The Volokh Conspiracy

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Anything You Say to the Comedian Will Be Used Against You …

A murderer's conversation with Jeff Ross (Comedy Central) at Brazos County Jail is admitted in evidence at the death penalty proceeding (and no, the Clown Miranda warning noted above wasn't given).


From Hall v. State, decided last week by the Texas Court of Criminal Appeals (in an opinion by Judge Hervey):

In September 2015, a jury convicted Appellant of the 2011 murder of Edwin Shaar, Jr. in the course of committing or attempting to commit burglary. Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced Appellant to death.

Here's how the court dealt with one set out of Hall's many arguments on appeal:

In points of error one, two, and three, Appellant argues that the trial court erred to admit in the punishment phase of trial a video recording in which Comedy Central comedian Jeff Ross is shown joking around with several inmates, including Appellant, in the Brazos County Detention Center.

In early 2015, a producer for the cable television network Comedy Central contacted the American Jail Association and asked whether there were any jails that would be interested in allowing comedian Jeff Ross to film a comedy special in their facilities. When this inquiry was forwarded to member jails, the Brazos County Detention Center, where Appellant was being held while awaiting trial, informed the producer that it would be interested in hosting the special. One Brazos County Detention Center official testified that the jail's interest in hosting the special was due to its adherence to a school of thought called "Inmate Behavior Management." Pursuant to that school of thought, the jail strove to offer incentives for "positive behavior and … productive activities."

In February 2015, Brazos County entered into a written agreement with Comedy Central in which Brazos County gave Comedy Central permission to film a comedy special inside the Brazos County Detention Center. Comedy Central agreed to compensate Brazos County for "additional staffing money and extraordinary expenses" related to the filming, but it did not otherwise agree to pay the county for the right to film inside the jail. The written agreement authorized Comedy Central to "photograph or record any inmate in the jail" who had signed a release form. The jail posted flyers throughout its facilities advertising the show.

Ross and his crew filmed the special over the course of three days in late February 2015. For security purposes, they were accompanied by the jail's quartermaster. As relevant to these points of error, on February 26, 2015, Ross and his crew entered one of the jail's housing pods and mingled with the inmates. Eventually, they approached a table where Appellant and some other inmates were sitting. Ross sat with the inmates and proceeded to have a wide-ranging conversation with them. This conversation lasted over seventeen minutes and was captured on video. As detailed below, during this conversation, Ross repeatedly mocked Appellant's appearance and made crass jokes about his race. Appellant, meanwhile, made comments arguably evincing a lack of remorse for having committed capital murder.

When the jail's administrator learned that Ross had interacted with Appellant and filmed the ensuing conversation, he contacted Comedy Central to request "that any recording of any interaction with Mr. Hall be omitted from use in any future manner." He stated that Appellant's case was "high-profile" and expressed a concern that "any use of this material could have an adverse impact on the criminal proceedings." The administrator asked Comedy Central to furnish a digital copy of the conversation so that "both the District Attorney and Mr. Hall's Defense Attorney" could "make an independent determination" as to whether "the discussion has an impact on the criminal proceedings." A few weeks later, the State subpoenaed the footage and Comedy Central provided the State with an unedited copy. The State notified Appellant that it intended to offer the unedited video as punishment phase evidence at Appellant's trial.

Appellant filed a motion to suppress the video. He argued that, whether intentionally or not, the State had created a situation in which one of its de facto agents (Ross) was able to gather evidence against Appellant by speaking with him, post-indictment, without his lawyer being present. Appellant presented evidence that, in November 2011, his lawyers had sent a "no contact" letter to the Brazos County Detention Center, directing the jail to "make no further contact … with [Appellant]" without counsel's "express written approval." …

The court began by considering whether "the State circumvented Appellant's Sixth Amendment right to counsel when the State, pursuant to a written agreement, allowed Ross to enter the Brazos County Detention Center and elicit incriminating statements from Appellant without his counsel being present":

In Massiah v. United States (1964), the Supreme Court held that the Sixth Amendment prohibits the government from using a defendant's "own incriminating words" against him in a criminal proceeding if the government or one of its agents "deliberately elicited" the incriminating statement without the defendant's counsel being present. We have described the Massiah inquiry as being "whether, after the Sixth Amendment right to counsel has attached, the government … knowingly circumvented the defendant's right to counsel by using an undisclosed government agent to deliberately elicit incriminating information." Massiah thus applies "only if the person who elicited statements from the defendant was a government agent." …

In this case, the trial court expressly found that there was no agreement between Ross and the State for Ross "to gather evidence." Further, there is no evidence that the State instructed or "encouraged" Ross to elicit incriminating information from any of the inmates in the Brazos County Detention Center. Cf. State v. Hernandez (Tex. App. 1992) (finding no agency relationship between a news reporter who elicited incriminating statements from the defendant in a phone interview and the jailer who facilitated the phone interview because the reporter "was clearly acting on his own in eliciting statements from the appellee"). Viewing the record with "the proper deference to the trial court's ruling," we conclude that Ross was not acting as an agent of the State when he spoke with Appellant at the Brazos County Detention Center….

The court then turned to how the video statements were potentially relevant:

First, during a conversation about the death penalty in Texas, Appellant makes a comment that could lead a rational factfinder to conclude that Appellant viewed his crime as a "petty" act:

ROSS: They have the death penalty in Texas. This is a scary state.



OTHER INMATE: They're not bashful about giving it out, either.

APPELLANT: Yeah, they'll, uh, they'll hang you for the, they'll hang you for—well, they, they'll basically, screw you over, over the most, uh, petty shit, so.

Later, Appellant makes a joke that a rational factfinder could interpret as Appellant making light of his crime:

ROSS: … What are you in here for?


ROSS: Hacking somebody's computer?

APPELLANT: Something like that, yes.

OTHER INMATE: "Hacking" being the operative word.

APPELLANT: Yeah. Yeah, used a machete on someone's screen, so.

Finally, shortly after this exchange, Appellant displays what a rational factfinder could construe as a disregard for human life:

ROSS: He [pointing at Appellant] seems like a [expletive] scary dude, I don't know what it is, man.

APPELLANT: Oh come on, I wouldn't hurt a fly.

ROSS: What's that?

APPELLANT: I wouldn't hurt a fly.

ROSS: Really? What about a human?

APPELLANT: Eh, they're annoying. We'll leave 'em to their own devices, so.

A rational factfinder could have found Appellant's comments to be relevant to the future-dangerousness special issue. See Ford v. State (Tex. Crim. App. 1996) ("Remorselessness and disregard for human life have been considered in determining the sufficiency of the evidence to support a jury finding of [future dangerousness].").

Appellant argues that, given the context in which he uttered these statements (i.e., "in a highly artificial interaction, staged for entertainment purposes, [and] in response to calculated provocation and encouragement"), no reasonable person would rely on them to change his or her belief in the likelihood of a consequential fact. We disagree. A rational factfinder viewing the Comedy Central video could conclude that Appellant appears relatively relaxed and unguarded throughout—and that Appellant's interactions with Ross and the other inmates thus reflected his honest opinions. Furthermore, the jurors were aware of the context in which Appellant made his remarks. Appellant's argument that the Comedy Central video was wholly irrelevant to the punishment-phase special issues is without merit….

And the court also concluded that the relevance wasn't substantially outweighed by "a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence" (the so-called "Rule 403 balancing"):

While a rational factfinder could regard the video's origin and purpose as reasons to afford it little probative weight, our review of the video does not lead us to conclude that one would be bound to do so. Within the zone of reasonable disagreement, the trial court could conclude that Appellant's relaxed attitude around Ross signified a willingness to be honest with him. Further, the court could reasonably conclude that, when his guard was down, Appellant characterized his crime as a "petty" thing, on par with damaging someone's computer. The trial court could thus rationally regard the video as uniquely and powerfully probative of Appellant's character and perception of the underlying capital murder.

Further, within the zone of reasonable disagreement, the trial court could conclude that the jury had no other way to observe Appellant's unguarded demeanor in a confined setting. The trial court could also rationally conclude that the uniqueness of this glimpse into Appellant's character and thoughts greatly increased the State's need for it. We find that each of these factors weighs in favor of admission.

We proceed to consider the next three factors in the Rule 403 analysis: (3) the video's tendency to suggest a decision on an improper basis; (4) the video's tendency to confuse or distract the jury from the main issues; and (5) the video's tendency to be given undue weight by the jury. Appellant argues that these factors weigh in favor of exclusion for several reasons.

First, the video contains a number of Ross's own unsolicited opinions about Appellant's appearance and demeanor. For instance, at various points in the video, Ross mocks Appellant's haircut, criticizes Appellant for appearing humorless, and opines that Appellant "seems like a [expletive] scary dude."

Second, several of Ross's comments denigrated Appellant's race. [Appellant was of Filipino extraction. -EV] For instance, at one point, Ross refers to Appellant as "Slim Sushi"; at another point, he compares Appellant to one of the characters from the film "Harold and Kumar."

Third, according to Appellant, the video shows Ross making "hostile and dehumanizing statements about inmates and confinement generally." In addition to the "summer camp" exchange outlined above, Appellant points to an exchange in which Ross suggests that inmates tell so many lies that "they don't know the difference [between lies and truth] anymore."

Finally, the video contains statements from other inmates that Appellant neither prompted nor voiced his support for. Appellant specifically directs our attention to a portion of the video in which an inmate claims that he copes with the more disagreeable aspects of jail life by remaining "heavily medicated."

Many of Ross's comments are disconcerting and pose the very risks that Rule 403 was designed to minimize. Even so, we cannot say that the trial court's evaluation of this evidence was outside the zone of reasonable disagreement.

As for the various statements that other inmates made, the trial court could rationally conclude that, precisely because Appellant was not the one making them, there was no great risk that the jury would unfairly attribute any of the sentiments expressed therein to Appellant. Appellant openly agreed with some of the other inmates' opinions by saying "yeah," laughing, or nodding along. Other times, Appellant did not indicate agreement with something another inmate said. Because the jury was capable of discerning for itself which statements Appellant signaled some level of agreement with, the trial court could rationally conclude that the video's inclusion of statements from other inmates did not render it intolerably susceptible to misuse under the third, fourth, and fifth Rule 403 factors….

Balancing these factors, and bearing in mind that Rule 403 favors the admission of relevant evidence over its exclusion, we cannot say that the trial court abused its discretion in admitting the Comedy Central video over Appellant's Rule 403 objection. The trial court's ruling that the video's overall probative value was not substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury was within the zone of reasonable disagreement.