Written by attorney Alexander Ali Forrest

The Impossibility of Having an Impartial Jury in High Profile Cases

This past week, the Texas Court of Criminal Appeals decided the Mays case, No. AP-75, 924 (Tex.Crim.App 4-28-2010), a case which unfortunately follows the reasoning from Powell v. State, 898 S.W.2d 821 (Tex.Crim.App. 1994). This case is significant because it affects what I believe is the most crucial stage of trial, "voir dire", otherwise known as jury selection.

Ideally, a jury should not be educated on the facts or details of a case from sources outside of the evidence presented to them during a trial. The reason for this limitation is to ensure that the jury basis its ultimate decision of guilt or innocence on information whose credibility has been tested against procedural rules of evidence designed to protect the innocent. These rules of evidence are supposed to work towards shielding the eyes of the jury from hearsay, or speculation. The idea here is that rumors are dangerous in a courtroom precisely because they have the potential to be taken as truths. And even when a jury is instructed to disregard a rumor, rumors are so sensational that one cannot help but have his or her thought processes polluted by them.

The Mays case deals with the problem defense attorneys often confront when trying to test their jury pools for exposure to media driven rumors or false-truths. The defense attorney in the Mays decision requested to poll the jury panel to determine whether any of the jurors had been exposed to a particular editorial that suggested that the local police and law enforcement agencies and officials had been aggressively keeping up with and following his trial. The purpose of testing the jury pool is to identify, then strike (i.e., remove) any juror who has been exposed to such information. The judge in the Mays court ultimately denied the defense attorney's request to poll the jury on their exposure to the article for the reason that the court feared the very question itself would pollute the jury pool. As a result, the judge responded, "the Court is not aware, or it's not been brought to the Court's attention any evidence that they jury has violated its instructions." Well, how can you know whether the jury is violating it's instructions unless you ask the question, right?

Nevertheless, as much as I hate to admit it, I agree with the Mays decision. The Mays court ruled on this issue fairly, given the law on this subject. Also, it was a pragmatic and practical decision as well. What else could the court have done to secure an impartial jury? Nothing - all the court can do is hope that the jurors who have been exposed to outside information shall follow their instructions and voluntarily excuse themselves at the voir dire stage of trial. Nevertheless, as a defense attorney I am terrified that I am often forced to trust that the jurors will follow their jury instructions, without being given the opportunity to test their exposure. It's just not fair to my client. I wish there was a better way to handle situations like this one, but as for now, no one has figured it out yet, not the judge, not the law, and certainly not me.

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