSPECTIVE JUROR: I don't remember
MR. MAXFIELD: And where -- when did he retire?
PROSPECTIVE JUROR: 1990.
MR. MAXFIELD: And how long was he in?
PROSPECTIVE JUROR: 30 years.
MR. MAXFIELD: 20.
PROSPECTIVE JUROR: 30.
MR. MAXFIELD: 30. And were you married to him the whole time?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: How long have y'all been married?
PROSPECTIVE JUROR: 23 years
MR. MAXFIELD: All right. And where was he last stationed?
PROSPECTIVE JUROR: Fort Lee.
MR. MAXFIELD: Fort Lee, Virginia. Did he ever serve in combat?
PROSPECTIVE JUROR: Oh, yes.
MR. MAXFIELD: Whereabouts?
PROSPECTIVE JUROR: Vietnam.
MR. MASFIELD: All right. And what was his last -- last duties or last assignment?
PROSPECTIE JUROR: He was the safety man on Fort Lee jurisdiction?
MR. MAXFIELD: All right. You recommend being a military wife?
PROSPECTIVE JUROR: I like it.
MR. MAXFIELD: Okay. I just have a daughter who's dating somebody. Mr. Pratt, let's see, you know some police officers. Who would that be?
PROSPECTIVE JUROR: Greg Lowe. He's married to my cousin.
MR. MAXFIELD: What was his name?
PROSPECTIVE JUROR: Greg Lowe.
MR. MAXFIELD: Greg Lowe. He's married to your cousin?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. Who else?
PROSPECTIVE JUROR: Lester from -- I don't know which police department.
MR. MAXFIELD: Lester. Okay. Now it also says that you know someone that's either a friend, relative or accused -- either yourself, a friend or relative that's been a witness, a victim or an accused in a criminal proceeding and you answered yes.
PROSPECTIVE JUROR: I answered that wrong.
MR. MAXFIELD: You answered that wrong? All right. Let me -- I'm going to read it to you one more time. Have you, your relatives or close friends ever been an accused, victim or witness in a criminal case including a DWI case. And you checked yes but if it's no, tell me.
PROSPECTIVE JUROR: Right. No.
MR. MAXFIELD: Okay. All right. Did you grow up here in Ellis County?
PROSPECTIVE JUROR: Born and raised in Maypearl, Texas.
MR. MAXFIELD: In Maypearl. All right. And where is DMG Masonry?
PROSPECTIVE JUROR: Arlington, Texas.
MR. MAXFIELD: In Austin?
PROSPECTIVE JUROR: Arlington.
MR. MAXFIELD: Oh, Arlington. Okay. And you're a foreman for them?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Okay. And what is GP? Your wife -- where your wife --
PROSPECTIVE JUROR: Georgia Pacific. Georgia Pacific.
MR. MAXFIELD: Georgia Pacific. Okay. Thank you.
MR. MAXFIELD: Mr. Pratt, you've heard me describe what criminally negligent homicide is in Texas. Do you think that you would have any problem finding someone guilty of crime that they did not intentionally or knowingly commit?
THE COURT: If it falls in the definition of criminally negligent homicide.
PROSPECTIVE JUROR: Say it again.
MR. MAXFIELD: Okay. Criminally negligent homicide does not require someone to intentionally or knowingly cause someone's death. It is if they caused that death by criminal negligence. Which I've explained to you is you should have known there was a risk. It's your conduct that caused the death. All right. could you find someone guilty of a crime based on criminal negligence if they did not intentionally or knowingly commit the crime?
MR. FINN: Excuse me, Judge. I'm going to have to object unless he adds that the State has proven it beyond all reasonable doubt.
THE COURT: overruled. I think that's a given as much time as we've gone over to take to convict somebody of a crime. Go ahead and answer the question.
MR. MAXFIELD: Do you understand the question?
PROSPECTIVE JUROR: Not really, no.
MR. MAXFIELD: Well it's pretty simple and --
THE COURT: Let me do it this way. If the states proves beyond a reasonable doubt that the defendant acted in criminal negligence and thereby caused the death of another individual, could you find him guilty of that offense or would you not because, hey, it wasn't intentional. They didn't mean to do it?
PROSPECTIVE JUROR: I can find them guilty.
THE COURT: Okay. Thank you. How's that?
MR. MAXFIELD: Thank you, Mr. Pratt.
THE COURT: Mr. Maxfield, you can do what you want to, but we're in the row. You got 36 less 12 is 24, you lost two for cause, plus nine.
That comes to 31 through that back row there, I mean that row, fourth row. So I don't know if you want to ask them anything or not.
MR. MAXFIELD: Fourth row or fifth row?
THE COURT: Fifth row. I'm sorry.
MR. MAXFIELD: Fifth row. Okay. Mr. Manri, you know Mr. Griffith. How do you know Mr. Griffith?
PROSPECTIVE JUROR: Back -- several years back there.
MR. MAXFIELD: In high school? Did y'all -- were y'all hanging out together in high school or --
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Just knew each other?
PROSPECTIVE JUROR: Right.
MR. MAXFIELD: All right. Anything about your knowledge of him that would affect you or cause you not to be a fair and impartial juror in this case?
PROSPECTIVE JUROR: Not at all.
MR. MAXFIELD: Thank you. You doing all right?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: You work for Vaught.
What do you do for them?
PROSPECTIVE JUROR: I'm a planner. Also a logistic engineer.
MR. MAXFIELD: Thank you very much. Mr. Petra.
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Did I pronounce it, correctly?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: I couldn't tell from you card. It looked like that maybe you might know someone that was an accused, witness or victim in a crime.
PROSPECTIVE JUROR: Up here my graddaughter was sentenced for unlawful use of a motor vehicle.
MR. MAXFIELD: All right.
PROSPECTIVE JUROR: In this court.
MR. MAXFIELD: In this court. What was her name?
PROSPECTIVE JUROR: Brandy Bill.
MR. MAXFIELD: Well my office would have prosecuted that case. You feel like she was handled fairly by the criminal justice system?
PROSPECTIVE JUROR: Very fair.
MR. MAXFIELD: Do you hold a grudge against the Ellis County and district attorney's office or the 40th District Court for anything that happened regarding her case?
PROSPECTIVE JUROR: No, sir.
MR. MAXFIELD: You feel like you can put all that aside and base this case solely on the evidence that you hear?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Thank you. Mr. Brien, you served on a jury before?
PROSPECTIVE JUROR: Yes, I have.
MR. MAXFIELD: What kind of case?
PROSPECTIVE JUROR: It was case that you had, a mental hearing. Tried to determine if a person should go back to Terrell.
MR. MAXFIELD: Here in Ellis County?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: All right. You said I handled that?
PROSPECTIVE JUROR: I think you were the one there.
PROSPECTIVE JUROR: I think you were the one there.
MR. MAXFIELD: All right. Well, anything in the way I handled that case that -- that was in the trailer courts, right?
PROSPECTIVE JUROR: That was in the trailer courts.
MR. MAXFIELD: Anything about that experience that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: I believe you said you know Mr. Finn?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Is that through court and representing --his representing clients or is that in some other way.
PROSPECTIVE JUROR: I've been a witness in the court which he was the attorney.
MR. MAXFIELD: Mr. Strad, let's see, you has a relative, friend or yourself been a victim, accused or witness in a criminal case?
PROSPECTIVE JUROR: When I served on a grand jury?
MR. MAXFIELD: All right. Now when did you serve on grand jury?
PROSPECTIVE JUROR: Years ago.
MR. MAXFIELD: Was that here in Ellis County:
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Is there anything about that experience on the grand jury that you think would affect or influence you in this case?
PROSPECTIVE JUROR: No.
MR. MAXFIELD: Okay. Ms. Hillman.
PROSPECTIVE JUROR: Yes, sir
MR. MAXFIELD: I believe on your card you had an issue about whether or not you could be a fair and impartial juror?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: Could you explain that to me?
PROSPECTIVE JUROR: I had a case in this court. I had a case in this court. I felt like that it was unfair in that there was inattentiveness and failure to hear entire the testimony. So I do not feel that I will be fair and I'll be putting an extreme burden on both parties to prove their case.
MR. MAXFIELD: Okay. Well let me ask you, was it a civil case?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: All right. You were one of the parties?
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: And the testimony that was presented. You felt like that the trier of facts wasn't paying attention or the attorneys didn't put the case on very --
PROSPECTIVE JUROR: It was not a jury trial, sir.
MR. MAXFIELD: Okay.
THE COURT: She didn't like my decision, Counselor.
MR. MAXFIELD: I understand that. Was it -- you mentioned about the case, they way the case was presented. Did you have any concerns about the attorneys that were presenting the case?
PROSPECTIVE JUROR: No, sir, not against the attorney.
MR. MAXFIELD: Well you understand that that case is totally removed from this case?
PROSPECTIVE JUROR: I do.
MR. MAXFIELD: And that one of the things that we certainly need are attentive jurors in this case. Can you be an attentive juror?
PROSPECTIVE JUROR: Probably most definitely because I feel that there is a burden,that I'm not going to share with this Court, that is to adhere to everything and because of that I would be a very hard juror.
MR. MAXFIELD: Okay. Will you be hard on the defendant's side, the defendant’s counsel or will you be hard on the state's side, the prosecutor?
PROSPECTIVE JUROR: I'm going to be hard on both sides. So I might be the juror that you want back in the back.
MR. MAXFIELD: All right. Well, thank you very much.
PROSPECTIVE JUROR: Just being honest.
MR. MAXFIELD: I do appreciate it. Ms. Teeter.
PROSPECTIVE JUROR: Yes, sir.
MR. MAXFIELD: You know some police officers?
PROSPECTIVE JUROR: Yes.
THE COURT: That might be far enough, Counsel. That takes it through 30 -- that's actually 35. That's 35 right there.
MR. MAXFIELD: Okay. Stop or go on?
THE COURT: Well if you can do it in five seconds. You promised thirty minutes so you can go ahead.
MR. MAXFIELD: Thank you so much for -- thanks you for your time -- I mean for your attention, Ms. Hill, for your attention. I appreciate it. My
parting comment will simply be that the most important qualification of a juror is to keep an open mind and I ask that you do that. Thank you.
THE COURT: Mr. Finn.
MR. FINN: Thank you, Your Honor. Folks, I'll make you a promise. You've been here all day. You deserve combat pay.
THE COURT: They're still just getting six dollars.
MR. FINN: I know that you're going to finish -- you're going to finish on top, right?
THE COURT: No. No.
MR. FINN: Okay. If you all will stand up and stretch your legs I promise I will make mine real short. Come on, move around, wake up, before Judge Knize wants to get this in writing.
THE COURT: Well you never said how short.
MR. FINN: You're right, I didn't. All right. Folks, if you would go ahead and grab your seats and I'll finish up here.
As the Judge said a little while ago my name is David Finn and I'm 43. I live in Dallas, got four kids and a wife.
THE COURT: No biographies.
MR. FINN: No biographies:
THE COURT: No biographies.
MR. FINN: But it's my time, Judge.
THE COURT: No biographies. I'm glad you won the war. Go ahead.
MR. FINN: Speaking of the war let me ask y'all this question. The prosecution asked you earlier if anybody would prejudge the credibility of any class of witnesses, remember that, whether it's a police officer, you're going to start him or her out ahead or are you going to start them out behind because of maybe a positive or negative experience you had. Y'all remember that?
All right. Let me ask you this question. Our country's engaged in a very volatile war in the Middle East. If it turns out that a witness is called who served in the Air Force for 25 years, career military, would you start that person off lower in terms of credibility than an average citizen?
THE COURT: Counsel --
MR. MAXFIELD: Objection.
THE COURT: -- is that one of your witnesses? Is that one of your witnesses?
MR. FINN: In all likelihood it is.
THE COURT: All right. Go ahead.
MR. FINN: Thank you. What I'm getting at would be some sort of activist or someone who would say to themselves I don't agree with the military, I don't agree with that we're doing as a country, the armed forces.
If somebody served in the Air Force or another branch for 25 years I don't like them, I don't trust them, I ain't going to believe them. Everybody understand my question? Is there anybody here that feels that way? If you do raise you hand. I need to know.
All right. Another thing that the Judge mentioned earlier which I think is actually a misstatement of the law, with all due respect, the Judge indicated that in the guilt/innocence or guilt/nonguilt phase you're normally not going to hear anything about you reputation or the credibility or any previous conviction the witness might have. And generally that's true.
You know in this case that we filed an application for probation. So by backing up my client will just deny that he has ever been previously convicted of a felony in this state or any other. Everybody with me so far.
If my client takes the stand the prosecution can then impeach him not only with prior felony convictions but misdemeanor convictions or crimes involving moral turpitude.
MR. MAXFIELD: Your Honor --
THE COURT: Not all misdemeanors involve -- involving or -- involving moral turpitude. You better tell them what moral turpitude is.
MR. FINN: I'm about to do that, Your Honor.
MR. MAXFIELD: Your Honor, I'm going to object to this line of questioning.
THE COURT: Proceed.
MR. FINN: Thank you. For example, a man assaulting a woman would an example.
THE COURT: First of all, I don't know any statement of the law I told you folks -- I think the law I told you was exactly right. I think you would -- normally and generally and usually that's what attorneys try to keep out.
And of course if they don't have anything they want to be up front and tell you everything is hunky-dory and my client has a clean slate, and I suppose that's what he's doing.But I'm going to cut it off right here,Mr. Finn, is that how a witness can be impeached and what the trial strategy of either side might be. You can't ask them -- commit them on that.
MR. FINN: I'm not trying to commit.
THE COURT: Move on. Move on. Move on.
MR. FINN: Let me ask you this question. How many -- well what would you call this? okay. Forget all the legal stuff that you've heard up to now. If I said to you Mr. -- I'm sorry.
PROSPECTIVE JUROR: Mr. Pulley.
MR. FINN: Mr. Pullen, if I said to you just, you know I met you out somewhere at the grocery store and I said, you know, what would you call it if somebody injured another person or caused the death of another person but they didn’t do it intentionally, they didn't do it knowingly, they didn't even do it recklessly, in other words, consciously disregarding it, but they did it -- it was negligent. They should have known, They should have appreciated something -- something tragic would happen, what would you call that Mr. Pullen.
PROSPECTIVE JUROR: I would call it an accident.
MR. FINN: I'm sorry?
PROSPECTIVE JUROR: An accident.
MR. FINN: An accident.
THE COURT: And that's not what it is.
It's criminal negligent homicide. If you find that it was committed it was criminal negligence -- criminally negligent homicide. It's not considered a, quote, accident.
MR. FINN: And if you don't think they proved it beyond a reasonable doubt it's called an acquittal.
THE COURT: There you go, Mr. Finn. Now you're on.
MR. FINN: Thank you.
THE COURT: If you want to get into it, we can get into it.
MR. FINN: Well I think we're going to, Your Honor.
THE COURT: All right. That's fine. Let's see who wins.
MR. FINN: If they don't prove every single element beyond a reasonable doubt, every single element, what is your verdict?
PROSPECTIVE JUROR: Not guilty.
MR. FINN: Let's do it again.
PROSPECTIVE JURORS: Not guilty.
MR. FINN: Right. Why is that true? They don't prove it -- the government's doing what they can because they got to do the proving. If they don't prove it to you beyond all reasonable doubt why do you have to vote not guilty? Why can't you just convict anyway?
PROSPECTIVE JUROR: That's why the law says.
MR. FINN: That’s what the law says. Anybody have any other answer to that? It ain't America. It doesn't follow our laws of our Constitution. The people doing the allegating, the alleging, the pointing have got to do the proving. And if they don't you vote not guilty. Everybody okay with that?
Let me ask you, Mr. Wilhelm, is that right?
PROSPECTIVE JUROR: Yes.
MR. FINN: Mr. Wilhelm, if there was somebody near and dear to you that got accused of something that they didn't do, that they did not do, what kind of lawyer would you want to represent that person?
MR. MAXFIELD: Objection. It's a commitment question.
THE COURT: Overruled.
PROSPECTIVE JUROR: Please rephrase that.
MR. FINN: Okay.
MR. MAXFIELD: Objection; relevance.
THE COURT: Overruled. I overruled the last one.
MR. FINN: If somebody that you cared for was accused of committing a crime, a felony that they were not guilty of, what kind of attorney, what type of lawyer would you want representing them?
PROSPECTIVE JUROR: I really don't know how to answer that question, I mean.
MR. FINN: Okay. Let me give you a multiple guess. A lay down lawyer or somebody that's going to be aggressive and try to bring all the truth if that's what it takes.
PROSPECTIVE JUROR: The latter.
MR. FINN: Okay. Will you give me permission to at least attempt to be that lawyer for James Smith?
MR. MAXFIELD: Ojection; commitment question.
THE COURT: Overruled.
MR. FINN: Okay. I’ll ask that question again. Will you give me permission to at least attempt to be that lawyer for James Smith in connection with this case?
PROSPECTIVE JUROR: I don't feel like it's my permission to give.
MR. FINN: Well I want your permission because this I predict is going to be a very interesting and very contentious trial. For those of you who have had prior jury service get ready. This isn't a DWI, it's not a hot check case. A man's life is on the line. And they're saying that he killed two people with criminal negligence.
It's important to my client and also his family. So I want your permission. Because what I don't want to have is somebody going back there saying, man, they got all over such and such witness in cross-examination and just really got after that person.
Now I'm not asking for permission to be rude, insolate, unprofessional, late. I'm not talking about, hey, give me a blank check to be lazy or something. That's not what I'm saying. What I'm saying is if Mr. Griffith and I, in cross-examination in particular, really hone in on some things I don't want you to hold it against James that we're really focused on getting to the truth. You get me now?
PROSPECTIVE JUROR: Yeah, that's your job.
MR. FINN: Are you okay with that?
PROSPECTIVE JUROR: Well certainly. You're doing your job.
MR. FINN: Okay. Does everybody agree with that? If anybody says, hey, hold on a minute there. I'm going to -- I'm going to hold it against you if you get after it like that. Again, I'm not talking about being rude, raise your hand right now because I need to know now.
Okay. Now judge Knize earlier I believe read you the definition of criminal negligence and I think the prosecutor also read the definition. I'm going to read it again. But before I do I'm going to ask you the following. You don't need to say anything but just kind of think about this.
How many of us have had family, loved one, friends, coworkers who have had tragedy strike in their life where, for example, a youngster falls in a swimming pool and drowns. A youngster goes to grandma and grandpa's place in the country and they fall in the stock pond.A youngster is in a bathtub and mom and dad are busy in different parts of the house. Mom is cooking, dad's trying to look at the stock show. They both think that someone's watching the little boy or little girl, they go in, oh, my God it's horrible, it's awful, it's a tragedy. It's heartbreaking.
Somebody leaves a youngster in a car. Imagine a scenario something like that and ask yourself the definition of criminal negligence. See if it fits. A person acts with criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the results of his or her conduct when he or she ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that a failure to perceive it constitutes a gross deviation from the standard of care than an ordinary person would use under all the circumstances as viewed from the actor's standpoint.
Now that's a bunch of legal mumbo-jumbo. After a while you kind of see what is it. But ask yourself, it's not intentional. It's not knowing. It's not reckless. Is it criminally negligent homicide if it is, in fact, pure and simply an accident. That's where the rubber meets the road.
How many of y'all might be hunters? Raise your hand. Deer, elk, anything. Okay. How many of y'all are dove hunters? Keep your hands up. Okay. Anybody go last season? Yeah. All right. Y'all recall an incident that occurred in the great state of Texas where somebody got involved in a little situation involving a dove hunting incident. Ma'am, can you elaborate?
PROSPECTIVE JUROR: The vice presendent accidentally shot someone.
MR. FINN: Vice President Chaney while hunting with one o his friends, right, accidentally shot the ivdividual, right? It was an older man, right? And the person, thank God, survived and lived bus was hospitalized for a while, correct?
You think that that Vice President should have been aware of that risk and maybe if somebody wanted to go after the Vice President for that criminally on an attempt they could.
THE COURT: Well, wouldn't it make a difference under what circumstances the shooting occurred?
MR. FINN: Sure.
THE COURT: All right. Thank you.
MR. FINN: Okay. Let's say I'm out hunting. You're my hunting partner. I know you're in the area and you know I'm in the area. There's no dog, the dog's away and we're moving around.
MR. MAXFIELD: Your Honor, I'm going to object.
THE COURT: No, we're just getting into a bunch of stuff here that we're not going to go into. It's your area, you're behind me, you're in front of me and I shoot over there anyway. We can get into a thousand scenarios on this. I'm just going to prohibit that.
MR. FINN: Okay. May I ask him a question?
THE COURT: Maybe. Ask it and we'll see.
MR. FINN: All right. Well I'll come over here so you can wring my neck before I ask it.
THE COURT: Well I might wring it before you ask it if you want to put it that way.
MR. FINN: Did he get prosecuted for anything? PROSPECTIVE JUROR: No.
MR. FINN: No?
PROSPECTIVE JUROR: Didn't get tried.
MR. FINN: Didn't get tried. I think
that we have also talked about a lot of different legal principles but there's one that I really want to finish up with. And I'm going to sit down here in just a second unless y'all have any question for me. And that's called the presumption of --
PROSPECTIVE JUROR: Innocence.
MR. FINN: -- innocence, right. Presumption of innocence. What does that mean to you? What's that mean, presumption of innocence? Here in the front row.
PROSPECTIVE JUROR: Presume that somebody's innocent until you see enough evidence or know they're not.
MR. FINN: Okay. That's right. To basically assume and presume that somebody's innocent unless and until the state proves otherwise beyond a reasonable doubt. Fair enough?
How many of y'all know when you came in today when you look around the courtroom and Judge Knize gets started, you looked over here as you're coming through and you think I wonder what he did. Right? I'm seeing some nods down here. Sure. You know, wonder what he did. He must have done something or he wouldn't be in the hot seat. Right? See some nods. Okay.
That's kind of putting the cart before the horse, isn't it? That's assuming or presuming guilt, that he did something illegal or wrong. So here's what I need you to tell me. And I'll abide by your answer. I don't know you and you don't know me. But you'll see it's dag-gum important to James Smith.
James, would you stand up? Can everybody tell me looking at James at this moment in time not having heard any evidence, any testimony whatsoever that you can assume and presume that he is one hundred percent not guilty or innocent at this point in time?
And if you can't, just raise you hand, because I need to know before we get started. Anybody at all? They cannot give James the presumption of innocence at this point in time? Okay. Thanks, James.
Judge Knize talked about the lack of a definition of beyond a reasonable doubt. You've heard that over and over again. But let me ask -- sir, let me ask you. You were in the Explorers, right?
PROSPECTIVE JUROR: Yes, sir.
MR. FINN: If we have a bunch of Waxahachie police officers coming in here and you may know them in some way, you've worked with them, can you still give me and James a fair trial and hold the State to their burden?
PROSPECTIVE JUROR: Yes, sir
MR. FINN: Even if it means seeing fellow officers out and they say, hey, why didn't you convict that guy. Two people died. Can you say the evidence didn't prove to me beyond a reasonable doubt?
PROSPECTIVE JUROR: Absolutely.
MR. FINN: I thought it was a pure accident. Sir, would you tell -- let me go on that. Can you tell me what beyond a reasonable doubt means to you? To you. There's no definition. It's not a trick question.
PROSPECTIVE JUROR: They prove that he did what the state is charging him with.
MR. FINN: Beyond a reasonable doubt, right? Officer Brien, you and I have dealt with each other before?
PROSPECTIVE JUROR: Yes. Professionally.
MR. FINN: okay. Did I deal with you when I was on the bench or in private practice, as a prosecutor?
PROSPECTIVE JUROR: No, it wasn't on the bench.
MR. FINN: Was I a judge at the time?
PROSPECTIVE JUROR: You were -- were you a prosecutor at one time
MR. FINN: Yes.
PROSPECTIVE JUROR: Okay.
MR. FINN: Did I treat you fairly and with courtesy?
PROSPECTIVE JUROR: Yes.
MR. FINN: All right. Is there anything that I need to worry about with you getting -- I know you're your police officer so obviously I'm going to take a good close look, ut anything you and I, any bad blood between us that you know about in you mind or in your heart?
PROSPECTIVE JUROR: No. I only remember three or four cases which was fair.
MR. FINN: Okay. All right. Thank you. And if a police officer is called, officer -- let me also ask fellow officer Wheatley. Officer, can you assure me that you will start every single police officer out on the same footing that you do with the other guys?
PROSPECTIVE JUROR: Sure.
MR. FINN: Sure. Have either one of y'all worked fatality accidents before?
PROSPECTIVE JUROR: Yes, a couple.
PROSPECTIVE JUROR: Numerous times.
MR. FINN: You've had a couple, numerous. Officer Brien, when you get to a fatality accident, what do you do? What's the procedure?
PROSPECTIVE JUROR: Upon arrival I check to see if I can help any of the victims.
MR. FINN: okay
PROSPECTIVE JUROR: Then I investigate the accident itself.
MR. FINN: All right. Officer Wheat, do you agree with that?
PROSPECTIVE JUROR: Yes.
MR. FINN: Take care of the -- what you do is take care of the needy and then begin your investigation?
PROSPECTIVE JUROR: Right.
MR. FINN: All right. Do you immediately just start moving things around?
PROSPECTIVE JUROR: No.
MR. FINN: Why not? Officer, why not?
PROSPECTIVE JUROR: Because it's all -- it's all evidence.
MR. FINN: It's all evidence.
PROSPECTIVE JUROR: Unless it needs to be moved for safety reasons.
MR. FINN: And you -- what do you do with this evidence? Do you mark it, photograph it, make sure that it is -- you know, report it in some way or do you call in an expert?
PROSPECTIVE JUROR: I'm sorry?
MR. FINN: Or do you call in an accident investigator.
MR. FINN: Would you start moving stuff before you brought them in if you didn't have to?
PROSPECTIVE JUROR: If I did not have to, no.
MR. FINN: Let me ask you, Mr. Pullen. You've been a good sport. Well let me ask this question to the entire panel. If it turns out -- let me back up so Judge Knize doesn't get on me.
In the front row any real negative experiences that you've had with somebody who's a professional driver, whether it's a UPS driver, a mail driver or somebody driving a cargo truck. Anybody in the front row such that, boy, got involved in any kind of truck, professional driver. I'm not going to like him because I got run off the road once by a UPS driver or something like that? Do you guys understand my question? Yeah. Any -- does that fit the bill with any of y'all? No. Okay. Second row. Yes, ma'am.
PROSPECTIVE JUROR: I'm actually involved in a lawsuit right now. It involves a trucking company.
MR FINN: Okay. And you're Ms. Rosen.
PROSPECTIVE JUROR: Yes.
MR. FINN: I really appreciate you telling me that. That's exactly what I'm getting at. If you didn't tell me that I wouldn't have known, but thank you. Do you think you can set that experience aside or do you think if it involves a truck, boy, I'm -- they're going to get something.
PROSPECTIVE JUROR: I don't see any problem.
MR. FINN: Okay. Thank you very much. Anybody else on that row? Third row, ladies and gentlemen.
PROSPECTIVE JUROR: 1990 I was a pedestrian and ran off by an 18-wheeler and he drug me a hundred yards down the road.
MR. FINN: Okay. In 1990. I've got -- my whole block on you, Mr. Green? I've written all around the side. I've got a lot of ink on your spot, but thank you very much. You think you could give us a fair trial?
PROSPECTIVE JUROR: Sure.
MR. FINN: Okay. Thank you. Ladies back there, let's see, the fourth row anything?
PROSPECTIVE JUROR: My husband is a truck driver. Also my husband is a retired Air Force.
MR. MAXFIELD: I'm sorry. I can't hear.
MR. FINN: Husband is retired Air Force.
PROSPECTIVE JUROR: He's retired from the Air Force also. He retired from the Air Force after 22 years and he was a security police officer. Then he went into civilian work. He is a truck driver.
MR. FINN: Ma'am, are you Ms. Bail?
PROSPECTIVE JUROR: Yes.
MR. MAXFIELD: Thank you, Ms. Bail. Can you -- I'm sorry. Your neighborhood there is Ms. --
PROSPECTIVE JUROR: Kuyke.
MR. FINN: Thank you.
PROSPECTIVE JUROR: My husband is a truck driver.
MR. FINN: He is. Okay. Can you give both sides a fair trial? If they prove enough to you, you convict him, if they don't you'll just sit back. Okay. Anybody else in that row? No. Back row anybody?
PROSPECTIVE JUROR: What was the question?
MR. FINN: The question is -- I think everybody answered it, but frankly I'm going to strike you anyway so -- all right. Judge, I turn it back to you. Ladies and gentlemen, thank you very much. You've been wonderful and it will be an interesting trial.
THE COURT: Am I supposed to bow and genuflect now?
MR. FINN: No, that's what I do. Thank you.
THE COURT: Thank you. Move it. Get over there. I would suggest you cut it out.
MR. FINN: Okay.
THE COURT: All right. Pick up your strike sheets. Turn them in in ten minutes. That means ten minutes. If they're not in, you don't have any strikes. Jury take a 15 minutes recess. Just a minute. This group here, you folks come back in 15 minutes. This group here come back in the morning at nine o'clock. We'll start that jury selection. Thank you.
(Break taken)
All right. Ladies and gentlemen, this case is going to begin January the 29th, Monday, January the 29th. The Friday before the clerk should call you but if she doesn't be here on January the 29th. If you got any doubts between now and then, give us a call and we'll confirm it for you.
Same thing I told all the rest of them, I hope you were listening, about where you assemble out there in the jury room outside. Don't discuss the case with anybody. Don't even discuss it among yourselves until you're all here present in the jury room.
You will discuss your verdict after you have received all the evidence, the jury charge and the argument of counsel. With that you're released for the day. Thank you. See you the 29th.
THE WITNESS: How many days will this last?
THE COURT: Oh, good question. About three days. I've been told that they're estimating three days. Okay. 29th, 30th and 31st. Thank you.
I need the attorneys on the last two cases need to stay. The attorneys on this case are released until the 29th of January at nine o'clock.
We're going to continue with jury selection tomorrow. We got one criminal case and one civil case. I've been told the criminal case is now going to be very, very short jury selection. The civil case we'll be switching hats on so it may take a little bit more detail than we went into on these criminal cases as they work.
So we got two cases tomorrow. Both sides anticipate they may be done by tomorrow at noon. 12:15 or 12:30, somewhere around noon tomorrow.
Okay. So come back tomorrow morning at nine o'clock. Is anybody going to request a shuffle?
MR. SLATON: I'm not.
THE COURT: Oh, goodness, I hope they remember where they were sitting. Look and see where you're sitting and be here tomorrow morning at nine o'clock in the same seat. Thank you.
(End of proceedings.)
posted by Dallas Federal Criminal Defense Attorney - David Finn at 2:54 PM
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