Preserving Peremptory Challenge Error at Trial

A recurring theme of this blog is that in order to get relief from an appellate court trial court error must be properly preserved. Although members of the panel from which a jury is selected can generally be struck from the jury list for any reason, it is illegal to strike panelists solely on account of their race (Batson error) or their sex (J.E.B. error). It is not merely illegal in criminal cases, but also in civil ones per Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
 So what should you do when you think that the other side has made such an improper strike? Before the panel is dismissed and the trial commences, make a prima facie case that the strike was made solely for an impermissible reason or reasons--race or sex.  At that point, the burden of proof shifts to the striker to show that the strikes were made for acceptable reasons.  That is not the end of the process for you. You must then object to or dispute what opposing counsel says, showing that your adversary's explanations are not supported by the facts or are just pretexts for race or sex and ask for a ruling.
In the course of preparing this post I ran across an excellent continuing legal education article on trial error preservation by Southern District of Texas assistant public defender Timothy Crooks (What a surname for a public defender!). I recommend it highly for any criminal defense practitioner in the federal trial courts subject to the Fifth Circuit.

Child Murder Acquittal Fails to Bar Medical Care Omission Child Injury Prosecution

A twenty-one-month-old child dies of  blunt force trauma of head with closed head injury when in the care of his father and his stepmother. The stepmother is tried for murder of the child and is acquitted. She is then put on trial for injury to a child by omission for failing to get medical care for the child. She applies for a pretrial writ of habeas corpus on the grounds that the State is collaterally estopped from the second set of charges on account of her acquittal. The appeals court refuses the writ on the ground that the injury to a child statute is explicitly differentiated from the murder statute, and that on the facts of the prior case, a person could be found to have not killed a child, but that non-killing would not necessarily rule out that she failed to get the injured child needed medical care when she was in charge of the child. Ex parte Crystal Desormeaux, No. 09-11-00035-CR (Tex. App.--Beaumont Nov. 16, 2011) (orig. proceeding). This opinion was written by one of our favorite justices, Montgomery County's own David Gaultney. Hat tip to the Texas District and County Attorneys' Association for the case

Avoiding the "Inadequate Briefing" Trap

One of the ways that appeals courts keep from deciding matters is to say that a point is inadequately briefed. For example, in the case of Campbell v. State, No. 08-10-00298-CR (Tex. App--El Paso, July 27, 2011) (mem. op.) it appears that someone tried to make a whole appellate argument for two points in six sentences.  Basically, the only answer to the appellant's arguments are that they were inadequately briefed.
Campbell complained that he wasn't sentenced immediately after he was convicted by the jury. The judge reset the case for sentencing until a later setting, and let him stay out on bail. I've never seen a convicted person allowed to stay out on bail pending sentencing. The temptation to do what Campbell did is almost overwhelming-- don't show up for sentencing. When Campbell was finally re-arrested and sentenced, he complained that of not being immediately sentenced after the verdict. I can hear it now: "You see, justices of the court of appeals, it's the trial judge's fault that I jumped bail; I need a new trial."
You can't just state your conclusion and slap a citation on a point. You need to give your point the IRAC treatment, like you did in law school: Issue, Rule, Analysis, Conclusion.

Texarkana Court Holds That a Traveler Carrying a Weapon Ceases to Travel When Getting to the Destination before Getting Home

In a trial of aggravated assault with a deadly weapon, the Texarkana Court of Appeals approved jury instructions that the defendant's use of deadly force was reasonable unless they found the defendant provoked the victim or that the defendant was unlawfully carrying a weapon at the time of the assault. The appeals court found that there was sufficient evidence to find (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Most interesting to me--a scholar of the traveling exception to Texas's carrying a weapon statute--was the court's holding that once the defendant reached his destination and had secured a place to stay, he had ceased to travel, as that to be traveling the defendant would have had to have shown that he was continuing on to another destination. The court also found that sufficient evidence supported the jury's rejection of the defendant's self-defense claim.

SCOTUS to Decide Whether Life without Parole Permissible for Juveniles Convicted of Homicide

The cases are Jackson v. Hobbs and Miller v. Alabama.  About 18 months ago, the Supremes held that life with out parole was not permissible for juveniles in non-homicide cases, which I wrote about June 1 of last year. Hat tip to the blog Youth Today and the website LawyersUSA.

On the Record: What the Court of Appeals Needs

Appellate courts generally judge whether or not a trial court has made an error in a ruling or a set of rulings. Appellate courts can properly learn what happened in the trial court from two possible sources: a reporter's record and a clerk's record. A reporter's record used to be called a transcript. A clerk's record used to be called a statement of facts- not to be confused with the statement of facts that is a part of an appellate brief that gives the facts of a case. The arguments in a brief must cite to the reporter's record or the clerk's record.  A post-judgment proceeding might go up to the court of appeals with a truncated reporter's record or without any reporter's record at all. There is a rule that if anything that could have decided the post-judgment proceeding would have been evidenced by a part of one of these records and part of the record is missing, that missing part is presumed to support the judgment. A reporter's record might not be necessary in a case in which the dispute is a pure issue of law and the parties jointly stipulate to a controlling set of facts, but it would still be a risky business.

Possible Error in Allowing Testimony of Pretrial Services Held Harmless

In a kidnapping trial, the State called a pretrial services officer, a county employee who interviews criminal defendants to determine whether they should get a personal- free- bail bond to testify about what a defendant had told her about his alleged affirmative defense. The defendant had not been Mirandized. The Austin Court of Appeals analyzed the pretrial services officer's role, appearing to be heading toward the conclusion that since the defendant was in custody, was being interrogated after a fashion, he should have been Mirandized if his statements could have been used against him later. The court did not reach a conclusion one way or another because they found that even if the statements should not have come in, the error would have been harmless, given the rest of evidence properly admitted.
The Court also considered that the improper objection to a voir dire question was harmless, because all of the panelists impacted were struck, that the refusal of the court to strike a panelist for cause was proper, and that there was sufficient evidence to support the jury's finding that the kidnapping victim was not released in a safe place.