WACO, Texas (KWTX) - In a one-month period in late November and early December two felony trials ended before they started when juries were dismissed and a mistrial declared over juror service issues.
The first, on Nov. 28, happened in 19th District Court after one of the jury panel members told Judge Ralph Strother another panel member had used a cell phone to research the case on the internet after members had been told to refrain from researching the issue.
The second, on Dec. 17, was in 54th District Court where Judge David Hodges was sitting in for Judge Matt Johnson to select a jury to try a man charged with aggravated assault with a deadly weapon.
Again one of the jurors, after the panel had been selected and sent home with instructions to return for service the next day, came back to court and told the judge she just didn’t feel like she could be fair as a juror.
Hodges dismissed her and had the clerk call the remaining jury members to tell them they were excused following his order of mistrial.
Those were two of at least four mistrials declared in McLennan County felony criminal trials in 2018.
According to the American Bar Association, the short definition of a mistrial is a trial that cannot be “successfully completed.”
The case, therefore, must be re-set for an alternate trial date unless the state decides to dismiss the charge.
Because trial is not brought to a conclusion, the double jeopardy clause, which states that a criminal defendant can’t be tried twice for the same crime, does not take effect.
So the court can convene a whole new jury and start the prosecution again.
There are several situations that can result in mistrial other than a disqualified juror and they include: a juror or attorney passing away in the middle of a trial, a mistake or something inappropriate happening in the middle of jury selection, an error during the trial that harms the defense or causes prejudice to the defendant’s case, juror misconduct, or, the most common reason for mistrial, a deadlocked jury.
Johnson said recently an easy way to solve the juror mistrial problem would be to appoint alternate jury members, so if one of the initial 12 could not serve, an alternate could take that juror’s place and the docketed case could continue.
Both Johnson and Strother said it is common practice for them to select alternates in cases that involve capital murders, but in cases that don’t rise to that level, “We don’t select alternates,” Johnson said.
Although Strother recalled a trial sometime back that involved a murder, not capital, that “We selected alternates for because it was so involved,” he said.
Johnson said his reluctance to routinely seat alternates is an effort to not waste jury panel members’ time.
“It takes them away from their job or their family for three or four, maybe even more, days and if they aren’t needed, then we’ve wasted their time,” Johnson said.
An issue, to be sure, but the scales tip really heavily in the other direction.
If a case gets to trial in one of the two criminal district courts and because of a juror issue is a mistrial, that trial week setting is wasted, and it must be re-set, which means the case already planned for the re-set date has to be moved, and so does the trial that is scheduled for whatever date the second trial is moved to.
“A mistrial like that wastes everybody’s time,” Johnson said.
“The lawyers who spent hours preparing to try the case wasted that time, the court’s trial setting is wasted, other settings have to be moved and the defendant, in most cases, still is in jail, so everybody loses,” Johnson said.
The lost trial in Johnson’s court required 59 prospective jurors to show up for jury selection to try a man indicted for one count of aggravated assault with a deadly weapon, a second degree felony and one count of assault family violence, a third degree felony.
If convicted, he faced a sentence of from two to 20 years in prison and a fine of as much as $10,000.
The ultimate test is can a juror be fair, can that juror consider the defendant, regardless of his or her condition, to be innocent until the state presents evidence beyond a reasonable doubt of the defendant’s guilt?
If the answer to the basic question, fairness, is at issue, the point becomes moot.
After a lunch break that day the selection process continued for a short time, then after all the strikes were done, Hodges seated the next 12, had the jury sworn in, gave his initial instructions, shortly after which it should have ended for the day.
Hodges dismissed the jury with instructions to be back the next morning and things in the courtroom were winding down when one of the jurors came back.
She asked to speak with the judge and during the conversation she told him her conscience would not allow her to serve on the jury because she wasn’t sure she could be fair.
Hodges already had dismissed the panel members who weren't chosen and at that point had no choice but to announce a mistrial.
In the earlier case Brian Todd Dekle had been in custody in the McLennan County Jail for 991 days and just after 8:45 a.m. on the day of his trial Strother declared a mistrial in Dekle’s case after a juror reported an issue to the judge and he dismissed the jury panel.
Dekle was taken back to jail, where he’s been since his arrest March 6, 2016, held in lieu of a $250,000 bond.
Dekle’s lawyer said a jury panel was selected that Tuesday afternoon, then was sent home and told to report back to the courtroom Wednesday morning.
As Strother seated the panel he read to them a list of rules they’d have to abide by during their service on the jury.
One of those rules is to not seek any kind of outside information about the case being tried from media or other reports or comments about the case on the Internet.
The rule is intended to ensure that jurors make a decision in a case based only upon evidence they hear or see in trial and not on any other sort of information.
On that afternoon, one of the people selected to be on the jury approached the judge about an issue she’d experienced and thought he ought to know about.
She related, in a private meeting between her, the judge and the court reporter, that one person on the jury panel during a break had researched the case on the Internet using his cell phone and had spoken with several other panel members about what he’d learned.
The person of whom the woman spoke had not been seated as a juror.
However the woman told Strother that she feared what she heard could influence her decision and she was uncomfortable about continuing as a juror in the case.
Strother thanked her for her honesty, her service and dismissed her from the panel, which is when the real issue surfaced.
That left the jury with only 11 members and about that there was an issue.
If the judge determines the dismissed juror was disabled, rather than disqualified, he could force the trial to continue with a short jury.
As well, if both parties agree, he could have continued the trial, but, Dekel’s lawyer said, “I would never agree to that.”
She based her position on a case decided in the 10th Court of Appeals when it reviewed a Hill County case with the same issues and in the late Justice Bobby Cummings’ opinion he wrote: “A disqualification is not a disability.”
The bottom line is: “Listen to what the judge instructs you,” she said.
“Because of the inability of someone to follow the rules, the judge, the prosecutor, myself, my client and the court wasted one whole day and part of another, and cost the county a significant amount of wasted money.”
Remarkably it was the same defense attorney that was representing both defendants.
Other notable trials that ended in mistrial in 2018 due to deadlocked juries included the August trial of a construction worker charged with sexually assaulting a 14-year-old Waco girl ended in a mistrial after jurors failed to break a deadlock.
The other was the July trial of Christopher Jacob Carrizal, 35, the only one of 177 indicted to go to trial in connection with the Twin Peaks incident.
That trial also ended with a deadlocked jury.
"If the jury finds itself unable to arrive at a unanimous verdict on a count, it will be necessary for the court to declare a mistrial on said count or counts and discharge the jury," Johnson said.