CRIMINAL JURISDICTION

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:

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