Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair


The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.


Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.


The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.


Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave.


The jury entered the courtroom. They were resolute, un-revealing. The prosecutor had her arms folded in the same familiar defensive posture. It was like a raised hand trying to ward off the fatal bullet. She was not confident. A career of success, and a reputation for being lean n’ mean against those she believes is the worst of humanity, could not shore up her feeling of utter powerlessness. Her moment of personal glory and professional satisfaction rested with a jury of twelve people she had helped select.


But the jury had not been impressed with the smoke and mirrors of the case she presented to them – a case that never should have even been presented to a grand jury. The jurors sank their teeth deep into a litany of evidentiary discrepancies and chewed on the “facts” methodically and deliberately. They simply could not accept the credibility of the prosecution’s case. It was a horrific allegation, if true – but it wasn’t true, and the jury had the courage to accept its sworn responsibility to put the facts before whatever bias it may have had against the charged offense.


“The jury finds the defendant not guilty,” the trial judge said.


The anger, frustration, and perhaps outrage were evident by the verbal exchanges, body language, and gestures of the prosecutorial team. They had lost. The jury had not believed their witnesses. The case was over. The prosecution should have packed up their laptops, put away their files, and walked off the battlefield graciously. They should have accepted the jury’s verdict of acquittal in the same spirit they have so many times accepted guilty verdicts.


But the prosecutor did not do that. She chose to go to the jury room where she told the jurors the defendant had other criminal charges pending against him. She wanted the jurors to believe they had gotten it wrong – that because there were other charges pending against the defendant, he was “guilty” of the charge they had just acquitted him of. She neglected to tell the jury the other allegations were even weaker than those in this case, were made by convicted felons unworthy of belief and most were most likely fabricated with law enforcement complicity. She did not remind the jurors that the defendant had a constitutionally protected presumption of innocence on the other allegations.


No, the prosecutor had a singular motive. She wanted to poison the jurors in possible future jury duty. She planted the seed that they had vindicated a guilty child rapist – something she had failed to prove in the adversarial trial process. She couldn’t win fair and square so she decided to not only lash out against the collective conscience of the jury but to make them inescapably biased in future jury duty situations.


Attorneys know, and most people instinctively feel, there is something fundamentally unprofessional about this kind of conduct. While there is a professional rule against it, there is a wide legal landscape for interpreting exactly how the rule applies. Entitled “Maintaining Integrity of Jury System,” Rule 3.06 of the Texas Disciplinary Rules of Professional Conduct provides:


(a) A lawyer shall not:

(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service…


The Texas courts have analyzed, and interpreted, this rule in one significant case. See: Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998). This case involved an attorney named Barry Robert Benton who represented a group of plaintiffs whose case was heard by a jury in October 1991. The jury found the defendants in the case liable but refused to award Benton’s clients any damages. The trial court ordered a new trial in the case. After the new trial had been ordered, Benton in February 1992 wrote the following letter to each member of the jury who had refused to grant his clients any monetary damages:


Dear [Juror]:

It has been over four months since you sat on the jury in the above-referenced case and returned a verdict that Mr. and Mrs. Florentino Salas suffered no damages as a result of the bike accident involving Mr. Salas and the Abete’s dog.

I was so angry with your verdict that I could not talk with you after the trial. I could not believe that 12 allegedly, [sic] good people from Cameron County, who swore to return a verdict based on the evidence, could find that the Celestas were not damaged. The only evidence admitted at trial was that Mr. Salas was hurt. The Abete’s lawyer, paid for by State Farm Insurance Company, admitted that Mr. Salas was injured. There was no evidence introduced that Mr. Salas was not injured. Yet by your answers, you found that Mr. Salas was not injured.


The only reason I can see as to why you ignored the evidence is that you were affected by the “Lawsuit Abuse” campaign in the Valley. Why else would a jury breach its oath to render a true verdict based on the evidence? I want to say that when you make a finding in a trial which is not based on the evidence you are perverting our civil justice system and hurting everyone in the community. Who knows, maybe someday you will need the aid of our civil justice system and it will be as corrupted for you as you made it for the Salases. The next time you think of government as crooked, remember your contribution to the corruption of good government. You knew Mr. Salas was injured, but swore that he was not.


Your cold and unfair conduct does not matter now. Judge Hester reviewed the evidence admitted at trial and decided that your verdict was obviously unjust and granted the Salases a new trial. The first trial now was nothing more than a waste of everyone’s time and the county’s money. The Salases and myself are very relieved that our justice system may still provide a fair resolution to their claim, despite your verdict.


If you wish to discuss anything in this letter, please feel free to contact me. See: Benton, supra, at 428.

The letter came to the attention of the Commission for Lawyer Discipline of the State Bar of Texas. Attorney Benton was charged with violating Rule 3.06(d) which regulates an attorney’s post-verdict communications with jurors. The attorney rejected the Commission’s agreed judgment of public reprimand and elected to have the complaint heard in the district court rather than in an administrative proceeding. The Commission thereafter filed a formal disciplinary petition against Benton. The attorney answered the petition and engaged in discovery. He admitted that he had violated Rule 3.06(d) by attempting to influence the discharged jurors’ actions in future jury service. But he argued that the rule violated his First Amendment right to free speech, was overbroad and vague, and violated his right to equal protection of the law. The trial court found Benton guilty of the rule violation and suspended him from practicing law for six months with the suspension being fully probated subject to conditions including an apology to the jurors and community service. The Thirteenth Court of Appeals reversed the trial court’s finding on constitutional grounds and dismissed the charge against Benton. See: Benton v. Commission for Lawyer Discipline, 933 S.W.2d 784 (Tex.App.-Corpus Christi 1996). The Texas Supreme Court, however, granted an application for a writ of error presented by the Commission and reversed the appeals court’s ruling. See: Benton, supra, 980 S.W.2d at 428.


The Benton court turned to the U.S. Supreme Court decision in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) for guidance. Gentile was a criminal defense attorney who held a press conference on the day his client was indicted and accused prosecution witnesses of framing his client as part of a cover-up of police corruption. The Nevada State Bar disciplined under a state rule that a “lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Id., at 1060. The Supreme Court held the rule did not violate an attorney’s free speech rights. Id., at 1075-76.


The Gentile Court pointed out that attorneys, as officers of the court, voluntarily accept a “fiduciary responsibility” to the justice system that imposes a “duty to protect its integrity.” Id., at 1074, 1076. The court observed that “membership in the bar is a privilege burdened with conditions.” Id., at 1066. While the Gentile court said “a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice … a lawyer actively participating in a trial is not merely a person and not even merely a lawyer. He is an intimate and trusted and essential part of the machinery of justice, an ‘officer of the court’ in the most compelling sense.” Id., at 1072.

The Harris County prosecutor in this sexual assault case failed her “fiduciary responsibility” when she entered the jury room to inform jurors about the defendant’s other pending sex-offense charges. She had prosecuted the defendant as “an officer of the court,” and in that capacity she was an “essential part of the machinery of justice.” She, therefore, had no legitimate reason to tell the jury anything negative about the defendant.


Why is it that some Harris County prosecutors cannot play by the rules? Is there something in the water coolers in the District Attorney’s Office that induces selective amnesia about the rules of professional conduct all attorneys must abide by?

The Benton court, under the Gentile standard, discussed the kind of post-verdicts statements to a jury that offend the professional rules:


“Under the Gentile standard, the application of Rule 3.06(d) to Benton’s letter does not violate the First Amendment because the letter created a substantial likelihood of material prejudice to the administration of justice. Benton asserts that post-verdict juror communications, unlike the pretrial publicity in Gentile, do not threaten the right to a fair trial because the jurors have already rendered their verdict. This analysis of the interest at stake is far too cribbed. Gentile stated that ‘few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.’ Because of the facts involved in that case, Gentile focused on the effect that attorneys’ pretrial statements can have on this interest. But it is well established in the law that post-verdict speech can also pose a sufficiently significant threat to the fairness of jury trials to justify curtailing the would-be speakers’ constitutional interests.


“For example, in Haeberle v. Texas International Airlines, 739 F.2d 1019 (5th Cir. 1984), the court rejected a First Amendment challenge to a local rule that prohibited lawyers from questioning discharged jurors about their verdict. The lawyers in Haeberle, having lost a jury trial, sought permission to interview the jurors to learn why their presentation of the case had not been persuasive. The court upheld the local rule, citing the need ‘to protect [judicial] processes from prejudicial outside interferences.’” See: Benton, supra, 980 S.W.2d at 432 [some internal citations omitted].


The Benton court took time to articulate the purpose of post-verdict communications to a jury in Texas:

“Texas’s rules governing post-verdict contact with jurors are more permissive than the federal court rules and orders upheld in the cases above. We have long concluded that communication between parties, counsel, and discharged jurors can be a valuable experience for all concerned. In particular, a lawyer such as Benton who has lost at trial may respectfully ask the jurors to tell him why they were not persuaded by his case, and thus learn something that will help him serve his clients better in the future. Accordingly, Texas trial judges in civil cases are required to instruct jurors after the verdict that once they are discharged they are free to discuss the case with anyone, including the attorneys and parties, and that the attorneys may question them about their deliberations. See Rule 3.06 as a narrow prohibition on those questions and comments that tend to injure the jury system.” Id., at 434.


But the prosecutor in this matter not only abused the spirit but the obvious intent of Rule 3.06 that limits post-verdict communications with the jury. The prosecutor had only one agenda when she walked into the jury room: to pacify her anger over losing the case by infecting the jurors with bias in any future jury service they may be called upon to fulfill. Her behavior reflected an obvious contempt for the jury that had worked so diligently to reach a verdict based solely on the facts presented from the witness stand. The prosecutor should have had the professional decency to compliment the jury for its hard work instead of implying that it had set a guilty man free, which they had not.


This episode illustrates the need for the Texas State Bar to reexamine Rule 3.06 and bring the rule in line with the stricter federal court rules governing post-verdict contact with jurors. Texas prosecutors should never, ever, be allowed to tell a discharged jury about “other charges” against an acquitted defendant or about evidence that was barred from being presented during the trial.


AUTHORS’ NOTE: The following is a comment posted on the Houston Chronicle website by a juror concerning the prosecutor in the aggravated sexual assault case discussed in the foregoing article:


“JUROR: I was on this jury. I was surfing around this evening to look at this case (now that it is legal for me to do so). All the defense had to do was get out of the way because the prosecution brought absolutely nothing to the table. The case was 7 years old, the complainant had no credibility (she was in jail at the time of the alleged assault for slicing up and hospitalizing a class mate in 4th grade – and has gone down hill since) the specific mechanics of the alleged assault it self were improbable to the point of being almost impossible and the actual testimony of the complainant was vague, largely single syllable, inconsistent and contradictory. The state did not produce a single example of the breakdown in protocol that permitted the assault ever actually happening even with completely benign results. Even the state’s witnesses testified that this scenario was extremely unlikely. We were not even given any testimony that impugned [the defendant’s] character or enhanced the complainant’s. No pattern of conduct, no other victims, no paper records placing [defendant] on the appropriate floor the evening of the assault – nothing.


At the end – we were left with the following situation. To convict [defendant] we would have to believe the general theme of the complainant’s testimony (she was raped) while knowing that other elements of her testimony were either fabricated or were in error. There is absolutely no way to get past the “reasonable doubt” threshold in that circumstance. Even the jurors who believe he did it knew that the state had not even gotten close to the “beyond a reasonable doubt” threshold.


I am not trying to tell you that I am sure we got this right. I don’t know there [sic] people. I have no idea. I am telling you that the state did not come close to making a case. One of two things is true in this situation. Either [the defendant] was railroaded based on a single, 7 year old, unsubstantiated charge OR the state did an inexcusably poor job and let a child rapist walk. In either event – the person who should be in jail tonight is the prosecutor.”