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

Start at Hall v. State……………?, a Texas Court of Criminal Appeals decision last week in an opinion of Judge Hervey:

In September 2015, Appellant was convicted by a jury of Edwin Shaar Jr.’s 2011 murder. He had been attempting or committing burglary. The trial court sentenced Appellant on the basis of the jury’s responses to the special issues in Texas Code of Criminal Procedure Article 37.071, Sections 2(b), and 2(e).

This is how Hall appealed to the court.

In points of error two, three and four, Appellant argues the trial court erred in admitting in the punishment phase trial a video recording where Comedy Central comedian Jeff Ross can be seen laughing with several other inmates at the Brazos county Detention Center.

Producer for cable television channel Comedy Central called the American Jail Association to inquire if any other jails would allow Jeff Ross, comedian, to film a special. After the inquiry was sent to the member jails, Brazos County Detention Center informed the producer it was interested in hosting the special. A Brazos County detention center official stated that the jail was interested in hosting the special because it adhered to “Inmate Behavior Management” school of thought. Pursuant to that school of thought, the jail strove to offer incentives for “positive behavior and … productive activities.”

Brazos county entered into a formal agreement with Comedy Central on February 15, 2015. This allowed Brazos to allow Comedy Central permission for a special comedy inside Brazos Detention Center. Comedy Central was willing to reimburse Brazos County for any “extraordinary expenses” and additional staffing costs related to the filming. However, it didn’t agree to pay Brazos County any other fees for filming inside the jail. Comedy Central had permission to film or photograph any jail inmate who had signed an agreement. Advertising the show was displayed in flyers that were placed throughout the prison.

Ross and his crew recorded the special on February 2, 2015. It was filmed over three days. They were also accompanied by the quartermaster of jail for security reasons. Ross, his crew, and the quartermaster of the jail entered one of the housing pods in the jail and began to mix with the inmates. They eventually approached Appellant, along with some other prisoners at a table. Ross joined the inmates for a lengthy conversation. The conversation lasted more than seventeen minutes, and it was recorded on video. As you can see, Ross mocked Appellant’s appearance several times and made sexist jokes about his race. Ross made comments that entailed a lack or remorse about capital murder.

The jail administrator discovered that Ross had spoken with Appellant, and filmed their conversation. He contacted Comedy Central asking for “that any recordings of any interactions with Mr. Hall not be used in any way.” The administrator stated that Appellant was a high-profile case and that any use of the material might have an adverse effect on criminal proceedings. Comedy Central was requested by the administrator for a digital version of the conversation to be provided to “both the District attorney and Mr. Hall’s Defense Attorney” to “make an independent determination” whether or not “the discussion has an effect on the criminal proceedings.” The State requested the video and Comedy Central gave it to the State. The State informed Appellant that the video would be used as evidence in the punishment phase of Appellant’s case.

The motion was filed by the appellant to suppress video. He argued the State, intentionally or not, had made it possible for Ross, one of its defacto agents, to collect evidence against Appellant through speaking directly with him post-indictment. 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 consent …

In considering the question of whether the State violated Appellant’s Sixth Amendment rights to counsel, the court started by considering whether Ross was allowed to enter Brazos county Detention Center pursuant to a written deal. This would have enabled Ross to obtain incriminating statements without his counsel.

Massiah v. United StatesThe Supreme Court decided (1964) the Sixth Amendment prohibited the government’s use of a defendant’s “own criminal words” in a criminal proceeding, if it or one its agents “deliberately obtained” the incriminating sentence without the defendant’s counsel present. The following is a description of 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.” MassiahThis applies only if the government agent who obtained statements from defendants was also involved. …

This case was decided by the trial court. It stated that Ross had not signed any agreement with the State “to gather evidence.” There is also no evidence to suggest that Ross was “encouraged or instructed” by the State to obtain incriminating information about any Brazos County Detention Centre inmates. Cf. State v. Hernandez (Tex. App. 1992). (finding that there was no agency relationship between the news reporter who obtained incriminating statements in a telephone interview with the defendant and the jailer who assisted the interview, because the reporter “was clearly acting alone in extracting statements from 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 looked at the potential relevance of video statements.

First, Appellant’s comment during a discussion about Texas’ death penalty could be used to lead a rational factfinder conclude that Appellant regarded his crime as a “petty”.

ROSS: Texas’ death penalty applies to them. It is quite scary.

Other INMATE: Yes.


AUTOTHER INMATE : They don’t mind giving it to you.

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 on, Appellant tells a joke which a rational factfinder might interpret as Appellant laughing off his crime.

ROSS: … What are you in here for?


ROSS: How can you hack someone’s computer?

APPELLANT : It’s a similar situation, no.

THE OTHER INMATE: Hacking being the main word.

APPELLANT: Yeah. Yes. I put a machete in someone’s eye.

Appellant then displays, just a few seconds after the exchange, what a rational factfinder might interpret as a disregard of human life.

ROSS: [pointing at Appellant]It seems to me like an [expletive]Scary dude. I’m not sure what that is.

APPELLANT: I would not hurt a fly, but it’s true.

ROSS: What’s that?

APPELLANT: It wouldn’t be a good idea to hurt a fly.

ROSS: Really? How about an actual human being?

APPELLANT: Eh, they’re annoying. So, we’ll let them go.

A rational factfinder would have considered Appellant’s remarks relevant to the future-dangerousness issue. Check out Ford v. State (Tex. Crim. App. App. [future dangerousness].”).

Appellant argues these statements were made in a context that was artificially created for entertainment purposes. [and]”in response to calculated encouragement and provocation”)), no reasonable person would trust them to alter his belief in the possibility of a consequential event. 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. The jurors also knew the context where Appellant spoke. Appellant’s argument that the Comedy Central video was wholly irrelevant to the punishment-phase special issues is without merit….

The court found that there was no substantial outweighing of “a risk of one or more: unfair prejudice or confusing the issues or misleading the jury, undue delays or needlessly presenting cumulative proof” (the “Rule 403 balance”)

Although a rational factfinder might consider the video’s purpose and origin as grounds to give it less probative weight than the others, we don’t believe one should. The court of trial could find that Appellant showed a desire to openly communicate with Ross within the range of reasonable disagreement. The trial court might also conclude that Appellant described Ross’s crime when his guard was down as a “petty” matter, comparable with damage to someone else’s computer. The video could be viewed by the trial court as a powerful and unique probative evidence of Appellant’s character and his perceptions of the underlying capital crime.

The trial court may conclude, however, that within the area of reasonable disagreement the jury could not have had any other means to see Appellant’s open and unguarded behavior in a restricted setting. Rationally, the trial court might conclude that the State was more in need of the insight into Appellant’s thoughts and character because it had a unique glimpse. These factors all support admission, we find.

Next, we will examine the Rule 403 factors. They are: (3) The video’s potential to lead to an inappropriate decision; (4) The video’s ability to distract and confuse jurors from the core issues; and (5) The video’s likely to be given undueweight by the jury. These factors, according to the appellant, are in favour of exclusion because they have multiple reasons.

First of all, Ross has a lot to say about Appellant’s looks and demeanor in the video. Ross, for example, mocks Appellant’s hairstyle and comments on Appellant’s lack of humor at points. [expletive]Scary dude

Second, Ross made a number of comments that denigrated Appellant. [Appellant was of Filipino extraction. -EV]Ross calls Appellant “Slim Sushi”, while he refers to Appellant at other points as one of his characters in the movie “Harold and Kumar”.

Appellant claims that Ross makes “hostile, dehumanizing comments about prisoners and confinement in general” on the video. Appellant refers to an additional exchange where Ross implies that prison inmates are telling so many lies, that they “don’t know how to tell the difference.” [between lies and truth] anymore.”

Appellant has not supported or prompted statements by other inmates. Appellant directs our attention specifically to a section of the video where an inmate says that he manages the unpleasant aspects of prison life by being “heavily medicated”.

Ross’s comments can be disconcerting, and they pose risks that Rule 403 was meant to limit. However, it is impossible to say that this court’s assessment of the evidence fell outside the range of reasonable disagreement.

Concerning the many statements made by other prisoners, the trial court concluded that, because Appellant did not make them, it was unlikely that the jury would wrongly assign any of those sentiments to Appellant. Openly, Appellant agreed with certain inmates’ views by laughing or saying “yes”, as well as nodding his head. Appellant didn’t always agree with what another inmate was saying. 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….

These factors being balanced, and with Rule 403 favoring the admission of evidence over exclusion, it is impossible to say that the trial judge abused its discretion by admitting Comedy Central over Appellant’s Rule 403 objection. The zone of reasonable disagreement was reached when the trial court ruled that the video’s probative overall value was not outweighed the risk of unfair prejudice, confusion, or misleading jury.