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01-01-2014, 01:03 PM
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01-12-2014, 09:57 AM
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01-21-2014, 09:25 PM
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02-07-2014, 04:30 PM
the Aisle of Terror Review
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02-09-2014, 10:44 AM
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02-09-2014, 10:50 AM
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02-12-2014, 03:34 PM
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03-01-2014, 03:04 PM
Poulin named AHL Player each
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03-04-2014, 04:45 PM
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03-04-2014, 04:47 PM
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03-04-2014, 11:16 PM
A Defense Attorney While in the Heat Of Battle
Johnny Ray Ocon was slip on trial in Ector County, Texas with the crime of aggravated sexual assault to a child. Sex offense cases involving kids are the most difficult for one defense attorney to test. Defense attorneys need to be thorough and thorough usually in the voir dire of prospective jurors to spot any hidden biases a juror may harbor when this happens. It isn't simple to dig through any person juror's personality inside small amount of time, and with a confined wide variety of questions, to recognize and isolate any prejudices the juror perhaps have contrary to the defendant.
Ocon's attorney conducted a diligent and comprehensive voir dire of various dozen prospective jurors before twelve were put to use to be controlled by the outcome against Ocon. Those twelve jurors took a solemn oath to become fair and impartial. Straight defense attorneys after voir dire after the jurors were sworn, Ocon's attorney knew there had been probably a handful of jurors who could not approach the outcome that have an open mind despite their sworn duty to do. However attorney had put http://kundan.com/pics/index.asp?q=940 forth his best effort to select the sort of fair and impartial jury where his client was entitled under your federal and Texas constitutions.
But nothing across the jury buying process had prepared Ocon's attorney for that which he previously encounter within the second day's the trial. During a brief recess, the attorney entered the men's restroom in your county courthouse. He overheard someone in http://addonix.com/images/events/home.asp?q=212 the second stall talking at a smart phone. Listed below are regions of the conversation the defense attorney heard:
Brenda They've got me in this particular **** jury I are not aware of why the hell they picked me I prefer to be in a double ax murderer then [sic] this **** case It's dirty, disgusting No, unless we convict the bastard today, then I'm type stuck here.
Besides Ocon's attorney, there seemed to be just one more Ocon juror in the restroom who also overheard the phone conversation between first juror and "Brenda."
Ocon's attorney was probably angered, and understandably so, by your juror's comments. It could possibly simply be assumed which they failed to adequately consider his next tactical trial decision to remedy the circumstance. He moved for a mistrial as soon as the trial judge reconvened the trial. In defense of that maneuver, Ocon's attorney certainly possessed a reasonable expectation which the procedural relief can be granted because of the trial court. The Texas Court of Criminal Appeals ("CCA") has long held which a juror must base his/her decision at the two guilt and punishment phases of your criminal trial on evidence presented in the courtroom and also law as made available from the trial judge. The CCA has held that whenever a juror "makes statements outside of deliberations that indicate bias or partiality, such bias can constitute jury misconduct that prohibits the accused from locating a fair and impartial trial." 1/
There is no question from your comments expressed from the bathroom stall the Ocon juror had betrayed his sworn duty for being fair and impartial and was joining "juror misconduct." Texas law is obvious for this issue. Article 36.22 from the Texas Code of Criminal Procedure states that "no person is going to be able to talk to a juror with regards to the case on trial except in the presence bya the permission of this court." The CCA has held that this primary intent behind this law is always to insulate jurors from outside influences. 2/ The CCA has additionally held that you've got a presumption of damage to your defendant each violation of Article 36.22 has long been established that can resulted in a mistrial. 3/ The prosecution, however, need to be given a chance rebut the presumption of damage. 4/
Prior to a defense attorney an extraordinary motion for that mistrial depending on jury misconduct, that could be considered an extreme remedy of final measure, Rule 606(b) with the Texas Rules of Evidence gives a more gentle alternative remedy which allows the trial court to conduct an inquiry with jurors with regard to the specific allegations of misconduct to determine generally if the misconduct can be cured with instructions. Ocon's attorney bypassed this evidentiary procedure (apparently believing that instructions could actually do more damage than good) and moved directly for those remedy of an mistrial. Could possibly are a very high tactical decision for his client, eventhough it might have been difficult, part way through this courtroom battle, for your attorney to obtain foreseen its eventual damage.
While trial judge while in the Ocon case was worried about the smart phone juror's alleged misconduct, he wasn't convinced there is an acceptable cause for a mistrial based solely as to what the defense attorney had told him. The judge stated why he felt due to the fact did:
I will be reluctant to grant a mistrial and believe that they won't follow any instructions, you're confident you know, at this point. Now, that will change. There's no doubt that that whenever I brought them in and talked to them individually, could possibly just accentuate however, the problem I think what I might do is instruct them again, you recognize, on a selection of their responsibilities and keeping an open mind and do that, which has been attempt to do. My primary attention would be to ensure that your client gets to be a fair trial. Setting up, that's my main job
I reckon at this stage With time deny your motion. Nevertheless i many thanks for concern. I share it and i'll, you realize, determine if there's somethingI'll consider things and pay attention to when there is a way to treat the jurors, that they can recognise that you can find more to this then [sic] maybe their sentiments concerning the case thus far.
The trial judge kept his word. On four different occasions over the guilt phase within the trial he reminded the jurors they were by no means discuss the situation with anyone. The judge obviously believed, however mistaken, the particular instructions actually cured whatever bias the cellphone juror could possibly have infected the jury with.
For sure if Ocon's jury was based on the telephone juror's bias is uncertain. What's certain might be that the jury found Ocon guilty and assessed his punishment at life imprisonment. Ocon's attorney appealed the conviction for the Eleventh District Court of Appeals in Eastland. On January 17, 2008, the appeals court reversed Ocon's conviction, applying a presumption of injury to defendant, and ordered a new trial. 5 The appeals court also bypassed contemplation on the Rule 606(b) alternative, which lent professional credence to Ocon's attorney's tactical decision to motion directly for that mistrial.
The state of hawaii sought, and was granted, discretionary review prior to a CCA. The CCA on June 3, 3009 reversed the appeals court's new trial order and reinstated Ocon's conviction and life sentence. 6/
Ocon's attorney argued prior to CCA that in order for the region to effectively rebut the presumption of damage to his client, the prosecution bore force to question jurors about any encounter a biased influence within the likes of one's cellular telephone juror, something the prosecution could not do. The attorney's argument tracked the identical position taken through the court of appeals in its bristling decision to reverse Ocon's conviction.
The CCA disagreed, however. It declared while questioning jurors about allegations of misconduct works in determining whether a mistrial have to be granted, it isn't mandatory. "Our case law doesn't establish juror questioning as the mandatory remedy," the CCA said, "nor accomplish the Texas Rules of Evidence" in juror misconduct situations. 7/
Rrt had been when this happens how the CCA focused entirely on exactly what it regarded as being the important trouble in the Ocon case. It declared and not オークリー ten (http://addonix.com/images/events/home.asp?q=219) nys capturing the burden in juror misconduct situations to initiate an inquiry of jurors, and even the trial court itself creating a responsibility to independently conduct type of inquiry, its precedents had always placed the responsibility on defense counsel to produce a formal ask this type of inquiry into jury misconduct under Rule 606(b). 8/
Also, the CCA took pains to say that Ocon's defense attorney besides neglected to produce a Rule 606(b) request but that his arguments to the motion for mistrial actually "acted to prevent" such an inquiry. 9 The CCA pointed in the following exchange between defense counsel as well as the trial judge as a general foundation for its finding/
Defense Counsel: And my issue is this becauseI mean, I do know that Court is required to inquire to barefoot jogging, however the best way to inquire there though, is to always actually bring those jurors in and inquire. However, if the Court decides not to ever grant a mistrial, then I've got at least most notable (jurors) essentially that might be looking at me like why were you following my conversation.
Trial Judge: I believe if I brought them in and talked to them individually, it will just accentuate the problem.
Defense Counsel: I realize that. That is certainly my concern in the whole thing.
The failure of Ocon's attorney to request a Rule 606(b) inquiry, and the own arguments which actually argued against such an inquiry, precluded the juror conduct issue from being heard on appeal and prompted the below harsh assessment through CCA:
The fact that party alleging juror misconduct, not nys nor legal court, should initiate juror questioning, is consistent with our rules of error preservation. Questioning jurors who allegedly participated in misconduct is actually a less drastic remedy rather than a mistrial. An appellant who moves for your mistrial without first requesting a less drastic alternative forfeits appellate report on that class of events which may are generally cured through lesser remedy. Here, Appellant's first action would be to move for that mistrial. Appellant hasn't been was required to progress sequentially from least to several serious remedy, however we will not reverse a trial court's judgment where a lesser, unrequested alternative, for instance juror questioning, could have cured the drawback.
Given that Appellant requested no alternative remedies, he must are generally satisfied the trial judge aggressively utilized the remedy in the curative instruction. Following incident was exposed to the court's attention, the trial judge issued four separate instructions to your jurors within guilt phase, warning them not to ever discuss the result with anyone not in making or express any opinions regarding case. Curative instructions frequently perform effective other options to a extreme remedy of your mistrial, and there isn't any indication which the four instructions following the juror's misconduct failed to rectify the problem. 10/
Every criminal trial presents critical moments when defense attorneys must make within the heat with the fire tactical decisions. Usually we become it right; in other instances we do not. Ocon's attorney didn't set things right .. Does this mean he was ineffective within his representation of Ocon? Usually not. Because CCA said, the lawyer hasn't been "required" to proceed from the "least with the most serious remedy," however in hindsight, his tactical decision to refrain from doing so effectively cost his client a complete appellate review for the juror misconduct issue. That is a hard nut to twist. The lawyer found himself in your proverbial "**** if you undertake, **** if don't" situation. He acted on pure instinctand the Eleventh District Court of Appeals agreed that they can acted properly. The CCA had not been so forgiving. It never is.
03-05-2014, 01:16 PM
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