A visiting senior district judge is getting attention after he dressed down a Tarrant County jury for acquitting a DWI criminal defendant, calling jurors’ decision “one of the most bizarre verdicts that I’ve ever seen,” according to a trial transcript.
According to a transcript of an Oct. 29 hearing held after the jury returned its not-guilty verdict, Judge Jerry Ray seemed to focus on a note concerning an Intoxilyzer test that the jury sent out while deliberating in
The State of Texas v. David Duc Tran.
“You know, and I’ve been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did,” Ray told the jury, according to a transcript printed on Nov. 11. “The note that you sent out says, ‘Can we ignore the Intoxilyzer.’ And you have the definitions of intoxication . … “
Ray went on to accuse the jury of engaging in “jury nullification,” according to the transcript.
“And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It’s called jury nullification. It’s when a jury decides to ignore the law or ignore evidence. And they maneuver until they get there. Perfect example, the O.J. Simpson trial. … “
“I’ve been around for over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I’ve ever seen,” Ray said, according to the transcript. “Thank you for your service and you are excused.”
Ray, who was sitting as a visiting judge in Tarrant County’s County Criminal Court No. 4 and presided over the case, declined comment.
Fort Worth solo Jay Caballero represents David Duc Tran and disagrees with Ray’s characterization of the jury’s decision. During the trial, Caballero challenged the accuracy of the Intoxilyzer evidence, which he said showed his client had a .10 blood alcohol level. In Texas, defendants are considered legally intoxicated if they have a .08 blood alcohol level.
“First of all, I don’t think there is such a thing as nullification in Texas. The law that was given to the jury—and it is given to every jury in a criminal trial—is: The jury is the sole judge of credibility of the witnesses and the weight to be given to the evidence. That means they can choose to believe part of what a witness says, all of what a witness says or none of it,” Caballero said.
“For him to tell them that they ignored the law is, in my estimation, incorrect. They chose to rule in a way that he didn’t like. That’s why I think what he says was a mischaracterization,” Caballero said.
The transcript has been passed around by Tarrant County criminal-defense lawyers and has been featured on the Texas criminal law blog Grits for Breakfast and on Texas Monthly’s website, Caballero noted. He declined to say how the transcript was circulated.
Melody McDonald, a spokeswoman for the Tarrant County District Attorney’s Office, which prosecuted Tran, declined comment.
“We don’t comment on the judges’ reactions or their comments to jurors,” McDonald said.
Caballero also noted that, in his experience, while judges may express their disagreements with jurors behind closed doors, it’s rare that they do it in public.
“But here it was on the record, and the court reporter was still taking notes. That’s what makes it unusual,” Caballero said.
There’s a reason why judges are well advised to keep their thoughts about a jury’s verdict to themselves, said George Gallagher, judge of the 396th District Court in Tarrant County.
“The Code of Judicial Conduct is the first thing, to start out with. And then you have, on top of that, the Texas ethics rules—the rules that lawyers and judges have to follow. And both of those codes emphasize that, whether you’re a judge or a lawyer, you should take no action that can contaminate jurors,” Gallagher said.
Those same jurors may be called back for service years later, Gallagher noted, and it could become problematic if during voir dire they detail their prior bad experience with a judge.
“And then you’ve got 45 other people that say, ‘Yeah we agree with them,’ ” Gallagher says.
Judges normally refrain from publicly disagreeing with jurors because of Canon 3 of the Code of Judicial Conduct, according to Lillian Hardwick, an Austin lawyer who consults on judicial ethics issues and is co-author of “The Handbook on Texas Lawyer and Judicial Ethics.’
She points to Canon 3 B (4), which requires that a judge “shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity … ” and Canon 3B (5) which requires that a judge “ shall perform judicial duties without bias or prejudice.”
Another reason judges usually refrain from publicly disagreeing with jurors is it may create recusal issues for the jurist later, Hardwick said.
“It might not be worthy of disqualification,” should the jurors’ verdict be appealed, Hardwick said.