From Lynna, With Love


When picking a jury, you don’t have to get every venireperson on your side. I was reminded of this recently when I found in my files a letter from a potential juror in a trial I tried a couple of years ago.

My client was charged with possessing two kilos of cocaine with the intent to deliver it. According to Roberto Carlos Montalvo, a DEA informant, the codefendant had introduced him to my client, who had given him a 42-gram cocaine sample and shown him two more kilos of cocaine hidden under a bed in the master bedroom. The police got a search warrant, searched my client’s house, found the two kilos under the bed, and arrested my client and another man.

My defense was that the government couldn’t prove its case because the Texas Snitch-Witness Rule (Texas Code of Criminal Procedure Article 38.141) forbids a conviction on the uncorroborated testimony of a government informant. We went to trial along with the codefendant; I don’t remember what the codefendant’s defense was.

It became clear to me that the Snitch-Witness rule was not even a blip on the two prosecutors’ radar when, just before trial, the elder of the two prosecutors asked me, with genuine puzzlement, why on earth I was trying this case. (Practice tip: never answer that question.) So I had to pick a jury that would follow that rule (a jury that, in the words of one venireperson, would, even if they thought my client was guilty beyond a reasonable doubt, acquit because of a technicality) without cluing the State in to my theory.

One of the potential jurors was a lady who worked for the City of Houston’s F.A.S.T. I had a friend who worked in the same department, so I knew that F.A.S.T. stood for “Forfeiture Abatement Support Team.” Not a good sign for the defense, but I would have let my friend in the same department onto a jury. This potential juror, however, didn’t say a word during jury selection, and I didn’t like the look of her. I used a peremptory challenge to remove her from the jury.

We tried the case, and before closing argument the elder of the two prosecutrices let slip that one of the potential jurors had written an uncomplimentary email to the elected DA about me. (When I say “let slip,” I mean that she deliberately told me about in a failed effort to throw me off my game.)

After the jury acquitted my client, I made a public information act request for, and received, the email that the potential juror had sent to the DA. That is the letter I found recently. Here it is in PDF format. I’ve redacted the name of counsel for my codefendant (whom the writer treats too roughly), but not of the prosecutrix who, truth be told, did a nice job of trying the case, considering that she didn’t know about the Snitch-Witness rule, and despite losing.

It’s clear from the letter that the potential juror I struck was so biased toward the state that leaving her on the jury would have been really bad for my client. She didn’t like me, and probably wouldn’t hire me unless she wanted a real slick attorney. Her letter, though, is a useful reminder that, when the final argument is done, the opinions of the twelve people sitting in the jury box are the only ones that really matter.

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0 responses to “From Lynna, With Love”

  1. My favorite part of that letter has to be the “I hope [the prosecutor] will prevail in this trial” part.

    I assume from the tense that the trial wasn’t over, and of course, that the writer hadn’t heard any evidence, since they weren’t on the jury.

    But then, the prosecutor did dress well…

  2. Mark, what a great story. Can you talk more about “I had to pick a jury that would follow that rule . . . without cluing the State in to my theory”? What were some of the things that helped in voir dire?

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