To Shuffle or Not to Shuffle? A Critical Look at the Jury Shuffle in Texas

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As an attorney sees the jury venire that has been numbered and seated, they observe a cross-section of people in that county. They begin to ready themselves for voir dire. But Texas is nothing if it isn’t big and if it isn’t unique – which means another twist might be around the corner.  

            At this point, the opposing party invokes Texas Rule of Civil Procedure 223[1] or Texas Criminal Procedure Article 35.11[2] for criminal trials – the jury shuffle. Ordinarily, if the county follows an interchangeable jury system[3], the jurors are placed on the general panel randomly and assigned for service from the top down. But, after being assigned to a court, all the names of the assigned jurors are reshuffled in a receptacle and reordered based on the shuffle if any party demands a shuffle before voir dire examination. Only one shuffle is allowed per trial in civil trials while multiple shuffles are allowed in a criminal trial. The jury shuffle is largely unique to Texas, and it is looked at with mixed feelings inside and outside the Lone Star State.

The idea behind the shuffle is that jurors seated first in order are more likely to be placed on the jury while those at the back are not. The shuffle is intended to provide a more diverse jury by reordering the seated potential jurors in an attempt to make it more likely to have a diverse panel and not be stacked by unscrupulous officials.[4] But many opponents believe that is being used for the exact opposite reasons, to make a jury less diverse.[5]

Shuffling based on the racial makeup of the jury has been the reason for several appeals under Texas law in an attempt to apply Batson [6] to the shuffle. The Court in Miller-El v. Dretke even noted that the prosecution had a predisposition to asking for a jury shuffle when the front of the panel was comprised of mainly Black jurors.[7] But as it currently stands, Texas law is not inclined to apply Batson to jury shuffling,[8] and Federal law is only inclined to view shuffling with suspicion under the circumstances, such as improperly peremptorily striking Black panel members as in Miller-El.[9] Even if Batson were applied to jury shuffling, many of the issues surrounding jury shuffling would remain because of the difficulty in showing a Batson violation.[10]

But proponents of the jury shuffle often look at it as a tool to effectively increase the diversity of selected jury. In Yanez v. State, the defendant took this approach and requested a jury shuffle to potentially move the four Hispanic panel members, who were placed at the end of the order, forward.[11] However, the double-edged sword that is the jury shuffle seemingly cuts one way more often, and that is against a diverse.

On its face, few reasons exist that are not based on prospective jurors’ race, gender, or general appearance for requesting a jury shuffle because so little information about the jurors is known before voir dire examination.[12] While it is true that a jury shuffle could be used to increase the diversity of the jury selected, better and more effective means are available that are not as easily abused such as drawing on names from the county based on various identifications, using electronic or mechanical equipment to select potential jurors, and ensuring that the district clerks are maintaining a fair jury pool.[13]

Texans are then left with two important questions regarding the state of the jury shuffle: 1) does the jury shuffle achieve more harm than good in ensuring a diverse jury; and 2) should the jury system be set up to allow for a favorable jury or an impartial one? In its current form, the jury shuffle seems to be doing more harm than good and allowing litigates to shape juries into favorable ones instead of impartial ones, often rewarding gamesmanship instead of fairness.[14]

The answer to those two questions suggests that the jury shuffle has outlived its usefulness in its current form in Texas and should be abolished or reformed to better ensure justice and fairness in jury selection.

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[1] Tex. R. Civ. P. 223

[2] Tex. Crim. P. Art. 35.11

[3] Gov. C. §§62.016, 62.017

[4] SUPREME COURT OF TEXAS JURY TASK FORCE, FINAL REPORT 5, 55-64 (1997), http://www.courts.state.tx.us/commtask/ at 176.

[5] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 316 (2004)

[6] Batson v. Kentucky, 476 U.S. 79 (1986)

[7] Miller-El v. Dretke, 545 U.S. 231 (2005)

[8] Blanton v. Quarterman, 543 F.3d 230, 242 (5th Cir. 2008)

[9] Miller-El, 545 U.S. at 253-54.

[10] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 328 (2004)

[11] Yanez v. State, 403 S.W.2d 412 (1966)

[12] Texans for Lawsuit Reform, Recommendation for Lawsuit Reform: The Civil Jury in Texas (2007)

[13] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 320 (2004)

[14] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 325 (2004)

Discrimination in the Venire?

            It is commonly known that an individual may be automatically disqualified from serving on a jury panel if he or she can swear before the court that he or she does not speak the English language. This disqualification is usually attributed to the fact that it would be an administrative nightmare to attempt to allow that individual to be on the petit jury, should they not be stricken from the panel during jury selection. Yet, should we continue to automatically assume that this treatment of non-English speaking venire members is acceptable, or are defendants actually being wrongfully deprived of a representative venire selection? Is there a case for the claim that the removal of non-English speakers is discriminatory against that individual and the defendant?

            The Sixth Amendment of the Constitution provides criminal defendants the right to a fair trial by a panel of impartial jurors. However, there is no legal precedent that mandates that the petit jury panel must be representative of the community in which the trial is taking place. Rather, the law only stipulates that the petit jury must be chosen from a representative cross section of the community, and it does not entitle a defendant to any particular racial composition in their petit jury. See Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also Justia Online’s article on impartial juries here: http://law.justia.com/constitution/us/amendment-06/07-impartial-jury.html. However, a defendant may object to the exclusion of potential jurors from the jury if it is believed that the exclusion was based on race, particularly if the defendant is a member of that same racial group. See Batson v. Kentucky, 476 U.S. 79, 86 (1986).

            So the question becomes, is there a case for a defendant’s claim of racial discrimination, or even a case based on the Equal Protection clause of the Fourth Amendment, due to the Court’s apparent unwillingness to let non-English speakers participate in a venire jury panel?

            Now obviously there is a clear distinction between one’s language and one’s nationality or race, but shouldn’t a defendant have the right to, at the very least, interview that potential juror to see if they can be fair and impartial if they serve on the jury? Aren’t the person’s beliefs all that should matter? Is the Court taking away, perhaps unconstitutionally, the defendant’s ability to form the fairest and most impartial jury possible, particularly if they are of the same race or nationality as the potential juror? Or rather, should the justice system not bother trying to get every single potential juror on the venire because it would simply be too cumbersome to get a translator for the duration of the trial?

            I recognize that this topic simply raises unrealistic expectations in an already clogged justice system, and truly may not matter in the grand scheme of determining a person’s innocent or guilt. Surely, there is more to the outcome of a trial than the mix of individuals sitting in the illustrious chairs of justice. But is there not some merit to an argument for equal application of the law, however impractical in the scenario presented here? Shouldn’t we strive to have a justice system where all citizens, no matter their native language, can weigh in on the justice system so that equality and fairness might prevail? Only time, and a really good fact pattern, will tell.