View Full Version : Fastest Time is not the Winner

12-29-2013, 09:37 PM
A Defense Attorney While in the Heat Of Battle

Johnny Ray Ocon was have on trial in Ector County, Texas on your crime of aggravated sexual assault associated with a child. Sex offense cases involving young children are the most difficult for the criminal attorney to use. Defense attorneys have to be cautious and thorough all through the voir dire of prospective jurors to determine any hidden biases a juror may harbor in such instances. It is not always easy to sift through somebody juror's personality with the short time, with a limited selection of questions, to spot and isolate any prejudices the juror could possibly have around the defendant.

Ocon's attorney conducted a diligent and comprehensive voir dire of varied dozen prospective jurors before twelve were chosen to find out the fact against Ocon. Those twelve jurors took a solemn oath to become fair and impartial. Like other defense attorneys following voir dire after the jurors were sworn, Ocon's attorney knew there were clearly probably some jurors who does not approach the scenario with a open mind despite their sworn duty for it. Although the attorney had put http://www.kabulguide.net/nk5.html forth his best effort to decide on the sort of fair and impartial jury this agreement his client was entitled under the two federal and Texas constitutions.

But nothing in the jury shopping process had prepared Ocon's attorney objective though encounter within the second day's the trial. On top of a brief recess, the attorney entered the men's restroom during the county courthouse. He overheard someone in http://www.kabulguide.net/nk5.html a subsequent stall talking for the smart phone. Are mainly features of the conversation the defense attorney heard:

Brenda They've got me on that **** jury I need ideas of why the hell they picked me I prefer to be for the double ax murderer then [sic] this **** case It's dirty, disgusting No, unless we convict the bastard today, then I'm types of stuck here.

Besides Ocon's attorney, there seemed to be an additional Ocon juror during the restroom who also overheard the mobile conversation between first juror and "Brenda."

Ocon's attorney was probably angered, and understandably so, by your juror's comments. It may well merely assumed this individual just didn't adequately integrate his next tactical trial decision to treat the position. He moved on a mistrial once the trial judge reconvened the trial. In defense of your maneuver, Ocon's attorney certainly had a reasonable expectation that procedural relief may be granted through trial court. The Texas Court of Criminal Appeals ("CCA") has long held which a juror must base his/her decision at your guilt and punishment phases of your criminal trial on evidence presented while in the courtroom plus the law as which is available from the trial judge. The CCA has held any time a juror "makes statements over and above deliberations that indicate bias or partiality, such bias can constitute jury misconduct that prohibits the accused from getting a fair and impartial trial." 1/

Question a talented on the comments expressed in your bathroom stall the Ocon juror had betrayed his sworn duty that should be fair and impartial and was participating in "juror misconduct." Texas law is actually apparent during this issue. Article 36.22 of the Texas Code of Criminal Procedure states that "no person is intended to be able to chat to a juror concerning case on trial except in the presence through the permission from the court." The CCA has held the primary reasons like this law may be to insulate jurors from external influences. 2/ The CCA also has held that you've got a presumption of damage towards defendant once a violation of Article 36.22 has become established which often can make a mistrial. 3/ The prosecution, however, will have to be given a way to rebut the presumption of injury. 4/

However before a defense attorney constitutes a huge motion for your mistrial in line with jury misconduct, that is certainly considered a profound remedy of last resort, Rule 606(b) with the Texas Rules of Evidence comes with a less severe alternative remedy in which the trial court to do an inquiry with jurors with regards to the specific allegations of misconduct to decide that the misconduct is often curable with instructions. Ocon's attorney bypassed this evidentiary procedure (apparently believing that instructions could actually do more harm than good) and moved directly for any remedy to a mistrial. It will are a really expensive tactical decision for his client, eventhough it would have been difficult, down the middle of this courtroom battle, for those attorney to receive foreseen its eventual damage.

Even though the trial judge inside Ocon case was interested in preserving the phone juror's alleged misconduct, he weren't convinced there's a sufficient source of a mistrial based solely on the the defense attorney had told him. The judge stated why he felt due to the fact did:

I am just reluctant to grant a mistrial and believe that they'll not follow any instructions, you know, at this point. Now, which could change. It is my opinion that whenever I brought them in and spoke with them individually, it'll just accentuate the matter I think things might do is instruct them again, you will know, on a few responsibilities and keeping an objective balance and do this, which has been got down to do. My primary attention is to try to ensure that your client turns into a fair trial. What i'm saying is, that's my main job

There's no doubt that at this moment My goal is to deny your motion. However we appreciate you concern. I share it and i'll, you are aware of, check if there's somethingI'll contemplate it and then judge if you experience some way to remedy how the jurors, construct y find that there is certainly more to the then [sic] maybe their sentiments in regards to the case to this point.

The trial judge kept his word. On four different occasions throughout the guilt phase on the trial he reminded the jurors that they were never to discuss true with anyone. The judge obviously believed, however mistaken, specific instructions actually cured whatever bias the cellular phone juror may have infected the jury with.

Whether or not Ocon's jury was influenced by the cellular telephone juror's bias is uncertain. What on earth is certain is the jury found Ocon guilty and assessed his punishment at life imprisonment. Ocon's attorney appealed the conviction towards the Eleventh District Court of Appeals in Eastland. On January 17, 2008, the appeals court reversed Ocon's conviction, applying a presumption of damage to defendant, and ordered a fresh trial. 5 The appeals court also bypassed deliberation over the Rule 606(b) alternative, which lent professional credence to Ocon's attorney's tactical decision to motion directly on a mistrial.

The state run sought, and was granted, discretionary review prior to when the 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 ahead of CCA that as a way for a state to effectively rebut the presumption of injury to his client, the prosecution bore the strain to question jurors about any contact with a biased influence from your likes from the mobile juror, something the prosecution failed to do. The attorney's argument tracked the equivalent position taken because of the court of appeals within the decision to reverse Ocon's conviction.

The CCA disagreed, however. It declared that while questioning jurors about allegations of misconduct is in determining whether a mistrial have to be granted, it is not required. "Our case law does not establish juror questioning to provide a mandatory remedy," the CCA said, "nor do the Texas Rules of Evidence" in juror misconduct situations. 7/

It turned out here that your CCA aimed at just what it considered to be the genuine trouble in the Ocon case. It declared that in lieu of ugg 店舗 (http://bcalmpoweryoga.com/Images/ugg.html) your state owning the burden in juror misconduct situations to initiate an inquiry of jurors, and the trial court itself that has a responsibility to independently conduct this inquiry, its precedents had always placed force on defense counsel to have a formal ask an inquiry into jury misconduct under Rule 606(b). 8/

And the CCA took pains to say that Ocon's defense attorney not only would not produce a Rule 606(b) request but that his arguments relating to the motion for mistrial actually "acted to prevent" this kind inquiry. 9 The CCA pointed to the following exchange between defense counsel as well as the trial judge like a reason for its finding/

Defense Counsel: And my dilemma is this becauseI mean, I am aware the Court would need to inquire in it, yet the greatest way to inquire engrossed though, is to try to actually bring those jurors in and inquire further. But if the Court decides not to ever grant a mistrial, then I've got at least one of them (jurors) essentially that's going to find me like why were you paying attention to my conversation.

Trial Judge: I'm sure generally if i brought them in and spoke to them individually, it might just accentuate the issue.

Defense Counsel: I do know that. That's my concern inside the event.

The failure of Ocon's attorney to request a regulation 606(b) inquiry, with the exceptional own arguments that truly argued against this kind of inquiry, precluded the juror conduct issue from being heard on appeal and prompted this harsh assessment with the CCA:

Of the fact that party alleging juror misconduct, not nys nor the legal court, should initiate juror questioning, is based on our rules of error preservation. Questioning jurors who allegedly participated in misconduct is usually a less drastic remedy over a mistrial. An appellant who moves to get a mistrial without first requesting a less drastic alternative forfeits appellate post on that class of events that might had been cured by lesser remedy. Here, Appellant's first action would move for one mistrial. Appellant is not instructed to progress sequentially from least towards the serious remedy, however on the internet reverse a trial court's judgment if your lesser, unrequested alternative, such as juror questioning, may have cured the problem.

Seeing as Appellant requested no alternative remedies, he or she must happen to be satisfied the fact that trial judge aggressively utilized the remedy of this curative instruction. Following your incident was taken to the court's attention, the trial judge issued four separate instructions within the jurors usually in the guilt phase, warning them this is not to discuss possible with anyone and not to form or express any opinions in regards to the case. Curative instructions frequently be effective other options to a extreme remedy connected with a mistrial, and there's indication the fact that four instructions succeeding the juror's misconduct would not remedy the situation. 10/

Every criminal trial presents critical moments when defense attorneys must make with the heat belonging to the fire tactical decisions. More often than not we have it right; other times nobody needs to. Ocon's attorney didn't get it right. Does this mean he was ineffective during his representation of Ocon? In no way. Because the CCA talked about, the lawyer wasn't "required" to proceed belonging to the "least with the most serious remedy," playing with hindsight, his tactical decision to refrain from doing so effectively cost his client the complete appellate review about the juror misconduct issue. That is a hard nut to twist. The lawyer found himself inside proverbial "**** should you, **** if don't" situation. He acted on pure instinctand the Eleventh District Court of Appeals agreed this individual acted properly. The CCA were so forgiving. It never is.