March-April 2011

Half a jury panel biased against the law

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

It’s a common enough voir dire question: “Can you consider the minimum punishment for the offense the defendant is accused of?” But in Cardenas v. State,1 a variation on this question rendered half the panel—52 out of nearly 100 potential jurors—challengeable for cause. All it took was the defense attorney’s single question to render so many jurors biased against the law, and, in the end, to warrant a retrial of the case, too. The difficulty in Cardenas was recognizing that the defense attorney’s question was a proper one, and it was all that was necessary to make the jurors subject to a challenge for cause.

What the law requires of jurors

A potential juror must be able to consider the entire range of punishment for the offense, from the maximum to the minimum, and must be able to consider both a situation when the maximum would be appropriate and a situation when the minimum would be appropriate. If a juror, after learning of the punishment range set by law, could not consider both the maximum and the minimum (in an appropriate case), that juror is deemed to have a bias against the law. Because it is the legislature’s job, not the juror’s job, to set the appropriate punishment range for a given offense, a juror who refuses to consider the low or high ends of that range is, in effect, setting his own punishment range and refusing to apply the law.

    That said, jurors are still permitted to reject the minimum or maximum ends of the punishment spectrum based on the particular evidentiary facts of the case. After all, jurors are supposed to use the facts of the case to tailor the punishment to the crime as the defendant has committed it.2 So a juror who could not consider probation at all for aggravated robbery would be challengeable for cause, because the legislature has made probation an option for aggravated robbery, if given by a jury.3 On the other hand, a juror who could not consider probation for aggravated robbery where a child was involved (or where the victim was a nun or any other non-statutory circumstance) would not be challengeable for cause because the legislature has not designated the punishment range under those particular facts.

    The trouble in Cardenas was in recognizing that the defense attorney’s question properly identified those jurors who were challengeable for cause.

The question in Cardenas

In Cardenas, many on the panel would have been instinctively opposed to the minimum punishment. Cardenas was on trial for the aggravated sexual assault of a 4-year-old girl, and at the time he committed the offense in 2005, aggravated sexual assault of a child was still an offense for which a jury could give probation. Perhaps because the 2007 legislature harbored the same instinctive opposition to the idea that a sex offender who victimizes children might be freed on probation, aggravated sexual assault of a child was removed from the list of offenses for which a jury may grant probation.4 In fact, now, if a defendant commits an aggravated sexual assault against a child under 6, he faces a minimum of 25 years.5

    But for Cardenas, probation was still the bottom end of the punishment range, and the jury panel knew this. After the panel was told several times that the range of punishment included a five-year minimum prison sentence or probation, the defense attorney asked this question:

I want you to assume that you have found somebody guilty of … aggravated sexual assault of a child. They intentionally or knowingly caused the penetration of the [victim’s] sexual organ … by … means of [their] sexual organ or … finger or with touching genital to genital. … Could you honestly ever fairly consider … as little as five years in prison [or] probation as an appropriate punishment?

Half the panel said they could not. The defense did not ask any follow-up questions, and neither did the prosecutor. When the defense challenged these jurors at the close of voir dire, the trial judge denied the challenges for cause. The defense exhausted its peremptory strikes, was denied additional strikes, and identified objectionable jurors on the jury. On appeal, both the court of appeals and the Court of Criminal Appeals found that the case had to be retried because the trial judge had denied the challenges for cause. The jurors who answered “no” to the defense attorney’s question were biased against the law.

     The court rejected the State’s argument that the question included too many facts to make the jurors challengeable for cause. The court pointed out that the hypothetical facts in the question were taken straight from the Penal Code statute. Consequently, the question asked whether jurors could consider probation under the very conditions that the legislature determined were appropriate for probation: the elements of aggravated sexual assault of a child. Yes, the question included hypothetical facts, but none beyond the statutory elements setting out the offense.

    Prosecutors familiar with the aggravated sexual assault statute no doubt realize that the defense attorney’s question committed the jurors to consider probation under only one or two of the many possible statutory definitions of aggravated sexual assault. The Penal Code offense encompasses assault against non-consenting adults as well as children and further defines the offense based on the particular body parts involved.6 Given the number of ways aggravated sexual assault can be committed, some of the jurors in Cardenas likely could have considered the minimum for some aggravated sexual assaults—such as if the victim were an adult,7 or if the assault involved only contact and not penetration.8 It might appear that for the offense of aggravated sexual assault, these jurors could envision a situation where they would give the minimum and where they would give the maximum. But under Cardenas, this is clearly not enough. The jurors must envision a situation where they could give the minimum and maximum under the particular statutory variation of aggravated sexual assault. So, for example, under the 2007 revisions to the statute, a juror would have to remain open to a five-year prison term for the intentional or knowing penetration of a 6- to 14-year-old’s sexual organ. Although this seems like a lot of extra facts beyond being open to the minimum for “the offense,” this kind of detail is precisely what is permitted under Cardenas because all the facts are statutory. In short, if the legislature has established by statute that five years in prison is an appropriate minimum punishment for a defendant who penetrates a 6- to 14-year-old child’s sexual organ, so, too, must the juror keep five years on the table under those circumstances established by statute. A juror who cannot is biased against the law.9

The burden shifts to the prosecutor to attempt to rehabilitate the jurors
The party making a challenge based on bias against the law has the burden of establishing that the challenge is proper. Before a prospective juror can be excused for bias against the law, the party making the challenge must show that the veniremember understood the law’s requirement and could not overcome his prejudice well enough to follow it.10 In Cardenas, the State argued that the defense was required to ask more than, “Can you ever consider probation to be an appropriate punishment?” to confirm that all of these jurors really had a bias against the law. But the court found otherwise because the venire was repeatedly told that probation was the minimum punishment available and that to sit on the jury, jurors had to be able to consider the full range of punishment. The court held that a juror, knowing all of this, who nevertheless “unequivocally says ‘no’ when asked if he can consider the minimum sentence, has stated in the most concrete terms that he cannot follow the law.”11

    Other caselaw from the court appears to require that a prospective juror be asked, “Can you follow the law regardless of your personal views?” before he could be challengeable for bias against the law.12 It would seem that some of the 52 jurors, despite being told that they had to consider the full punishment range, may not have appreciated that they were expressing an inability to follow the law. A lawyer interprets their failure to consider the minimum as altering the punishment range that the legislature has set. To the non-lawyer, rejecting slap-on-the-wrist punishments for heinous crimes just seems like part of the normative decision-making that jurors are supposed to do in sentencing—especially where they are asked if they could consider the minimum “as an appropriate punishment.”

    Regardless, the court in Cardenas determined that it is up to the prosecutor or the trial judge to ensure that the jurors fully appreciate the positions they are taking.13 Once told of their obligation to consider the full range of punishment, jurors who say they cannot consider the minimum to be an appropriate punishment have admitted a bias against the law—even if this means half the panel is biased against the law. The burden is then on us to clarify whether the jurors are expressing their personal views or knowingly flouting the law. Admittedly, this may be hard to do when you want the judge to let you ask more questions of half the panel. The better practice is to raise the issue during your own voir dire before the defense attorney’s tough question has the chance to disqualify jurors in huge swaths. Help the panel envision sympathetic situations where the minimum might be appropriate, under the particular statutory version of the offense in your case.14

    And if you do have a chance at rehabilitation, you might try phrasing it this way: “You have said you cannot consider probation (or a five-year prison sentence, etc.), and some of you may be saying, ‘Hey, if it were up to me, probation would just not be an option.’ And that’s OK to feel that way. But the law actually provides that the range of punishment for this crime is probation for five years all the way up to life in prison. That’s the law. It’s the same whether you are a juror in Dallas, El Paso, or Nacogdoches. And every defendant accused of this crime is entitled to a jury that can follow that same punishment range and not arbitrarily exclude the minimum or maximum set by law. If you are selected as a juror, you’ll be required to take an oath to follow the law—including the law that makes the range of punishment probation for five years up to life. Even though you might raise the minimum punishment if it were up to you, can you set aside your personal feelings and remain open to the full range set by law?” 

    Obviously you won’t be able to rehabilitate all the jurors; some will insist on their own range of punishment. But if you don’t attempt rehabilitation, the jurors who could not “honestly ever fairly consider” the minimum to be “an appropriate punishment” have established their bias already, and under Cardenas, all these jurors are subject to a challenge for cause.


1 Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010).
2 Sadler v. State, 977 S.W.2d 140, 143 (Tex. Crim. App. 1998).
3 Tex. Code Crim. Proc. art. 42.12, §§3g(a)(1)(F) & (4).
4 Tex. Code Crim. Proc. art. 42.12, §4(d)(5) (passed as part of Tex. H.B. 8, 80th Leg., R.S. (2007), also known as “Jessica’s Law”)).
5 Tex. Penal Code §22.021(f) (also passed as part of “Jessica’s Law”).
6 Tex. Penal Code §22.021.
7 Tex. Penal Code §22.021(a)(1)(A).
8 Tex. Penal Code §22.021(a)(1)(B)(iv) & (v).
9 It would seem that a juror has to remain open to the full punishment range only for the particular statutory variation with which the defendant is actually charged. A juror who could not consider the full range of punishment for a different statutory variation may have a bias against the law, but it is not against a law “applicable to the case.” See Tex. Code Crim. Proc. art. 35.16(c)(2). Further, a bias against a law other than that relevant to the case would not seem to substantially impair the juror’s ability to carry out his oath and instructions. See Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).
10 Feldman v. State, 71 S.W.3d 738, 747 (Tex. Crim. App. 2002), overruled by statute on other grounds.
11 Cardenas, 325 S.W.3d at 187.
12 Feldman, 71 S.W.3d at 744.
13 Cardenas, 325 S.W.3d at 185 & 187.
14 For more practical advice on fortifying good State’s jurors on the probation issue in aggravated sexual assault cases committed before 2007, see Terese M. Buess & Michael E. Trent’s TDCAA manual on Investigation & Prosecution of Child Sexual Abuse at 134-36 (2d ed.2007). A third edition by Terese M. Buess and R. Darin Darby will be published in summer 2011.