The Law Office of Joseph Moreno

Federal and State Criminal Defense


An impartial Jury

Posted on October 12, 2018 at 1:20 PM

The Sixth Amendment to the United States Constitution provides "the accused" with "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." In today's political climate, that may not be so easy to do. Juries and jury pools are composed of a person's "peers." People who live in the community, for the most part, where the trial is had; where the defendant/accused resides; where the alleged crime took place. People who are affected by the politics put out in the news, on television shows, in the music that is played over the radio, computer, smart phone, or whatever other device is capable of media displays. When he was running for office, President Donald Trump said of Mexico, "When Mexico sends its people, they're not sending their best. They're not sending you. They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people. Enter the case of Agustina Hernandez Hernandez. Ms. Hernandez was accused of possession of marijuana. The allegation was that she knowingly, and intentionally possessed marijuana" when she stopped her car and let three individuals into the vehicle who were in possession of one bundle of marijuana each. It was late in the evening and the road was a road hardly used by mainstreams of traffic. When officers pulled Ms. Hernandez over, they asked her to lower her window. The officer's claimed at trial that they could smell the marijuana as soon as the windows were rolled down. They then asked for a canine to do an open air sniff to determine whether there were drugs present in the vehicle. After the canine made a positive alert for drugs, officers had everyone exit the vehicle while they searched the vehicle. They then located bundles of a substance they believed to be marijuana. Officers then cut open the bundles and conducted a "field test" of the marijuana. After the field test alerted that the substance was likely marijuana, they sent a sample of the substance to the lab for testing. The lab result showed positive for marijuana. Ms. Hernandez's defense argued that she had been called to the area by a mechanic friend of hers. He asked her to pick up some individuals who were in need of a ride. Ms. Hernandez had previously used her friend's mechanical services and didn't think twice about offering a ride. Her defense continued that when she arrived at the area, she saw the individuals who needed a ride and pulled over. She could not see very well because it was dark out. She did not notice that they were each carrying a bundle. Shortly after they were in the vehicle Ms. Hernandez was signaled by law enforcement's flashing lights that she was being detained. She did not know these individuals and was not aware that they were carrying marijuana. She was in deep trouble before she could even register what was going on. At trial the officers testified that the smell of marijuana was obvious. The packaging was obviously consistent with the manner in which marijuana is packaged when it is crossed over the border, and obviously Ms. Hernandez was in on the crime. However, each officer testified that they were able to recognize the smell of marijuana easily because of the years, experience, and training that they had had with marijuana. That they relied on the canine sniff to verify the presence of marijana, and that they had the marijuana tested just to be sure. All these resources which were not available to Ms. Hernandez on an instant, at that instance. Unfortunately, one of the questions that repeatedly arose from the prosecution to their witnesses was whether Ms. Hernandez was a U.S. Citizen or whether she was a Mexican National. Counsel for Ms. Hernandez promptly objected arguing that whether Ms. Hernandez was in possession of marijuana has nothing to do with whether she is a U.S. Citizen or a Mexican National. No information presented to law enforcement to this point, had anything to do with the citizenship status of any of the individuals involved. The objection was overruled. The questioning continued and the issue was raised with each witness and used in closing by the State. The case is up on appeal at the 13th Court of Appeals. Arguments are set for November 29, 2018. The question is, why bring up the citizenship status of the defendant if it has nothing to do with the case? Does it deprive her of a fair and impartial trial by a jury of her peers? If the State felt that their case aqgainst Ms. Hernandez was strong, why not leave it at the facts surrounding her "intention and knowledge" to be in possession of marijuana? Why convict someone on the hot topic issue of nationality? Either in the Trump era or any other era, for that matter? I'll keep you posted.

UPDATE:  On November 29, 2018 the case was heard by a panel of the 13th Court of Appeals.  The State argued that counsel for the defendant, (That's me!) "opened the door" to testimony of Ms. Hernandez's nationality by asking the law enforcement officers about their training on cross-examination.  My counter argument was that in this day and age of cross-training, a majority of officers are cross-trained in several fields of law, whether it be drugs interdiction, human smuggling, or detecting illegal gun trade activity.  Questions regarding an officer's training do not, in and of themselves, open the door to questions specific questions about a person's nationality.  Particularly where the defense centered around the fact that law enforcement officers were able to detect the presence of marijuana because of their training, education, and experience, as compared to Ms. Hernandez, who, as a lay person, has none of those experiences.  

We await the court's ruling.  I will keep you posted.  

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