An appellate court has reversed the conviction of a Bacliff woman who recorded her boyfriend raping his 14-month-old granddaughter on her cell phone, saying the trial judge tainted the jury by arresting a prospective juror during jury selection.
Alisha Marie Drake had been sentenced in 2013 to 15 years in prison for using her cell phone to record the act. Her boyfriend, Jason Grant, was charged with aggravated sexual assault of a child and possession of child pornography and is awaiting trial.
During the questioning of prospective jurors, one man, identified only as Juror No. 48, told Galveston County District Court Judge Susan Criss that his religious tenets prohibited from watching the cell phone recording. The man stated he was a Jehova's Witness.
"As far as my belief in God, as far as watching any kind of child pornography for a judicial or whatever kind of court, I mean, I cannot do that," the man said, according to the Fourteenth Court of Appeals' decision. He added later, "I will close my eyes, I will not allow my eyes to look at anything like that, period. So whatever you have to do, you just have to do it."
That's when, according to the Fourteenth Court, Criss laid down the law: "Here is the thing you have got to understand. Assuming — sometimes an accusation is made and the person didn't commit a crime at all. They are wrong. The crime wasn't committed. Sometimes an accusation was made and a crime was committed, but it was a different person that committed it. There are different things that happen. But if you believe that a crime was committed and a child was hurt as a consequence, that child needs 12 people who have got it in them to come in here and look at the evidence....If you believe in God, God wants you to protect the children."
Criss is also quoted as saying, "So if it grosses you out, then you can take it out on the person in punishment because it can't possibly gross you out more than it grosses out that child. So that's what my God tells me."
And just in case she didn't get her point across, Criss really dropped the gavel on the dude: "So you want to find out what I will do?....So you want to find out what my God will tell me to do? Let's test it, buddy. Let's test it." (The court record does not indicate if Criss then removed the cigarillo from the corner of her mouth, squinted, and spat a wad of tobacco on the desert sand.)
That's when Juror No. 48 reiterated that "I'm one of Jehova's Witnesses, and I believe that Jehovah God is a supreme judge and it is not in my place to judge anyone else or to have, for that matter, to be — "
Criss interjected with, "....We have Jehovah's Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail."
When Juror No. 48 didn't budge, Criss ordered his arrest.
The opinion, written by Justice Ken Wise, states that "Punishing a juror for speaking truthfully and expressing his bias has a chilling effect on the jury's ability to respond affirmatively to questions asked during [jury selection]....A trial judge that holds a juror in contempt for expressing his religious beliefs defeats the purpose of [jury selection] and prevents the honest exchange of information between the court and the jury."
Wise wrote that Criss's actions "failed to protect the trial process and deprived Drake of a fair and impartial trial."
Prosecutors had argued in the appeal that Criss was merely trying to maintain order in the courtroom and that Juror No. 48 was "disrespectful [and] disorderly."
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However, Wise stated in the opinion that the record did not reflect such behavior, and added that Criss "engaged Juror No. 48 personally, thereby at least continuing, if not escalating, the angry tone of the exchange."
Criss told the Houston Press that, "This guy was not arrested for expressing his opinion. He was arrested for disrupting the process." She explained that "This is a person who was refusing to participate in the process and expressing his refusal very, very defiantly." (Criss retired from the bench in 2013 and is now in private practice).
She said she didn't believe the arrest had any chilling effect on the prospective jurors, adding, "I think to allow him to disrupt the process and say 'I'm not going to participate' would have led a rush out of the room. Everyone would raise their hand and [say] 'I'm not going to participate,' and then they're gone and then you don't have a jury panel."
We'll keep you posted on Round Two.