Arresting a juror for his religious beliefs (updated 5/20/15 and 1/4/16)

Drake v. State, No. 14-13-00855-CR (Tex. App. May 5, 2015).

The State of Texas charged Alisha Marie Drake with videotaping the sexual assault of her infant granddaughter. At voir dire, a Jehovah’s Witness told the prosecutor that for religious reasons, he could not watch child pornography, even as a juror. Here is what then happened (the Court is the first speaker):

Susan Cress Texas Court of Appeals

After a trial, the jury convicted Drake. The Texas Court of Appeals now reverses the conviction:

Susan Cress Texas Court of Appeals

Everyday around the country, jurors are politely excused from jury duty when they tell the court and counsel that they can’t impartially and fully consider the evidence. Arresting the juror because he had religious objections to fully considering the evidence singled him out for his religious beliefs and violated the First Amendment’s free exercise clause. It may also have violated the clause of the Texas Constitution prohibiting religious tests “as a qualification to any office, or public trust.” At any rate, what the judge did and said certainly violated the criminal defendant’s rights. What’s more, forcing jury service upon somebody who says, “I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else,” isn’t good for the prosecution, either. 

Susan Criss, the judge who had the juror arrested, is apparently no longer on the bench. But in the wake of criticism, she’s taken to her blog to defend her conduct. The juror, she claims, “stood up with arms crossed across his chest, became very angry and emotional, began to make his way out of the pew and was on the way out of the room as this exchange is going on.” Why this justifies the arrest is unclear. Plainly the man was not qualified for jury service—so if he was on his way out, why not just let him go? And Judge Criss’s defense of her conduct certainly doesn’t justify the prejudicial—and gratuitous—comments that led the Court of Appeals to reverse the conviction.

UPDATE (5/20/15): This story has received shouty—though accurate—coverage from cable news.

UPDATE (1/4/16): Somebody pointed out to me that Judge Criss has taken down her earlier blog post, so the original link no longer works. For better or worse, though, the Internet never forgets. I’ve replaced the original link with a link to an archived version of her blog post.