Friday, the Defense Team waited to hear from Judge Sage about a verdict or any jury questions. They handled other cases and stayed close to the court in case they were called in for notes or a verdict.
I have never had a jury trial when a judge failed to call me and my client in when there were jury notes.
Interestingly, Judge Sage had specifically told the Defense Team Thursday after closing argument that they did not have to come to court Friday until called - she smiled and said she knew that they had a lot of other things to do.
Texas Code of Criminal Procedure article 36.27 requires a trial court judge to try to contact the defense and give the defense an opportunity to be heard before answering a jury’s questions:
“When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.”
It is unusual for a jury to not send at least one question.
Surprisingly, Tyler’s jury sent 3 (three) notes on Friday. Judge Sage did not make any attempt to contact or inform ANY of the three Defense lawyers for any of these notes.
The jury requested evidence, including but not limited to the home floor plans and video evidence. They did not specify exhibit numbers. Judge Sage sent evidence back to the jury without giving Skip and the Defense an opportunity to evaluate whether she was sending back evidence that was responsive to their questions or included Defensive exhibits. The defense doesn’t know what evidence was provided in response to these questions.
Due Process - at a minimum - requires that both parties be given notice of an issue and an opportunity to be heard. Texas Code of Criminal Procedure dictates what Due Process is required with jury notes.
From soup-to-nuts, Judge Sage has prevented Skip, Michael, and Deniz from presenting a defense, and then during deliberations denied Tyler Due Process by refusing to inform the Defense Team of jury notes.
It is unknown if Judge Sage communicated with prosecutor Chari Kelly about these notes.