TEXAS JOURNAL ON CIVIL LIBERTIES & CIVIL RIGHTS
QUICK LINKS: Home - About Us - Editorial Boards - Join - Events - Submissions - Copyright/Editorial Policies - Subscriptions - Current Sponsors - Donate - Advertise - Alumni - Archives - Blog
CURRENT LOCATION: TJCLCR | Archives | VOLUME 2, ISSUE 1 (Winter, 1995)

 

Volume 2, Number 1, Summer 1995

ARTICLES

Jury Nullification as a Defense Strategy, 1
Clay S. Conrad

“Jury nullification”, or “jury independence”, is the doctrine that jurors in criminal trials have the power to judge the law under which the defendant is accused in addition to their role as finder of fact.

Jury nullification is a controversial issue because it allows the jury to acquit a defendant if the jury believes the law in that case to be unjust or misapplied, or if the jury believes the judge is misinterpreting the law, regardless of the defendant's technical guilt or innocence. In addition, jury nullification is very subversive in that it may diminish the court's role as sole judge of law as well as state-sponsored oppression.

The article outlines the criminal defense lawyers' challenge in seeking a nullification verdict. Jury nullification is a vital tool to the criminal defense lawyer in representing clients who, while technically guilty, are morally blameless. In addition, it allows the jury to counteract the “potentially oppressive power of the state”. Conrad states, “Laws that are regularly nullified are laws that should change”. In this regard, jury nullification plays a legislative role in defining social and legal change.


 

The Efforts of Texas Courts to Disable Disability Law in Texas, 43
Josh Bernstein

This article discusses how the American Disabilities Act (ADA) has been adjudicated in the State of Texas. Since the ADA was passed by President Bush in 1990, federal courts have consistently upheld ADA standards and have honored the Equal Opportunity Employment Commission's regulations in this area. But the Texas Courts have completely disregarded the national prevailing trends of reform in anti-discrimination laws.

In fact since Chevron Corp. v. Redmon was handed down in 1987, Texas courts have followed two trends 1) looking to courts of other jurisdiction for authority that supported a court's point of view, while disregarding readily available precedent from its own jurisdiction, and 2) offering that the determination of whether an individual is disabled is usually a question of fact, and then proceeding to grant summary judgments to defendants on that issue.

This reluctance in following the federal jurisprudence of the ADA reflects the prevailing discriminatory attitudes towards people with disabilities which was what the ADA was intended to counteract.


 

The Case of Gary Graham: After a Procedural Circus, A Pyrrhic Victory, 69
Peter T. Hofer and Ryan J. Maierson

The unusual procedural developments surrounding Gary Graham reflect less on the individual facts of his case than on the political power struggle between the Texas Supreme Court and the Court of Criminal Appeals.

Breaking from procedure, the Court of Criminal Appeals effectively took Graham's appeal away from the Third Court of Appeals, merely because of Graham's status as a convicted felon on death row. It argued that an injunction against Graham's execution date intended to preserve jurisdiction until the resolution of the civil appeal was a purely criminal matter and as such fell under the control of the Court of Criminal Appeals and not under any of the civil courts. Essentially the Court of Criminal Appeals stated that only criminal courts have authority to stay execution dates, regardless of the situation.

Rather than addressing the issue Graham was contending—whether or not the Board of Pardons and Paroles had acted in a constitutional manner under the Texas State Constitution—the Court of Criminal Appeals responded as if Graham had brought a due process claim under the Fourteenth Amendment. Consequently, the Court of Criminal Appeals' solution to Graham's problem was to create a new, yet virtually unachievable, habeas rule.

NOTE

Navigating the Constitutional Minefield of Race-Conscious Redistricting, 81
George W. Jordan III

The United States Supreme Court decision of Miller v. Johnson (1995) left several unresolved issues in the application of the Equal Protection clause of the Fourteenth Amendment to the state redistricting process. As a result, state legislatures have little guidance in creating legislative districts that will meet with the Supreme Court's approval.

The note suggests several ways for state legislatures to maximize minority voting strength without violating the Equal Protection clause by focusing on the “compelling interest” and “narrowly tailored” requirements of Supreme Court equal protection analysis.

Miller applied a familiar rule in equal protection analysis to state redistricting cases—that state racial classifications are inherently suspect and thus unconstitutional unless narrowly tailored to achieve a compelling state interest. When applied to redistricting plans that do not include explicit racial classifications, this rule invalidates any state redistricting plan “that is so bizarre on its face that it is unexplainable on grounds other than race”.

A problem arises when a state attempts to use obtaining federal preclearance of a redistricting plan under Section of the Voting Rights Act of 1965 as a compelling interest. The Supreme Court held in Shaw v. Reno (1993) that compliance with federal antidiscrimination laws may be a compelling interest.