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This article illustrates how Texas Trial Lawyers have

  • Appealed to the jury conscience in criminal trials
  • Appealed to the jury conscience in civil trials
  • Promoted jury nullification in an insurance context
  • Have appealed to ethnic unity and racial animosity in criminal cases

Jury nullification has become an avant garde topic in the law.  Even so, jury nullification is nothing new.  Many believe that jury nullification allows a group to vote its collective conscience, taking into account history and social circumstances.  In fact, jury nullification does just that.  However, as the following two cases illustrate, the pros and cons of jury nullification depend entirely on which jury and whose conscience the nullification is based on.  The trial in each case had vastly different outcomes.

In 1901 an incident occurred in which migrant worker, Gregorio Cortez, shot and killed the sheriff of Karnes County, a small Texas county.  Due to different accounts of the incident, Gregorio Cortez, became a folk hero among Mexican Americans in South Texas.  Many Mexicans and Mexican Americans were acutely aware of oppressive and racist tactics used by law enforcement in post US-Mexican War Texas.  On the other hand, Cortez was reviled among Anglo circles, and many “influential citizens” spent time, money and resources attempting to apprehend Cortez after he killed the sheriff.  The Texas Court of Criminal Appeals, expressly found that prejudice existed at the trial court level.  This prejudice led the jurors to impermissibly discount the defenses that the sheriff had insufficient evidence for a warrant and that the sheriff was using illegal deadly force when Cortez shot him.  The court further held that prejudice existed in the case because jurors voted their conscience, and had excluded the evidence.  In this case, the jurors’ disregard of evidence certainly qualified as jury nullification, as defined in the prompt, since the jury disregarded evidence in order to promote its collective conscience.  Unfortunately, justice was not served by jury nullification in this trial, even according to the Texas Court of Criminal Appeals.

On the other hand, a case almost a century later characterizes what the San Antonio Court of Appeals called an improper appeal for ethnic unity among a “Spanish-surnamed” plaintiff and attorney to a “Spanish-surnamed” jury.  In Guerrero, the plaintiff sued the state insurance agency over a work-related injury.  At trial, the Texas trial attorney quoted Octavio Paz, a well-known Mexican writer and said, “[t]hings that unite us far exceed those things that divide us.”  He continued, “[a]n example is politics. We don’t have to agree with all the candidates, with the same ones. But by golly there comes a time when we have got to stick together as a community.”  The jury found for the plaintiff, but the court of appeals construed the trial attorney’s appeal as a “dressed up” plea to ethnic unity, which the court held was impermissible.  The court appears dubiously to have identified a sort of secret code that exists between “Spanish-surnamed” people, an internal “dog whistle” in today’s racial lexicon.  Nonetheless, if the court of appeals correctly characterized the jury argument, it suggests that this trial attorney urged the jury to overlook the evidence when he commented that “we don’t have to agree with all the candidates.”  Further, the plaintiff suggested that the jury vote its ethnic conscience when he suggested they “stick together.”  If the court is correct, then the plaintiff’s plea is one for jury nullification, as defined in the prompt.

The cases, one criminal and one civil, illustrate vastly different outcomes in cases.  Cortez suffered a guilty verdict based largely on racial prejudice. Guerrero won his case for money damages, arguably based on an appeal to ethnic prejudice.  Ostensibly, the Texas trial lawyers appealed to the jury’s conscience rather than the applicable law.

Certainly, ethnic minorities have faced generations of prejudice, at times insurmountable prejudice, in courtrooms.  As recently as March 11, 2016 a Wharton County, Texas assistant district attorney admitted in open court that the county DA had encouraged him to exclude black people from criminal juries. The historic and contemporary challenges that ethnic minorities and women face create a temptation to advocate for jury nullification.  Ostensibly, Guerrero’s trial attorney felt such a temptation, and gave into that temptation to the benefit of his client.

Cortez, however, illustrates the folly of advocating a broad strategy of suggesting to jurors en masse that they vote their conscience, to the exclusion of evidence and the law.  The Wharton County debacle further illustrates the difficulty in expecting that the juror’s’ conscience will produce just results because many jurors are hand-selected to have a conscience that is adverse to minority interests. If opponents systematically choose juries to exclude minorities, it seems to make little sense to broadly advocate for jurors to discount the rule of law and to vote only their conscience.  Consequently, the issue of jury nullification turns on which jurors are asked to vote their conscience.  This position is not equivocation on the efficacy of jury nullification, but rather a practical answer to evaluate its efficacy.  

Without the ability to divine the conscience of every juror and without the ability to avoid the prejudicial effect of excluding minority jurors, it seems particularly counter-productive to ask juries en masse to vote their conscience to the exclusion of evidence and the rule of law.  Gregorio Cortez would likely agree.  Call 713-979-2941 for experienced Texas trial Lawyers. 

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