Wednesday, June 23, 2010

No "not guilty" verdicts? A question answered...

One of my esteemed readers (not my Mum, the other one) asked a question following my post showing trial verdicts. Here it is:

I have been a reader since early on so do not take out of context but about how often do juries find anyone innocent? Based on my following not very often ! Pay raise for you guys in my next vote for sure.

First of all, you are absolutely right. About the pay raise. Vote twice on that issue, if you can.

Second of all, thanks for the faithful readershipnessalizing. Much appreciated. (You too, Mum.)

Third, about the apparent abundance of guilty verdicts. I should start by being picky about your terminology: juries (and judges) don't find people innocent, they find them not guilty. That's because there is no burden on the defendant to prove anything, its on us to prove his guilt. So, if we fail to do so, the jury returns a "not guilty" verdict, rather than one declaring his innocence.

I should also reassure you that when I report verdicts I don't accidentally leave the "not guilty" ones out. Not a bad idea, though, thanks for giving me the idea . . . .

I think the answer to your question is twofold. One of those folds will make some people roll their eyes, so I'll get it over with. I believe that the vast majority of people who get to the pretrial stage are indeed guilty of the crime charged. By the time the jury files through the door, the defense lawyer has pointed out all weaknesses, the ADA has scoured the evidence for holes, and (one hopes and prays) if the chap charged is truly innocent it would be apparent and a dismissal forthcoming.

The next fold is that very often a trial is less about guilt and more about an appropriate punishment. Remember, a trial is in two parts: the guilt phase, and the punishment phase. So sometimes the issue of guilt is the easy one. The harder issue, and one the lawyers have not been able to agree on during plea negotiations, is what punishment the defendant deserves.

For example, several years ago I tried a theft case. The fellow had stolen two watches from Target. He believed that his punishment should have been a small fine, whereas my position was that he'd been convicted of theft nine times previously, and a small fine would hardly be a deterrent. (I know what you're thinking, but he was neither a kleptomaniac nor a drug addict. He'd just developed a habit of stealing things worth very little, and then saying "But it's only worth a few bucks.")

His case, because of the prior convictions, was a state jail felony, with a punishment range of six months to two years in jail. I think I offered somewhere in the region of a year (roughly what he'd served for the last one). As I said, he disagreed and the most he agreed to was"time served" for his day or two in jail after the arrest.

So, we tried the case to a jury. I played the video of him stealing the watches and the store security manager testified that he'd seen the whole thing. Kind of a slam dunk. In fact, the jury came back after deliberating for six minutes.

In the punishment phase I showed a chart highlighting his thefts, one after the other. Now, you should know he testified during the trial and admitted them, and then lied about stealing the watches. He said he was going to show them to his girlfriend (who was outside the store for some reason) so she could chose which one she wanted to buy him for his birthday.

Anyway, they gave him 21 months, three fewer than the max. Afterwards, they told me they didn't like his lying on the stand, and they didn't like his failure to accept responsibility. One guy was mad that they could not have given him more. Draconian? Some would say so. But I don't, and the fact that 12 members of the community got to decide made me think perhaps it was a fair result.

A long answer to your question, dear Reader, but I hope a satisfactory one.


  1. Since it wasn't me that asked the question and since I am not your mother and since I consider myself esteemed, I don't think it is fair to suggest that you only have two esteemed readers. In fact, since I am such a loyal reader of this blog, I think you should count me as two esteemed readers.

    I also appreciated your insight about the many reasons supporting a defendant's decision to take a case to trial. Just last week I took a case to trial when neither the defendant nor I had any realistic expectation of winning. But we didn't like the prosecution's offer for a plea and felt we could do better even after taking the case to trial and losing. And, of course and as happened in this case, there is always the possibility when taking a case to trial that the government will dismiss the case when the necessary witnesses fail to show up.

    An open plea would be one way to short circuit the process. You plead guilty and hope you can do better in front of the judge, particularly considering that the defendant has accepted responsibility and spared the state the expense of a trial.

  2. I have always found it strange that in this country we consider people to be "innocent until PROVEN guilty" in a court of law, yet when they are not PROVEN guilty we don't say they are innocent, we say (somewhat snidely) that they were ONLY found "not guilty".
    This gives the government and "law and order" types the out to say:" well, it's not that he/she is INNOCENT, it's just we couldn't prove that he/she was guilty.
    Thus a truly innocent person is lumped in with those who "got away with it".
    Infuriating if it happens to one of your loved ones!


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.