In December 2015, it took a Bowie County jury less than an hour for find 33-year-old Joshua Jacobs guilty of the aggravated sexual assault of a 12-year-old girl the year before. District Court Judge Bobby Lockhart sentenced Jacobs to the mandatory life sentence for repeat sex offenders under Texas law. Jacobs had previously been convicted in 2010 of the sexual abuse of a 13-year-old girl in Louisiana.


First Assistant Public Defender Will Williams, Jacobs’s attorney, had been given notice that First Assistant District Attorney Kelley Crisp would introduce evidence of the 2010 Louisiana sex offense during the guilt/innocence phase of the trial. Evidence of any extraneous offense, much less a prior child sex offense, is extremely prejudicial. That’s why the courts generally view extraneous offenses as inherently prejudicial. With Article 38.37, Texas Code of Criminal Procedure, the Legislature limited the use of extraneous offense evidence, except an extraneous prior sexual offense against a child when a defendant is standing trial for a sexual offense against a child.


Difficult Trial Strategies in Repeat Sex Offender Cases


With the extraneous offense notice in hand, Williams knew that the average prospective juror clutches the belief that, “once a child molester, always a child molester.” He moved the court for permission to ask prospective jurors during voir dire certain questions that would explore their feelings about prior child sex offenses. Those jurors with open bias in such cases could be challenged for cause.


This was a proper line of questioning that Judge Lockhart did not allow Williams to undertake. The defense attorney made Judge Lockhart’s ruling a prominent feature in his direct appeal to the Sixth Court of Appeals in Texarkana. The appeals court reversed Jacobs’s conviction, finding that Williams’s proposed line of voir dire questioning was proper commitment questioning. The court reasoned that Jacobs’s constitutional right to a fair trial was violated; that it was a “constitutional error” not protected by a Tex. R. App. P. 44.2(a) harm analysis.


Dissent Opinion Offers Intellectually Honesty


On October 10, 2018, the Texas Court of Criminal Appeals reversed the appeals court’s new trial order. The court of criminal appeals decision would be unremarkable were it not for an erudite published dissenting opinion by Judge Bert Richardson. After legally dissecting the majority opinion, Judge Richardson made this critical observation—one grounded in both law and fact:


“An error that infringes on a constitutional right is a constitutional error. ‘When confronted with a constitutional error, a reviewing court must analyze the error under Rule 44.2(a).’ A defendant’s right to an impartial jury is a constitutional right. An impartial jury is one that does not favor a party or individual due to the emotions of the human mind, heart, or affections. Our case law is well-established that, essential to the Sixth Amendment guarantee of a trial before an impartial jury is the right to question veniremembers in order to intelligently exercise challenges for cause to identify unqualified jurors. A juror with a bias or prejudice against the defendant or against any law applicable to the case, who would decide the case based on such bias rather than holding the State to its burden to prove the charged offense beyond a reasonable dour, is an unqualified juror. Why would it not logically follow, then, that, if a trial judge places a restriction on a defendant’s ability to select such impartial jurors, as the judge did in this case, such erroneous restriction would be a constitutional error?


“The majority believe s that the trial judge was ‘evidently concerned’ that if the jury had been informed that Jacobs had a prior sexual offense, the jury pool would be ‘poison[ed]’ and he would have to ‘bust [] the panel.’ However, when the right to select a fair and impartial jury clashes with a judge’s concern over being able to obtain a qualified jury due to there being highly sensitive and polarizing issues involved in the case, the solution is not to restrict the attorneys from asking legitimate voir dire questions (that may validly eliminate unqualified jurors). Rather, the solution (such as is done in capital death penalty cases) is to bring in a supplemental panel). Obviously, excusing potential jurors who have preconceived opinions about topics (such as the death penalty or repeat sexual offenders) is the whole purpose behind being able to ask such questions.”


Williams was trying, as any good defense attorney would do, to create a fair voir dire questioning process that would allow him to elicit legitimate information regarding juror bias that would have shown basis for a valid challenge for cause. The end result of the court of criminal appeals decision is that two judges overturned the reasoned decision-making of four other judges—three on the court of appeals and Judge Richardson’s dissent.


Life Sentence Means Minimum 35 Years Before Parole


The harm done by this process was conveyed by Williams’s observation that Jacobs’s must serve 35 years in prison before he is eligible for release.


Some would say that the conviction and imprisonment of a child predator is a just process, but justice alone is not sole expectation in our adversary trial process. Justice is best exemplified by how the system treats the most infamous and unpopular criminal defendants.  This is how we guarantee that the justice system work for the rest of society.  But, as it is often said, hard cases make bad law.


The constitution demands that justice be achieved through fairness for all. That was not the case in Joshua Jacobs’s conviction.