Clay Conrad

What the jury decided was that an “Intoxilyzer” (a machine that purports to measure blood alcohol levels by measuring the amount of alcohol in the breath) was not sufficiently reliable to credit in a close case. The ‘Intoxiliar,’ as criminal defense attorneys call it, came up with a blood alcohol level of .095 percent, only .015 percent over the legal limit of .08 percent. This amount – three parts in 20,000 over the legal limit – is so close the jury had an absolute right to doubt the Intoxilyzer’s accuracy.

Because the State had not proven the reliability of the machine, the jury was obligated to vote not guilty. They were left with nothing to nullify. Judge Ray should have known that.

Judge Ray’s outburst showed that if anyone was not following the law, it was Judge Ray. By chastising the jurors and describing their verdict as “one of the most bizarre [] I’ve seen,” he violated numerous provisions of the Texas Code of Judicial Conduct, which requires judges to remain impartial and to treat both litigants and jurors with patience, dignity and courtesy.

Before a judge criticizes jurors for not following the law, he should make sure that he both knows the law, and is following it himself. Judge Ray either did not understand or did not follow the laws prescribing the State’s burden of proof, or the laws regulating his own conduct in court. He did not understand what jury nullification is, either in history or practice. Texas courts should hold out a big “No Vacancy” sign when this particular visiting judge comes knocking.

Clay Conrad

Clay S. Conrad is the author of Jury Nullification: The Evolution of a Doctrine, recently released as an e-book from the Cato Institute. He is a partner with the Houston law firm of Looney & Conrad P.C.