Last week a reader, Steve, posted in the comments section this question:
"In Texas do they have a separate penalty phase trial in death penalty cases such as California?"
Which I will answer in a moment.
But it made me realize that I haven't explained how a trial works. In substance they are all different, of course, all fact-dependent, but the basic skeleton is the same: a two-part sytem whereby guilt is assessed in the first phase, in other words where the jurors are faced with the yes/no issue of "Is the defendant guilty of the crime charged?"
Then comes the second phase, the assessment of punishment (i.e., probation? How many months/years in jail?) if the defendant is found guilty in phase one.
Here's how it breaks down, starting with the Guilty/Not Guilty phase:
1. Voir dire -- on Monday afternoon after the morning docket, the panel of 60 jurors is seated and the lawyers conduct voir dire. Here in Travis County, we always have two ADAs trying a case, the lead lawyer (aka the "first chair" and a helper, or "second chair"). The first chair prosecutor goes first, then the defense attorney talks to the panel. Strikes for cause and peremptory challenges are made, and the final 12 is chosen.
2. The reading of the charge -- this usually happens Tuesday morning. Before the trial gets under way one of the ADAs will stand before the jury and read the indictment. The defendant will be asked how he pleads (always "not guilty," hence the need for a trial).
3. Opening statements -- immediately after the reading of the indictment the prosecution will give its opening statement. It's called a "statement" as opposed to an "argument" because both sides are limited to telling the jury what they believe the evidence will show, as opposed to arguing what the evidence means. For the State, it's usually the first chair who gives the opening.
4. State's case -- the State will put on all the witnesses it belieevs it needs to prove the case beyond a reaosnable doubt. When finished, the ADA will tell the judge and jury that "The State rests."
5. Case for the defense -- if the defense is planning to call witnesses, to mount a defense that way rather than arguing that the State has simply failed to meet its burden, then this is when the defendant's witnesses testify. Once they have done so, the defense counsel will similarly anounce, "The defense rests."
6. State's rebuttal witnesses -- if the defense has put on witnesses, the State may call additional witnesses to rebut their testimony. For example, if the defendant calls his boss to testify that he believed the defendant was working that day, the State can call his work colleagues to testify that, in fact, he was not at work that day.
7. The "Close" -- after all rebuttal witnesses, the State will tell judge and jury "they State closes." The defense will do the same.
8. Preparing the Jury Charge -- if it hasn't been done beforehand, or during trial, the judge will hand a copy of his proposed charge to the prosecutor and defense lawyer. If they are satisfied with its contents (see below) they say so, or if not they ask for changes. The judge has the final say what is included.
9. Reading the Jury Charge -- The jury is brought back in and the Judge reads the charge to them. So what is the charge? The charge lays out the elements of the crime charged, and gives legal definitions for some or all of those elements. For example, in a DWI case the charge will give the legal definition of "intoxication." The charge is a roadmap for the jurors to follow in deliberation, and they are told to consider only those issues included in the charge. Another example: in a murder trial a jury cannot deliberate on whether the defendant is insane if that issue isn't inlcuded in the charge.
10. Closing arguments -- most lawyer's favorite time. Studies show that most jurors have made up their minds by this point, but we don't seem to care. We are far too impressed with our rhetorical skills and powers of persuasion to worry about that! Again, because we have the burden of proving the case, the State goes first. Then the defense gets to argue, and when they are done the State gets to finish the argument. Usually, here, the second chair takes the first part of closing, and the first chair takes the last part.
11. Deliberations -- after the closings, without further ado, the jury is sent to begin its work.
12. Punishment phase -- if the verdict is "not guilty" then that's it, there is no more. If it's "guilty" then we move onto the punishment phase. This second trial is structured pretty much like the first, in terms of who does what when. The State puts on evidence of other nasty thins the defendant has done, and the defense puts on mitigating evidence.
Monday, December 7, 2009
Friday, December 4, 2009
Would YOU want to serve?
As I mentioned Wednesday, I was supposed to have a trial next week but because we pled the case out, the trial was canceled.
When that happens I take a deep breath to relax before being reminded that 60 citizens of Travis County are still planning on fighting their way into downtown Austin on the coming Monday, finding parking somewhere in a twelve-block radius, and then marching into court for a long day of not being chosen for anything.
So, when we plead out a case the week before trial, the ADAs and Judge Lynch's court coordinator Melissa divide up the jury list and spend time calling the jurors and letting them know they are not needed, that they can have their Monday (and maybe their week) back.
That's what I did yesterday, and every time I do it I am amazed at how relieved jurors sound. If I make twenty calls, maybe two people will express disappointment whereas most are happy, and some are downright ecstatic.
I've posted before about why jurors may not like serving, so that's not my issue today. Today I just want you to click on the poll and tell me if you yourself would mind showing up for jury selection, and then serving on the final jury.
Be honest - most people would like to do it in theory, but imagine you are actually faced with the trek into court on Monday, your life potentially on hold for a week. Too much of a pain? This is an anonymous poll, so Civil Responsibility points will not be deducted from the secret DA files we have on all of you. Oh wait, maybe that's supposed to be a secret...
When that happens I take a deep breath to relax before being reminded that 60 citizens of Travis County are still planning on fighting their way into downtown Austin on the coming Monday, finding parking somewhere in a twelve-block radius, and then marching into court for a long day of not being chosen for anything.
So, when we plead out a case the week before trial, the ADAs and Judge Lynch's court coordinator Melissa divide up the jury list and spend time calling the jurors and letting them know they are not needed, that they can have their Monday (and maybe their week) back.
That's what I did yesterday, and every time I do it I am amazed at how relieved jurors sound. If I make twenty calls, maybe two people will express disappointment whereas most are happy, and some are downright ecstatic.
I've posted before about why jurors may not like serving, so that's not my issue today. Today I just want you to click on the poll and tell me if you yourself would mind showing up for jury selection, and then serving on the final jury.
Be honest - most people would like to do it in theory, but imagine you are actually faced with the trek into court on Monday, your life potentially on hold for a week. Too much of a pain? This is an anonymous poll, so Civil Responsibility points will not be deducted from the secret DA files we have on all of you. Oh wait, maybe that's supposed to be a secret...
Thursday, December 3, 2009
Thriller Thursday
It struck me that recommending two books every week puts an unnatural strain on those who actually take my recommendations to heart and try reading the books.
Not that it's too much effort for me, no, not at all. After all, as a writer there's nothing I'd rather do that read.
Except maybe write.
Anyway.
In these days of economic hardship and holiday excess it seems only appropriate that I should cut back. After all, you don't want me repeating last week's fiasco of recommending a book I have not yet read (although, to be fair, one kind commenter, Texas Maverick, supported my choice of book wholeheartedly).
I am going with a non-fiction work with special relevance. First it's by an author I know. Or knew. Briefly. But I did try to help her in my former incarnation as a civil lawyer, when I worked on matters of free speech and media law. If you look closely (and I instruct you to do so) you will even see my name in the acknowledgments section of the book.
So, my choice this week is a non-fiction work: SHE WANTED IT ALL: A TRUE STORY OF SEX, MURDER, AND A TEXAS MILLIONAIRE by Kathryn Casey. This case was tried by one of my colleagues right here in the DA's office, and the book has earned high praise from readers and no complaints from prosecutors, a remarkable feat!
Plot summary, from Ms. Casey's website:
October 2, 1999: Gunfire in an Austin, Texas, mansion. Multimillionaire media executive Steven Beard, 74, is found in bed, critically injured, a shotgun blast to his belly. Suspicion centers on Beard’s young wife, Celeste, a former Austin Country Club waitress, and her friend, Tracey Tarlton. Beard lingers for months, then dies of his injuries in January 2000.
Six days after the shooting, Tarlton, an Austin bookstore manager, is arrested. A shell found at the foot of Beard's bed matches her .20-gauge shotgun. Nearly two years later, in March 2002, in a deal with prosecutors, Tarlton escapes the death penalty when she agrees to plead guilty. She receives a 20-year sentence, in exchange for testifying against Celeste. Tarlton's claims: That she and Celeste Beard were lovers; that Celeste asked her to murder Steven and planned the killing.
Ms. Casey is an unusual talent, not only has she written six non-fiction books, her true crime, she is now writing mystery fiction. Check out her website. And if you are wondering why she gets such a plug, it's because she's a great writer, a nice lady and a Texan to boot.
And she said something nice about me. See what that gets you?!
Not that it's too much effort for me, no, not at all. After all, as a writer there's nothing I'd rather do that read.
Except maybe write.
Anyway.
In these days of economic hardship and holiday excess it seems only appropriate that I should cut back. After all, you don't want me repeating last week's fiasco of recommending a book I have not yet read (although, to be fair, one kind commenter, Texas Maverick, supported my choice of book wholeheartedly).
I am going with a non-fiction work with special relevance. First it's by an author I know. Or knew. Briefly. But I did try to help her in my former incarnation as a civil lawyer, when I worked on matters of free speech and media law. If you look closely (and I instruct you to do so) you will even see my name in the acknowledgments section of the book.
So, my choice this week is a non-fiction work: SHE WANTED IT ALL: A TRUE STORY OF SEX, MURDER, AND A TEXAS MILLIONAIRE by Kathryn Casey. This case was tried by one of my colleagues right here in the DA's office, and the book has earned high praise from readers and no complaints from prosecutors, a remarkable feat!
Plot summary, from Ms. Casey's website:
October 2, 1999: Gunfire in an Austin, Texas, mansion. Multimillionaire media executive Steven Beard, 74, is found in bed, critically injured, a shotgun blast to his belly. Suspicion centers on Beard’s young wife, Celeste, a former Austin Country Club waitress, and her friend, Tracey Tarlton. Beard lingers for months, then dies of his injuries in January 2000.
Six days after the shooting, Tarlton, an Austin bookstore manager, is arrested. A shell found at the foot of Beard's bed matches her .20-gauge shotgun. Nearly two years later, in March 2002, in a deal with prosecutors, Tarlton escapes the death penalty when she agrees to plead guilty. She receives a 20-year sentence, in exchange for testifying against Celeste. Tarlton's claims: That she and Celeste Beard were lovers; that Celeste asked her to murder Steven and planned the killing.
Ms. Casey is an unusual talent, not only has she written six non-fiction books, her true crime, she is now writing mystery fiction. Check out her website. And if you are wondering why she gets such a plug, it's because she's a great writer, a nice lady and a Texan to boot.
And she said something nice about me. See what that gets you?!
Wednesday, December 2, 2009
No jury trial for me next week
I'd blogged about having a robbery case, and it being next on my jury docket. As you can see here, the case pled out today so it looks like I get to face a stack of files in my office instead of a jury next week.
But that's okay, too.
But that's okay, too.
What crime gets which sentence?
I am often asked about the range of punishment for various crimes.
You know, someone comes up to me and says, "So, what if a friend of mine was caught stealing a walrus from the zoo? What's he looking at, punishment-wise?"
I say: "A friend?"
And he says: "Sure. A friend. Why would I want a walrus?"
Then we figure out how much the walrus is worth and I give him an answer. (Assuming the walrus is not carrying a wad of counterfeit dollars, a bag of cocaine, or an AK-47, the Internet tells me it's about $14,000 on the black market. Like some guy in Minneapolis has one up his sleeve or tucked inside his raincoat.)
Anyway, I only deal with felonies, so let's start with those. In Texas, we have four levels of felony:
Well thanks for asking.
The difference is that if you are sent to the state jail for, say, one year, then you will do every day of that year--no credit for good time, no parole. It's day-for-day, as we say.
County jail, though, is not. A year sentence in the county jail usually ends up being six months of time served, as you get a two-for-one credit if you behave. In fact, if you become a trustee (for example, this) you can get three-for-one credit. A year sentence thus becomes either six or four months. You can see why defense lawyers and their clients angle for number 3., above.
So what crimes are state jail felonies? Here's a few of the most common SJFs that we see:
When I get to know you better, or when enough people beg nicely, I'll tell you a story about a prostitution trial I had a few years back. Crazy days.
You know, someone comes up to me and says, "So, what if a friend of mine was caught stealing a walrus from the zoo? What's he looking at, punishment-wise?"
I say: "A friend?"
And he says: "Sure. A friend. Why would I want a walrus?"
Then we figure out how much the walrus is worth and I give him an answer. (Assuming the walrus is not carrying a wad of counterfeit dollars, a bag of cocaine, or an AK-47, the Internet tells me it's about $14,000 on the black market. Like some guy in Minneapolis has one up his sleeve or tucked inside his raincoat.)
Anyway, I only deal with felonies, so let's start with those. In Texas, we have four levels of felony:
- First degree
- Second degree
- Third degree
- State jail
- A spell in the state jail of between six months (the min) and two years (the max);
- A jail term (per 1., above) that is probated for up to five years;
- A spell in the county jail from one day to 12 months. This one is achieved through a special provision of Texas law that gives you a felony conviction, but allows for county jail time.
Well thanks for asking.
The difference is that if you are sent to the state jail for, say, one year, then you will do every day of that year--no credit for good time, no parole. It's day-for-day, as we say.
County jail, though, is not. A year sentence in the county jail usually ends up being six months of time served, as you get a two-for-one credit if you behave. In fact, if you become a trustee (for example, this) you can get three-for-one credit. A year sentence thus becomes either six or four months. You can see why defense lawyers and their clients angle for number 3., above.
So what crimes are state jail felonies? Here's a few of the most common SJFs that we see:
- possession of a controlled substance in an amount of less than one gram (e.g., cocaine, meth, crack, heroin, but not marijuana);
- theft of property worth between $1,500 and $20,000 (e.g, a walrus);
- burglary of a building (as opposed to a habitation);
- driving while intoxicated, with a passenger under the age of 15;
- evading arrest in a vehicle (only if it's your first time, though!).
When I get to know you better, or when enough people beg nicely, I'll tell you a story about a prostitution trial I had a few years back. Crazy days.
Tuesday, December 1, 2009
More criminal than funny. I think.
Okay, I have never seen a case like this. I never want to see one either. Those crazy crazy Brits... and just as a warning if you're not sure you want to read this news story, here is the mildest paragraph:
"On one occasion a milking parlour had been entered and he had stripped down to his pants and climbed into a huge vat of manure."
Read the full story if you dare...
"On one occasion a milking parlour had been entered and he had stripped down to his pants and climbed into a huge vat of manure."
Read the full story if you dare...
Criminally funny
Morticians do it, firemen do it, and bio-statisticians do it.
Okay, bio-statisticians probably don't do it.
I'm talking about humor. What the humorologists call Black Humor. You know, like this:
Below is a compilation of some of those moments that cropped up in court, moments that despite the gravity of our job, the subject matter, made people smile. And by "people," I mean me, of course.
The first occurred when I took over a hearing from an ADA who had to leave the courtroom on urgent business. She asked me to handle the hearing instead of my friend and colleague Luis (note: Luis was the perpetrator, and recipient, of numerous practical jokes. Yeah, one of those guys). So he decided to have a crack at me in front of a full courtroom:
Judge: "Where is Ms. Taylor, isn't she arguing for the State?"
Me: "No Your Honor, I'm taking over, she had to leave."
Judge: "I see. Very well then."
Luis, standing and grinning: "He is judge, but that doesn't mean the State is giving up."
Everyone turns and looks at me.
Me: "Correct, Your Honor. If we were giving up, Luis would be arguing for the State."
In a recent trial, our main witness was a self-confessed drug addict, a man aged about 50 with (it turns out) poor eyesight. During direct examination, and in the usual manner, the ADA paused then asked him:
"And the man who fired the gun, do you see him in the courtroom today?"
The witness took his time looking around the court, eying the judge, the jury and then finally... a wavering finger pointed towards the defense table:
"There, I think that's him."
The finger had shifted and a surprised deputy looked up, identified as the man firing off shots the night of the murder.
A surprised female deputy, in full uniform.
In voir dire, as I've explained before, one thing I do early on is present the elements of the crime on a poster board to the jury panel, so they know what I have to prove. It's a moment that captures the jurors' interest, partly because of what we're talking about, but also because it's the first exhibit or demonstrative I use. They want to see it, to know what it says.
And so with great gravitas in a recent voir dire, my tone and voice serious, I announced:
"Ladies and gentlemen, these are the elephants of the crime."
Crickets chirped.
A few people smirked.
A few more didn't bother smirking, just laughed.
I then explained, with a shake of the head and a smile of my own, that I have three little kids and I see a lot of elephants.
And for those of you who missed it, there was the witness who looked at me like I was insane when I asked him if he smoked dope the night of the crime.
"No, man, I don't smoke dope. I was smoking weed."
Which is when I learned the difference between the two.
Okay, bio-statisticians probably don't do it.
I'm talking about humor. What the humorologists call Black Humor. You know, like this:
"If we do happen to step on a mine, Sir, what do we do?"
"Normal procedure, Lieutenant, is to jump 200 feet in the air and scatter oneself over a wide area."
See, not a funny subject, not even a bit. So why did you smile?Below is a compilation of some of those moments that cropped up in court, moments that despite the gravity of our job, the subject matter, made people smile. And by "people," I mean me, of course.
The first occurred when I took over a hearing from an ADA who had to leave the courtroom on urgent business. She asked me to handle the hearing instead of my friend and colleague Luis (note: Luis was the perpetrator, and recipient, of numerous practical jokes. Yeah, one of those guys). So he decided to have a crack at me in front of a full courtroom:
Judge: "Where is Ms. Taylor, isn't she arguing for the State?"
Me: "No Your Honor, I'm taking over, she had to leave."
Judge: "I see. Very well then."
Luis, standing and grinning: "He is judge, but that doesn't mean the State is giving up."
Everyone turns and looks at me.
Me: "Correct, Your Honor. If we were giving up, Luis would be arguing for the State."
In a recent trial, our main witness was a self-confessed drug addict, a man aged about 50 with (it turns out) poor eyesight. During direct examination, and in the usual manner, the ADA paused then asked him:
"And the man who fired the gun, do you see him in the courtroom today?"
The witness took his time looking around the court, eying the judge, the jury and then finally... a wavering finger pointed towards the defense table:
"There, I think that's him."
The finger had shifted and a surprised deputy looked up, identified as the man firing off shots the night of the murder.
A surprised female deputy, in full uniform.
In voir dire, as I've explained before, one thing I do early on is present the elements of the crime on a poster board to the jury panel, so they know what I have to prove. It's a moment that captures the jurors' interest, partly because of what we're talking about, but also because it's the first exhibit or demonstrative I use. They want to see it, to know what it says.
And so with great gravitas in a recent voir dire, my tone and voice serious, I announced:
"Ladies and gentlemen, these are the elephants of the crime."
Crickets chirped.
A few people smirked.
A few more didn't bother smirking, just laughed.
I then explained, with a shake of the head and a smile of my own, that I have three little kids and I see a lot of elephants.
And for those of you who missed it, there was the witness who looked at me like I was insane when I asked him if he smoked dope the night of the crime.
"No, man, I don't smoke dope. I was smoking weed."
Which is when I learned the difference between the two.
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