HARRIS COUNTY, Texas – Text messages between a bailiff and a Harris County prosecutor triggered a hearing before a judge and an internal affairs investigation by the Sheriff's Office.
The text messages came during a DWI trial taking place in County Court 1.
"This has the horrible appearance of impropriety," defense attorney Jed Silverman said.
Silverman said a note discovered in the trash during the trial roused his suspicions.
"The jury had said something derogatory about me, the defense attorney," Silverman said. "The noted stated, 'bailiff, jury said.'"
KPRC 2 legal analyst Brian Wice said revealing what a jury is talking about behind closed doors or having outside the courtroom conversations with jurors about those involved in a trial is strictly prohibited.
"Courtrooms are sacred places and there's a special set of rules that govern the conduct in a courtroom to keep the playing field level for both sides," Wice said.
Silverman said he wanted to know how a prosecutor could know what the jurors were saying about him, so he asked the judge for an evidentiary hearing.
Silverman said what came out during the hearing was that the bailiff was texting one of the prosecutors during the trial. Silverman showed KPRC 2 a copy of those messages and said one exchange in particular concerned him.
A copy of a text by the prosecutor read, "I'm hoping he's annoying the jury." A copy of a text sent by the bailiff read, "He is the jury said he's a pain in the butt."
"He used the word 'said,'" said Silverman.
Silverman with the District Attorney's Office said to him that meant the bailiff was relaying what he heard the jury talking about. However, Silverman and officials the bailiff testified during the hearing that he was simply guessing what the jury was thinking based on their facial expressions, not anything they said.
"Do you believe that?" asked Channel 2 Investigator Robert Arnold.
"It find it highly suspect," Silverman said.
Nonetheless, the judge ruled there was no misconduct or that the jury had been compromised by the bailiff. Silverman's client was found not guilty.
Officials with Harris County District Attorney's Office also told KPRC the prosecutor did not violate any ethics, because she did not solicit the text messages from the bailiff.
The DA's Office said in a statement, "We don't condone the prosecutor texting a bailiff during a trial. This matter will be handled internally."
In a written statement to KPRC, officials with the Harris County Sheriff's Office wrote, "The Harris County Sheriff's Office of Inspector General and Internal Affairs were notified of alleged wrongdoing by a HCSO employee assigned as a courts bailiff in the Harris County Criminal Justice Center. The employee was immediately removed and placed in a temporary assignment, until the internal investigation is concluded."
Wice said it is troubling to see this behavior in a courtroom.
"The bailiff occupies a very special place in that courtroom," said Wice. "He spends more time with a the jury than anybody else in the criminal justice system."
Wice said given that unique role, even the appearance of impropriety can disrupt the system.
"That's why I'm offended by what this bailiff did," Wice said. "When something like this happens, the system can easily misfire."