Chuck Lindell
Austin-American Statesman
AUSTIN, Texas — Billed as a “one man verbal assault unit,” insult comic Jeff Ross is best known for leading celebrity roasts on Comedy Central, but he’s also at the center of a Texas death penalty appeal thanks to a cable TV special he shot inside a College Station jail.
Ross, trailed by a camera, was allowed to mingle with inmates for the 2015 special, and one of the first prisoners he approached was Gabriel Hall, who was awaiting trial for a brutal attack that left an elderly man dead and his wife severely wounded four years earlier.
The footage of Hall never made it into “Jeff Ross Roasts Criminals: Live at Brazos County Jail,” but it did get played for a different audience — the 12 jurors who had found him guilty of capital murder and who had to choose between sentencing Hall to death or life in prison without parole during the punishment phase of his 2015 trial.
After more than seven hours of deliberations, jurors decided that Hall posed a future danger to society, a required finding before a death sentence could be imposed.
Now defense lawyers are asking the state’s highest criminal court to overturn that death sentence and order a new punishment phase trial, arguing that jurors never should have been allowed to watch the video of Ross interviewing Hall and several other prisoners as they sat around a table in the common area of their jail dorm.
Hall’s lawyers say the video was unfairly prejudicial to their client, was irrelevant to the question of his future dangerousness and was obtained improperly because jail staff had been told that nobody was to interview Hall without his lawyer present.
In addition, the video clip gave jurors a misleading and contrived image of Hall at the hands of a professional showman who insults people for laughs, defense attorney Rob Owen told the Texas Court of Criminal Appeals during oral arguments in mid-September.
“It contains Mr. Ross making fun of Mr. Hall’s appearance and his demeanor. It contains belittling comments about his ethnic background, the fact that he is Asian. It contains attempts to provoke Mr. Hall into a response by saying things to him like, ‘You must’ve done something crazy” to be in jail for four years awaiting trial, Owen told the court.
Worse, Owen added, the video clip included comments from other prisoners that cast Hall in a negative light through no fault of his own — such as inmates who expressed contempt for law-abiding society, or one who portrayed prison life as enjoyable, something that might sway a juror contemplating a sentence of life in prison instead of lethal injection, he said.
But prosecutors insisted that the Ross video was pertinent because it let jurors see Hall in unguarded moments that reflected his true nature.
Several judges on the appeals court pushed back on that explanation during oral arguments.
Doug Howell, a Brazos County assistant district attorney, told the court that the comedian’s interaction with Hall hearkened back to the inmate’s two taped confessions to police that had been shown earlier to jurors.
“In both of those confessions, the defendant detailed the brutal killing, that he just flat out said, ‘I enjoyed doing this,’” Howell said. “He is enjoying and is unremorseful about this brutal murder.”
Asked by Judge Kevin Yeary to explain why the Ross video was relevant, Howell said the footage was subpoenaed to counter defense lawyers who argued that Hall had shown remorse for the killings and taken responsibility for his actions.
“If you compare his confessions, where he is just, you know, sitting there drinking a cup of coffee telling them what he’s doing. Officers testified that you could tell he got excited (talking about) what he did,” Howell said.
The Comedy Central video showed that Hall “is the same person four years later, and I think that was highly relevant to the state proving future dangerousness,” Howell said.
Yeary interjected: “Still not hearing from you how that videotape demonstrates a lack of remorse.”
State law, Howell replied, allows punishment-phase evidence to be presented that reveals a defendant’s character.
“You would think that someone who had committed a brutal murder like he has done would not be joking around with a comic,” he said. "(Hall) actively engaged with Mr. Ross and told his own jokes.”
“I’m sorry,” Judge Mary Lou Keel said. “So by making jokes, you’re saying that demonstrates a lack of remorse or it refutes the defensive theory (that Hall was) taking responsibility?”
“Four years later, it’s the same demeanor, it’s the same showing of remorselessness,” Howell replied.
Yeary again asked why the video was relevant, noting: “It seems like the confessions themselves are the most poignant evidence that rebuts a claim that he was remorseful, right?”
“But that’s four years old” by the time Hall was tried for the 2011 attacks, Howell said.
During his turn before the judges during oral arguments, defense lawyer Owen said one of the most troubling aspects of the Comedy Central video was the way Ross repeatedly referred to the Asian heritage of Hall, who was born in the Philippines and adopted in the United States.
A transcript of the video shows Ross conferring the nickname “Slim Sushi” on Hall; playing on Asian stereotypes by asking if Hall was in jail for computer hacking; and asking if the inmate was Harold or Kumar, referring to film characters portrayed by Korean-born actor John Cho and Kal Penn, whose parents are Indian immigrants, Owen said.
The frequent reminders invited any juror who harbored “even a slight discomfort with Asian people” to weigh that in their internal deliberations, he said.
“Once you license the jury to consider the fact of somebody’s ethnic background, you don’t know where that’s going to go,” said Owen, a former University of Texas law professor now in private practice in Chicago. Hall also is represented on appeal by the UT Law School’s Capital Punishment Clinic.
After Yeary acknowledged that the ethnic references were something he was struggling with in the case, Owen said problems persisted despite efforts by the trial judge, who allowed jurors to view almost nine minutes of the original 18-minute clip after ordering many of the most caustic interactions to be redacted.
What was left was still bad, “and that was a problem,” Owen said.
“The parts he cut out are so toxic, it could leave you with the mistaken impression that what was left was, by comparison, not as toxic,” Owen said. “It’s like oh, it’s not that bad when you compare it to these awful things. But on it’s own, it’s terrible.”
Owen also argued that the Ross video improperly opened Hall to guilt by association by including comments from other inmates who said prison was great — allowing time to dream about fishing and sex while sleeping away much of your sentence under medication.
Picking up on that argument, Keel asked prosecutor Howell why “things the defendant didn’t say and can’t be attributed to him — how were those relevant?”
“It shows the defendant’s character and demeanor while this conversation is going on. It’s not just between him and Ross,” Howell replied. “Without those conversations in the middle, there would be no context for what is going on back and forth.”
The Court of Criminal Appeals has no deadline to issue its ruling.
Even if the court agrees to order a new punishment phase trial for Hall, the inmate’s capital murder conviction would remain, making him eligible for two outcomes — another death sentence or life in prison without parole.