Wisconsin Lawyer
Vol. 85, No. 9, September 2012

Recently I had the honor to serve on a jury – along with the responsibility of being jury foreman – for the sentencing phase of a criminal drunk-driving case in Bexar County (San Antonio), Texas.¹ This article conveys my thoughts and experiences in those roles from the perspective of having previously done criminal defense work in Wisconsin. The jury experience was sad, fascinating, and memorable.² In drunk-driving cases, there are no winners.

The Facts

The defendant was Jacob V. Perez, a U.S. Army private based at Lackland AFB in San Antonio, who was charged with five felonies after driving the wrong way on a San Antonio freeway on July 12, 2010, and colliding with two vehicles. One person died and four others were severely injured as a result. Perez was charged with five counts: one count of intoxication manslaughter and four counts of intoxication assault. Under Texas law, he faced potential incarceration of two to 20 years for the manslaughter count and two to 10 years for each of the four assault counts. Probation was an option for the jury, concurrent with suspended prison sentences. In Texas, unlike in Wisconsin, juries decide sentences, and judges are bound to them in such cases. The case was tried from April 30, 2012 through May 3, 2012. On the morning of April 30, the defendant pleaded guilty to all charges. Jury selection then began for the sentencing trial.

The case was tried before Judge Raymond Angelini, 187th Criminal District Court, Bexar County, Texas.

Potential jurors were asked the usual questions, including whether 1) they had prior knowledge of the case, including through the media; 2) they knew the judge, attorneys, law enforcement personnel, defendant, victims, or their families; 3) they could render a fair and impartial sentence based on the evidence; 4) they or their families or close friends had ever been convicted of alcohol-based crimes; 5) they were victims of alcohol-related crimes or knew others who were victims; and 6) they had legal education or background. Judge Angelini and the attorneys quizzed me about my law license, what kind of practice I had engaged in, and how long it had been since I practiced. To my surprise, I was chosen for the jury. I am convinced (though I did not ask Judge Angelini or the prosecuting and defense attorneys) that because I only practiced law in Wisconsin and it had been several years since I appeared as an attorney in a courtroom (including drunk-driving cases), those factors were largely responsible for me being chosen for the jury. In the past when I was in a jury pool, I was not chosen because I was an attorney.

Trial Observations

This trial had several interesting dimensions that heavily influenced the jury's sentencing verdict. First, the defendant repeatedly stated on the stand that he was guilty of the charges and that he was truly sorry for what he had done, in a voice that combined loud wailing and crying. Listening to him on both direct and cross examination convinced me that he was sincere in his remorse. I have never seen a defendant act in such a manner while on the stand. Some jurors were visibly affected by his emotion and substance on the stand.

The testimony of the defendant's wife was another important evidentiary dimension. They began dating in June 2010, a month before the tragedy. Her testimony was significant because her brother was killed by a drunk driver several years ago; she knew what it was like to lose a family member to the actions of a drunk driver. So, her testimony that the defendant was truly sorry had an impact on the jury.

The third significant aspect occurred on the morning of May 3. Before entering court that day, the defendant met, for the first time, the parents of the deceased individual. The parents told the defendant that they forgave him, and the defendant told them that he was guilty and truly sorry for his actions. After this conversation, they formed a circle and cried and prayed together. Later, in court, the defendant testified about what happened outside the courtroom. This evidence was quite powerful and we discussed it in some detail during our jury deliberations.

These three details aside, the rest of the main jury presentation was predictable for a drunk-driving case in which the defendant had already pleaded guilty. The wife of the deceased and the three adult victims who survived testified for the prosecution (the fourth survivor was a minor and did not testify). The widow's testimony was powerful and illustrated the damage a drunk driver can do to a family. Similarly, the surviving victims testified to what it was like to lose the deceased as both a father and a friend.

Because the defendant had already pleaded guilty to the five felonies for sentencing purposes, the prosecution presented the detailed evidence necessary to illustrate exactly what happened that night, from how the defendant and a military colleague drank cans of Four Loko (a malt liquor containing a high concentration of caffeine) before the friend fell asleep, the defendant got in the truck he owned and entered the freeway going in the wrong direction, to how vehicles on Highway 90 swerved to avoid the defendant. Evidence was presented as to how the defendant hit two vehicles that could not avoid the oncoming truck, how the defendant's truck exploded in a fireball on impact, and the extensive damage at the accident site that required closure of the highway. Clearly, the prosecution's role was to prove the defendant had a drinking problem that bordered on intent, and the defense's role was to show that the defendant accepted responsibility for his actions and was truly sorry.

The prosecution asked for 11 to 15 years' incarceration on the manslaughter charge. The defense argued for probation. In connection with the latter, the jury heard defense testimony about the latest technology in alcohol detection and monitoring devices. The prosecution argued that some defendants cut off their ankle devices and attached them to their dogs in an effort to avoid detection.

After closing arguments and jury instructions, we returned to the jury room to begin our deliberations.

Judge Angelini was a fair but stern judge. He did a commendable job of finding the right response at the right time, knowing when to be flexible and when to go "by the book." His demeanor tended to be laid back, but the attorneys knew it was possible to push him too far. After we concluded our jury service, Judge Angelini came to the jury room to thank us for our work, and had several comments for me. I was impressed with how he approached his responsibilities.

Jury Deliberations

Our first task was to elect a jury foreperson. I volunteered, and several individuals said they had wanted me to serve in this role anyway. There were no objections from the entire group to having a lawyer as foreman. And, yes, I heard a few lawyer jokes while on the jury.

Our next task was to determine whether the defendant had used a "deadly weapon" in the commission of the crimes. The group was unanimous that, whether the driver is drunk or sober, a motor vehicle on a freeway is a deadly weapon. As with the other verdict forms, I filled out and signed this form as jury foreman.

Next, we had to decide the number of years of incarceration for each count. The manslaughter count had the range of 2-20 years and the assault counts 2-10 years each. We could not decide on the specific number of years for the manslaughter count; the "jury split" was roughly 50/50 for a range. As foreman, I thought it was my duty to facilitate the discussion but also allow everyone the ability to fully express their thoughts and opinions – all the while not pressuring anyone into their decisions. It was important that no juror pressure others, and I believed it particularly important that I not appear to be doing so. Several jurors expressed these same sentiments.

Lurking in the background of this deliberation was the issue of the defendant's eligibility for probation. If we decided to give the defendant more than 10 years' incarceration on the manslaughter charge, then probation would not be a possibility.

When we could not agree on the incarceration term for the manslaughter charge, we decided to turn the discussion to whether probation was appropriate in this case. Approximately 10 of the 12 jurors felt that probation was appropriate given that the defendant had no prior arrests, graduated with honors from high school, was given an honorable discharge by the U.S. Army after the tragedy, and through his testimony showed sorrow for his actions. A couple jurors felt that mandatory incarceration should occur any time a drunk driver kills someone.

This led to a discussion as to whether the jury felt the defendant was truly sorry for the tragedy he caused and whether we believed the defendant could rehabilitate himself. During the trial, the defendant had said that he wanted to provide restitution to the victims. I pointed out that if we gave him mandatory incarceration he most likely would never be able to make restitution because he would not be able to get a decent-paying, permanent full-time job. The jurors also considered the fact that the defendant and his wife had a young child, and the effect of mandatory incarceration on those relationships. The jurors who initially favored mandatory incarceration eventually decided to vote in favor of probation. At that point, we went back to the number of years for incarceration.

Because the jury supported probation for the defendant, the number of years per count had to be less than 10 for each of the five counts. We discussed the four assault charges first. Because they all resulted from the same accident and the same facts, we ultimately decided on three years' incarceration for each count. A few jurors suggested that we should state the years based on the severity of the victims' injuries, but I noted that the jury instructions did not point this out specifically. So, we kept the years the same for each of the four counts.

Returning to the manslaughter count, we quickly decided that the defendant should receive 10 years, the maximum possible without taking probation off the table.

In the end, the jury recommended 10 years' incarceration on the manslaughter count and three years each on the four assault counts, for a total of 22 years' incarceration, suspended, so that the defendant could be given probation (also called community service in Texas).

The Sentence

In addition to probation, at the June 11 sentencing hearing, Judge Angelini ordered the defendant to serve the balance of a six-month jail term – as a condition of probation – before probation kicked in; perform 1,000 hours of community service; and pay $85,000 in medical bills for two of the victims.³

Under Texas law, Judge Angelini was bound by the jury's probation decision. In Wisconsin, juries do not decide sentences.

Personal Reflection

As a juror, I was immediately struck by the immense weight of responsibility and duty that jurors feel when they are involved with a case like this. We all took that duty seriously. The 12 of us were involved in making decisions that would affect the defendant for the rest of his life. I suppose that given my legal training I approached this responsibility a bit more analytically, but as a practical responsibility, the weight of our duty was definitely a surprise.

During jury deliberation I felt a duty to balance punishment and hope. The facts of this case gave me pause to consider this balance, one that would avoid such a heavy punishment that the defendant would have little opportunity for rehabilitation but would allow him to ultimately be a productive member of society. With the defendant having no prior record of wrongdoing, it was hard to justify a long mandatory incarceration. Reasonable minds will differ on this.

The jury bonded well over three days. We spent time talking about what we did and what our lives were like outside the jury box. We would grab lunch together, enjoying the chance to share each other's company and not talk about the case. By the last day, we could ascertain a glimpse of each other's personalities, which gave way to some jokes. Of course, I was known as the lawyer of the group. Was that a good or bad thing? Obviously, that is why I was chosen as foreman. Others had a military background, like the defendant, and knew what training in the U.S. military is like. This bonding helped us with our task.

Lastly, I came to think about how this sort of experience could benefit law students. For instance, serving on a jury in law school would have been a great educational experience. Mock jury decision making would be a fantastic law school course. This sort of experience would be very educational for law students, who would have the opportunity to see how nonlawyer jurors make decisions.

My experience on this jury and as its foreman was quite memorable. Beyond the educational value, it was truly an honor to serve the community in such a fashion. I have heard many comments over the years from people who do whatever they can to avoid jury service because they feel it is a useless exercise or a waste of time. I was raised and educated to believe jury service is an important responsibility of citizenship; from my experience in this case, I definitely know this to be true.

Conclusion

This experience led me to reach the following conclusions. I don't claim to have any great new insights or "a-ha!" moments to share, but I do believe it has given me a much deeper appreciation for juries and their role in the American justice system:

1. This case is a tragedy on many levels, and lives were lost and irrevocably altered because of Mr. Perez's actions. He cannot make right what he did wrong.
2. What is the proper balance of punishment and rehabilitation for criminal actions? This case, with its specific details, brought this question into stark relief. It would have been easy to give the defendant a long mandatory sentence, to send a message to the greater San Antonio community that drunk driving is not tolerated. The evidence, however, required a bit more thought and nuance. We believed the defendant deserved a second chance.
3. The law should be practiced and applied with thoughtfulness and nuance.
4. Ideally, jury decision making should be structured, allowing for the appropriate and thorough expression of thought, facts, and emotion.

Nobody wins in a drunk-driving case. However, the legal system – and juries in particular – can provide thought, nuance, and structure so that an appropriate punishment is devised. In my opinion, that is what we tried to do.

Endnotes

¹ Disclaimer: This article clearly is not a transcript of what happened in the courtroom and in the jury room. The thoughts provided here are the author's alone. The author thanks Dr. John Carfora, associate vice president for research advancement and compliance at Loyola Marymount University, for his feedback on the first draft.

² Bexar County Defendant ID #0954478. Bexar County Cause Numbers: 2010 CR 8110 (Intoxication Assault); 2010 CR 8111 (Intoxication Assault); 2010 CR 8112 (Intoxication Manslaughter); 2010 CR 8113 (Intoxication Assault); 2010 CR 8114 (Intoxication Assault).

³ See www.mysanantonio.com/news/local_news/article/Judge-includes-jail-as-probation-condition-in-DWI-3625899.php.

Wisconsin Lawyer