Two child sexual assault (CSA) cases in Texas offer a glimpse into the varied kinds of cases in which juries must determine guilt or innocence and, most often, punishment as well. The different results reached in each case reflect the inherent difficulties a defense attorney faces in these kinds of trials.
This past August 2019, a Waco jury found itself hopelessly deadlocked in an 11-1 vote after eight and one half hours of deliberations. The judge was forced to declare a mistrial in the case of 30-year-old Ivan Musgrove who had been indicted for the sexual assault of a 4-year-old child. Musgrove faced a penalty of 25 years to life had he been convicted. He had earlier rejected a 25-year plea deal.
In March 2017, it took a Bowie County jury just three hours to convict 33-year-old Daniel Moneyham for the sexual assault of the underage daughter of his girlfriend. It took the jury just 10 minutes to assess his punishment at the maximum of 20 years and a maximum $10,000 fine.
Importance of Jury Selection in Child Sex Assault Cases
These cases demonstrate the importance of jury selection in CSA cases. Both defendants were indicted for inappropriate touching of underage children. In the Musgrove case, forensic experts testified that a medical exam produced some evidence of abuse while in the Moneyham case the only evidence of the assault came from the 12-year-old victim who testified that Moneyham had inappropriately touched her when she was seven years old.
It is obvious that the Bowie County jury was prone to convict while the Waco was more deliberative. The Waco jury told the judge it was either “deadlocked” or “undecided” in its 11-1 vote. At least one juror could not find guilt beyond a reasonable doubt. That juror’s decision to keep an open mind about the case was more likely than not shaped during the jury selection process beginning with voir dire.
Identifying Biased Jurors
The purpose of voir dire is to identify biased prospective jurors, those who may have had life experiences that could impact their ability to be fair and impartial. This is especially true in CSA cases. To accomplish this goal, defense attorneys representing defendants in such cases must be prepared and thoroughly aware of the basic facts associated with these kinds of cases, such as:
Jurors Likely to Have Experience with Child Sexual Assault
Given the fact that roughly 41 percent of the American population has been the victim of a CSA before they turn 18, it is reasonable to assume that a significant number of prospective jurors have been the victims of a CSA and/or know someone close to them who are CSA victims. This information can usually be derived from juror questionnaires, but if the court does not permit a questionnaire, the defense attorney must then approach the subject delicately during voir dire. A direct question to the prospective juror panel framed as “Has anyone here been the victim of a child sexual assault” would require a CSA victim to admit their abuse in front of the entire panel.
Most prospective jurors would not be comfortable answering such a direct question is front of 60 to 80 other people. A more delicate approach is to frame the question of whether any member of the panel, or any family member or any close friend has ever been the victim of, or has witnessed, or ever been accused of a crime against a child. An affirmative answer would open the door for defense counsel to request that the judge, either with or without the presence of defense counsel and the prosecutor, have a private discussion with the prospective juror(s). The court could then decide whether the juror’s victimization would prevent them from being a fair and impartial juror.
Other sample questions that can be posed to prospective jurors about CSA are:
This line of questioning will not only elicit factual responses but expose belief systems of bias, even hostility, in certain kinds of cases.
Determining Bias of Potential Jurors
News headlines and social media posts have infected potential jury pools across the country with significant amounts of prejudice in all sorts of criminal cases, especially sexual assault cases and those involving minors or young children. A defense attorney’s primary job in voir dire is to weed out and identify specific biases in prospective jurors that, more likely than not, will prevent them from being fair and impartial to the evidence presented.
It is the duty of a juror to judge the weight of the evidence during the guilt/innocence phase of a trial, not simply exercise their biases or predjudices. Jurors will have the opportunity to judge the defendant, and the sum of their lives, in the punishment phase of the trial.
Juries Provide Real-World Psychological Laboratory
Writing in a 2011 edition of the Association of Psychological Science, psychologists Brian H. Bornstein and Edie Greene made these observations:
“Juries also interest psychologists who examine how individuals perceive, interpret, and remember evidence and the ways they reach consensus with others. Juries provide a real-world laboratory for examining theoretical concepts related to reasoning, memory, judgment and decision making, attribution, stereotyping, persuasion, and group behavior. Conversely, psychological research can inform trial procedures. Thus, jury decision making has implications for psychological research and vice versa.”
Roughly 41 percent of white Californians and 88 percent African American Californians agreed with the 1995 not guilty verdict in the O.J. Simpson murder case at the time it was rendered. Twenty years after the verdict 83 percent of white Americans disagreed with the verdict while 57 percent of black Americans agreed with the verdict. The O.J. Simpson murder case was, remains, and always will be as much about our country’s struggle with race as it is legitimacy and weight of the evidence and the resulting jury verdict.
Preconceived Beliefs and Biases
Many prospective jurors summoned to serve in child sexual assault cases have the same preconceived notion of guilt against the defendant without having heard one word of testimony or seen one shred of evidence—just as the overwhelming majority of Americans still believe that Simpson was guilty and “got away with murder.”
The defense attorney must identify jurors with these insurmountable biases and make every effort to keep them off the jury.
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