September 16, 2020
The Post Newspaper

Editor’s Note: This is the seventh in a series of eight columns on the criminal justice system in Galveston County and the second from the perspective of two District Court Judges. It is based upon interviews with District Court judges Kerry Neves and John Ellisor.

What determines whether there’s a jury trial?
“Texas is a strong jury state,” Judge Neves said.  “The defendant always has a right to a jury trial. All he or she needs to do is to request it!”  There’re two parts to every criminal trial.  The guilt/innocent phase and the sentencing phase. “If the defendant is found guilty, he/she may choose whether to have sentencing decided by the jury or the judge,” Neves continued.

How does the jury selection process work? 
“Jury selection is a misnomer,” Judge Ellisor said.  “It’s really jury de-selection; trying to eliminate jurors that are not qualified or open minded.”
“The prosecution might be looking to disqualify people who are led by their emotions,” Judge Neves said, “while the defense may want to reject those who are pro-law enforcement or have a law enforcement background.  If it’s a drug case a prosecutor might want to reject a person who believes that marijuana should be legalized,” he continued.

Both the prosecution and defense are given up to ten “peremptory” strikes to remove potential jurors for any reason other than race, religion, etc. “If an attorney doesn’t like the way a prospective juror looks or reacts to a question he/she can strike that juror,” Ellisor said. 

“They might ask questions like ‘Do you know or are you related to the defendant or any of the witnesses scheduled to testify?’  “Or Have you read about this case in the paper and already formed an opinion as to the facts?’   These could be reasons for challenges for cause,” Ellisor said. 

There’re no limits on how many jurors can be challenged for cause.  Examples of rejection for cause could include those who say they could not be fair in a child abuse case or someone who says they could not sentence a person to life in prison if he or she was found guilty.

“In the recent environment,” Judge Neves said.  “it might be reasonable for a judge to exempt people who have been out of work with no income for weeks because of COVID-19 and who were just rehired and say they cannot take a week or two weeks in a trial for financial reasons.”
What are jurors allowed to do in the courtroom?
They can only listen. They can communicate with the judge by giving a note to the bailiff. They can usually take notes but cannot rely upon them when deliberating and those notes are destroyed after the trial.  “We also give the jury instructions which includes a prohibition on doing independent research on the case,” Ellisor said.

Judge, what do you see as your role?
Both Neves and Ellisor said they serve as an umpire and ensure a just and fair trail is held for both parties.  Ellisor said “My job is to know the rules of evidence and the law. If an attorney asks me to do something I’m not allowed to do by law, I might ask both attorneys to come to chambers for a conference and tell them why I am not allowed to do what they asked, thus avoiding embarrassing them in front of their clients.”