In re Commitment of Seth Hill: The Importance of Uncovering Bias Against Sexual Orientation in Jury Selection
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Every criminal defendant enjoys a right protected by the Sixth Amendment of the United State Constitution to a trial by an impartial jury chosen from a jury panel that represents a fair cross-section of the community. A voir dire examination of a jury venire exists primarily to allow the parties the opportunity to reveal a potential bias among prospective jurors. While a trial court’s discretion at both the state and federal level is virtually unfettered when it comes to controlling voir dire questioning, there are occasions when the appellate courts find an abuse of that discretion when the trial court arbitrarily restricts a specific line of questioning designed to elicit bias among potential jurors. For example, the Second Circuit Court of Appeals held that a trial court was required to conduct an in-depth inquiry, or permit such an inquiry by the parties, into racial bias when a reasonable potential for bias existed because feelings among prospective jurors toward African-American defendant were unknown and he was being tried by a white jury in a predominantly white area.
The Texas Supreme Court recently handed down a comparable decision in a case involving the civil commitment of a designated “repeat sexually violent offender” named Seth Hill. Under § 841.003 of the Texas Health and Safety Code, the State had the burden of proving to a jury that (1) Hill was a “repeat sexually violent offender” and (2) he suffered from a “behavioral abnormality that made him likely to engage in a predatory act of sexual violence.”
Hill’s attorney knew from the outset that his client’s “sexual history” would be the primary focus in the civil commitment proceeding. The State would call an “expert” witness who would present the opinion that Hill suffered from a “behavioral abnormality”—an opinion premised on the expert’s highly suspect conclusion that if an individual begins life with a heterosexual preference but later opts to engage in homosexual behavior, an inference can be drawn that the individual has “instability within their personality” and this is a legitimate basis for concluding that he suffers from a sexual “behavioral abnormality.” And the State buttressed this questionable expert opinion testimony by securing pretrial testimony from Hill himself about his sexual activity with other inmates at an all-male penal facility—behavior that Hill readily admitted to.
Forearmed with this much information about the State’s case, Hill’s attorney quite naturally wanted to explore prospective jurors’ feelings about homosexuality—and because, as the Texas Supreme Court observed, “a party selecting jurors for trial must be given latitude to intelligently use its peremptory challenges to seat a jury that, to the greatest extent possible, is free from bias.” The defense attorney quite naturally, and without any objection from the State, initiated questioning of potential jurors about any bias they may have had toward a homosexual person. Several of the jurors were frank enough to respond that they could not give such a person “a fair trial,” a sacred constitutional right to which he and all accused persons are entitled. However, once the trial court saw the possibility of serious sexual bias being revealed among the jury venire, the court instructed defense counsel not to ask any further direct questions “about Hill’s homosexuality.” The Texas Supreme Court then told us what happened next in the proceeding:
“Hill’s attorney then attempted to ask the panel whether, if the State proved that Hill had committed two or more violent sexual offenses, the potential jurors would convict Hill based on that evidence alone or would [they] also require the State to prove the statute’s second element that Hill had a behavioral abnormality predisposing to commit such acts. The State objected to this line of questioning, calling Hill’ questions improper commitment questions, and the court sustained the question. When Hill’s attorney attempted to rephrase his question, he was again told that the question was prohibited.”
The subsequently chosen jury found the State had proven Hill satisfied the statutory requirement for “civil commitment” and the trial court signed the judgment of commitment. The Ninth Court of Appeals, sitting in Beaumont, upheld the trial court’s decision. Fortunately, the Texas Supreme Court reversed the trial court judgment and the appeals court decision, and in the process offered valuable instruction to both prosecutors and judges about the purpose and extent of a voir dire examination. The state’s high court instructed:
- Litigants have the right to question potential jurors to discover biases and to properly use peremptory challenges.
- This right is constrained by “reasonable trial court control.”
- The decisions by the trial court to restrict voir dire questioning, therefore, are reviewed under the abuse of discretion standard.
- A trial court abuses it discretion when denies a party the right to ask proper questions which prevents a determination of whether grounds exist to challenge a prospective juror for cause or otherwise prevents the intelligent use of peremptory challenges.
- The fact that the trial court prevented Hill from “discovering the potential biases” about his alleged “behavioral abnormality,” which was rooted in his prison homosexual activity, and denied him the opportunity to strike any biased juror for cause and to “intelligently use [his] peremptory challenges.”
The Supreme Court pointed out that the court of appeals did not reach the “abuse of discretion” issue because it ruled Hill had not preserved the error for appeal. The Supreme Court dismissed this procedural concern by pointing out: “ … the questions Hill asked were proper, and there was no need for him to rephrase because there were no defects for him to cure. Moreover, he made clear why he was entitled to ask the requested questions. The court instead ordered him to ask a question that did not address the issue of juror bias and then directed him to move on without asking any further questions on the topic. But the candid admissions of bias by the potential jurors, before the trial court suspended that line of questioning, establish both the propriety of the question and the trial court’s abuse in denying Hill the right to ask it.”
The Supreme Court next turned its attention to whether Hill’s attorney’s “second line of inquiry” (whether jurors would require the State to prove the second element of the commitment statute, “behavioral abnormality”) constituted “improper commitment questions.” The state’s high court said the trial court abused its discretion here as well because “the commitment that the potential jurors were asked to make was legislatively mandated: they were asked whether would require the state to prove both elements of a conjunctive statute … Jurors swear an oath to render a true verdict … according to the law … and to the evidence. Implicit in that oath is a commitment to follow the law the Legislature enacted, and a party participating in jury selection may solicit from potential jurors that promise, essential to the empanelling of a fair jury.”
While the Seth Hill decision in a per curiam ruling is a civil case, it certainly reinforces voir dire principles of law applicable to criminal cases. We recently tried a child sexual assault case during which on voir dire we tried to discover potential biases among jurors in such a volatile case. Several jurors readily admitted they had a “bias” against our client simply because he had been “indicted” for the offense which, according to them, meant “he must have done something wrong.” One prospective juror even commented that he was “uncomfortable” just being in the “same room” with our client because he had been indicted for such an offense. These people could not be fair and impartial jurors in this particular case, so we thanked them for their honestly and struck them for cause.
Juror biases are real. They exist because a jury venire is chosen from the real world. A very prominent former Louisiana politician was convicted recently in federal court after his third trial for income tax evasion. The first two trials ended with “mistrials” being declared after the jurors could not reach a verdict. On voir dire examination during the first two trials, attorneys for the accused African-American politician were permitted to ask jurors to raise their hands if they had a “bias” against politicians accused of corruption or other crimes. A significant number of jurors, mostly white, raised their hands indicating they had a strong bias against such politicians. They were all excused by the court, leaving a larger array of African-Americans in the jury pool. The subsequent juries selected at the first two trials, therefore, were racially balanced, reflecting a fair cross section of the North Louisiana community in which the politician was being tried.
However, things were dramatically different at the third trial. The Government objected to defense counsel being allowed to ask any questions about potential bias among the jury venire concerning corrupt politicians. The trial judge agreed, precluding the defense attorneys from exploring this area of potential bias. The end result: the Government got an overwhelming white jury (10 whites, two blacks) and this jury convicted the politician of income tax evasion and the judge sentenced him to 27 months in prison. The trial court’s refusal to allow a bias exploration by the defense produced a jury prone to convict for the government.
An ugly scenario? Yes. But that’s the real world in the jury selection process in most criminal cases. It’s dirty pool, but that’s the nature of the beast defense attorneys must confront and wrestle at the start of every criminal trial.
When jurors walk out of their everyday lives into courtrooms to sit in judgment of people against whom they have a predisposed bias, homosexuality in the Seth Hill case, defense attorneys must have some leeway to explore and discover these often concealed biases. And when trial judges arbitrarily foreclose these lines of questioning, a reasonable assumption can be made that the judge favors the prosecution and is tilted against the defense. So, the defense lawyer must be vigilant at this important point in the trial. This is a tricky, sensitive area of the trial to navigate: the defense attorney must convince the judge that the law allows the line of questioning, that the questions are necessary to reveal a relevant juror bias, and that’s where the most recent ruling by the Texas Supreme Court can be so persuasive.
The law always works better when the parties keep their emotions and personal beliefs out of the procedural wrangling that inevitably occurs in every criminal trial. The Seth Hill case stands as a reminder to us all that we must stay on point to ensure the justice system is fairly administered and hopefully produce the best result possible.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization