By Ian White
Former Galveston district court judge Susan Criss fought back after being dealt a double blow by appeals justices this week when verdicts in two of her cases came under fire.
In one decision, a 14th-court-of-appeals panel ruled that her “actions and remarks during the selection of the jury prevented a fair and impartial trial” and ordered a new trial.
But she fought back after the three judges blasted her for preventing jury impartiality during a child-pornography case that ended with a 15-year custodial sentence for the defendant but began with the judge arresting a potential juror.
In the other ruling, the first court of appeals recalled an April mandate in which it had affirmed a verdict by Criss’ 212th district court because the case involved has gone to the US supreme court.
Former judge defends pre-trial jury arrest
AS JUDGE in Galveston’s 212th district court in August 2013, Susan Criss raised eyebrows by arresting a potential juror during the selection process for a case involving child pornography.
Now the state’s 14th court of appeals has ruled that the case must be reheard because the arrest and remarks Criss made during jury selection prevented the defendant’s right to a fair and impartial trial.
But Criss claims the appeal judges were not given the facts of the arrest and that her decision to incarcerate the juror was within the law.
She told The Post that, rather than having the man arrested because he had refused to look at child pornography if appointed to the jury, she locked him up because he was attempting to leave the courtroom without permission.
The case ended with the conviction of Alisha Marie Drake, then 24, for sexual performance by a child younger than 14.
Drake, of Aurora, was convicted after pleading not guilty to the second-degree felony, which involved making a cell-phone video recording of a man sexually assaulting his 14-month-old granddaughter.
The appeal court’s ruling noted that, during the potential jurors’ voir dire examination, Criss argued with the 48th member of the panel, who claimed that, for religious reasons, he could not view child pornography and would close his eyes if presented with such images.
At this point, the appeal ruling states, Criss gave a lengthy address to the panel in which she said, “if you believe in God, God wants you to protect the children” and, if a “kid had to go through that, then adults can watch a film”.
She also said: “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 grossed out that child. So that’s what my God tells me.”
She then told juror 48: “If you get on this jury and I order you to look at something, you will get yourself locked up. So you want to find out what my God will tell me to do? Let’s test it, buddy. Let’s test it.”
Juror 48 said: “I believe that Jehovah God is a supreme judge and it is not in my place to judge anyone else.”
Criss replied: “All right. I understand that. 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.”
According to the ruling, as the judge told him to have a seat, juror 48 responded: “OK then – I guess they have to visit me.”
The appeals judges wrote that Criss shot back: “All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.”
The appeal judges noted that neither the prosecuting or defense counsel objected to the arrest or Criss’ remarks but ruled that objection was not necessary for the appeal because the judge’s actions constituted “fundamental error”.
Criss said on Friday: “The juror was not arrested for his religious beliefs or not wanting to look at child porn. He stood, with his arms across his chest, and was walking out of the door, making it clear he was not going to stay. That’s why counsel did not object.
“I was giving my normal explanation to the jury but, on this occasion, I didn’t do as well as I normally do, granted. However, you don’t get the option of leaving voir dire.”
The appeal-court ruling states that, later, Criss interrupted another potential juror to say: “If we could let people go, we would let people go, but we are not. And I’m not playing, and I don’t care if anybody likes it or not. That’s what we have to do and we are going to do that to pick this jury.”
Attorney Lori Laird appealed on Drake’s behalf, claiming Criss had committed a fundamental error by arresting juror 48 in front of the jury panel and by commenting on “the punishment that should be imposed”.
Laird also asserted that Criss’ actions and remarks during voir dire had deprived her client of a fair and impartial jury during trial.
The appeals panel agreed, writing: “The term ‘voir dire’ literally means ‘to speak the truth’… 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 voir dire.”
The judges added: “Even if juror 48’s tone was disrespectful, it is a judge’s role to maintain decorum without resorting to personal argument. This record reflects that the trial judge engaged juror 48 personally, thereby at least continuing, if not escalating, the angry tone of the exchange.
“It certainly cannot be said that juror 48 actually wanted to be arrested. Instead, juror 48 affirmatively responded to … the trial judge’s questions regarding the jurors’ views on child pornography.”
Later in their 14-page opinion, they wrote: “Along with holding the juror in contempt, the trial judge’s comments about Drake’s case and punishment undoubtedly influenced the jury’s opinion about the case before it even began.”
Noting that “the record reflects that the jury was intimidated by the encounter between the trial judge and juror 48”, the judges concluded: “The trial judge’s decision to arrest a juror for speaking truthfully about his bias and … to comment on Drake’s case leave us with no other option but to reverse the conviction. The trial judge’s actions failed to protect the trial process and deprived Drake of a fair and impartial trial.
“We hold that the trial judge committed fundamental error. Accordingly, we reverse the conviction and remand the case for a new trial.”
Criss said she had not heard whether the county’s district attorney, Jack Roady, will contest the appeals court’s decision.
“It’s not my choice,” she told The Post. “Technically, the district attorney’s office lost the appeal, so I guess it’s up to Jack.”
Asked for his reaction, Roady said: “The appeal judges made their decision based on the trial court record and the court of criminal appeals would look at the same facts if we appealed to it so we are not going to appeal the decision upwards. If we must try the case again, that’s what we will do.”
The DA also said the man accused of sexually assaulting his infant daughter has yet to be tried.
Supreme court bid challenges appeal victory
THE SECOND case, filed in Criss’ court in 2012, aagainst then 19-year-old Kaylen Dewayne Simmons.
On September 25, 2013, Simmons pleaded guilty to the second-degree felony and Criss sentenced him to six years’ deferred community supervision.
His attorney, Houston-based Joseph Willey, appealed that the judge had erred when denying a motion to suppress evidence seized by police during the search of a car in which the defendant had been a passenger.
On October 30 last year, the first court of appeals ruled in favor of the judge and last month it issued a mandate that its ruling be observed.
But by then Willie had applied to the supreme court for a writ of certiorari, a legal instrument granting judicial review of a case by a superior court and directing an inferior court to submit for review the record of its proceedings in the contested case.
Accordingly, the appeals court this week ordered the 212th district court, where Patricia Grady now presides, to return its April mandate.
As The Post went to press on Friday, there was no indication of when, or if, the supreme court will take up the appeal.