The Law on Poisoning the Jury Pool

In WWDYT: The ethics of the post-trial jury reveal — Public Defender Stuff ambimb asks:

Is it ethical for a prosecutor to reveal to a jury after that the person they just convicted or acquitted had prior criminal convictions that were excluded from evidence?

Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it’s a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)

This situation is covered by Texas Disciplinary Rule 3.06(d):

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

One of you got in trouble in the press for violating this rule a couple of years ago; your then-boss, Chuck Rosenthal, poopooed the jurors’ complaints; the ADA was not fired and, as far as I know, nobody ever filed a grievance. I doubt that the new boss will be quite so understanding.

The things that the jury didn’t hear about in trial, they didn’t hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it’s likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.

You might not admit that intent, and in some other states your denial might make a difference — it might not be an ethical violation to accidentally poison the jury pool.

But in Texas your denial is for naught. It doesn’t matter whether you meant to influence jurors’ future actions. “Calculated” doesn’t just mean “intended”, but also “likely” or “tending”. (There’s actually caselaw on point — see Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998).)

Consider this a friendly heads-up. Even if you’ve shared the “real” facts with juries a hundred times in the past, the next time might be the one that gets you that certified letter from Austin. You might beat the rap, but that particular ride is most assuredly not worth taking.

(There are a couple of judges who should probably expect one of those certified letters too. This heads-up is less friendly: you do realize, don’t you, that even though you talk to jurors in our absence, they then reveal to us what you told them?)

0 responses to “The Law on Poisoning the Jury Pool”

  1. Good post. That has been common practice by the prosecutors in my neck of the woods, and it has always driven me nuts. Now at least I can scream “unethical!!!!!” at them in the hallway. Or maybe take a more subtle approach. 🙂

  2. A bit full of piss and vinegar with this one, aren’t we?

    How would you address the issue of jurors asking specific and pointed questions about facts of a case that they didn’t get the answer to?

    Also, the case you referred to about the ADA who got into it with a jury a few years ago was quite different circumstances than the Chronicle reported. I’ll tell you the real story over a beer one of these days.

    • How would I address that issue? I think that’s a small part of the actual problem, which is prosecutors going into the jury room raring to tell the jury about all of the things they weren’t allowed to hear.

      But I would address it by reading the rule, asking myself if answering the question would tend to influence the juror’s actions in future jury service and, if the answer was “yes”, smile and say, “I’m sorry, I can’t answer that.”

      Any time you need someone to read the DRs for you, let me know.

      • Oh, snap.

        You forgot to mention the cardinal rule of the TDRPC–that they seemingly don’t apply to prosecutors.

        Other than the jackhole responsible for the Tulia prosecutions, can you name another prosecutor that has been hit by the bar (much less being prosecuted) for their shenanigans?

        I can’t, but it’s not my field. I’d be impressed if you could, and it is your field.

  3. I had a plaintiff’s lawyer do this to me when I was a juror on a civil case here in Illinois. I ended up in the elevator with him and his client, and he made a point of saying to his client in front of me something like “I guess you’ll have a hard time paying all those medical bills.” I was somewhat taken aback and didn’t say anything, but I wish I had asked the client whether he thought he lost because (a) all twelve of us jurors were idiots, (b) his case was worthless, or (c) his lawyer sucked.

  4. I didn’t read the Benton case you cited, but I would imagine there is a distinction that can reasonably be drawn depending on the circumstances. If a lawyer walks into the jury room at the end of a trial and simply volunteers undisclosed information (prior convisions, supressed evidence, etc..) about the case, that’s one thing. I think it is an entirely different scenario if the lawyer is simply answering the questions of jurors. Seems to me it would be unreasonable to punish a lawyer for simply answering questions. Obviously, even the latter scenario could unfold in a way that more directly flouts the rule, but, generally speaking, I bet the intent of the DR was to prevent the former and not the latter. Interesting issue, nonetheless.

    Incidentally, back in ’01 when I was still a prosecutor in Harris County, I tried an intoxication manslaugher (two dead people) against Paul Nugent (who happens to be an incredible trial lawyer). It was a tough case because the Defendant was an otherwise good guy. A good guy who I believed to have caused the death of two people. In any event, the jury locked up at 11-1 in favor of guilt. After Judge Poe declared a mistrial, both Nugent and myself talked with the jury. There were lots of questions and we answered all of them. I recall there being candid conversations with jurors about some of the facts of the case about which the jury did not get to hear. Even in light of this rule (which I admit, I didn’t know at the time), I don’t feel like the discussions with the jurors were improper.

    • Discussions aren’t per se improper, and the scenario you mention doesn’t seem to be.

      The issue generally comes up when a prosecutor loses a case and wants to blame the jury for not convicting. “If you knew what that guy was really like…” He’s just looking to justify his loss.

      It’s not the jury’s fault they didn’t have the evidence, and neither is it really the prosecutor’s. Let’s face it, in Harris County, if evidence is excluded it must really be for good cause because every judge in this town (at least the old judges, not sure about the three dems) used to be a prosecutor and is still one at heart.

      I see it all the time in civil trials as well. In most cases I don’t stick around to talk to the jury, we all want to go home and have a beer. But if the other side does I will, just to see what he’s going to try to get them to admit to that may let him flip the case. I always hear “if you knew (this or that) would you have decided differently?” The answer is invariably yes, and it’s always something that is not admitted due to the TRE, CPRC, etc. His asking that question has no basis in discovering why they found the way they did in that case, and I seriously doubt the lawyer is gathering info to go lobby to amend the rules of evidence or CPRC. He’s just trying to soothe his own hurt feelings, hanging his loss on evidence that was never going to come in anyway.

  5. I’ve lost my share of cases, hung a few, and won a few. However, as a prosector, I have never gone back and trashed the Defendant or his lawyer; I do not give them “the real facts” (those, I hope, came out at trial); and I don’t criticize the jury’s verdict. I answer whatever questions they may have and I thank them for their service. This is the way I’ve done it every time…win, lose, or draw. And I’m fairly certain that I’m among the majority of prosecutors who respect our jurors, their verdicts (even when we disagree), and their civic service. So….please….seriously….don’t paint us with such a broad brush. Most of us are decent, hard-woriking, fair-minded people. We happen to be on the other side of the “V.” from the defense, but that doesn’t mean that we’re all a bunch of vengence seeking, win-at-all-costs, pouty little jury punchers.

    • Seriously,

      Perhaps it’s a very small subgroup of prosecutors responsible, but I’ve seen it happen, and I’ve taken enough complaints from other defense lawyers that I believe it’s a recurrent serious problem.

      I wouldn’t even say that those prosecutors poisoning the jury pool are necessarily anything other than decent, hardworking, or fairminded. It may just be that nobody ever bothered to educate them about Rule 3.06.


  6. Heads up? Is the defense bar going to start filing grieveances for things they disagree with? Surely that’s not a war worth starting, is it?

    • Why not? ADAs file criminal charges for things they disagree with. What’s that you say? Those “things they disagree with” are violations of the law? Guess what: so is making comments calculated to influence jurors’ actions in future jury service.

      The “what if they ask me?” question has, however, been bugging me. I think the answer is in the word “merely.”

      • I’m glad I read all the comments before posting. When I read the question about answering jurors’ questions, the word “merely” came to my mind as well.

  7. Mark,

    Believe it or not, there are some charges files the ADA’s don’t “agree” with – but they are following the law. Some drug crimes perhaps, just saying.

    To your main point – wouldn’t it bother your sense of right and wrong, when a person asks you a question, and your answer is “I cannot tell you the truth” or “I am prohibited by professional legal ethics, from answering that question,” “I can’t lie to you, but my creed dictates that I must be rude to you.”

    I’m not saying I disagree with your interpretation of the rule. But you for one, can appreciate someone calling out a rule that is asinine, right? You do that all the time.

    • Pro.v, not many weeks go by in which I don’t tell someone, “I can’t answer that” — it’s part of the job.

      I’ve consulted with Miss Manners, and she agrees with me that this is neither wrong nor rude. People, she says, often ask questions to which they’re not entitled to answers.

  8. How is telling a juror after a trial that, for instance, this guy had a prior, poisoning a juror? Do you think that jurirs don’t know that some people have priors and some don’t? What difference does knowing if a guy had priors or not after a trial make on anything a juror might do in the future, on the odd chance that any of them ever get called to jury service again?

  9. Why would a juror be more likely to convict just because he finds out the guy had a prior? I don’t see the two as being logically connected, but I suppose that human nature isn’t always logical. I can’t see that it makes a difference if they know or not. Priors often come out in punishment, and I have often seen them make little difference in sentencing.

  10. Alright since nobody else has said it, I will. I have no idea if we have a rule like this in California, but I do this ALL the time and I do it specifically to “taint” the jury in the defense’s favor the next time around. More often than not, the stuff that is kept from a jury is helpful to the defense, not the prosecution. I’d like my jury serving public to know that.

  11. i appreciate the remark about the Judges who are also guilty of this. having worked for a Judge who took FAR too many liberties with jurors (inclusive of campaign material distribution, pot luck lunches, joking with them about attorneys who were in the midst of their cases…) i sincerely appreciate anyone who will keep them in check. someone needs to and NO ONE does.

  12. I was wondering whether a motion or notice or letter to the Judge and prosecutor advising them that it is inappropriate to make comments after the trial which “poison” the jury pool would be something to consider? Also, if a jury pool has been poisoned, I wonder if attorneys could communicate this fact on some blog or somehow to other lawyers in that jurisdiction so that they could ask the potential jurors a question or in camera question or maybe a written questionaire or something like that.
    Just thinking . . . .
    Glen R. Graham, Tulsa Criminal Attorney

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