Jury Tosses Arlington DUI Charge, Prompting Judge to Invoke O.J. Simpson

Categories: Legal Battles

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For David Tran, October 29 was a very good day. He beat a drunk-driving rap he picked up in Arlington three years earlier, when he was 17 years old and blew a .095 into the Intoxilyzer -- just a shade over the .08 legal limit. The offense could be expunged from his record, and a young life could continue.

The Honorable Jerry Ray, a traveling judge who once presided over Palo Pinto County, however, was clearly disgusted -- horrified, even -- by the jury's verdict. Though certainly not the first judge in history to feel this way, Ray distinguished himself that day in a Tarrant County criminal district court by letting the jury know unequivocally what a shitty job he thought they'd done.

"You got lucky," he began, addressing Tran. "You absolutely are legally guilty of this offense. But the jury returned this verdict, and the court's obligated to accept that verdict, and you are found not guilty."

With the jury duly admonished about how utterly it had, in Ray's opinion, failed to uphold the law, the judge might have stopped there. He couldn't, reported the blog Liberally Lean From the Land of Dairy Queen. Ray had a few things to get off his chest. You know it's going to be bad when a judge prefaces his tirade with "I've been at this for such a long time I know better than to get angry."

Specifically, he was irritated the jury decided not to consider the results of the Intoxilyzer test. Jay Caballero, Tran's attorney, said the jurors discussed the verdict with him, the prosecutor and the judge afterward. One juror, he tells Unfair Park, indicated that the jury "didn't believe [Tran] should have been arrested. They didn't believe the officer had enough evidence to merit an arrest."

Ray was livid, denouncing the verdict as the court reporter typed away. "You just decided to ignore the law and your oath, and you know you did," he said, citing the note the jury sent out during its deliberations, asking if it could ignore the Intoxilyzer results.

"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 the evidence. And they just want a certain outcome, and they maneuver until they get there. Perfect example, the O.J. Simpson trial. He clearly committed murder, and they didn't want to convict him, so they found a way to -- to render a not guilty verdict. I've been around over 40 years in this profession, tried an awful lot of cases as a defense lawyer, a prosecutor and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I've seen.

Thank you for your service, and you are excused."

Caballero was stunned to silence. "At first I thought about whether I should object. Then I decided, well, I've won, and he's not going to make a favorable impression on the jury by doing this. The court reporter ended up taking it all down anyway."

H/T Grits for Breakfast


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31 comments
halldecker
halldecker

The Judicial Conduct Commission will likely take serious offense,  about all they can do is suggest to the Presiding Judge who makes Visiting Judge assignments that maybe His Honor deserves a rest for the rest of his life.


I'll pretty much guarantee,  PJ will do that anyway.

holmantx
holmantx topcommenter

50% of people on the road after 10:00 on a weekend are legally drunk.

90% after 12.

For the cops, it's a target-rich environment.

nilesmercado
nilesmercado

I hate when people assume OJ was guilty since very few have closely examined the faulty evidence for themselves. The openminded should read When Prosecutors Attack http://ow.ly/qXs29

scerinjen3
scerinjen3

I wonder which intoxilyzer it was. Not to put too fine a point on it but the portable intoxilyzers that cops have in their cars aren't admissible but the one they use at the jail when they're booking you IS.  I kind of agree with the judge here - anything over .08 meets the definition of intoxication in Texas. 

ryan762
ryan762

At some point, you'd think someone would have told him the definition of jury nullification because this ain't that.

By his standard, almost every verdict would be jury nullification (since an adversarial proceeding requires juries to discount some evidence over others. Very rarely does everyone simply agree on every point in a trial).

Would Judge Ray have been yelling at a jury about nullification and the jurors not following their oath if they, let's say, believed a prosecution witness over the defendant? (In a case with different circumstances, of course).

xdarkridex
xdarkridex

tl;dr: Judge: How DARE you actually do your jobs and not just decide it the way I wanted!

Montemalone
Montemalone topcommenter

Sounds like the judge had made up his mind and it didn't matter that the jury said not guilty.

Way to be impartial, asshat.

ozonelarryb
ozonelarryb

As for OJ, the standard is whether the state proved it, not whether one thinks it so.

That judge should ask Bill Dear.

ozonelarryb
ozonelarryb

That was NOT jury nullification. They had a specific reason to acquit - lack of 'reason for contact' or PC. Nullification is jury's total lack of reason in acquitting.

wcvemail
wcvemail

Although I'm ignorant of any other circumstances of this case, I say that ironic justice bites both ways, since someone who has *passed* the breathalyzer (and all field sobriety tests) can still be arrested for DUI based solely on the officer's judgment. Then most/all judges will convict based solely on the officer's scripted testimony, ignoring the proofs.

holmantx
holmantx topcommenter

And this is why you never agree to a judge to decide instead of a jury of six.

scottindallas
scottindallas topcommenter

@nilesmercado He likely did it.  But that doesn't mean the prosecutors were able to prove their case.  He was found "not guilty" he was never found to be "innocent"

scottindallas
scottindallas topcommenter

@scerinjen3 but, it's not intoxicated.  The incidence of accidents increases at the .12-.15 threshold.  .08 is an arbitrary and capricious number. 

scerinjen3
scerinjen3

Not trying to start a fight here but let me say in defense of cops - most experienced officers can pretty accurately judge level of intoxication without an actual breath test.  And yes - you can be busted for DWI without giving a breath or blood sample, or even blowing below .08, based on the cop's judgment.  But no cop is going to arrest someone who just passed both a field sobriety test AND breath analysis.  Because if you are intoxicated on drugs or alcohol or both - it's going to show in the field test.  And I wouldn't describe their testimony as "scripted."  Most cops learn pretty quick if they don't have their ducks in a row on an arrest and the offender fights it - even an average defense attorney will rip them up one side and down the other.   

scerinjen3
scerinjen3

Actually - it can go the other way. Some judges can be much more reasonable than a jury. It's a gamble.   

nilesmercado
nilesmercado

@scottindallas @nilesmercado Well, only in a Napoleonic system do people need to be found innocent. In our system you are "innocent until proven guilty", therefore he is legally innocent. Beyond semantics though he really did not do it, but I recommend reading "When Prosecutors Attack!" and then let me know what you think :)

holmantx
holmantx topcommenter

@scerinjen3 

The odds are with a jury.

It only takes one of six to infuse with sufficient doubt to hang it.

scottindallas
scottindallas topcommenter

@scerinjen3 your concern about traffic fatalities is baseless.  Accidents have fallen to historic lows, not for DWI laws, but improvements to cars

scottindallas
scottindallas topcommenter

@scerinjen3 most DWI accidents are single car accidents.  They're not protecting many.  Further, the .08 is arbitrary and designed by people who are far from disinterested and rational.  It's a giant industry, and you're really naive


scerinjen3
scerinjen3

Hey ozone, I guess it depends on how you define 'industry.' I guess you also could say the State's efforts to try to bring the DWI death toll down in Texas IS big business.  I'll grant you that.  Does the machine sometimes sweep in a person or two that may not be all that guilty? Sure. Call it collateral damage in the war on the insanity that is alcohol and drug related traffic fatalities. Do some people who really need to be taken off the road not get busted - you bet!  

But look whats driving that machine - countless people killed and injured every day because people choose to drive impaired.   Are there some unsrupulous politicians, judges, cops, lawyers, and others that capitalize on how vulnerable people are when they enter the system - yep. But don't let that cause you to get too cynical and lose site of the problem.  Don't drive drunk or drugged and you probably won't have anything to worry about.    

BTW - checkpoints aren't constitutional in Texas. The cops CAN set up a checkpoint for other things, like a fugitive or missing child or whatever. But just for drunk drivers - not yet. And what guy doesn't like playing with his toys?!   Cheers!   

ozonelarryb
ozonelarryb

Yes, there IS a dui industry. The leo community just begs for those fed bucks to set up checpoints and buy buses... so they get a huge return on investment. Cuz their investment is nil.

Also, it gives non SWAT ones the chance to play with new toys.

wcvemail
wcvemail

@scerinjen3 The under-21 provision was completely overlooked in this story, and unknown to me and most, I suspect.

Peace to you, too. Hope to see your reasonable perspective again soon in this neighborhood.

scerinjen3
scerinjen3

The penlight in the eyes test is not bogus btw - it's called the HGN and if the cop is trained to do it right, it can be very conclusive with regard to actual level of impairment. Just sayin'  You saying they're 'tricks' is a little over the top bro. I'll just say if a cop is using them as a formality or a 'trick' to  get what they want - they're a dishonest jerk mo-fo.  But I honestly don't believe that's the norm.  

And also - this kid in this story was under 21. In Texas, no sobriety test is needed to charge a person with DWI if they are under 21. The law says "any detectable amount" is enough.   It should have been a slam dunk for the prosecution, I can see why the judge was pissed.

Anyway - peace!

scerinjen3
scerinjen3

WCVEMAIL: lol - sorry you had a bad experience with probation. I'm glad you don't drink (or drug) and drive. I appreciate that.  I don't either. It's a tough situation as you rightly pointed out - I'm not suggesting it's all or nothing.  We have to do what's reasonable to protect the public without over reaching.  I hope everyone working for 'the man' like I do will remember that. And I hope people out there driving understand what a gigantic issue impaired driving is and that it's not just about the money - it's about lives also. I hate to sound cliche but that old saying "the life you save may be your own" is dead on.   

wcvemail
wcvemail

@scerinjen3 In regards to the stats -- of course that's shameful, but that goes back to the never-ending debate about War on Drugs vs. socially permissible drugs, etc., that's beyond us and this discussion. In fact, that fall-back cliche of "should we do nothing?" is just misdirection. Of course we should do something, else the terrorists win.

As for the Q, no, I can honestly say that I have not been let off. You probably guessed that I did indeed take a DWI, 1993 in Richardson, when RPD saw -- quoting here -- my left tires touch the white lines (no, I didn't blow, wasn't asked to perform tests, just the flashlight in the eyes.)

When it really dawned on me that it's an industry is when I had to visit a "counselor" to determine if I were an alcoholic. I was sent directly from the probation office at 9 a.m. after my regular PO visit to see this "counselor," dressed in my business suit and ready to go on to work. The "counselor" determined that I had been drinking that morning - bear in mind that I had just come from 30 minutes in a probation office, surrounded by LE of various persuasions - and therefore I needed to take the expensive, time-consuming treatment program, coincidentally offered by the "counselor" and her office. I went storming back to the probation office, asked the PO and his supervisor to take a close look and smell - having just seen them, after all. They admitted there was no sign of drinking, and that it would be ludicrous for me to have taken a slug on the way from one office to another, but they were now duty-bound to refer me to the classes.

Yes, I'm still angry about that. No, I've never had another encounter with LE. No, I don't drink and drive, and very rarely drink at all any more because of a cholesterol thing, so I'm not trying to defend my right to drive drunk.

So much for sharing. Now, how about that time at summer camp for you, Screrinjen?

scerinjen3
scerinjen3

Wcvemail: we'll have to agree to disagree I guess.  I just want to say I'm on the front lines of this issue and I'm a reasonable guy.  I'm not some wacko right-winger or whatever. 

Please remember this fact: we lose well over 1500 people EACH YEAR in alcohol related traffic fatalities in Texas alone.   People are being killed by drunk drivers every day.  Should we sit and do nothing?  Are there some overzelous a-hole cops out there? Yes, but not many.  Most are just honest working stiffs like you and me who really don't want to do more than they have to get a pay check.   

I don't agree that there is a "DWI industry."  It's an imperfect system that's addressing a very serious problem - drunk drivers.  Also, it is very possible to be way too impaired to drive and be perfectly able to stand.  It's not a vast conspiracy designed to shake people down if they've had one drink and drove home.  Hell, most cops I know and work with actually let people go unless they are sure they have a rock-solid arrest.  Have you ever been let go when you know you should have gone down town?  I'm not trying to be insulting - just a question.  

wcvemail
wcvemail

@scerinjen3 BTW, I just tried reciting the alphabet backwards, with only this morning's oatmeal and coffee in me, and couldn't do it. That's with many years of public speaking as a tech trainer, daily crossword puzzles, etc. Lord help the semi-literate, frightened ditch digger who's challenged with something like that.

wcvemail
wcvemail

@scerinjen3 That's actually my follow-up to your comment above about "an average defense attorney will rip (the officer) up..." Most DWI cases do NOT go to trial, but are settled because the attorneys know, and counsel their clients gently, that the deck is stacked against the defendant. That's because the DWI industry does indeed have proven protocols (scripts) for officers and prosecutors, starting with the bogus penlight-in-the-eyes test and continuing through the stand-on-one-leg gym tricks rehearsed by officers to perfection.

Bear in mind I'm not talking about those drivers who can't even stand up straight in the videos, can't articulate where they're going or where they've been, etc. I'm talking about the reasonably innocent-until-proven-guilty and even borderline cases. Can an unrehearsed -- unscripted -- person recite the alphabet backwards, or hop around like a circus kangaroo, in broad daylight in a gym? No, much less on the side of the road with traffic whizzing by and the full weight of scripted law enforcement staring intently at oneself.

Not trying to start a fight here, either, Scerinjen, and I appreciate your civility, but the DWI industry scoops up and convicts far too many people who shouldn't be arrested. That's because officers are indeed scripted and rehearsed in these tactics.

scerinjen3
scerinjen3

I see a lot of folks in my area taking a deal with the DA rather than risking the max with a jury for minor offenses - like misdemeanor DWI.   

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