First! COVID-19 Jury Selection

October 22, 2020

On Friday, March 13, 2020 I mailed out 85 letters to clients informing them that COVID-19 had forced a shutdown of the court system in Texas, and I did not know what that meant for their case other than it would most certainly affect any preexisting timeline.

On August 25, 2020 (Tuesday) I received an e-mail informing me that I was in the “Strike Zone” for a jury trial, and jury selection would begin on August 31, 2020 at nine a.m.

On August 28, 2020 (Friday) the court called a jury docket in the 124^th District Court room. Five of us defense counsel had gathered having been given the notice of being in the “Strike Zone.”

The first attorney asked for continuance believing that there was some sort of discovery issue with foreign judgments from Mexico. The case was passed.
The next attorney had recently suffered a family tragedy, and the court sua sponte passed those cases.
The third lawyer announced that their client would be waiving a jury, and the case was being set for an open guilty plea to the bench.
I argued my hastily thrown together Motion for Continuance that was based on the TCDLA Motion due to COVID-19. The motion was denied.
The last attorney on the list had his case passed due to witness issues.

August 29, 2020

TCDLA past president David Moore reached out to me offering trial strategy, put me in touch with Allison Clayton, the head of the TCDLA COVID-19 Taskforce, and encouraged me to find somebody to second chair at jury selection.
J. Brandt Thorson agreed to help me second chair jury selection.

On Sunday, August 30, 2020 Allison and I started collaborating in earnest getting creative about filing a beefed-up Motion for Continuance with multiple Exhibits attached and a CCP 35.06 challenge to the array.

Exhibit A: May 27, 2020 Newspaper article about COVID-19 in the Gregg County jail
Exhibit B: White Oak Independent School District press release that in person school was suspended due to COVID-19 from August 27, 2020 – September 9, 2020
Exhibit C: State Bar of Texas Presidential Task Force Interim Recommendations as of 8-26-2020
Exhibit D: August 31, 2020 trial docket for the 124^th District Court
Exhibit E: August 27, 2020 Newspaper article that jury trials were to resume

Monday, August 31, 2020, voir dire at the Maude Cobb Convention Center, Longview, Texas.

Challenged the array per CCP 35.06. Denied
Argued the new Motion for Continuance with Exhibits A-E attached. Denied.
Selected what many have called “a good-looking jury.”

After voir dire it was pointed out to me that my case was not on the “approved jury trials” list as published by the Office of Court Administration.

So, on Tuesday, September 1, 2020, I drafted and filed a Motion for Continuance based on the fact that my trial was not on the “OCA Approved List” with attached Exhibits.

Exhibit F: Emergency Orders Twenty-Two
Exhibit G: PDF of Approved Jury Trial list from the OCA website.
Argued Motion. Denied.
Gave Evidence to the Jury.

Wednesday, September 2, 2020, second day of trial

Gave the charge to the jury sometime in mid-morning.
Guilty verdict
Brief punishment phase
State asked for max (20 years). I told them that they knew what to do.
Gave punishment charge to jury.
Jury assessed 4 years TDC.

On Thursday, September 3, 2020 my Client waived appeal. I called and texted a few people to let them know that we would not be making good case law out of my trial.

Tuesday, September 8, 2020, I briefed the TCDLA Board for about an hour about my experience and provided the checklist at the end of this timeline for future reference.

SECOND!

Then, on Tuesday, September 15, 2020, I received another e-mail letting me know that I was again in the “Strike Zone” for another jury trial to be selected on September 21, 2020 at nine a.m.

Wednesday, September 16, 2020, I share my Motion for Continuance Due to Lack of OCA approval with J. Brandt Thorson.

Thursday, September 17, 2020, I file (multiple) Motions for Continuance with Exhibits attached.

Friday, September 18, 2020, went to trial docket and witnesses the following.

Lawyer #1 had his Continuance granted due to settings in Federal Court.
Lawyer #2 (me) had his Motions for Continuance denied.
Lawyer #3 Had his Continuance approved on Thursday, due to Evidence issues.
Lawyer #4 fled the State on vacation, leaving a letter on file with the Court.
Lawyer #5 Set their case for a Motion to Suppress.

Monday, September 21, 2020, jury selection at Maude Cobb Convention Center, Longview, Texas.

Sung Kim sat second chair with me.
We picked what was considered another “good-looking jury.”

Tuesday, September 22, 2020, Trial

Sung Kim sat at counsel table as second chair.
Jury returned a Guilty Verdict by 2:30 PM.
Client waived Jury as to Punishment.
Punishment reset until November 13, 2020.

THIRD!

Then, on Friday, September 25, 2020, the third jury trial docket since COVID-19 was held, and I was not on it.

Jeff Jackson found out he was going to trial.
I called Jeff to offer to sit second chair during voir dire.

Monday, September 28, 2020, voir dire, Maude Cobb Convention Center.

Many quizzical looks from Courthouse Security as to why I was there.
Mr. Gary Cristian, thanked us for what looked like “an amazing Jury.”

Wednesday, September 30, 2020, 3:00 PM.

Word got out, Not Guilty!

COVID-19 Checklist

Is your trial approved by the OCA?
If your client is incarcerated:
1. Has your client been tested?
2. Has your client been in quarantine since testing?
3. What are the number of active cases in the jail?
4. How many inmates are in quarantine in the jail?
Off-Site Voir Dire:
1. Object that it is not the hallowed halls of justice.
2. Object that it is not covenant to the populace.
3. Ask Jurors if they can see you.
Summons:
1. Does the Jury Summons comport with the Code of Criminal Procedure?
2. Are jurors excused without having been sworn per CCP 35.02.
Are jail cases of COVID published on the Jail Commission website, or do you need to subpoena them from the sheriff?
Courtroom:
1. Have the judge on record describe where the jury, counsel, defendant, witnesses, gallery members, and other visitors will sit during the trial.
2. Enter a drawn schematic of the courtroom into evidence.
3. Ask if there will be cleaning protocols for the witness stand and trial exhibits.
4. Will concessions be made so that the attorney and defendant can converse while maintaining good social distancing practices.
5. Where will the Jury be sequestered to during breaks and during deliberation.
6. Will the jury be ordered to wear clear plastic facemasks during the trial?
Motions for Continuance; attach exhibits and verify under oath:
1. OCA approved trial list;
2. Reports of jail infection rate;
3. Local newspaper articles about school closures;
4. Published infection rates for the area;
5. Press releases from local government and elected officials;
6. Census records.
Motion to challenge the array under CCP 35.06.
1. Census records;
2. In writing;
3. Verified;
4. Infection rates for disparaged classes of jurors.
Never announce “Ready.”
Ask for “Running Objection.”
Ask witnesses if they can see all jurors from the witness stand.