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November 20, 2013 – In a recent story published by Texas Monthly, titled “In a Bizarre Outburst, Judge Tells Jury They’ve Rendered the Most Bizarre Verdict He’s Ever Seen,” the importance of jury trials is highlighted. The case involved a defendant who was charged with driving while intoxicated (DWI) and focused on the Intoxilyzer device used after his arrest. The evidence presented in connection with the Intoxilyzer device troubled the jury. In fact, the jury was so troubled with the evidence that they sent a note during their deliberations asking the trial judge if they could ignore the evidence – the answer of course is yes. Juries are the judges of facts of the case and they can decide what evidence to consider or not to consider.

The jury correctly decided to question and ultimately disregard the junk science associated with the Intoxilyzer device and returned a verdict of “Not Guilty.” That verdict led to this bizarre outburst by the Judge:

“I’ve been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did. The note that you sent out says, “Can we ignore the Intoxilyzer.” And you have the definitions of intoxication. And they were certainly—At least that one was very plain in this case and up on the board for you to see. And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It’s called jury nullification. It’s when a jury decides to ignore the law or ignore the evidence. And they just want a certain outcome, and they maneuver until they get there. Perfect example, the O.J. Simpson trial. He clearly committed murder, and the jury didn’t want to convict him, so they found a way to—to render a not guilty verdict. So it happens. I’ve been around over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I’ve seen. Thank you for your service, and you are excused.”

Here you have a judge who lauded his extensive legal experience to a jury, yet he would have failed a criminal law exam if the above excerpt was his essay – though I’ll choose not to focus on his incorrect statements regarding jury nullification (one would hope that in 40 years he would have learned the definition of the legal term). Juries decide the facts of the case and part of that decision involves questioning the evidence presented by both sides. This jury did not believe the testimony provided regarding the Intoxilyzer and made the right decision to restore the defendant’s freedom. For a judge to then berate them is simply unheard of. When a verdict is announced at the end of every single trial, one side is less than pleased. However, the lawyers are professionals and adhere to the conduct prescribed by their profession. Judges should not be the exception – and very rarely such as in this bizarre case are they the exception.

One must wonder how many DWI trials this judge presided over during the course of his career. Jurors have been questioning the accuracy of Intoxilyzer evidence for years and for good reason. When I was with the Harris County District Attorney’s Office, I assisted in the prosecution of Deetrice Wallace, a former Department of Public Safety (DPS) contractor who faked inspections of alcohol breath testing devices. She compromised thousands of breath samples and as a result, many DWI cases were dismissed in the interest of justice. However, even without an Intoxilyzer supervisor falsifying records, there are still many questions surrounding the science of these machines. They are not used in any other field. The training to operate the machines is questionable. They break down on a routine basis. To make matters worse, in Texas, law enforcement agencies cannot afford newer Intoxilyzers employed in other states.

The bottom line is that the defendant mentioned in the article was very lucky that we have a criminal justice system that allows for a jury of his/her peers to decide their case. If the judge made the call, we know a miscarriage of justice would have been the result.

It is always important for an attorney to request the breath test records maintained for your particular case and to be able to examine them for any signs of weakness. Regardless of your situation, if you have been arrested for a DWI in Beaumont or southeast Texas, do not try to handle the legal situation yourself. Contact Ryan MacLeod, attorney with the Bernsen Law Firm. We will make sure that your rights are protected.

NOTE: This information is not legal advice. It is provided for educational use only. If you need legal advice regarding a DWI offense in the State of Texas, please contact the Bernsen Law Firm at 409-212-9994.

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