Introduction
Pt. 1 Alvin Nunnery
Learn about the history of race in jury selection in Harris County. How to spot a Batson issue and make Batson Challenge.
Video
Well, first of all, I'm actually in jury selection in the three 39th I'm picking a non-death capital case that I'm due to be back at two o'clock.
So let me start out by saying this: in 1985, I came to work in the Harris County District Attorney's, Office I had come from tarrant, county and fort worth, and my first trial was in front of Judge Hendrix.
Now most of you wouldn't remember him, but let me just tell you what happened as I was getting ready to pick the jury.
My cheek came up to me and she asked the following question.
She said: what is your position on putting blacks on your jury? Now I had just come from kowtow Fort Worth, which is as redneck as it gets, but I had never been asked that question before and I was taking off guard and it is usually a very, very unusual circ*mstance for me to be speechless.
But I had to step back for a moment and think about the question and how to me how stupid it was and I paused and said.
Well, I, don't have a physician saving, except that when I examine a prospective juror I'm looking for someone who basically is going to see the case, my way that's going to be fair and impartial to me, I didn't have a more sophisticated answer than that and I'm not good at and don't like dropping name so I'm not going to tell you who my chief prosecutor was.
Suffice it to say her initials was Pam Devonshire and that's all I really want to say about that I.
But what it told me and what it alerted me to is this.
For whatever reason there is a built-in prejudice that really believes that certain groups and you're going to have some lawyers talk to you about how bats it has actually expanded to a religion, gender and some other areas.
But there is a inherent belief that a lot of people unfortunately hold that certain groups and bat, so this one of two things they're, either incompetent or they are perceived to be prejudiced in favor of one side or the other.
Specifically when it comes to blacks.
There is this belief that if there's a black defendant that that juror necessarily is going to see it in a sympathetic eye toward the defense, let me give you another example, and let me tell you why that is so untrue.
Josei I'll have, who you know, is recovering from a brain aneurysm in the hospital he and I tried a capital case in judge cosmas court, where the state was seeking the death penalty and that the punishment phase of the trial, the jury deadlocked on the issue of mitigation- and you know, when a jury deadlocks.
That means your client automatically is going to get a life sentence, so we were really really happy and they said it was 8.
24 8 of the 12 jurors did not see mitigation and they wanted death.
I have four blacks on that jury and I said to Joe.
I said now.
This is going to be the reason going forward that the prosecutors are not gonna when they would judge kaustubha discharge the jury.
We went in the back and talk to him and all four of them looked at me and said, and I'll never forget this.
They said Mr nunnery.
We were not buying that that you were talking about about mitigation, they said yo, clad deserved to die and I mean I was hurt, I was stunned, but that was their perspective becomes basically what they were saying.
The things that you were talking about are things that we all face on a daily basis and, of course they said we could be a couple of murder, so I don't see why his poor household and mom was a hair, and that meant a thing to them.
So what I'm saying is the perception is so wrong with that in mind, want to ask this question how many of you have actually in your practice, raised a Batson challenge, raise your hands high, raise your hand and then not that many, how many of you have had a successful Batson motion? Granted.
Okay, I see four okay, uh Eric, that's five again: I've been practicing since 1990 20, Wow 1990 and in my practice I have only had five successful bats and challenges.
So if you spread that out, that's about one every four or five years- okay, that doesn't mean I- haven't raised it more often and I'll talk about that in just a moment.
But it's a difficult motion to win the one judge, I no judgment.
Patrick are Ryan Patrick he's out here yet is he no okay good? So there are no judges here right, okay, so let me tell you why I think there's difficulty before I talk about how to do.
Okay when you raise a Batson challenge, it's a shield that comes across the court and it's not really just the prosecutor, who's pissed off, but the judge- and in fact the judge seems even more angry than the prosecutor- that you have the audacity to stand and make the motion in the first place.
But one of the things I've learned over time is I.
Don't expect the prosecutor to be my friend, but I certainly do not expect the judge to be an advocate, but the reality of the situation is this: they almost take it as personal as a prosecutor, I, don't know what lurks in the hearts of my adversary.
Ie.
The prosecutor and at the end of the day, I really don't care.
They give their very angry.
When you do it, how dare you you're calling me a racist, I, don't know what you are and you or regular life, all I'm simply saying is based upon the record and based upon what I see I think you have in this case, engage in race and using one of your params.
So here's the first issue.
You can't not care what the judge perception of your raisin.
That motion is skilled Cornelius by the way he does this even before board out it's not a written motionless.
He just gets up, and this is what he says.
If a judge I just want the record to reflect that I intend to raise a Batson challenge if the prosecution engaged in striking there jurors on the basis of race.
So here is the least giving them notice that its forthcoming for whatever it's worth and I, don't know if that causes them to redirect what they're about to do or not.
But here's some logistical things: I want to talk to you about.
First of all, one when you get your jury information sheet, the first thing you should do, oh, and let me back that up a little bit long before you do this at least doing jury selection.
If it is possible, I think it's incumbent upon every last one of you to go, pull somebody to sit with you during jury selection, because it's so important because we'll talk about this a little later you're going to be trying to compare some of the things.
If the judge agrees, you made a prima facie showing to what the prosecutors are responding to, and it's very very hard to look back, sometimes and say.
Well, you said you struck this juror based upon a, but then you find out later that there was someone with that same characteristic that they didn't strike.
So I think it is very, very important that you pull someone in okay, I, don't like to call names, but my angel at voir dire is Michelle back I, don't care where she is I, try to go grab Michelle to sit with me.
First of all, she can take notes better than I ever can and I just completely rely on her note taken, but that's first of all, it's important.
The second thing is, if you have a black defendant or if you have a Hispanic defendant, age, defendant or whatever that a group subject to discrimination might be.
You should note on your chart.
They are race.
Okay, if it's black go through your 65 put bbbbb wherever you need to HHH Hispanic and of course it's they kind of extended this noun to gender & to religion.
I mean you need to start noting those things too, because the you're Scott are the Supreme.
Court has said that these are protected classes.
Also, so that's the first thing then the second thing is- and this is really really important throughout the voir dire.
You got to be very, very attentive to what's going on.
First of all, let me say this: these prosecutors are much smarter in harris county, then, maybe that guy in montgomery county just recently and they're a little more subtle, little more devious and a little harder to pull some of this out.
Okay, one of the things that I've noticed now is I think they have what I call race-neutral questions that have been tested over time, for example I'm in trial right now, and the question is to rank a police officer 1 through 4.
1 being you, you know perspective, but you're, not really.
You know a big fan all the way up to four okay and, of course, when we get to the argument about why you struck them, the ones that were one and two and by the way more often denied blacks, are gonna fall in that one or two well, on the face of it.
That looks like a race-neutral reason right, but in reality, when you think about the disparate impact that that has, they can fall back on it and say, judge I did not strike him because he was black.
I struck him because he was not how long enforcement officers, so you need to start trying to pull that in one of the other questions I submit to you, that is not race neutral, but on its face, they offer it as such.
As the question about punishment in general, do you believe that the purpose of punishment is punishment of rehabilitation? Well, that question I suggested you has been tested over time.
Most black folks have a sense of redemption and second chance, so they might say rehabilitation and again that gives them the opportunity to say what I've just done is not racial.
So you really need to know who your prosecutors are and you need to start raising those issues.
They also they're not going to get you anywhere, but who cares I think you need to at least keep that in so that records over time can be developed.
Okay, so now you're in the process- and this is what Eric has asked us to do d this is in, and the panel has been oh and one other question every now and then every now and then and it's mandatory according to the code that the jurors actually checked their racial identity.
Sometimes those boxes are left empty.
Ultimately, you could rely on the judge, I guess making a judicial determination that the person is black, but sometimes you may want that record to be clear, because sometimes that box is left unchecked, but here's the process.
The judge has now seated.
That jury be very, very careful.
Do not let that jury be excused, because sometimes a judge will not ask.
Are there any objections or it they may say? Is there anything further? You need to be very proactive and immediately say: judge.
I need a moment.
You then need to go back and check your list and then asked to approach the clerk and get the state's strike list for your bats in here and make that states checklist and exhibit okay.
And then you need to look at that list and see who, in that 32 available jurors, were black or Hispanic depending upon what your challenge or your focus is, and to see how many strikes the state use and see.
Here's the here's, the key to that, let's assume in the 32 there are only three blacks left: okay and they strike two of them.
Okay, so they have used what what is to third sixty-six percent of their 10 strike.
Two I mean two of their strikes to eliminate six and six percent of the available blacks that are still left to qualify.
That quantitative analysis alone is sufficient to raise a prom aphasia, showing that at least at a minimum ought to cause the court to tell that prosecutor.
Then you need to justify why you engaged in a white.
You struck those jurors, so it's very very important that you have that checklist with you.
Then, once the state starts lying, which is what they're going to do? You need to be proactive to try to prove that those are pre tax, which the case law allows you to do in order to sustain your Batson challenge.
Now, let me give you some examples and I mean I.
Think this may shock you one of the Batson challenges that I actually had granted was it from Judge Crocker and we have been in voir dire for like 10 hours.
That day it was.
There was a lot of co-defendants and the prosecutor, the old lawyers agreed they were going to.
Let me do all the voir dire and the prosecutor and I don't remember who that prosecutor was at the time to judge the reason why I struck so and so so-and-so so-and-so is because, when mr.
nunnery got up, I saw those perspective, your smile and they seemed to like him and I, don't think I'm that funny, but they were laughing.
When I was talking to them a judge Crockett said: are you serious? Are you going to tell me that you struck those jurors because you say they smiled at mr.
Nutter and needless to say now the record is silent as to who the hell is smiling tonight.
And how do you disprove that but Judge Crocker said absolutely not.
She said I am going to grant the Batson challenge.
I am going to act and there are two remedies by the way.
The constitutional remedy says that you seat that juror, who was impermissible.
