What Tangled Webs . . .


The Houston Chronicle has an interesting column today by Lisa Falkenberg, in which she suggests that when Kelly Siegler described the 45,000 members of Houston’s Lakewood Church as “screwballs and nuts” she might not have been being entirely candid with the court.

The context: Kelly was trying a capital murder case. The defense made a Batson challenge, alleging that it appeared that Kelly had used a peremptory challenge to remove Matthew Washington from a pool of prospective jurors because of his race (Black).

When the defense makes a Batson challenge, the prosecutor must provide a race-neutral reason for striking that person. If the real reason for the strike is the person’s race, the prosecutor might well be tempted to provide whatever race-neutral rationalization jumps into her mind, whether it is entirely true or not.

Courts will accept just about anything as race-neutral justification for a prosecutor’s peremptory challenge of a minority juror. It doesn’t have to make a whole lot of sense. And, since nobody can read the prosecutor’s mind, the prospective juror (who has a right to serve regardless of his race) and the defendant are at the mercy of the prosecutor.

Was Kelly Siegler inventing a race-neutral reason to strike Mr. Washington (who, by Lisa Falkenberg’s account, viewed the death penalty favorably)? Or did she really think that all of the members of one of Houston’s largest congregations are screwballs and nuts, regardless of their race? (Incidentally, striking a juror because of his religion is unconstitutional too, but most lawyers aren’t aware of this.)

When I first read of the incident, I thought that Kelly in all likelihood didn’t really think of all Lakewood members as screwballs and nuts; I suspect that was probably the reaction of most criminal trial lawyers. But who knew that the public would care? The public seems to expect some rule-bending from their prosecutors in the name of obtaining convictions. Which would be worse in the eyes of the public: that Kelly was telling the truth about her opinion of Lakewood Church, or that she was lying to try to ensure the death penalty for an evildoer?

If the answer is that it would be worse if Kelly was lying to the court about her opinion of Lakewood Church — if the public is going to hold professional ethical breaches against the candidates for D.A. — then this becomes a different campaign.

I have faced Kelly Siegler in the courtroom only once and had no complaints about her conduct (she was sitting second with a young prosecutor on a kilo case; she tried the usual older-female-prosecutor head games on me; I am immune, and I won), but if professional ethics are important to this election, I expect some of my colleagues who have dealt with her directly more than I may weigh in.

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0 responses to “What Tangled Webs . . .”

  1. I hate to interrupt all the Kelly-bashing that’s going on here, but I think there are a couple of things worth pointing out here.

    First, as lawyers, we use our peremptory challenges in every trial, and it’s rare when both sides don’t use all ten of their strikes (in a felony trial). We can use them for any reason as long as it is race-neutral. That can even be if a juror gives a “funny vibe”. If the juror that a prosecutor strikes is African-American or Hispanic, the prosecutor is almost guaranteed to draw a Batson challenge. If the juror is white, no such challenge comes. In that, an African-American or Hispanic venire member is ultra-protected. A peremptory challenge is no longer truly peremptory, because a prosecutor has to be able to articulate a reason for striking a venire- person who isn’t white. And quite frankly, it seems that the media raises the standard on the “race neutral” reason to almost the equivalent of getting a juror struck for cause. Lisa Falkenberg read whatever transcript portion was provided to her and makes the conclusion that this gentleman would have made a fine juror. Perhaps he would have, but that’s not the legal standard, and those lawyers reading this know that. The standard is that he can’t have been struck because of his race.

    Kelly used a peremptory challenge on this potential juror, and now she is being alternately labeled as an anti-Lakewoodite, or a racist who strikes Afican-Americans from her jury.

    That’s horse crap.

    What everyone seems to be overlooking is that Kelly gladly put two African-American jurors on the jury. Where’s the media rush to cover that? I don’t see Alvin or Loretta stepping up to mention that to anybody. Why not? Is the myth that Kelly doesn’t like black people on her jury better than reality? Well, of course it is, because controversy generates interest. (Mark, does your blog regularly see as much traffic as it has over the past couple of weeks?)

    Kelly had to articulate the reason that she used her peremptory challenge on this gentleman, and to be sure, she articulated it poorly. I’m sure none of us lawyers on this blog have ever articulated anything poorly in our careers.

    But the bottom line is that 1) she seated at least two African-American jurors on that case, which tends to undercut the whole idea that she systematically strikes them; and 2) she still got the death penalty against Guidry. Some might tend to think this indicates that Kelly Siegler knows something about picking juries and successfully advocating her position.

    Or, as you guys call it, its just racism.

  2. Robert, I’ll write a post on older female prosecutor head games.

    9:20, I’m not bashing anyone — at least not in this post. The fork (if you play chess, you get the visual reference) is one of Kelly’s own making, and it has nothing to do with racism. I don’t think Kelly is racist, and I’ve never even implied that I do. Your suggestion that that’s what this is about is a straw man argument.

    In an environment of limited information, we make our critical decisions based on the information that we have.Race plays into decisions on the exercise of peremptory challenges. I hope that’s not racism. I have struck people based in part on their race before, and I’ll do it again. But l’etat, ne c’est pas moi, and I’m not running for public office, so I can say that aloud.

    You know that I’ve screwed up in court a time or two (okay, three or four) and said or asked things that I really shouldn’t have. If I ran for office, some of that would come up. But I will never run for public office. If I thought all the members of some congregation were screwballs and nuts, I could say it because I’m not going to run for office. But if I didn’t believe it, I wouldn’t say it.

    The fork that Kelly faces is not “anti-Lakewood or racist”. It is “anti-Lakewood or unethical / dishonest / willing to lie to the court”. Being openly anti-Lakewood is really bad politics. Lying to the court is bad ethics. There’s no good explanation; it’s a fork of Kelly’s own creation.

    My readership has steadily increased in the 9 months that I’ve been blogging. Yesterday I had a thousand-odd visitors from a linguistics website, curious about “Canadian” being code for “nigger”.

  3. Mark, I hate to be a bad guest on your website, but I think you are kind of side-stepping some issues with my 9:20 post. Do you agree with my assessment of how peremptories work and how Batson figures into that?
    And, as much I enjoyed your stunning use of French, I believe that the defense is also prohibited from striking a juror based on race, as well, are they not?
    And I think it is also worth noting that Kelly made her statements in court, not in a press conference. I don’t think she set out to hurt anybody’s feelings with her statement.
    I’m also curious if you are going to address the issue of who deliberately went and pulled what would have ordinarily been a relatively obscure trial transcript and gave it to the media. It certainly seems that somebody with direct knowledge of Kelly’s words on the record turned it over in a pretty blatant political move.

  4. Anon, you’re a great guest. But you’re trying to misdirect the discussion from the question of whether Kelly (a) really has such a low opinion of all members of Lakewood Church (including, I’ve heard, the head of the HCRP), or (b) lied to the court.

    My French was inspired by your boss’s email address.

    While the defense isn’t permitted to make race-based challenges either (because, as I noted, at issue is the potential juror’s equal protection right to serve), our challenges seem to come under less scrutiny than prosecutors’. When I am challenged about an alleged race-based strike, I’m sure as hell not going to lie about it. (I doubt that you would either, though I know of several prosecutors in the Office who unquestionably would.)

    Of course Kelly didn’t set out to hurt anyone’s feelings. I’ve found that when I say something that offends someone, it often doesn’t matter to them whether I meant to offend or not. But again, it doesn’t matter: either she told the truth, and thinks that tens of thousands of potential voters are screwballs and nuts, or she lied.

    Blatant political move? Probably. The public wouldn’t care much about Kelly’s anti-Lakewood bias (or, alternatively, her dishonesty) if she weren’t running for one of the most powerful offices in the county. Kelly made the first blatantly political move. It shouldn’t surprise anyone that mistakes in her past are becoming public.

    I’d rather believe Kelly told the truth. But I have reservations.

    You know the bench warrant story, don’t you?

    Blasny, blasny!
    Mark.

  5. I, too, would like hear about older female prosecutor head games. I’m 12 days from my first jury trial with a notorious one in my county, and would love some insight.

    (Normally, I’d disclose my identity, but it feels wrong to do so at this time. Maybe I’m just paranoid…)

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