Jury Selection Bias in Texas Criminal Trials: What Every Criminal Defense Lawyer Should Know
Jury Selection Bias in Texas Criminal Trials: What Every Criminal Defense Lawyer Should Know
Every trial lawyer eventually learns one simple truth: cases are rarely won or lost after closing arguments. More often than not, the foundation of a successful trial is laid hours earlier during jury selection. In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker examine a fascinating research paper from Southern Methodist University that explores bias in jury selection within Dallas County felony courts—and the findings raise questions every trial lawyer should consider.
Why Jury Selection Matters More Than Most People Realize
Ask most members of the public what determines the outcome of a criminal trial and they'll likely say:
the evidence,
the witnesses,
the lawyers,
or the judge.
Experienced criminal defense attorneys know another factor often deserves to be at the top of that list:
The jury.
The same evidence can produce remarkably different results depending upon the twelve people ultimately selected to hear the case.
Every juror enters the courtroom carrying years of life experiences, personal beliefs, cultural influences, and unconscious assumptions.
The law asks jurors to set those experiences aside and decide the case based solely upon the evidence presented in court.
The reality, however, is more complicated.
This episode explores exactly that issue.
Instead of discussing appellate opinions or recent legislation, Andrew and Andrew spend the episode breaking down an extensive data science study examining whether demographic factors influence jury selection and, ultimately, criminal trial outcomes in Texas.
A Different Kind of Episode
Unlike many legal podcasts that focus on recent cases, this conversation centers on research.
The catalyst is a 58-page paper produced through Southern Methodist University's Data Science Review examining jury selection in Dallas County felony courts.
The study analyzes dozens of felony jury trials and attempts to answer difficult questions regarding race, demographics, voir dire, and juror decision-making.
For practicing lawyers, studies like this are valuable because they force us to examine assumptions we may not even realize we're making.
As Andrew Decker candidly admits, he's not a statistician.
Neither host claims the paper provides every answer.
Instead, they approach it the same way good trial lawyers approach any evidence:
Read it.
Question it.
Understand its limitations.
Then determine whether it can improve your practice.
Bias Doesn't Require Bad Intentions
One of the most important concepts discussed early in the episode is the definition of bias itself.
When most people hear the word "bias," they immediately think of intentional discrimination.
The research—and the hosts—describe something much broader.
Bias includes the countless unconscious experiences, beliefs, values, and perceptions that influence how people interpret the world.
Those influences may come from:
childhood experiences,
family,
education,
religion,
media,
personal trauma,
prior jury service,
interactions with law enforcement,
or countless other life experiences.
Many biases operate completely outside conscious awareness.
That makes them particularly difficult to identify during jury selection.
The Broccoli Story Actually Explains Jury Selection
As only Andrew Decker can, the discussion takes an unexpected detour into broccoli.
Former President George H. W. Bush famously disliked broccoli.
Many children dislike broccoli because of a single unpleasant childhood experience.
Neither position is inherently rational.
It's simply how personal experiences shape later preferences.
Although humorous, the analogy illustrates an important point.
Jurors rarely enter a courtroom as blank slates.
Someone whose family member was the victim of violent crime may view criminal cases differently.
Someone previously arrested may view police testimony differently.
Someone who has experienced injustice within the legal system may approach credibility differently.
Those perspectives aren't necessarily improper.
They're simply part of being human.
The challenge during voir dire is discovering whether those experiences will prevent a juror from following the law.
There Are No "Correct" Answers During Voir Dire
One of the strongest practical lessons from this episode concerns jury selection itself.
Andrew reminds listeners that the purpose of voir dire is not to educate jurors into giving the "right" answer.
Instead, attorneys are searching for honest answers.
That distinction matters enormously.
Prospective jurors sometimes worry they're being graded.
They're not.
The goal isn't perfection.
It's honesty.
A juror who candidly admits:
"I could never find someone not guilty unless they testified."
may actually help both sides more than someone who hides that belief.
Why?
Because honesty allows the court to determine whether that juror can fairly apply the law.
Hidden bias is far more dangerous than admitted bias.
Why Defense Lawyers Thank Jurors for "Bad" Answers
Andrew Herreth shares one of the best practical tips in the episode.
When a prospective juror gives an answer unfavorable to the defense, he doesn't criticize the juror.
He thanks them.
That approach surprises many young attorneys.
Why thank someone who just admitted they may be unfavorable to your client?
Because truthful answers help identify jurors who cannot fairly follow the law.
If a juror openly states they cannot honor the defendant's constitutional right not to testify, that honesty may support a challenge for cause.
Removing that juror for cause preserves valuable peremptory strikes for later use.
The result benefits both the lawyer and the justice system.
Honesty makes jury selection more accurate.
Punishing honesty discourages it.
Looking at the Numbers
The Dallas County study reviewed forty-eight felony jury trials over approximately six years.
Although the paper focuses on one county and one court, several observations immediately caught the hosts' attention.
One finding was particularly striking.
Approximately one-third of the felony jury trials involved allegations of child sexual abuse.
Neither host found that surprising.
In their own practices, they note that child sexual assault cases frequently proceed to trial because defendants often view those allegations differently from many other criminal charges.
Whether guilty or innocent, defendants accused of offenses carrying severe social stigma may be less willing to resolve cases through negotiated pleas.
Instead, many choose to exercise their constitutional right to trial.
The discussion illustrates how practical courtroom experience often aligns with broader statistical research.
The Jury Pool Problem
Another statistic surprised both hosts.
According to the paper, only about eighteen percent of summoned jurors actually appeared for jury service in Dallas County during the period studied.
That means courts must summon hundreds of citizens simply to assemble one usable jury panel.
This creates challenges extending far beyond scheduling.
A representative jury depends upon broad participation from the community.
When large portions of the population fail to appear, the resulting jury pool may differ significantly from the community itself.
The hosts emphasize an important civic principle.
People cannot reasonably complain about the justice system while refusing to participate in it.
Jury service remains one of the few direct opportunities ordinary citizens have to shape how justice is administered in their communities.
What Is Voir Dire Really Trying to Accomplish?
The episode also offers a helpful explanation for listeners unfamiliar with criminal trials.
Voir dire is not merely an opportunity for lawyers to ask questions.
Its purpose is much more specific.
Attorneys attempt to determine:
whether jurors can follow the law;
whether they possess biases affecting impartiality;
whether challenges for cause exist;
and ultimately, which jurors will fairly evaluate the evidence.
That process requires far more than asking whether someone can "be fair."
Almost everyone answers yes.
Instead, experienced trial lawyers explore specific situations that reveal how prospective jurors actually think.
As the hosts note, asking whether someone is biased is often the least effective way to discover bias.
Thoughtful follow-up questions reveal much more than broad labels ever could.
Why Jury Questionnaires May Be Underused
One particularly practical portion of the discussion involves written jury questionnaires.
The paper includes sample questionnaires used in Dallas County, and both hosts express support for expanding their use.
Written questionnaires offer several advantages.
First, they save valuable courtroom time.
Second, they allow prospective jurors to answer sensitive questions privately.
Finally—and perhaps most importantly—they may encourage greater honesty.
Many people hesitate to admit unpopular opinions while sitting in a crowded courtroom filled with strangers.
Writing those same answers privately may produce more candid responses.
Although empirical research continues to examine that question, experienced trial lawyers often observe the same phenomenon.
Privacy encourages honesty.
Race, Representation, and Why the Numbers Matter
As the conversation continues, Andrew and Andrew begin discussing what is arguably the most significant finding contained in the Dallas County study: the relationship between race and jury outcomes.
This is where the episode moves beyond theory and into uncomfortable territory.
The statistics presented in the paper suggest that the racial composition of a jury may correlate with conviction rates. The hosts are careful not to argue that any individual juror is incapable of fairness or that race alone determines the outcome of a trial. Rather, they acknowledge what the data appears to show—that demographic composition may influence deliberations in ways that deserve serious attention from criminal defense attorneys.
For practicing lawyers, these conversations are not academic.
Every voir dire requires strategic decisions.
Who should remain on the panel?
Who should be challenged for cause?
How should limited peremptory strikes be used?
Those decisions can shape a trial long before the first witness ever testifies.
The research discussed in this episode encourages attorneys to think critically about those decisions instead of relying solely on intuition.
Statistics Should Inform—Not Dictate—Trial Strategy
One of the most responsible aspects of this conversation is what the hosts do not say.
Neither Andrew suggests that lawyers should stereotype individual jurors.
That would be both unethical and ineffective.
Instead, they emphasize awareness.
Research can identify historical trends.
It cannot predict how any individual person will decide a case.
Every juror brings a unique combination of experiences, education, family history, personality, and life events into the courtroom.
No statistic replaces careful voir dire.
What research does accomplish is helping attorneys recognize patterns they may otherwise overlook.
It encourages lawyers to ask better questions.
It reminds them to challenge their own assumptions.
And perhaps most importantly, it demonstrates that jury selection deserves the same level of preparation as cross-examination or closing argument.
Too many lawyers spend weeks preparing witnesses while devoting only a few hours to voir dire.
This episode argues—implicitly—that jury selection deserves much more.
Why Diverse Juries Matter
The discussion eventually turns toward diversity.
Historically, American courts have struggled with ensuring juries reflect the communities they serve.
The hosts discuss statistics suggesting that jury composition may affect conviction rates depending upon the race of the defendant and the makeup of the jury panel.
Again, these findings should be interpreted carefully.
They do not establish causation.
They do, however, raise important questions.
Does diversity improve deliberations?
Does it encourage broader discussion?
Does it reduce the influence of unconscious assumptions?
Many legal scholars believe the answer is yes.
From a criminal defense perspective, the broader lesson is straightforward:
A jury composed of individuals with different backgrounds may bring a wider range of perspectives into the deliberation room.
That diversity benefits not only defendants but also public confidence in the justice system.
Justice is more likely to be viewed as legitimate when juries genuinely reflect the communities from which they are drawn.
Batson Challenges and Equal Protection
Naturally, any discussion of race during jury selection eventually leads to Batson.
Andrew and Andrew briefly discuss Batson challenges and acknowledge that the topic deserves an episode of its own.
They're right.
Every criminal defense lawyer should understand the basic principles.
Under Batson v. Kentucky, prosecutors—and later, defense attorneys as well—may not exercise peremptory strikes based solely on race.
Over the years, Batson jurisprudence has expanded to prohibit certain discriminatory strikes based upon gender and other protected classifications.
Successfully raising a Batson challenge, however, remains difficult.
Attorneys must establish a prima facie showing of discrimination.
The opposing party must then articulate a race-neutral explanation.
Finally, the trial judge decides whether purposeful discrimination actually occurred.
The process is nuanced.
The standard is demanding.
Yet the doctrine remains one of the most important safeguards protecting the constitutional promise of equal justice.
The brief discussion in this episode serves as an excellent introduction to a topic that deserves far more attention within criminal defense education.
Jury Pools Reflect Communities—But Communities Are Different
The hosts also make an observation every Texas trial lawyer recognizes.
Not every county looks alike.
Dallas County differs dramatically from Parker County.
Parker County differs from Harris County.
Rural counties differ from urban counties.
Population demographics naturally affect jury pools.
In some counties, obtaining a racially diverse panel may occur almost automatically.
In others, demographic realities make that much more difficult.
The legal question is not whether every jury mirrors statewide demographics.
Rather, courts generally ask whether the jury selection process fairly reflects the demographics of the community from which jurors are summoned.
That distinction is important.
It also explains why criminal defense lawyers must understand the communities where they practice.
Effective voir dire in Dallas County may look very different from effective voir dire in a rural Texas courthouse.
Why Jurors Remove Themselves
One section of the paper the hosts found particularly interesting examined why prospective jurors were struck for cause.
Certain demographic groups appeared more likely to disqualify themselves for particular reasons.
Some expressed difficulty considering the full range of punishment.
Others indicated they would require a defendant to testify before finding reasonable doubt.
Still others acknowledged they would automatically distrust police officers.
Each of those answers may support a challenge for cause depending upon the circumstances.
The lesson for trial lawyers is significant.
The purpose of voir dire is not persuasion.
Its purpose is discovery.
Attorneys should strive to uncover honest answers rather than encourage socially desirable ones.
When jurors candidly reveal they cannot follow the law, everyone benefits.
The parties receive a fairer jury.
The juror avoids serving in a case where impartiality would be impossible.
And the justice system functions more as intended.
The Courage to Answer Honestly
One of the recurring themes throughout this episode is honesty.
Andrew describes thanking jurors for giving candid answers, even when those answers are unfavorable to his client.
That practice reflects an important philosophy.
Voir dire should never become a contest in which lawyers shame jurors into changing their beliefs.
Instead, it should encourage openness.
Prospective jurors who admit they struggle with certain legal principles perform an important public service.
They allow the court to determine whether they can serve fairly.
Contrast that with jurors who conceal strong opinions simply because they want to avoid embarrassment.
Those hidden biases may emerge only after deliberations begin.
By then, it is often too late.
Good voir dire rewards honesty rather than punishing it.
One Honest Juror Can Change an Entire Trial
The hosts also discuss an example from a recent Florida death penalty case in which one juror reportedly prevented the imposition of a death sentence.
Whether listeners agree with that outcome or not is beside the point.
The example illustrates something every trial lawyer knows:
One juror matters.
In criminal cases, unanimity is often required.
A single thoughtful juror can force additional discussion, challenge assumptions, request clarification, or simply refuse to accept conclusions unsupported by the evidence.
That reality underscores why jury selection receives so much attention from experienced trial attorneys.
Voir dire is not merely administrative.
It is one of the most consequential phases of any trial.
Practical Lessons for Criminal Defense Lawyers
Perhaps the greatest value of this episode lies in its practical advice.
Rather than offering rigid formulas, Andrew and Andrew encourage lawyers to become more intentional about jury selection.
That includes:
studying demographic information before trial;
using written questionnaires whenever appropriate;
thanking jurors for honest answers;
understanding the local jury pool;
recognizing unconscious bias—including their own;
preparing voir dire with the same seriousness devoted to witness examinations.
These are not revolutionary ideas.
They are habits consistently practiced by experienced trial lawyers.
Young attorneys often focus heavily on objections and cross-examination because those skills appear dramatic.
Veteran trial lawyers understand that the composition of the jury may influence every witness who follows.
Conclusion
This episode demonstrates why the best criminal defense podcasts don't merely discuss the law—they encourage lawyers to think differently about practicing it.
The Dallas County jury selection study is not presented as the final word on bias.
Instead, it becomes a starting point for a thoughtful conversation about fairness, demographics, constitutional protections, and the realities of modern criminal practice.
Andrew Herreth and Andrew Decker repeatedly return to the same underlying principle:
A criminal defense lawyer's job is to give every client the best possible representation.
That obligation requires confronting uncomfortable questions rather than pretending they don't exist.
Bias exists.
Research exists.
Historical trends exist.
The challenge is learning from those realities while continuing to evaluate every juror as an individual capable of fairness.
For lawyers preparing for trial, this episode serves as a reminder that voir dire deserves far more attention than it often receives.
The quality of a trial may ultimately depend not on the brilliance of the closing argument, but on the twelve people who hear it.
Key Takeaways
Jury selection is one of the most important phases of any criminal trial and deserves extensive preparation.
Every prospective juror brings conscious and unconscious biases into the courtroom.
The purpose of voir dire is to uncover honest answers—not "correct" ones.
Written jury questionnaires may encourage greater candor and save valuable courtroom time.
Research suggests demographic composition may influence jury outcomes, making diversity an important consideration in jury selection strategy.
Batson challenges remain an important constitutional safeguard against discriminatory jury selection.
Attorneys should prepare voir dire with the same intensity they devote to opening statements, cross-examinations, and closing arguments.
Effective criminal defense requires understanding both the law and the people who will ultimately apply it.
Editor's Note: Although this episode references a 2022 SMU study, the broader discussion about unconscious bias, voir dire strategy, and jury selection remains highly relevant to criminal defense lawyers today. If you regularly try criminal cases in Texas, the concepts discussed here are just as applicable now as when this episode was recorded.
Andrew Herreth 0:05
Hello, ladies and gentlemen. Welcome to another episode of Andrew and Andrew on Texas criminal defense. Hello, mr. Decker.
Andrew Decker 0:12
Hello, mr. Herreth.
Andrew Herreth 0:13
How are you, sir?
Andrew Decker 0:14
I am slightly disturbed by your green jacket. This is not the best.
Andrew Herreth 0:17
Whoa, whoa, whoa. Well,
Andrew Decker 0:20
what? But you are a master, sir. That's
Andrew Herreth 0:22
right. I am a champion.
Andrew Decker 0:23
No, a master, different.
Andrew Herreth 0:25
Well, okay. So I'm also wearing a green tie. So I'm, you know, I know this is not very, you know, it's not the spring, but it is a very. But it's kind
Andrew Decker 0:33
of it has, it has a little bit of an olive. It's not a real Kelly, so it's it's fall. It's fall appropriate.
Andrew Herreth 0:38
Well, thank you, sir.
Andrew Decker 0:39
You're welcome. Still a little disturbed by it. Anyway,
Andrew Herreth 0:42
whatever.
Andrew Decker 0:44
Welcome, welcome. I look
Andrew Herreth 0:45
good. Okay,
Andrew Decker 0:46
I didn't say you looked bad.
Andrew Herreth 0:47
My mom says I look amazing.
Andrew Decker 0:49
Your mom says you're cool.
Andrew Herreth 0:50
She does say I'm cool. Are you arguing with the great mrs. Herreth? Already derailed.
Andrew Decker 0:59
Not yeah.
Andrew Herreth 1:00
As you can tell, ladies and gentlemen, we do not have a guest. We'd already be moved on to them. Right, just going to be us two, kind of, kind of just twiddling our thumbs, seeing how kind of magic we can come up with. This is
Andrew Decker 1:10
not twiddling thumbs. So we actually have, I have work. We have work to discuss.
Andrew Herreth 1:16
Well, and friend of the show, Kasha Cristobal sent us this report that was done in Dallas County. So thank you, SMU
Andrew Decker 1:26
Data Science Review, Volume Six, Number Two, Summer of 2022.
Andrew Herreth 1:32
Right, so recent, hot off the press. This
Andrew Decker 1:33
is truly hot off the press. She sent it to us, and I printed off the 58 pages.
Andrew Herreth 1:40
Yes,
Andrew Decker 1:40
and I I read
Andrew Herreth 1:42
it. Uh huh.
Andrew Decker 1:43
I cannot say as I understood all of it.
Andrew Herreth 1:45
Well, I'm not that smart.
Andrew Decker 1:50
But I understood the important. So so I'm going to be honest. I'm not a statistician. I never took stats, and there are some stats in here. Well, what's the
Andrew Herreth 1:56
title? Like, what what is
Andrew Decker 1:58
this on? Okay, that's a good question. It's examining bias in jury selection for criminal trials in Dallas County.
Andrew Herreth 2:04
Well, okay, and so we got this. Very appreciative of Kasha. We were we were also like, well, we're gonna have to read this thing. You know, we're trial lawyers reading 58 pages. It's for our interns, not for us, right? But Andrew has done a great job of kind of trying to dissect as much of this as possible, and so we will go through this. And I, I say, mr. Decker has done a great job because, to be honest, I've I have skimmed it very very briefly. So we will we will kind of go through this, but the important thing to note here is, as trial attorneys, we must be aware of bias within our jury pools, and so this I think can help shed some light on the what real life.
Andrew Decker 2:57
It's really bias about yeah yeah it's it's really a bias in the jury selection,
Andrew Herreth 3:02
okay,
Andrew Decker 3:02
and and it's. I think there there are a few things where we make mistakes as well. Certainly, we we may push different persons or pull different persons, and it may or may not necessarily help as much as we want.
Andrew Herreth 3:18
Right.
Andrew Decker 3:19
So a bias is any form of conscious or unconscious feelings that would lead us towards a decision, and the problem is most of our biases are so ingrained in us that they are. It's like deciding if I if I like if I like broccoli. Broccoli is neutral, but President. President Bush, the first one, would not let broccoli be served in the White House. There are lots of kids that eat broccoli. As that is true, the Broccoli Growers Association of America put a put a semi truck on the out in front of it just to say, "Hey, come on, President Bush. I
Andrew Herreth 3:59
mean, this is the kind of information, folks, that you get from our show. That's right.
Andrew Decker 4:03
I'm a, I'm a, I'm a cornucopia of knowledge.
Andrew Herreth 4:07
That's amazing. I didn't even know that. That's great.
Andrew Decker 4:09
Yeah, look it up. Google it. I tell you the truth.
Andrew Herreth 4:12
Like you know how to use Google.
Andrew Decker 4:14
I don't. But but broccoli's neutral, right? Right. It's a fine vegetable to most people, but obviously to President Bush, it was an anathema. So, first thing is remember that even our own biases, we can't see. We often cannot see in ourselves because we are so close to it. And then the same thing is going to be true, and so you know the question kind of becomes in jury selection, but can you set aside those biases and follow the law as it's given?
Andrew Herreth 4:51
Yeah, and that to me, I think we start asking those questions, and you know, I think it's often couched as like, can you be. Fair? Can you set aside your bias? And and everybody, when they're like, "Can you be fair? They're gonna say, "Well, yeah, of course I can be fair. I'm a fair person. It's almost like asking, right? We were kind of talking about this in your jury selection. You wouldn't ask somebody like, "Okay, well, who here is racist? Every yeah, everybody's gonna say no, or not, or not indicate that they are.
Andrew Decker 5:21
Yeah, even even the guy that's got a what what those of us who've seen enough tattoos would know might indicate that they are Aryan Brotherhood.
Andrew Herreth 5:32
Right. Yeah. Probably
Andrew Decker 5:33
isn't going to raise his hand in a courtroom and go, "Yeah, I'm racist.
Andrew Herreth 5:36
Right. Yeah.
Andrew Decker 5:39
But all of us have, and this is straight from the paper, and it's quoting another source. All of us have innate, unconscious biases, perceptions, preconceptions, beliefs, and values that make establishing impartiality in the purest sense an impossibility. Right.
Andrew Herreth 5:56
Right. Impartiality would be an impossibility.
Andrew Decker 6:00
Right. That we automatically are going to come to something with a little bit of a feel one way or the other, and it could be from any his history teaching a bad experience when we were in the fourth grade that we don't even really have in our head anymore. But what I don't like broccoli. Well, why you add bad you add bad broccoli in the fourth grade. You're never gonna like
Andrew Herreth 6:24
it, right? So before we get too much further, I kind of want to give a shout out to the authors of this. There, I guess it's a a program, Masters of Science in Data Science at SMU Law School or Southern Methodist University. Megan Ball, Matt Farrow, Dr. Biven Sadler, Dr. Lynn Stokes, Judge Brandon Birmingham, and Catherine Mitchell. Thank you, good folks, for all of your good work in this lengthy paper here that I think does provide some benefit to us.
Andrew Decker 6:59
Right, it does. It does. So one of the things, some of it, just in the introduction, they they put out some some historical facts. Some they quote some other sources. Just a reminder that in Reuters, Reuters did a poll in 1993. I think it's going to be a little different 30 years later, but it said that 68 of Black Americans thought that the justice system was biased. That's two out of three.
Andrew Herreth 7:24
Yeah,
Andrew Decker 7:25
where only a 30-3% of white Americans, and I'm using black and white, quoting the paper, right? You know, so so don't call me and tell me I called on the wrong thing. Whatever, whoever group we're talking about. But this this paper looks at 40-eight non-death penalty criminal felony criminal cases in Dallas County in the same court. That's kind of how they use their their their their. So it's you're not going to get a whole lot of change because the judge is judges looking at it differently. It's the same demographics. It's the same county. It's the same courtroom. The only things that change are what kind of case it is, but they're all felonies. None of them death death penalty. Something that did not surprise much of this paper does not surprise did not surprise mr. Herrethor myself.
Andrew Herreth 8:15
Right,
Andrew Decker 8:15
right. One of which was 33% of the 40-eight trials over six years, were child sex cases,
Andrew Herreth 8:24
right? Yeah,
Andrew Decker 8:25
and it doesn't surprise me because my two trials this year-one was a child sex, one was online online solicitation of a minor, a trial that I that I have set that I that I think I've been removed from. I think I've been hired out of the case, but still on my docket is child trafficking and child sex.
Andrew Herreth 8:49
Yeah,
Andrew Decker 8:49
right. Because why? No one. The deal's never good enough to admit I touched a kid.
Andrew Herreth 8:58
Yeah, and I, I right. All of those cases in my experiment, that's the those those are the cases that I have most experience trying as well. And yeah, I I agree with you. No nobody's going to plead guilty to that. They can always blame if they get convicted and go to prison. They can always blame their attorney or the prosecutor or the judge or whatever. I think what I was surprised at is I we try I try a lot of those in a in a much smaller county than Dallas County, and I guess I was still surprised to kind of see the numbers percentage wise kind of match up what Dallas County, a fairly large metropolitan county, still shows. So I I I would imagine if we ran the percentages in the county that we primarily practice, that I primarily practice in, Parker County. I bet percentage wise, it'd probably be about yeah 30% over a six year period. All of those cases were child sex, sexual abuse type cases.
Andrew Decker 9:55
Yeah, it it is as I kind of look at it, it's at least a. If not more of my cases,
Andrew Herreth 10:01
yeah,
Andrew Decker 10:02
that are tried. My most common are possession of a controlled substance under a gram.
Andrew Herreth 10:07
Yes, right. Those don't go to trial typically. Typically, I've tried a handful of those. Right.
Andrew Decker 10:13
So those things didn't surprise me. One thing's that another thing that that did surprise me was of the people who are summoned to show up in Dallas County, apparently Tarrant County has a very high show up rate. Parker County has a pretty good show up rate,
Andrew Herreth 10:27
right?
Andrew Decker 10:28
18%
Andrew Herreth 10:29
Really?
Andrew Decker 10:30
So to get seven, to get a jury pool of 70, you've got to call. So basically five times that, you've got to call 350 to 400 people to seat 70.
Andrew Herreth 10:44
Man, come on, Dallas County, start doing your civic duty.
Andrew Decker 10:49
And I don't know how you fix that, right? I mean, who is a judge really going to spend the time to go round up 300 people? But at the end of the day, you can't. you can't can't complain about who won or lost an election if you didn't vote.
Andrew Herreth 11:06
Right.
Andrew Decker 11:07
You can't complain about how the how the jury how the justice system is rigged if you don't go sit on a jury.
Andrew Herreth 11:12
Right. Yeah. Or at least you don't participate in the process.
Andrew Decker 11:16
Right.
Andrew Herreth 11:16
Yeah.
Andrew Decker 11:17
I've sat on a jury. Honestly, it was fun.
Andrew Herreth 11:20
Criminal or civil?
Andrew Decker 11:22
Civil.
Andrew Herreth 11:24
I mean, fun is an interesting word.
Andrew Decker 11:26
I had a good time.
Andrew Herreth 11:26
Okay. There's another well-known criminal defense attorney who sat on a civil jury in Parker County, and he had a blast. We'll have to have him on the show to talk about that.
Andrew Decker 11:37
Yeah, we'll have to talk about that. I know that. So basically, this paper then walks through. Those are a couple things that, as in the first page, pages that I thought were interesting, walks through how jury selection happens. And you and I know that basically jury selection. You're, you know, most of the time people report to the central jury room. They're told 70 people are needed upstairs in this courtroom. 70 people go. They're given a number. They sit in a certain pattern, and then jury selection begins. The paper, the paper calls it the proper voir dire, whatever. They're
Andrew Herreth 12:15
fancy.
Andrew Decker 12:15
Yeah, they're fancy. I call it jury selection. Why to
Andrew Herreth 12:18
SMU? You know, you know how to properly pronounce that, yeah. But I
Andrew Decker 12:22
studied Hebrew at at SMU, not not not French. And my and my voice teacher told me, Andrew, you never sing in French. Your French is terrible. I kid you not. Again, these are not jokes. These are true statements. But I call it jury selection. But they, but the point is for the jurors to be instructed on the law, but also to answer questions that would help determine if they can be fair and impartial and follow the law in this matter. And if they cannot be, if the jurors self-eliminate, they're struck for cause, and then beyond that, we get to use peremptory challenges. And in these cases, the state and the defense each get 10. A reminder. This is in the paper. It's a reminder, and it actually comes from kind of refers to Article 3613 of the Texas Code of Criminal Procedure that the point and the purpose to the answers in jury selection is that they are not to answer correctly. We're not looking for correct answers,
Andrew Herreth 13:35
right?
Andrew Decker 13:35
We are looking for what, mr. Herreth?
Andrew Herreth 13:37
True.
Andrew Decker 13:38
The truth.
Andrew Herreth 13:38
We're looking for honest answers. We
Andrew Decker 13:40
need truthful answers to reveal whether they have some form of bias or prejudice, and whether they can follow the laws applicable to the case.
Andrew Herreth 13:48
Well, and that's in you know in my jury selection, in my Vordier presentation, I you know that's like one of the first slides I use a PowerPoint, and it's one of the first things I discuss is we're not there's no right or wrong answers. Nobody is going to be taken away in shackles because of their answer here today. You know the the we just need honest answers. And you know just as a practice tip, even if somebody's like their answer is not something that I wanted, or you know they they would require a defendant's a defendant to testify before finding them not guilty or whatever like that. That may be seen as a bad answer, but in truth, it is not because you just eliminated a biased person from sitting on your jury without using one of your 10 peremptory strikes. So I always thank them for their opinion. You know, you know what? Thank you. I know it's really hard to speak up, but it's truly appreciated. And then I ask the panel: Does anybody here agree with this individual? I think that's an easier way. It opens the door a little bit more to people being truthful instead of chastising them, which I've seen Andrew do. He's. He chastises jurors.
Andrew Decker 15:02
I chastise everyone. So in the appendices, appendixes,
Andrew Herreth 15:08
appendices,
Andrew Decker 15:09
appendices. Yes, thank you. For this court out of Dallas County, this this felony court, one of the things that the judge said, and he's he was listed in the authors or in the collaborators. Collaborators, is that if you if the if the attorney can say it or ask it, they can write it down as long as the answer can be put into the record. So he is fine with jury questionnaires, and there are two of them in the back of this in in 9.2 and 9.3 I believe.
Andrew Herreth 15:46
So we'll we'll leave a link on our show notes to this paper,
Andrew Decker 15:50
all 52 pages of it. And obviously, I've looked at all the whole thing, even the parts I didn't read because I know these questionnaires are back here. One is a general questionnaire, and one is sexual assault questionnaire, and they've been updated at least relatively recently because it lists questions about COVID. Do you feel safe coming in during COVID? But I like that, Judge. If I can ask this question legally of the panel, but having them write it down saves time and energy. Can we please just let them write it down?
Andrew Herreth 16:26
Is there any discussion, or what do you think about like the jurors, potential jurors, being more honest when they're writing something instead of speaking it aloud in front of their you know 70 new best friends around them? I'm
Andrew Decker 16:38
I'm going to write more honestly.
Andrew Herreth 16:40
I mean, I think anecdotally, I would as well, but I don't know if there's, I don't know if there's real data. I don't know if there is either,
Andrew Decker 16:51
right? But that'd be another
Andrew Herreth 16:53
reason to ask for a questionnaire, I think. And and if you have a really serious case, why not? I mean, I usually do a questionnaire on my, you know, life imprisonment, my life cases, the child sex assault or or sexual assault or or whatever the case may be, but even in something where the stakes are not quite as high, I think it could be very beneficial.
Andrew Decker 17:18
So it was interesting. Part yes, use a questionnaire. We've been told this many times, right? And yet, I, I haven't.
Andrew Herreth 17:27
Okay,
Andrew Decker 17:28
I, I will admit my faults. I haven't. I read the homework. I didn't do the, didn't do the paper at the end.
Andrew Herreth 17:34
Next, next time you have a big one, I'll just send you what I, what I use.
Andrew Decker 17:37
No, I'm going to use these.
Andrew Herreth 17:38
Well, yeah, I mean, right. Well, that's what. Yeah, I'll just send you that
Andrew Decker 17:42
then. So anyway, other things that that we learned in this paper, and they were interesting pieces. If your defendant is black and your jury is all white, 80-1% chance of a conviction. If you put one African American, one black juror on the panel, it drops to 70-1% It is a 10% difference in conviction rate over time historically. If there is even one black juror on the panel, and that's
Andrew Herreth 18:21
taken from the cases in Judge Birmingham's.
Andrew Decker 18:24
I think that's actually historically beyond just that, but it's one of the things in the paper. I went, "Wow,
Andrew Herreth 18:30
yeah, that's that's not insignificant.
Andrew Decker 18:32
Not insignificant. If there is one black juror on the panel, and it's a white defendant. Defendant,
Speaker 1 18:42
it
Andrew Decker 18:45
is a 70-3% chance the white person is convicted. If it is an all-white juror and a white defendant, it drops to about 60%
Andrew Herreth 19:02
man.
Andrew Decker 19:05
It really starts getting creepy how the how race, you know, regardless of how we see it, factors into the outcome of a trial.
Andrew Herreth 19:15
Yeah,
Andrew Decker 19:16
and so when you read some of these historical trials of an African American male on trial, white judge, white bailiff, white court reporter, white prosecutors, white defense attorney, white jury. You know, we kind of go, yeah, but you know, the facts are the facts. But you go,
Andrew Herreth 19:37
that that could be it. That's problematic.
Andrew Decker 19:38
It becomes problematic, right? And and you and I practice in counties where, like Parker County, where you can truly call a diverse panel and not have an African American on the panel because there's statistically not enough black people in the county to make it onto the pool.
Andrew Herreth 19:58
Right. Yeah, yeah, yeah, and that can be that. That certainly can be an issue, and we even go to even smaller jurisdictions where the the numbers are just yeah, but of diversity are far far smaller.
Andrew Decker 20:11
Honestly, as the ones I've looked at, Parker County has the most white pool of the the the counties I appear in.
Andrew Herreth 20:24
How do we like? What do you do with that information?
Speaker 2 20:27
Well, I mean, you know
Andrew Herreth 20:28
ahead of time, right?
Andrew Decker 20:28
Yeah, but you can't fix it. I can't. I can't make. I can't make a minority person move to Parker County so that my more minority clients get a closer to fair shake.
Andrew Herreth 20:39
I think there was a case where somebody objected to the lack of diversity, I think it would be, and I don't know. I'm not going to speak to that case off top of my head. I know it's been talked about before, and there's Batson and and all the cases. It's progeny and stuff, but I think the real question is: Does your jury pool, I guess match the demographics of the county. That's the question. That is truly the only question they can ask, right? Right. The pool matches the demographic, but the difference of an all Hawaii jury with a black defendant, 80-1% white defendant, 60-1% Yeah, that's, and
Speaker 3 21:21
that's that doesn't make
Andrew Herreth 21:22
me feel great. No, that's that's in the paper. I'm looking at it directly.
Andrew Decker 21:26
Also, in in Mississippi, black jurors were struck by the state 4.5 times more likely than white jurors, while white jurors were struck 4.2 times more likely by the defense than a black juror. So we have our biases and we play them out legally, even if it's not enough to raise a Batson challenge.
Andrew Herreth 21:53
Have you ever had to fight, or have you ever raised a Batson challenge?
Speaker 2 21:59
I have not. probably
Andrew Decker 22:05
because there'd be it was a diverse enough 12 that I could I didn't feel like I could legitimately say that the strikes were based only on race, but you you can now the the line of cases say you can base it on race religion or. or gender,
Andrew Herreth 22:23
right? Yeah, and it's a it is actually a really fascinating process. We need to we need to find somebody and have that as a topic. It would be its own show and maybe even multiple shows about properly raising a Batson challenge and then properly responding to a Batson challenge because the defense can also be Batson, so it's it's something that that really I think is very interesting, and and we should probably have that as a topic coming up soon.
Andrew Decker 22:52
Yeah. So if somebody wants to talk about Batson,
Andrew Herreth 22:54
yeah, let us know.
Andrew Decker 22:55
Contact Andrew, please. On Texas Criminal Defense. Yeah. So in Dallas County, in this one felony criminal court, the county is 20, almost 20-4% black, but the veneer panels were basically 18% black, and the juries were basically a slightly lower, just than that, not full percentage point. The county. This surprised me. This says that the county is 60-6% white. Dallas itself is not that much, but the whole county is, according to this this paper. But the jury pool was only 40-9.9% white, but the juries would be 50-6% white.
Andrew Herreth 23:45
Interesting.
Andrew Decker 23:47
So the minorities over over self eliminated or were cut for other reasons. Interesting facts. That is
Andrew Herreth 23:57
interesting.
Andrew Decker 23:58
Now they now the part of part of the problem is they say that this their numbers equal well over 100% because they have Hispanic and white and they didn't so so we it's a skewed number and it's part of why I don't like statistics is like how do I have a pie chart that equals 100 more than 100 pieces of pie if there's 100 pieces of pie how do you have 107 pieces of pie
Andrew Herreth 24:20
doesn't make sense to me, right? Right. That
Andrew Decker 24:22
that's that's the devil
Andrew Herreth 24:23
should be the very top, right? Uh huh. Yeah. Yeah.
Andrew Decker 24:25
Maybe. Maybe. Maybe 99.999 because there's some small factor that doesn't that falls out. But one of the things that that they noticed was is that people 45 is it 45 to 50 over. basically, make up the the jury pool. Yeah, so jurors 45 to 54 were 78% or sorry, 78% is likely to be struck for. Cause as younger, but but that was also the group that shows up the most.
Andrew Herreth 25:07
Man,
Andrew Decker 25:07
right? And I thought about that, and I was like, well, if I'm a little older, I might I might have some of the health issue. You know, I don't have to show up. Yeah, I'm caring for someone who's older. But also, if I'm under 45 there's a good chance I've got a child under 12 in which I'm a primary caregiver, or I'm a full-time student, and so I can self-eliminate using an actual excuse.
Andrew Herreth 25:34
Right, right, right, right. So you would have called in and and told not to appeal. Right.
Andrew Decker 25:38
So I kind of thought, you know, yeah, that 40-five to 50-five is that sweet spot of, I'm just successful enough. I'm just not busy enough that I don't. I'm not trying to find an excuse. Yeah, I can go do it.
Andrew Herreth 25:52
Right.
Andrew Decker 25:54
Just fun stuff. Right. Fun facts. No one's here.
Andrew Herreth 25:56
Fun with numbers.
Andrew Decker 25:57
Fun. Fun with numbers. Um, and then they break it down by demographics where they lived because in Dallas County, if you live north of I 30, basically it runs through the middle of Dallas County, middle of Dallas, Texas. If you live north of I 30, you are more likely to be upper middle class or upper class and white. If you live south of 30, you are more likely to be to live at the poverty line. You're also more likely to be a minority. They use that to kind of determine where people came from, why they might have been struck, etc. Female jurors appear slightly above the norm. Female jurors appear at a rate of 50-2.7 and make the jury 50-2.9% of the time, but they overall only make 50.7% of the population. Way to go, ladies!
Andrew Herreth 26:53
Yeah, yeah, you guys have a lot more sense of responsibility than the yeah. So,
Andrew Decker 26:59
so it says it actually says the seated jury, the ages between 40-five and 60-nine are more heavily represented than the county percentages.
Andrew Herreth 27:10
Man,
Andrew Decker 27:11
so what was interesting was why they tracked why people self-eliminated, so why they were struck for cause.
Andrew Herreth 27:20
Okay,
Andrew Decker 27:22
white jurors three times more likely than other race or black jurors, or sorry, than black jurors to be struck for Fifth Amendment rights-the right not to incriminate yourself. The white people wanted you to tell, come in and tell me. Yeah, tell me what happened.
Andrew Herreth 27:42
Tell me your side of the story.
Andrew Decker 27:43
Right. The full range of punishment is where black jurors self-eliminated. Right. We've already said that. Well, you and I talked. I can't remember if I actually said this, but but let me let me go here. Black jurors were struck for cause for failure to consider the full range of punishment for a crime 1.5 times more likely than white jurors, and basically it was that they failed to consider the maximum punishment range at specifically 2.5 times, 2.4 times the rate of white jurors. So basically they were like that second degree felony. Yeah, we can give you two years in the pen, but I don't know that I can give you up to 20,
Andrew Herreth 28:21
right? Yeah,
Andrew Decker 28:23
you can't consider 20. I just don't know that I could get there. Well, you just you just self struck,
Andrew Herreth 28:28
right?
Andrew Decker 28:29
Right. Okay. So the white person wants to hear the defendant speak. The black juror doesn't want to send him away for as long of a time. Okay.
Andrew Herreth 28:45
Yeah, you know when he when we I think oftentimes when we we look at our role as attorneys preparing for trial, you know the answer in digesting this information is not to ignore it. The answer is to is to not necessarily use it to our advantage or leverage it, but just be aware of some of these things. Maybe you can change some of your questions that you ask, but for sure, just looking statistically, it sounds like it would be in our best interest to have a diverse jury.
Andrew Decker 29:21
Most of the time, well, it depends on who your defendant
Andrew Herreth 29:23
is. Sure. Well, that's that's right. That's true. I have a right. If I have a white guy, I
Andrew Decker 29:28
want an all white jury,
Andrew Herreth 29:29
man. Yeah,
Andrew Decker 29:31
because 61% of the time, right. So, so a third of the time, that guy's getting not guilty if it's an all white jury,
Andrew Herreth 29:39
based on the historical data, right, right, yeah, and man, gosh, that just doesn't feel great to say, right?
Andrew Decker 29:46
Oh, it feel it it makes it it truly makes me sick in my stomach.
Andrew Herreth 29:49
Yeah,
Andrew Decker 29:50
um, and that anyway, so yeah, yeah, um, but black jurors. Due to their proclamation of bias against police, that they wouldn't believe a police officer and their maximum range of punishment self self eliminated it unintentionally leads to less potential jurors and black jurors in a on a jury, right? Because if you can't believe the cop, and you say that, how many how many of our cases the only real witness is a cop?
Andrew Herreth 30:30
Right. Yeah. Yeah. I would say I don't know if the number's in there, but probably 80% of my trials have been one witness trials with a police officer, yeah, that's probably that's probably a really high percentage, but a lot of them are.
Andrew Decker 30:46
So, you know, then the question becomes, you know, could a jury, you know, say, hey, I have a bias just to get kicked. I actually had someone tell me, you know, when they found out I was a defense attorney, and I said, you know, I'm going to have a trial next week, and they said, well, I wouldn't be on your jury because I'm going to say I can't follow the law. And I looked at him and I said, "You're a liar.
Speaker 2 31:04
Yeah,
Andrew Decker 31:05
you don't know if you could follow the law or not in my case. So say you can't doesn't help anyone, right? So some people are going to try to self-eliminate. Some people are going to try to hide, right? We just had the case out of Florida where one juror said no to the death penalty on one of the school massacre cases. So the guy got life in prison without parole, and it was just in the last week or two,
Andrew Herreth 31:37
right?
Andrew Decker 31:38
And people are up in arms at it, and you kind of wonder: Did this person say I could consider the death penalty? And the whole time they're like, "I'm not going to let this guy be put to death, because I mean, because we've all seen the person that really has a beef that hides it until they get into that jury room at the end, and there it comes out.
Andrew Herreth 31:57
Certainly, you know, as as just to comment on your friend who is who said they couldn't follow the law, like I wouldn't want them on my jury, anyways. Like if you're if you're if you are that disinterested that you're not going to be honest and truthful when sworn to be honest and truthful, then you're not you don't you don't get to decide my client's fate.
Andrew Decker 32:21
Sure, yeah, I don't want you on my jury, but I also just want to slap you.
Andrew Herreth 32:24
Yeah, it's a shitty answer.
Andrew Decker 32:26
Yeah.
Andrew Herreth 32:26
Pardon my French. No, and and and yes, that you know, on on the one hand, good for that juror for sticking to their guns, but I would hope that they would have been honest in the jury selection prom process. What does Board Diary stand for again? To
Andrew Decker 32:43
speak the truth. Yeah.
Andrew Herreth 32:44
Well, that's why we're all here, right? Yeah. Anyways, you look great today.
Andrew Decker 32:48
Thank you.
Andrew Herreth 32:51
That speaking the truth.
Andrew Decker 32:53
I don't know, but but it's an interesting paper. Again, I don't know that I had any like aha moments of like yes, I never knew that. I don't necessarily know how I'd use any of it in a jury selection, but the reality is, if you have a client of who's non-white, you need some non-white jurors to make that make that jury.
Andrew Herreth 33:21
Yeah, if
Andrew Decker 33:22
you have an all white jury, if you have a white client, you might want an all white jury.
Andrew Herreth 33:29
Yeah,
Andrew Decker 33:30
and that's, ladies and gentlemen, that's playing the race card flat out. That's playing the race card, and I know I just said it
Andrew Herreth 33:40
again. You know, it's not our job is not to just ignore these things. I mean, we have to face them head on. And at the end of the day, I hate that phrase. When when throughout our careers and throughout every single day we're representing our clients, we must do that to the best of our ability. Our clients deserve that, and if this is one of those areas of the law where you want to stick your head in the sand, I think you're doing your clients a disservice. So just be aware of it. Maybe try to try to look at your board hours or jury selection procedures and processes. See what see what needs to be adjusted to real world numbers, which you can find in the show notes.
Andrew Decker 34:23
Yeah, yeah. So, well, Andrew, I think that brings us to the end of this episode. Any music you want to say you're listening to? You know,
Andrew Herreth 34:31
I've gotten into jazz a lot lately. Frank Morgan really.
Andrew Decker 34:35
So I've been listening to Aretha Franklin's gospel album recorded at I can't remember which Temple Baptist Church, and
Andrew Herreth 34:46
once in a generation talent, right? Yeah, once in a and it
Andrew Decker 34:50
is it is early on. It is her. It is choir. It is if it. So
Andrew Herreth 34:57
I'm gonna have to download that. So so
Andrew Decker 34:58
related to you know. I mean, it's it's truly American economy. We both we both have been
Andrew Herreth 35:03
needing some some soothing, evidently, right? That's right, that's right.
Andrew Decker 35:08
And then I've been reading a book with my brother titled "Love People, Not Love People, Not Things. The other way never works. It's it's a and it's a hard read because it's a self help book, and if you really do the work, you know, well, first of all, you're going to get stuff out of your house, but you're also going to get shit out of your life.
Andrew Herreth 35:32
I just finished a book on the Comanche Nation, early Comanche Nation, and Quanah Parker, Empire of the Summer Moon by S. C. Gwin, that was a fantastic. I've heard it's a great book. I've not read such a good book.
Andrew Decker 35:44
Can I borrow your copy?
Andrew Herreth 35:46
Sure. Thank you. You got it.
Andrew Decker 35:48
All right. Well, that's that is another episode of oh any any good advice you've received lately?
Andrew Herreth 35:52
No, absolutely not. I'm going
Andrew Decker 35:54
to quick quote Tim Moore when he you know like when I went into him and I said and this is my favorite quote of Tim Moore's. I went and said, "Hey, I've got a client who's accused of a child sex case, and he looked up from his desk, and he is a phenomenal attorney. And he said, "Tell him don't do that.
Andrew Herreth 36:10
That's a you know, that's about as good advice as you can get,
Andrew Decker 36:15
man. Tell him don't do that. So this has been another episode of Andrew and Andrew on Texas Criminal Defense. You can find us on the web@texascrimdefense.com You can find us on Facebook at Andrew and Andrew on Texas Criminal Defense. You can find us where you download this this episode of your podcast. You can find us on Twitter. We're we're like 30 followers now. But here's the amazing thing: remember, just this summer we said we hit 10,000 downloads. Yeah,
Speaker 4 36:42
we're at over 12,000
Andrew Decker 36:43
We're getting close to 1000 downloads a month now. Well, congratulation, Mister Herreth. I
Andrew Herreth 36:48
have to look at yeah. Well, I think it's our Twitter feed. Honestly, it must driving. It must be
Andrew Decker 36:53
that Twitter feed, man. It drives it drives business. All right, y'all. Y'all be good.