United States Supreme Court
Presley v. Georgia
01/19/10 : Cite No. 09-5270
Under the Sixth Amendment, does a defendant have the right to have members of the public present during jury selection?
Yes. The Court has previously held that (1) under the First Amendment, voir dire must be open to the public, and (2) under the Sixth Amendment, a pre-trial suppression hearing must be open to the public. And, the general principle is that "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." Here, the trial court failed to consider reasonable alternatives for accommodating members of the public-including reserving rows, dividing the panel up, or instructing prospective jurors not to interact with the public-and offered no overriding interest for excluding the public. Read Opinion.
This is not a radical extension of the law. The SCOTUS had already held that the public had a right to be present during pretrial hearings. One must wonder, though, whether the Sixth Amendment violation is harmless. Essentially, the defendant’s uncle was excluded from watching the selection of the jury. How did that prevent the defendant from receiving a fair trial? Can the lower court find this harmless beyond a reasonable doubt?
Courts of Appeals
Atkinson v. State – 1st COA
01/14/10 : Cite No. 01-08-00455-CR
Does Double Jeopardy prevent convictions for both aggravated sexual? assault and indecency with a child?
No. The defendant failed to preserve the issue at trial, and the record was not developed enough to assist the court with addressing his claim on appeal. Read Opinion.
This is a somewhat frequent claim on direct appeal. Prosecutors should be careful to develop in the record that each count was supported by separate incidents (e.g., he touched her with his hand and he penetrated her vagina with his penis). If a victim testifies by using dolls, the prosecutor should ask that the record reflect the type of conduct being shown by the victim.
Leadon v. State – 1st COA
01/14/10 : Cite Nos. 01-08-00839 and 01-08-00840
Did the State use peremptory strikes against four out of five African-Americans in violation of Batson?
No. Two veniremembers were struck for employment with the U.S. Postal Service, another for visiting a felon in prison, and the last for inability to consider a life sentence. No inference of disparate treatment was evident in questioning. Read Opinion.
Tip to those planning a robbery: don’t leave a note on the table saying, ""Money, money, money is my intuition. Money over bitches. Such an easy decision." The prosecutor in this case did an excellent job documenting the reasons for peremptory strikes. How would you like to belong to a profession (postal workers) that is judicially sanctioned for exclusion from serving on a jury?
Rosales v. State – 7th COA
01/15/10 : Cite No. 07-08-0330-CR
Did the trial court improperly deny challenges for cause after sua sponte rehabilitating the veniremembers?
No. Even though the trial court’s explanation of the law relating to probation was "rather long and taxing" and injected irrelevant issues, the court acted within its discretion to determine any bias or prejudice concerning the full range of punishment. Read Opinion.
This case is a walking, talking example of why defendants are no longer eligible for probation from a jury for rape of a young child. The court of appeals shows great insight into how lawyers and judges can confuse the jury with legal mumbo jumbo. Good job on giving the trial judge discretion in figuring out the difference between confusion and bias/prejudice.
Attorney General Opinions
Opinion for 123rd District Attorney of Shelby County
01/20/10 : Opinion No. GA-0755
Is a county or the state required to defend a district attorney in a civil lawsuit, and may a district attorney use asset forfeiture funds to pay for her defense in such a suit?
A county commissioners court has no duty to provide for the defense of a district attorney pursuant to Local Government Code §157.901. The state is not obligated to indemnify a district attorney under Texas Civil Practice and Remedies Code §§104.001 and 104.0035. A district attorney is not authorized to utilize forfeiture funds under Code of Criminal Procedure article 59.06(c)(1) to pay for the district attorney’s legal defense. Read Opinion.
The reasoning as to whether a commissioners court must pay for the civil defense of a district attorney simply follows statutory law. Of course, the opinion also does not prohibit the commissioners court from agreeing to pay for the defense, assuming you have a good relationship with that court. The ultimate solution for this gap in statutory protection probably lies with the legislature. Contact TDCAA if you support such a solution. As for the opinion on the use of asset forfeiture funds for such a defense, the reasoning breaks down. Public funds are used in every single jurisdiction throughout this State to defend public officials in civil cases. Those funds are obviously expended in the interest of the official and the public. So, why wouldn’t such funds from an asset forfeiture account likewise serve that official purpose of the district attorney’s office? That is a mystery, and it is why it’s only called an opinion.
Request for Opinion from Johnson County
Is there a conflict of interest for the sheriff under Chapter 171 of the Local Government Code when the agent of the bail bond surety is the sheriff’s relative? Read Request.