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Trying A Case During COVID And Sexual Assault Questions

By: Mark Diaz April 13, 2021 no comments

Trying A Case During COVID And Sexual Assault Questions


What is it like trying a case during the pandemic? How have covid protocols affected the court process?

Last week, I was on a trial in the 405th District Court here in Galveston, judge Jared Robinson, presiding. I had an aggravated assault, causing serious bodily injury. Under the new protocols, we started the trial. Everything about trying the case under the current protocols is extremely different and fairly difficult. 

To begin with, we started with voir dire, which is picking the jury. If I remember correctly, we had 55 people in the jar, which is the jury assembly room, we call it the jar. They have set up the jar here in Galveston county where all the prospective jurors are seated six feet apart and everyone is required to wear a mask in the proceeding. One additional difficulty was there were two large columns in the jar. So there are people seated behind the columns that you can’t see if you’re standing at the podium with the microphone. 

There was at least one occasion where I was questioning the panel, that someone out of my view had raised their hand, I didn’t see it, and the judge had to alert me. The other strange thing is when someone has a mask on, you can’t see their full facial reactions. So I can’t see if someone’s smiling, frowning, sticking their tongue out at me, I have no way to know. We have to rely on people participating, willingly or not. Meaning they either raise their hand and volunteer, or we have to pick out certain prospective jurors and ask them a question directly to try and elicit a response. 

Major Differences Of Conducting A Trial During COVID

The reason that’s different is that in years past when I’m picking a jury, and I’m looking at facial expressions, for instance, I can sometimes tell from a person’s facial expressions and mannerisms that they are not going to be a good juror for me, so I don’t spend a lot of time questioning that witness. So for however long this goes forward we have to adjust that for that. Also, because of all this, the process takes much longer than it did before. Picking that jury took almost the whole day. We picked 12 jurors and one alternate. So that was all in the jar. 

Then the courtroom is on the third floor. So the next day we resumed in the courtroom, which is also set up quite a bit different. During our trial, there was a plexiglass partition for the witness stand, which was also wrapped around by the court reporter, and then it was up where the judge was, and then also where the clerks are to the side of the judge so that everyone was fairly well protected. 

Again, everyone had to wear face masks during the entire proceeding. Also, in an attempt to keep the jurors socially distant, we had some in the jury box and some seated out in the audience so that half of the courtroom was closed off to the general public because we were housing jurors there too. This was quite a bit different because for over 20 years I’ve been trying cases to the people sitting in the jury box. 

Now I have to remember to address the people out in the audience and the people in the jury box. The only people that were allowed to remove their masks were the witnesses testifying on the stand, and that was because they were behind the plexiglass partition. Even then, the microphone for the witness had a cover on it, and every time a witness got done, they would remove the cover, throw it away, put their mask back on, and then leave the witness stand. The court’s Bailiff would sanitize the area, put a new protective cover on the microphone, and we had to let that dry before the next witness could be called. 

So that kind of lengthens the process of calling witnesses. Back to the thing about wearing the face masks the entire time, it’s uncomfortable. When you’re sitting and not talking, it’s not as bad. When you’re talking like when I was speaking with the jury. It’s bad because it gets a little hot. It was funny watching some of the prospective jurors that were struggling with wearing the masks. 

Some were pulling it out, trying to get air, some people had it down, and then a different deputy would go tell them to put their mask on. That was obviously out of the norm. While I’m watching this, and I’m seeing this person struggling with their mask, I’m thinking in my head, is this person paying attention? Are they more worried about being irritated by the mask? 

Odd Experiences During The Trial

We had two odd things happen during jury selection, one was a man who just got up and started walking out. He told the deputy he had to go to the restroom and couldn’t wait. It was sort of odd that he thought he could just get up and leave because obviously everything has to stop until he comes back. I guess maybe we should have admonished the jurors that if they needed a break to raise their hand, please don’t just get up and leave. 

So that little snafu caused the judge to let everyone take a quick restroom break if they needed it. There was another potential juror who repeatedly stood up. So at a bench conference, the judge asked, should we call that woman up and see if there’s something wrong that she can’t sit for prolonged periods? We needed to know that if she can’t sit through the trial. We need to know. 

So we called her up outside of the earshot of everyone else and said, ma’am, we noticed that you stood up a lot, do you have some type of medical condition where you can’t sit for a long time? She says no, I got up because my watch told me to stand up. So that was kind of funny. We’re in the middle of jury selection and her smartwatch is telling her, you need to move so she was just getting up. 

Then another small little incident, which I pointed out. At some point during the state’s voir dire, they read out the names of the witnesses, which include police officers that may testify. So that list is read and then everyone is asked, do you know any of these people? So we were asking some general questions at the end like “Is there anything you think we need to know?”. 

This gentleman raised his hand and said yes. He said, well, I realized that I do know one of those officers, he was my neighbor. He said I wasn’t sure so I had to ask. Well, who did he ask? He said so I called my wife because I only knew his first name, and she confirmed that was him. So then I had to take that opportunity to educate the jury that as a juror you cannot do outside research and get information, you have to rely on what’s presented to you by the state from the witness stand, you can’t call your wife and ask her to help you fill in the puzzle. So that was kind of interesting. 

So what was the case? Overall, it was an aggravated assault. The reason it was aggravated was because of the serious bodily injury. The reason we went to trial is that the state would not offer anything except for time in the penitentiary. The state asked the jury for time in the penitentiary, but we were able to get probation from the jury. So from the defense standpoint, that’s a win, because my client didn’t go to the penitentiary. 

So that’s kind of the rundown. Trying a case under COVID protocol is not ideal for anyone involved. This client was in jail. So I did not want to let him sit in jail any longer. I did not want to try to move for a continuance based upon the pandemic and the situation. I had a good hope that the jury would give him probation, and that way he could get out of jail. So the point is, the system is working. Now, that being said, this was a fairly simple case, so I knew it wasn’t going to be a prolonged trial, would I want to try a very serious case that was going to last a week or more under the same conditions, I would not. It would be very difficult. Hopefully moving forward, things will start to loosen up a little more, and we can get back to normal in that respect. 

Now we are going to answer some questions we got on sexual assault.

What defines sexual assault in Texas?

The easiest way to say that is it is having sexual activity with someone who does not consent. The reason they don’t consent could be for several reasons. One, if it’s alleged forcibly, two, if the person is passed out on drugs, any way you can think of that a person did not consent, and then sex is forced upon them, that is sexual assault in Texas. 

Are sexual assault cases public record?

Yes, every crime is public record. When you are charged with a crime, once your case is open, it will be viewable by anyone with access to a computer. Law enforcement will see it, potential employers who do a background check on you will see any case, not just sexual assault. Any crime that you’re charged with is a public record.

Is sexual assault a felony? 

Yes. It starts at a second-degree felony and goes up from there with different enhancements at different levels. For instance, once you start talking about the sexual assault of children, if the children are under a certain age, the punishment range becomes not only a first degree, but it can have a minimum of 25 years with a maximum of 99 years or life. 

Can sexual assault be verbal?

No. You can’t sexually assault someone verbally. Now there is Class C, you can be written a citation. You can be given a ticket for saying offensive things to someone, but that’s not sexual assault. So no sexual assault cannot be verbal. 

Can sexual assault charges be dropped?

Any case can be dropped. The state court is always styled as “The state of Texas versus Joe citizen”. So the state of Texas brings charges against an individual, and the state of Texas can always decide to dismiss those charges for any reason that the state sees fit. So yes, sexual assault charges can be dropped just like anything else. 

Is it difficult to defend sexual assault charges?

It is very difficult to defend a sexual assault charge. Generally, there are only two people. One is the person accused. The second is the alleged victim of the sexual assault. There are no witnesses. Unless there is some trauma involved, there is often no physical evidence. Sometimes there can be DNA evidence but still, we have the issue of consent. 

There have been cases where I believe that a person did consent. Maybe they were intoxicated, or maybe they had a significant other, and after having done the deed, they later regretted it and couldn’t face the possibility of their significant other finding out, and so they make up sexual assault charges. That has happened. Generally speaking, yes. It’s very difficult to defend a sexual assault charge. 

Are there different degrees of sexual assault?

Yes, there are. As I said in a previous answer, they’re felonies. It starts at a second degree and just goes up from there as it changes. There are different punishment ranges for different types of offenses, different punishment ranges for different types of relationships, meaning educator and student. If the person is disabled, and so on. Yes, there are different degrees. The penal code is pretty complicated and long in the sexual assault area. 

What is the difference between sexually harassed and sexually assaulted?

Sexually assaulted is a criminal offense and means that someone is alleged to have forced another to participate in sexual activity. Sexual harassment is not a criminal allegation, sexual harassment is more in civil litigation. Sexual harassment is usually verbal, because if it became physical, then it would move into the range of sexual assault. So sexually harassing someone is usually like in the workplace, saying inappropriate things, making inappropriate comments about the way a person looks or ideas you may have about that person that are of a sexual nature, that is sexual harassment, and that is civil, rather than rising to the level of sexual assault, which is criminal. 

If you have questions or concerns about a potential sexual assault case in Texas call our sexual assault lawyer in Galveston, attorney Mark Diaz at (409) 572-8095 or contact him via the contact form here.

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