What Tangled Webs...

 Posted on January 15, 2008 in Uncategorized

The Houston Chronicle has an interesting column today by Lisa Falkenberg, in which she suggests that when Kelly Siegler described the 45,000 members of Houston's Lakewood Church as "screwballs and nuts" she might not have been being entirely candid with the court.

The context: Kelly was trying a capital murder case. The defense made a Batson challenge, alleging that it appeared that Kelly had used a peremptory challenge to remove Matthew Washington from a pool of prospective jurors because of his race (Black).

When the defense makes a Batson challenge, the prosecutor must provide a race-neutral reason for striking that person. If the real reason for the strike is the person's race, the prosecutor might well be tempted to provide whatever race-neutral rationalization jumps into her mind, whether it is entirely true or not.

Courts will accept just about anything as race-neutral justification for a prosecutor's peremptory challenge of a minority juror. It doesn't have to make a whole lot of sense. And, since nobody can read the prosecutor's mind, the prospective juror (who has a right to serve regardless of his race) and the defendant are at the mercy of the prosecutor.

Was Kelly Siegler inventing a race-neutral reason to strike Mr. Washington (who, by Lisa Falkenberg's account, viewed the death penalty favorably)? Or did she really think that all of the members of one of Houston's largest congregations are screwballs and nuts, regardless of their race? (Incidentally, striking a juror because of his religion is unconstitutional too, but most lawyers aren't aware of this.)

When I first read of the incident, I thought that Kelly in all likelihood didn't really think of all Lakewood members as screwballs and nuts; I suspect that was probably the reaction of most criminal trial lawyers. But who knew that the public would care? The public seems to expect some rule-bending from their prosecutors in the name of obtaining convictions. Which would be worse in the eyes of the public: that Kelly was telling the truth about her opinion of Lakewood Church, or that she was lying to try to ensure the death penalty for an evildoer?

If the answer is that it would be worse if Kelly was lying to the court about her opinion of Lakewood Church - if the public is going to hold professional ethical breaches against the candidates for D.A. - then this becomes a different campaign.

I have faced Kelly Siegler in the courtroom only once and had no complaints about her conduct (she was sitting second with a young prosecutor on a kilo case; she tried the usual older-female-prosecutor head games on me; I am immune, and I won), but if professional ethics are important to this election, I expect some of my colleagues who have dealt with her directly more than I may weigh in.

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