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Overruling a more than 10-year-old precedent, the Texas Court of Criminal Appeals further restricted the questions that can be asked during voir dire in a June 26 decision. Prosecutors praise the 7-2 decision in Barajas v. State, which they say allows them to object to questions containing facts specific to a case. The ruling “does away with this fact-specific question where you get into the facts of the case and poison a jury panel,” says John Davis, chief of the appellate division in the El Paso County district attorney’s office, which prosecuted Jose Barajas on two counts of indecency with a child. Davis says defense counsel have used such questions “to run the panel” and eliminate the more prosecution-oriented jurors. Defense attorneys say the Barajas ruling continues the court’s trend of limiting what can be asked during voir dire. “To me, good voir dire is becoming an impossibility,” says Austin, Texas, solo David Schulman. The decision overrules the Court of Criminal Appeals’ 1991 holding in Nunfio v. State, in which the court held that the question “can you be fair and impartial if the victim in this case is a nun?” was a proper question. According to the court’s majority opinion, the 168th District Court denied Barajas’ defense counsel’s request at voir dire to ask potential jurors if they could be fair and impartial in a case in which the victim was 8 to 10 years old, or in the alternative, a victim who was 9 years old. El Paso, Texas, attorney Charles Roberts, who represents Barajas with Lauren Murdoch, says there are basic questions that should be asked of a jury in a child sex abuse case. Roberts says more time and questions are needed for voir dire in such cases than in other criminal proceedings because of the emotional impact of allegations that a sex crime has been committed against a child. In a 1999 unpublished opinion, El Paso’s 8th Court of Appeals held that the trial court’s refusal to allow the voir dire questions regarding the victim’s age was in error. The 8th Court reversed Barajas’ conviction and remanded the case for a new trial. Vacating the 8th Court of Appeals’ judgment, the Texas Court of Criminal Appeals held that the question that Barajas’ attorney proposed to ask was not proper. That conclusion conflicts with the Court of Criminal Appeals’ holding in Nunfio, which the court overruled. “ Nunfio‘s holding provides no reasonable limitation on the parties’ ability to ask questions,” Judge Tom Price wrote for the majority. Price said in the opinion that the question “can you be fair and impartial under a given set of facts?” can be repeated for every fact in a case, giving attorneys “a license to go fishing, without providing any concrete information for the intelligent use of peremptory or for-cause challenges.” The opinion said the court may overrule a prior case if it is “badly reasoned” or “unworkable.” The Nunfio ruling meets both criteria, Price wrote. “They’ve finally recognized how ridiculous that ruling was,” says Williamson County District Attorney John Bradley, who handled the appeal in Nunfio while an assistant district attorney in Harris County, Texas. Bradley says asking jurors whether they can be fair and impartial if the victim of a rape and beating is a nun implies some kind of threat. “What the question implies is it’s bad for you to feel sympathy for a victim who’s a nun,” he says. GUESSING GAME But Judge Lawrence Meyers, writing in a dissenting opinion, said, “I can think of no question more diligently directed at uncovering bias than ‘Can you be fair and impartial?’” Meyers said in the opinion that the majority “effectively transforms voir dire into an impossible guessing game” by holding that a question that is too vague or imprecise to be proper was also an improper attempt to commit jurors. If Nunfio must be overruled, Meyers wrote, “I certainly would not leave in its wake law that makes meaningful voir dire a near-impossibility and essentially requires litigators to get their questions pre-approved with [the Court of Criminal Appeals].” Judge Charles Holcomb joined Meyers in the dissent. Austin solo Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association, says the Barajas decision is in keeping with the Court of Criminal Appeals’ tradition over the past five years to limit voir dire. Hampton says the trend began with the 1998 decision in Jones v. State, in which the Court of Criminal Appeals held that a trial court improperly granted the state’s challenge of a juror for cause but said that did not deny the defendant’s constitutional right for a trial by an impartial jury. The court held in the case of George Alarick Jones, who was sentenced to die for kidnapping and shooting a man to death, that a “defendant has no right that any particular individual serve on the jury.” Schulman says Barajas is an extension of the Court of Criminal Appeals’ 2001 ruling in Standefer v. State, which said that a question at voir dire is improper if it attempts to commit a juror to a particular verdict based on particular facts. “You have to look at these two cases together. They make it very hard to do a successful voir dire,” he says. Judge Cheryl Johnson did not join in the majority opinion in Barajas but concurred with the decision.

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