Prosecutor's 'tirade' criticized

3 jurors say remarks offended them after they found a defendant not guilty

By STEVE MCVICKER
Copyright 2006 Houston Chronicle

A Harris County prosecutor's angry reaction to losing a case is drawing criticism from some jurors, who say he accused them of breaking the law after they found the defendant not guilty.


The jurors say Doug Richards told them, "You have violated your oath as jurors today," before he walked out of the jury room after the trial last week.

"I felt like I had lawfully done my duty, and now I was being punished for it and I was being threatened," said juror Bradford William Yules.

In a county where only about 20 percent of those summoned for jury duty showed up last year, according to the District Clerk's Office, Yules said such an experience could make people less likely to serve again.

District Attorney Chuck Rosenthal acknowledged receiving a letter of complaint from Yules, but said he thinks the matter has been blown out of proportion.

"I told Richards that we don't disparage jurors and that you've got to believe the jury system works," he said, adding that he is satisfied with Richards' explanation.

The trial involved a 29-year-old man charged with aggravated assault with a deadly weapon in connection with a January 2005 incident that occurred after negotiations over the purchase of a $200 pillow-top mattress turned sour.

A merchant was struck in the shin by a bullet, but Rene Villalobos Velez said he fired in self-defense because the merchant had threatened him with a three-foot-long pipe. The prosecutor maintained that Velez fired through a door and was never in danger.

The three jurors who spoke with the Houston Chronicle said that, although they weren't entirely convinced of Velez's innocence, they didn't believe Richards had proved his case. They also wondered why Richards hadn't sought a lesser charge, such as illegal possession of a weapon, since Velez did not have a concealed handgun permit.

Visiting Judge Mary Bacon allowed Yules to address the defendant on March 30 after the not-guilty verdict was read. Yules said he told Velez that it sickened him to vote for acquittal, but that the jury saw no alternative because it had a reasonable doubt about his guilt.

"But had you been charged with illegally possessing the handgun, you would now be convicted," Yules said he told Velez.

Before leaving, the jury met with Richards and the defense team. Instead of a discussion about the trial, however, the three jurors said the panel was subjected to a lecture from the prosecutor.

"He broke into a tirade about the strength of his case, and that we had screwed up," Yules said, adding that one juror tried to reassure Richards that he had done a good job. "He said we ignored the facts. Then he turned around and stomped out."

"He didn't like our verdict and he lost control," said juror Juanita A. Byers.

"He said we ignored the laws and the facts" said jury foreman Terri Hebert who, like her two colleagues, said she found the remarks "offensive."

Richards' recollection varies only slightly.

"I would disagree with the characterization that I lost control," he said. "But I do stand by the fact that there's no way they could have been listening to the evidence in this case and still have reached the same verdict."

Defense attorney Rogdrick Manor also was present.

"I've never seen anything like that before," Manor said. "But knowing Doug personally, he's a fine prosecutor and I'd hate to see anything happen to him. It's just unfortunate."

Richards, a 2004 graduate of the South Texas College of Law, remains unapologetic.

"It's not about being a bad sport," he said. "But I do this for a living and I take it very seriously. I love (jurors) for serving their county. But I also expect that when they take the oath that says they can follow the law, I expect them to do it."

Rosenthal said he thinks Yules made too much of the incident because he was upset about unflattering remarks made in court about the California legal system.

Yules, who practiced law there before moving to Texas in 1989, acknowledged taking offense at the comments, but said his complaint is about juries not getting the respect they deserve.

"Where I come from, (messing) with the jury is like (messing) with the Virgin Mary," he said.

Robert Schuwerk, a legal ethics expert who teaches at the University of Houston Law Center, said Richards' remarks may have violated the Texas Disciplinary Rules of Professional Conduct.

The rules prohibit lawyers from harassing jurors or attempting to influence their possible future jury service.

"One of the hardest things a jury has to do in a criminal case is to tell the prosecution that they don't believe they made their case," said Schuwerk. "So I think that decision is entitled to a great deal of respect when it happens."

quote:

---

"One of the hardest things a jury has to do in a criminal case is to tell the prosecution that they don't believe they made their case,"

---

What is the logical premise for this statement? Why should it be "hard" for an impartial jury to find a party with a difficult burden of proof failed?

Because the prosecutor disagrees over the meaning or purpose of the reasonable doubt standard, and expresses that to jurors, he violates Rule 3.06(d)? I agree that criticism of the jurors serves little purpose. But, does that mean you can really say nothing that might be designed to get them to think differently (either about their decision or how their experience in this case might relate to future jury service)? I guess the standard "calculated merely to harass or embarrass the juror or to influence his actions in future jury service" is about as ambiguous as "beyond reasonable doubt". But, it appears the maxim "think before you open your mouth" is especially applicable in the context of talking to jurors after the trial.

We actually have a defense attorney who files an elaborate pretrial motion to prevent the State from mentioning ANYTHING to a jury after the verdict is rendered regarding a defendant's prior criminal history or any evidence that was excluded, because it can "only serve to harass the jurors or improperly influence their future jury service." I personally believe that infringes on my first amendment rights to speak with the jurors, so long as I'm communicating with them in a respectful way, and not in a "the law has failed us because you weren't allowed to know XYZ" way. I usually explain (if it even comes up) to jurors that we as the State don't want them to know those things at guilt (I know, I know...but I lie so well! ) so that they aren't influenced improperly by them, because the law assumes that the jury will convict on the facts and merits of the case before them, and not just on prior conduct. And most of the time, I'm responding to questions of the jurors when those things come up. So far, at least one judge has agreed with me that the motion requests an improper restraint on speech and refused to grant it.

It's pretty weird that if you give jurors information that shows them how they screwed up, and what the consequences of their screw up will be, so that they can be better jurors in the future, that this is an ethical violation.

Obviously the ethics rules need changing. In what other walk of life are the participants shielded from feedback on their poor performance? Even the Royal Family in Britain get plenty of feedback from their subjects, everytime one of them messes up. Why should jurors be any different?

This post has me wondering what other prosecutors do after guilty/not guilty verdict, hung jury, etc.

For me, I never talk to them unless they approach me and want to talk. If they ask me questions, I will answer them, as honestly as I can. As a rule, though, I don't seek them out because sometimes their reasoning just doesn't make sense. Even in trials where we have an alternate juror (which we often do) I don't ask them what their vote would have been.

Now, what ethics rule would I be violating if I tell a juror some information that they did not have before them in trial? I can think of many different questions a juror might ask that the answer, while not part of the evidence in trial, may be public information.

The Houston Chronicle editorialized today against the Harris Co. prosecutor who allegedly made the comments to the jury. I guess it's one thing for the jury to feel that the State did not prove its case beyond a reasonable doubt. It's another thing if the verdict was the product of jury nullification. Should such a verdict never be questioned or disagreed with? During the civil rights era in the deep south, there were several well publicized instances of acquittals which were totally unjustified--several of which have been revisited in recent years in federal court. Had some prosecutor somewhere not disagreed with those original verdicts, justice might never have ultimately been achieved in those cases. I also find the media's sanctimonious respect for and defense of the jury's verdict in this instance to be somewhat hypocritical when viewed in the context of the the liberal media's continued assault upon the death penalty--the assessment of which, last time I checked, was also accomplished by juries.

I don't know all the circumstances in Houston; but it doesn't sound to me that he did wrong...but it was certainly an egg-shell juror who had a mind to complain about it.

What about that old saw that goes something like.."Heck, you picked'm, so how can you complain?" I know this because I got in trouble for doing much worse than this recent case, I think, when a jury returned a guilty on a lesser included misdemeanor on a charge I thought should be aggravated kidnapping. Safe to say I went overboard in explaining that they shouldn't waste any more time at punishment since no matter what they did the guy walked out of jail to abuse kids again that afternoon.

In the long run, all I was doing was venting my frustration, with no really good purpose. Guess we need to be sure the purpose of the discussion is education, and not an exercise in anger....

What the story really proves is don't take a former lawyer from California on your criminal jury.

I also vented some post-trial ire at a jury once -- but I knew it was my last jury trial in that office before I did so.

And in hindsight, I realize that I did a poor job in voir dire for that particular case, so I had made my own bed, to some extent. But if we're going to use juries, we must take the good with the bad. I personally think they're worth the occasional aggravation.

I think your words were sage and appropriate. Not to sound 'smarmily oversentimental', but we protect a system. It isn't perfect, but it is the best going. We have rules, and we follow them, rules of procedure and evidence. We KNOW this before we get to the courtroom.

I realize that the prosecutor in this case was frustrated, I've been there. I have SO been there. However, the jurors are sworn to uphold a duty, and if they have correctly executed the duty, why on earth would you disrespect them by a tirade, or any other sentiment than 'thank you'. I have been on the losing and winning end of the jurors hammer. I always advise my clients the same way:

Thank the jurors, they had a hard choice to make, and if possible, shake their hands and tell them thank you. It does not matter what you personally think about them, or their decision, you have to respect the process. You show this by your respect to the jury.

I haven't wavered from that course for quite some time.

I'm sure every lawyer in the country has been disappointed with some jury verdicts. But our system is set up to keep the jurors in the dark about a lot of stuff, which common sense would dictate is relevant. Since grand juries get to hear everything and petit juries hear precious little, it isn't too odd that petit juries acquit after a grand jury indicts.

I have had my share of disappointing verdicts, but only one made me lose sleep. In 1994, or so, I tried a woman for sexual assault of a 28 year-old retarded man. Facts were: she worked at the group home, she took him to her house, gave him vodka & coke and as the victim testified, "her done sex on me". It was an unusual case, because, obviously, we had a male victim & a female perpetrator. I was in grand jury when it was indicted & was somewhat surprised that it got indicted - not because I didn't think it happened, but because there was obviously nothing but anecdotal evidence available. I also had comments from fellow prosecutors like, "So what's the problem? He got laid!" Nobody would've known this had ever happened, had the victim not felt shame and refused to visit his parents or talk to his case-worker. Case-worker finally got him to say, why he'd been so quiet and then all hell broke loose.

An internal investigation in the group home found another employee, who reported that defendant told her one day, "You know, victim is kind of fun, once you get a little vodka in him."

During voir dire, one prospective juror approached the bench & told the judge, he could not be fair & impartial, because he constantly saw the defendant out in bars trolling for men.

Testimony went very well, as far as I was concerned. I had to lead the victim a little, due to his retardation, but he clearly stated, "Her done sex on me." When I asked him to clarify, he said, "Her put my penis in her 'gina." (I was terribly embarrassed later, when after the state rested & the judge overruled defense motion for directed verdict, the judge repeated the phrase "her put my penis in her 'gina", because the judge was a very dignified man and hearing him say that out loud was weird.) Victim's psychiatrist even testified, victim was retarded enough not to be able to think abstractly - i.e. he can't make stuff up - he can confuse things, but he doesn't know how to lie.

The jury acquitted the woman and I blew my top. I did not speak to the jurors and one of them was an aunt to a local cop & she wouldn't talk to him about it! I was ranting in the office about this when a local TV reporter overheard me say to my supervisor, "That damn jury has declared open season on kids and retarded people!" The reporter asked, if he could repeat that on TV. My supervisor said, emphatically, "NO!"

My co-counsel and I were both angry and the next morning each of us reported that we could not sleep that night. I'd heard that writing stuff down is a good way to deal with things that bother us, so I wrote a mock letter to the jurors. It was very nasty and started off with "Dear dumb-f**k" and accused them of rewarding the defendant for picking an inarticulate victim and setting a precedent for establishing a reign of terror by perverted criminals seeking child and diminished-capacity victims. Of course, I never sent the letter, but it made me feel really good to get that out of my system.

Oddly, this was the only trial I recall having every single bit of evidence in my possession before the jury - including the hearsay (maybe?) of the internal group-home report.

The defendant had already been fired by her employer and her neighbors harassed her with signs about "rapist!" in her yard. She moved to a new neighborhood. Years later, I got a call from my victim's mother. The defendant had tracked him down and was harassing him at his work. She asked me to help. I wrote the woman a letter telling her, although she was acquitted, I knew she was guilty and that if she didn't leave this man alone, I was going to file retaliation, or something on her and throw her butt back in jail. She took it to a local defense attorney and asked him, what she should do about my letter. He told her, "Stay away from that retarded guy!"

Soon thereafter, when the elected DA at the time was un-elected and a new one came in, I was told by one of the incoming big bosses of the new regime, that is none other than the highly esteemed W. Clay Abbott, that my trying that case was a feather in my cap, or star in my crown. I asked how that could be, since I got a "not guilty"? He said, "Nobody else would've tried that case."

And you know what, after the state rested & the judge overruled the defense motion for directed verdict, defense counsel approached me & offered to plead to the previously-offered deferred. I consulted w/ victim's parents & they wanted to proceed, so we did. Defense attorney did a good job in closing, though, arguing that my victim's testimony was a double-edged sword: "he's got to be so retarded as to not understand the nature of the sex act, but competent to testify before you."

A lot of people assume that all juries are honest, dedicated, and wise, and when they render a verdict, it is The Truth, because they speak ex Cathedra.

Such is not the case. The jury system is not "the greatest trial system in the world." Sure, it beats trial by ordeal, but I suspect most western countries have superior trial systems. In any case, as one defense atty. told me, "you don't see the rest of the world trying to copy our jury system."

The fact is, the jury system is extremely cumbersome, and expensive. Much time must be spent re-educating people from what they think they know from watching TV. As one little example: the fingerprint experts at the DPS Lab in Austin tell me that they travel all over the state testifying about f/ps. Most commonly, they are called upon to explain why no usuable f/p's were found, that in fact, contrary to TV, usuable F/P's are rarely found, and the absence of F/P's does not prove the Def. (or anyone else) is innocent.

In Zimbabwe, where I used to prosecute, the magistrate hearing a case could request up to 2 assessors to help him hear a case. If it was a complicated financial fraud case, for example, he could request 2 chartered accountants (CPAs) to sit with him. If it involved understanding an engineering problem, they would be engineers, etc. In Zimbabwe, the magistrate and assessors can ask questions of witnesses. When they deliberated, the magistrate would deliberate with them, and had a vote.

I understand in the Scandanavian countries, they have 6 man juries, but the judge sits and votes with the jury.

Both of these systems will result in far more accorate verdicts than our system.

Terry, what I have most liked about your posts has been that they are usually based on experiences none of the rest of us has had. I have always wondered whether the expression "this is the best system in the world" was not chauvinistic. Those who say this have not really done the comparison with other systems. The jury system arose in response to abuses in the English judiciary which were never present in America. There clearly are more precise means of fact-finding available.

[This message was edited by Martin Peterson on 04-12-06 at .]