Tainting the Jury Pool


There is a bill in Austin allowing the government to provide post-trial psychological counseling for jurors in certain types of cases. The bill provides for the “crime victim liaison” to arrange for the counseling, and allows the crime victim liaison to use a company that provides similar services to victims.

According to this Austin American-Statesman story on the bill, “the bill is not clear on who would provide the counseling,” but its sponsor, Texas Representative and part-time rocket surgeon (I just made that up — according to his official bio he’s a Harvard Law grad and decorated Naval aviator) Juan Garcia, “said he intends for jurors to be invited to call the victim and witness coordinators on staff in all district attorneys’ offices.”

“Crime victim liaisons” at the DAs’ offices have the statutory duty to make sure that “victims” and their families’ statutory rights are honored. “Victim and witness coordinators” hold the hands of “victims,” reassure them, and guide them to the witness stand. These are the folks who give children teddy bears as a reward for making accusations that the State likes.

These people get paid to help the “victims.” They have to assume that every accusation is true because if a person’s accusation is not true there is no “victim.” So Representative Garcia would have former jurors counseled by government employees whose job includes presuming every defendant guilty.

Former jurors are future jurors — chances are that a juror chosen in one case will be chosen in another. Rule 3.06 of the Texas Disciplinary Rules of Professional Conduct explicitly prohibits lawyers from making comments to a former juror that are calculated to influence his actions in future jury service, an acknowledgement that former jurors are susceptible to improper influence.

Putting “victim liaisons” and the like in charge of post-trial psychological counseling for jurors, even if such liaisons could set aside the pro-State prejudice that is a part of their job, would taint the jury pool by conveying the false message that the jury and the State are on the same team. Representative Garcia: Do they not teach about the adversarial system of justice at Harvard? (Just asking.)

How about a law, instead, that the State can’t present evidence at trial that would cause the jurors mental anguish? It’s not the defense presenting such evidence, and generally the State isn’t presenting it because it’s necessary to prove the case (there is almost always a less grotesque way to show what the State wants to use its grotesque photos to show), but rather to inflame the jury and make a guilty verdict more certain.

Finally, I question whether evidence presented in a courtroom has the sort of emotional impact on jurors that the supporters of this bill attribute to it. In the trial that led to the bill, the jury gave the defendant 55 years out of a possible 99 after seeing the State’s gruesome photos of the 21-year-old complainant’s dismembered body. It seems likely to me that if the jury had really been affected by the photos, they would have loaded the defendant up with more than 55 years.

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