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Citing improper influence by a bailiff, a Texas state judge on July 3 declared void a jury’s verdict in the case of a man accused of injuring an Austin police officer while driving drunk and ordered that the man be retried for the same offense. Visiting Judge Charles “Chuck” Campbell, a former judge on the state Court of Criminal Appeals, issued his decision in Texas v. Jesus Aviles after hearing testimony that bailiff Art Guerrero allegedly had given jurors legal advice after the forewoman asked him a question during jury deliberations. “The problem is, he [Guerrero] gave wrong advice,” alleges Bryan Case Jr., director of the appellate division in the Travis County District Attorney’s Office. If the bailiff had given the jury correct advice, there would be no way to show harm in this case, Case adds. Austin sole practitioner Dan Green, who represents Aviles, says he understands that prosecutors are upset and don’t believe they got a fair trial. But, Green adds, “I don’t see where there’s a real mechanism for the state to do what they’ve done.” Aviles was charged with aggravated assault, a second-degree felony, and intoxication assault, a third-degree felony, for allegedly running a red light on Dec. 3, 1999, and ramming Austin police officer Trent Watts’ patrol car, seriously injuring Watts. Under Campbell’s charge to jurors, they also could consider the lesser-included offense of misdemeanor driving while intoxicated. While the jury convicted Aviles of the misdemeanor charge on May 4, the forewoman told the judge in open court at the time that jurors weren’t unanimous in finding Aviles not guilty of the other two charges, Case says. Case says the verdict form turned in by the jury shows that the vote was 9-3 to convict Aviles of aggravated assault and 10-2 for a conviction on the intoxication assault charge. According to Case, the forewoman testified that she asked Guerrero whether jurors had to find Aviles not guilty of aggravated assault if they were not unanimous. Case says two jurors testified that Guerrero allegedly told them that if they were not unanimous in their decision, they had to acquit and move on to the next charge. Guillermo Gonzalez, Guerrero’s attorney, says his client doesn’t recall telling jurors that they would have to find Aviles not guilty of aggravated assault if all 12 of them did not vote to find him guilty of that charge. Gonzalez, a partner in Austin’s Buford & Gonzalez, says he advised his client to invoke the Fifth Amendment if he was called to the stand to avoid the possibility that he might be investigated for perjury. DOUBLE JEOPARDY Case says jurors should have continued deliberating on the aggravated assault charge until they determined they were “hung” on that charge. They should have proceeded to the next charge only after finding Aviles not guilty of the second-degree felony, he says. Although Green argued that Aviles could not be tried again for the same crime, Campbell held that the double jeopardy defense did not apply because the jury did not reach a proper verdict. Green says Campbell ruled that he should not have accepted the verdict the way it was reported. “I think he’s wrong,” Green says, adding that he will appeal to Texas’ 3rd Court of Appeals. Susan Klein, a University of Texas School of Law professor who has studied double jeopardy issues, also questions Campbell’s decision to nullify the verdict. “My guess is the courts are going to say it’s still a real verdict,” Klein says. Case says his position is bolstered by the “clear statement” made by the forewoman in court that the jury’s decisions to acquit Aviles of the felony charges weren’t unanimous. His position also is supported, Case says, by jurors’ votes on those charges as reported on the jurors’ verdict form. Under state and federal evidentiary rules, a jury verdict must stand unless outside influence was brought to bear on the jury, Case says. In a 1966 ruling, the U.S. Supreme held in Parker v. Gladden that comments that a bailiff made to a juror about a defendant’s guilt were prejudicial and affected the outcome of a trial. Case says the ruling shows that a bailiff is considered an outside influence. “I have been unable to find a case that specifically says the state can challenge the verdict because of an outside influence,” he says. But Case says a 1995 ruling by the Court of Criminal Appeals in Ex Parte: Aaron Lee George allowed the state to try a defendant for criminally negligent homicide after a judge found the individual not guilty of that charge. The judge entered the verdict after prosecutors refused to yield to his demand to proceed to trial without a jury. If a defendant wasn’t put in jeopardy for the charged offense or acquitted of it, the prosecution is not barred from trying him for the offense, the CCA held in its en banc decision in George. Judge Lawrence Meyers dissented.

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