Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial.


The constitutional guarantee of an impartial trial, in all actuality, begins with voir dire—a French term meaning “to speak the truth.” Voir dire is a pre-jury selection phase of the trial during which the prosecution and defense are afforded an opportunity, under the strict supervision of the trial judge, to question prospective jurors to determine if they are qualified and suitable to serve on a jury. These questions are often initially influenced by the questionnaires prospective jurors are required to fill out before the voir dire gets underway.


Texas criminal procedure grants ten peremptory challenges—the right of either party to exclude a potential juror for any reason or no reason at all so long as the challenge is not use to discriminate on the basis of race, gender, or ethnicity—to both the prosecution and the defense in non-capital felony cases and capital cases in which the State does not seek the death penalty. If two or more defendants are jointly tried, each defendant and the prosecution are entitled to six peremptory challenges. 2/


A defense attorney must utilize these peremptory challenges in a judicious manner. They are generally exercised when the attorney detects, either through direct responses from the prospective juror to specific questions or from mere instinct honed by years of trial practice, that a prospective juror is biased in a very specific sense or harbors prejudices in a general sense against particular defendants. And a defense attorney in Texas does not have a lot of time to make these calls. Most judges impose very restrictive time frames for completing the voir dire examination—ranging from twenty minutes to an hour. It is critical, therefore, that an attorney be thoroughly prepared before he/she enters the jury selection arena.

El Paso attorneys C. Roberts and A. Lugo learned this lesson the hard way in the case of David Morales. Morales was arrested in June 1996 for one count of aggravated sexual assault of a child and one count of indecency with a child. The six-year-old child was visiting Morales” home to attend a Holy Communion celebration when the alleged inappropriate sexual contacts occurred. 3/ Roberts and Lugo were Morales’ trial attorneys. The defendant was convicted of both offenses and the jury assessed his punishment at 35 years for the aggravated sexual assault offense and 20 years for the indecency with a child offense.


At the time of Morales’ trial, Roberts had been practicing law for thirty years and had more than ample experience in the voir dire process. Lugo, on the other hand, was not so experienced. She had been practicing law for about seven years at the time of Morales’ trial and was not familiar with voir dire. For whatever reason, neither attorney was effectively prepared to handle the voir dire examination in the Morales case, and their lack of preparation probably contributed significantly to a jury being selected that was prone to convict.  Honorably, both lawyers would later admit as much in a valiant attempt to set the record straight.


R. Wyatt was an assistant district attorney in the El Paso County District Attorney’s Office at the time of Morales’ trial. She was in the jury pool of prospective jurors summoned to court to try the Morales case. All the parties involved in the case knew she was a prosecutor in the D.A.’s office—the defense attorneys, the trial judge, and, of course, the prosecutor handling the case.


Each prospective juror was required to fill out a questionnaire designed to determine if they were in any way connected with the case or had ever been a victim of a crime or held any bias in the case they had been summoned to hear. As a matter of course, defense attorneys scour these questionnaires for any scent of a potential problem—a search for legitimate reasons to exclude a potential juror as being unqualified, not suitable, or who may have an implied bias. Wyatt answered on her questionnaire that she was an assistant district attorney, but, even more significantly, she stated she had been the victim of numerous crimes (including sex crimes), her father had been a police officer for 33 years, and she had “many, many friends” in law enforcement. 4/ Neither Roberts nor Lugo read Wyatt’s questionnaire prior to voir dire.


Attorney Roberts, however, did challenge Wyatt for cause pursuant to Article 35.16 of the Texas Code of Criminal Procedure. This statute lists eleven specific reasons why a defense attorney may challenge a prospective juror for cause. One of the enumerated reasons is: “That the juror has a bias or prejudice in favor of or against the defendant.” 5/ Article 35.16 recognizes what is known as the “implied bias doctrine.” This doctrine assumes bias in certain prospective jurors; for example, a juror who “is related within the third degree of consanguinity or affinity … to any prosecutor in the case.” 6/ Article 35.16, however, does not automatically imply bias against an assistant district attorney in the same office prosecuting the defendant. 7/


Attorney Roberts based his challenge for cause against Wyatt on the specific premise that, as a member of the District Attorney’s Office prosecuting the case, was a party to the case and, therefore, disqualified to serve on the jury under Article 35.16. 8/ The problem with that challenge is that Article 35.16 does not specifically list Roberts’ reason for the challenge as a basis for juror exclusion. And a challenge for cause made under the “implied bias doctrine” requires as showing that a prospective juror is actually biased as a “matter of law.” 9/


At the time attorney Roberts challenged Wyatt for cause he had only two peremptory challenges left, and he wanted to use them to strike two other venirepersons with whom he had problems. Once trial judge Sam Medrano, Jr. denied Roberts’ challenge for cause against Wyatt (because the attorney had not demonstrated actual bias as a matter of law), Roberts was faced with a decision of whether to use one of his two remaining peremptory strikes against Wyatt or use them against the other two problem venirepersons. He chose to use them against the other two jurors and accept Wyatt because he believed the prosecutor to be fair and was more comfortable with her on the jury than the other two jurors. 10/


It proved to be a horrific tactical blunder. At this juncture neither he nor Lugo had read Wyatt’s questionnaire. Both attorneys had assumed the prosecutor would be excluded for cause; and if accepted for jury service, would be fair. Neither attorney was effectively prepared to demonstrate implied bias as a matter of law required under Article 35.16 because they had not read Wyatt’s questionnaire containing admissions that she had been a victim of numerous crimes, including sex crimes; that she was the daughter of a law enforcement officer; and that she had many friends in the law enforcement community.


Roberts and Lugo also made a significant procedural blunder at this juncture in the trial; they did not properly preserve for appeal Judge Medrano’s decision not to grant their challenge for cause of Wyatt. To preserve this issue for appeal, Roberts and Lugo were required to: 1) make a clear and specific challenge for cause; 2) use a peremptory strike on the complained-of venireperson; 3) exhaust all their peremptory strikes; 4) request additional strikes; 5) identify an objectionable juror; and 6) claim that they would have struck the objectionable juror with the peremptory strike if they had one to use. The fact that Roberts and Lugo did not use one of their two remaining peremptory strikes on Wyatt failed to preserve Judge Medrano’s decision for appellate review. 11/


Following his conviction, Morales filed a motion for a new trial alleging jury misconduct and ineffective assistance of counsel based on Roberts and Lugo’s handling of the voir dire process. At a hearing on this motion, Roberts provided the following testimony:


  • He had been practicing law for 33 years
  • He was familiar with the procedure for preserving error when a challenge for cause has been denied and, in fact, had utilized the procedure many times
  • He should have used a peremptory challenge on Robyn Wyatt and requested additional strikes for the other two problem prospective jurors
  • His decision to leave Wyatt on the jury had been made in a vacuum because he had made the mistake of not reading her questionnaire until after the guilty verdict had been rendered
  • Had he known Wyatt had been the victim of a sex crime, that her father had been a police officer, and that she had many friends in law enforcement, he would not have made the decision to leave her on the jury
  • He had “assumed” that his co-counsel, Lugo, had read the Wyatt questionnaire
  • His decision to leave Wyatt on the jury was not a “strategic” one
  • He believed that any decision by a defense attorney to leave “a lawyer for the State” on a criminal jury is per se ineffective assistance of counsel. 12/

Attorney Lugo provided the following testimony at the hearing:

  • She had been practicing law for about seven years.
  • She acted as co-counsel in Morales’ defense.
  • She was present during the voir dire process.
  • She knew attorney Roberts’ challenge for cause against Wyatt had been denied.
  • She was not familiar with the procedure for preserving error on a denial of a challenge for cause.
  • She had seen Wyatt’s name on the juror sheet the night before the trial and knew she was a prosecutor.
  • She did not read Wyatt’s questionnaire she “assumed” the defense team would strike the prosecutor for cause.
  • The first time she read Wyatt’s questionnaire was after a verdict had been rendered on punishment against Morales.
  • There was no “strategic reason” for leaving Wyatt on the jury.
  • She believed the decision to leave Wyatt on the jury was “grossly ineffective assistance because the error caused the verdict of guilt and punishment.”
  • She believed that she should have “insisted” that Wyatt be peremptorily challenged rather than deferring to Roberts’ “impromptu decision” not to so strike her.
  • She had made an error by not reading Wyatt’s questionnaire so she could have pointed out to Roberts about the prosecutor’s previous sexual victimization. 13/

Judge Medrano offered the following testimony at the hearing:

  • That by the time the Morales case reached the jury, everyone in the courthouse was aware that a prosecutor was on the jury.
  • That an attorney in preparing for the voir dire process is supposed to read the juror questionnaires and that an attorney who fails to do so is not properly prepared.
  • He opined that the only way he would leave either a prosecutor or a defense attorney on a jury was if he knew the person very, very well or had a friendship with the person.
  • Based on Wyatt’s questionnaire, Judge Medrano said he would only leave someone like her on the jury if he had some “personal insight” into her not included in the questionnaire. 14/


Prevented by procedural bars from directly addressing the implied bias doctrine issue under Article 35.16, the Eighth District Court of Appeals, sitting in El Paso, elected to address the issue of whether Roberts and Lugo had failed to provide Morales with effective representation. An ineffective assistance of counsel claim is established only when (1) a defense attorney’s performance falls below an objective standard of reasonableness and (2) there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 15/

The appeals court had an ample record from the motion for new trial hearing that clearly established both Roberts and Lugo had been significantly deficient during the voir dire process. But that did not end the court’s legal analysis; it had to clearly find that Morales had been prejudiced by his attorneys’ deficient performance. That was no minor hurdle because the U.S. Supreme Court has never explicitly adopted or rejected the implied bias doctrine upon which the ineffective assistance claimed hinged. 16/


The appeals court, however, found persuasive legal authority in a 35-year-old concurring opinion by former Supreme Court Justice Sandra Day O’Connor which provided a list of examples that would warrant the application of the implied bias doctrine to prevent a miscarriage of justice. “Some of these examples might include the revelation that the juror is an actual employee of the prosecuting agency,” Justice O’Connor wrote. She added that the Sixth Amendment right to an impartial jury “should not allow a verdict to stand under such circumstances.” 17/


The appeals court found that the Morales case presented “the very ‘extreme’ situation which gave Justice O’Connor such grave concern.” 18/ Against this backdrop, the appeals court elected to reverse Morales’ conviction based on the following succinct conclusion:


“ … While venireperson Wyatt may have believed she could set aside her status as an employee of the prosecuting agency, even a well-meaning person would find it difficult to remain impartial under such circumstances and most likely would be unconsciously blinded by otherwise good intentions. It is fair to say that venireperson Wyatt may believe herself to be fair and impartial, but nevertheless she should have been disqualified in the interest of justice. It is of fundamental importance that ‘[J]ustice should not only be done but should manifestly and undoubtedly be seen to be done.’ Because venireperson Wyatt was disqualified from serving as a juror for her implied bias as a matter of law, [Roberts and Lugo] rendered wholly deficient performance by failing to preserve the error of the denial for [Roberts’] challenge for cause. Further, we find that [Roberts and Lugo] deficient performance resulted in a trial before a partial jury, which prejudiced the defense.” 19/


The Texas Court of Criminal Appeals, acting on a request for discretionary review by the State, disagreed with the appeals court conclusion. After a comprehensive analysis of the implied bias doctrine and its potential Sixth Amendment implications, the CCA held that “we need not decide whether the Sixth Amendment embraces the doctrine of implied bias; nor do we need to decide whether, as Justice O’Connor believes, the implied bias doctrine would require the exclusion from the jury service of a prospective juror who is an employee of the prosecuting agency, as Wyatt was. In our view, even assuming that the answer to both questions were affirmative, that does not mean that the [Morales’] trial counsel could not have made a legitimate tactical decision not to exercise a peremptory challenge in order to preserve the trial court’s error in overruling his challenge for cause for appeal.” 20/


This “view” was in direct conflict with the views expressed by both Roberts and Lugo at the motion for new trial hearing when they testified under oath that their decision not to use a peremptory challenge to strike Wyatt was not a “strategic” decision. The attorneys specifically testified that the decision not to strike Wyatt was made in a “vacuum,” and, according to both of them, amounted to ineffective assistance. The CCA, however, was determined to insert its own view as to what constitutes either a tactical or strategic decision under the fact situation of the Morales case:


“We hold that, if the exigencies of trial call upon trial counsel to make a difficult choice between exercising a scarce peremptory challenge to preserve such an error for appeal, on the one hand, and exercising that peremptory challenge for some other purpose in order to secure a perceived advantage at trial, on the other, it does not violate the defendant’s Sixth Amendment right to the effective assistance of counsel for trial counsel to opt for the latter.” 21/


This holding completely disregards the true “facts” of the Morales case—so much so that it exemplifies the classic “miscarriage of justice” all judges have a sworn duty to prevent. Neither Roberts nor Lugo said they faced a “difficult choice” in deciding whether to strike Wyatt, and neither attorney said they elected to keep Wyatt on the jury “in order to secure a perceived advantage at trial.” Neither attorney had even read Wyatt’s questionnaire; therefore, their decision to leave her on the jury was truly made in a “vacuum.” Both attorneys admitted that had they been functioning as competent advocates for Morales, they would have read Wyatt’s questionnaire and immediately realized there was no earthly way they could let her sit on the jury. Even Judge Medrano said an attorney who has not read the questionnaires of prospective jurors before the voir dire process is not “properly prepared”—and that in his opinion a prosecutor should always be struck from jury service absent some extraordinary insight into the individual by the attorney.


In its final conclusion, the CCA held that “ … even if it is appropriate to regard Wyatt as impliedly biased under the Sixth Amendment, that does not ipso facto establish that trial counsel could not make a legitimate decision to keep her on [Morales’] jury.” 22/



There was nothing remotely “legitimate” about Roberts and Lugo’s decision to keep Wyatt on the jury. The attorneys honorably conceded as much. Judge Medrano, as well as the courts of appeals, agreed with the attorneys. So for the Texas Court of Criminal Appeals to color the facts of the case in order to create some legitimacy for Roberts/Lugo decision to keep Wyatt on the jury not only defies the case law governing ineffective assistance of counsel but the normal rules of human logic as well.

1/ Duncan v. Louisiana, 391 U.S. 145 (1968)
2/ Tex. Code Crim. Proc. Art. 35.15(b)
3/ Morales v. State, 217 S.W.3d 731 (Tex.App.-El Paso 2007)
4/ Morales v. State, 253 S.W.3d 686 (Tex.Crim.App. 2008)
5/ Tex. Code Crim. Proc. art. 35.16(a)(9)
6/ Tex. Code Crim. Proc. art. 35.16(c)(1)
7/ Morales v. State, 253 S.W.3d at 693
8/ Morales v. State, 217 S.W.3d at 732
9/ Morales v. State, 253 S.W.3d at 691
10/ Morales v. State, 217 S.W.3d at 734
11/ Morales v. State, 217 S.W.3d at 733
12/ Morales v. State, 217 S.W.3d at 734; 253 S.W.3d at 690
13/ Id.
14/ Morales v. State, 217 S.W.3d at 735
15/ Strickland v. Washington, 446 U.S. 668 (1984)
16/ Ruckman v. State, 109 S.W.3d 524 (Tex.App.-Tyler 2000, pet. ref’d)
17/ Smith v. Phillips, 455 U.S. 209 (1982)
18/ Morales v. State, 217 S.W.3d at 735
19/ Morales v. State, 217 S.W.3d at 736
20/ Morales v. State, 253 S.W.3d at 696
21/ Id.
22/ Morales v. State, 253 S.W.3d at 698-99

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair