Monday, March 01, 2010

Defendant: 'I plead guilty'; Prosecutor: 'We're going to trial'

If a defendant pleads guilty to all charges without a plea bargain, leaving their sentence entirely to the court, why would a prosecutor ever demand a jury trial?

Bill Baumbach at the Collin County Observer describes a case from his neck of the woods where prosecutors have done precisely that, refusing to accept a guilty plea to insist that the defendant be taken to trial instead. Texas 5th Court of Appeals said prosecutors are not required to accept a guilty plea. Baumbach writes:

Picture this -- a man is arrested for let's say burglary and is brought before a judge who asks him if he understands the charges. "Yes, your honor and I want to plead guilty", replies the accused.

But then the District Attorney jumps up with, "We object. The people demand a jury trial".

"But I'm guilty. I did it and I'll accept my sentence.", replies the accused. "No matter, the State demands a jury trial, and we will have one", the prosecutor declares.

In Texas and especially in Collin County this actually happens. The judge is then forced to send out jury summons to 100 or more citizens, who take time off of work to come to court. A jury is chosen, sworn in and seated. The man is brought back into court and once again says, "your honor, I plead guilty, and I ask that you, the judge, set punishment." The Jury is sent home, and the man sentenced.

Not a very efficient way to run a court, is it?

Last week, in a Collin County case, the Texas 5th Court of Appeals overturned a visiting judge who refused to allow the DA to force a jury trial, when the defendant asked to plead guilty.

In an excellent earlier post, Baumbach suggested an array of possible motives for why prosecutors might do such thing (and perhaps prosecutors reading this blog can suggest others he missed). The judge believed the motive was forum shopping so a different judge would sentence the defendant:

There are several possible reasons. One is exactly what Judge McCraw was charging. That the District Attorney wants to control which judge sets punishment. In Blackburn's case, Judge McCraw, after accepting the guilty pleas, would then set a date for a punishment hearing. The judge at that punishment hearing, and the one who would set punishment, would be Judge Jill Willis. (A jury trial date had already been set - the trial would have been heard by the visiting judge).

So McCraw was accusing the DA of not wanting Judge Willis to determine the punishment. And he was accusing the DA's office of wasting county money, and jurors' time to do so.

The Collin County Observer has talked with several local defense attorneys. They all told the Observer they believe that the Collin County District Attorney does not want certain judges to set punishment. One of those judges is the newly appointed Judge Willis.

Another possible reason for the DA to refuse to permit a bench trial is rooted in the policies of the Collin County District Attorney's office. Sources who know the system have told the Observer that in this county, a prosecutor's performance is rated primarily by one metric -- the percentage of jury trials resulting in a guilty verdict. Any prosecutor who does not maintain at least a passing average, will not be employed by the county for long. Promotions and raises are all largely based on this win percentage of jury trials.

Prosecutors therefore have an incentive to plea bargain the difficult to prove cases and to take to a jury the slam dunk, easy cases -- even if the trial is just a 'sham'.

Earlier this year, Harris County floated an idea that would be another reason for the State to object to a jury trial waiver - they wanted new, young prosecutors to get more trial experience. They wanted to force defendants to go before a jury so that the States attorney could practice on easy cases. That idea was finally shot down after a howl of protests from the defense bar.

In the Blackburn case, Judge McCraw made his opinion clear. At one point he told Mr. Rolater, "I think we ought to clarify it for the appellate court. As I say, if they want to be involved in forum shopping, fine. Let them do it.... I think the Constitution of the United States allows an individual to enter a plea to the duly appointed judge. That's all I've attempted to do here."

I can't think of many reasons beyond those to explain this particular exercise of prosecutorial discretion, and even they're slim reeds to justify such a pointless, extravagant waste of jurors' time, not to mention court and jail resources. The DA should plead the cases before the judges elected to hear them, not manipulate the process to get the judge they want, nor waste the court's time in search of notches on trial lawyers' belt or training baby prosecutors.

I'm sure nobody keeps statistics on how often prosecutors refuse guilty pleas to the charges grand juries bring, but if the courts find no legal requirement that prosecutors accept a guilty plea, perhaps the Legislature should create one.

MORE: See a related string from the user forum of the Texas District and County Attorneys Association on the question of forcing jury trials when a defendant has pled guilty to all charges. Thanks to Jaime Spencer for dredging it up.


Anonymous said...

Charlie Baird is a good reason for a prosecutor to refuse to accept a guilty plea before the judge. Baird is far more likely to grant deferred adjudication than many other judges. A prosecutor could reasonably conclude that a case requires a jury verdict of guilty (and, therefore, no eligibility for deferred adjudication).

Paladin51 said...

It is not a prosecutor's job to decide on the sentence. Recommend one, yes, but decide on the sentence, no. Their motivations rarely have anything to do with justice.

Charlie O said...

Here's an idea. For every sham trial insisted upon by these A-hole DAs, the salary of each and every person called to jury duty for that particular case, be paid out of the DAs budget. That'll put stop to it in short order. It's about time these "lawn order" A-holes be held accountable for their actions, abuse of power and wasting taxpayer's money.

Anonymous said...

Grits, just to follow up on what Anon 3:22 was saying, on 42.12, Sec. 3(g) offenses, like murder and most sex crimes, the only probation a judge can give is deferred adjudication. Just an odd quirk in the law. By pushing the case to a jury verdict of "guilty," the prosecution forces the defendant to elect jury recommended punishment (and they may be confident the jury will give pen time) or go to the judge where the judge has no discretion other than to give pen time. I'm betting the case at issue was a 3(g) offense of some variety.

Pelowski said...

I've seen this exact situation come up in cases where the DA feels like the judge is going to let the client off too easy.

Anonymous said...

Is the Defendant also waiving his right to have a jury decide aggravating or mitigating factors under Apprendi/Crawford? If not, you may still be picking a jury for the punishment phase.

Jeff Parker said...

What you missed was that if a defendant pleads guilty to a jury, the defendant MUST go to the jury for punishment. A defendant can not plead guilty to a jury and select the judge for punishment. See Thom v. State, 563 S.W.2d 618, 619 (Tex. Cr. App. 1978)(upon entering a plea of guilty in a non-capital felony case a defendant is not entitled to a bifurcated trial).

Once the guilty plea is entered, the procedure becomes a “unitary trial” to determine the remaining issue of punishment. Ricondo v. State, 634 S.W.2d 837, 841 (Tex.Cr.App.1982)(opinion of Motion for Rehearing); Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981).

This way, the prosecutor can prevent a judge from sentencing a defendant. It also would prevent imposition of deferred adjudication for several offenses, as well!

Hunter said...

This nonsense has been going on for a while in Collin:

I put together a list of "reasons" why a prosecutor might take this route. Thanks for helping put this in the light. Thankfully, most of the DA candidates (election tomorrow!) have stated that they are against this practice. (Bill's site has questionnaires we put out to the candidates)

Anonymous said...

What kind of sentences is the regular judge setting? The DA is adversarial after all and wanting to be hard nose on the defendant, wanting the worse for the defendants life and his or her family whom the DA is also sentencing. Is the prosecutor afraid Judge Willis might be fair and not give a 30-40 year (essentially life sentence since parole happens at 50% and TDCJ has every one locked up so tight people aren't even normal any more when released after the 5 or 6 set off's they get?) Come on, these barbaric TX practices have got to end. I pray, Lord please help the people stuck in these crazy forever long setences that started in the 90's when all the prison's were built. This hang 'em high and hang 'em loose in a noose they can't escape....ever has got to stop!!! Da's don't need all that power.

Anonymous said...


John said...

This seems a little strange to me. I practice in NY and the law here is that a defendant may plead to the entire docket at any time. [It rarely happens. I have only done it once in 30 years.]

Aside from the vagaries of Texas law, this discussion does raise one thought in my mind. Does it ever happen that a DA refuses a guilty plea, goes to trial, and there is an acquittal? Something like that might put the fear of God into these clowns.

MailDeadDrop said...

It seems like a savvy defense attorney could use this behavior to his client's advantage: "Ladies and gentlemen of the jury, my client plead guilty to the judge when he was charged, but the prosecutor said essentially 'NO WAY! I want a jury trial!' I don't know why he has forced us to go through the motions of this sham trial, but for whatever reason he has decided that his *desire* for this sham trial is more important than wasting the Court's time, your time, and your tax dollars. Perhaps you should send the prosecutor a message that his behavior is unacceptable..."

Scott Pawgan said...

I disagree with Mr. Parker. Pleaing guilty to a jury does not require the jury to select punishment. In the Thom case, the Defendant was not entitled to a bifurcated trial because it was a capital murder and in non death capitals the only possible punishment available is life and the sentence is automatic upon a guilty verdict. In addition, the Ricondo and Frame cases you cited are correct that upon a guilty plea at a jury trial, the trial then becomes only about one issue punishment. However those cases do not for the proposition that only the jury can assess punishment.
In my experience there are two additional reasons than those previously stated that a prosecutor may oppose a guilty plea and not waive their right to a jury trial. The first is that they feel the judge may on his own, upon the plea of guilt by the Defendant, the Defendant guilty of a lesser included offense and the DA wants to force 12 citizens to make that determination than the judge.
The second reason which I have seen happen on several occasions and angers me to no ends is that Prosecutors feel the judge will grant probation to a Defendant in jail, and the prosecutor feels that the Defendant needs to stay in jail longer. By forcing the jury trial, if the Defendant has not been able to make bond, then the Defendant sits in jail until that trial. What I have seen some judges do in this case is then grant a motion from the defense to lower bond to makeable bond or even a PR bond. But it requires a defense attorney quick enough on his feet to realize what is happening and make the request. That does not always happen.

Anonymous said...

I would put the case to trial. You never know what a jury will do and they may just do something wonderful for the Defendant. A lot of unexpected things happen and the DA's office may get a surprise. Williamson County is a bit tougher because the jury pools tend to be more conservative, but those demographics are changing. If it's a trial they want, it's a trial they'll get.

Jeff Parker said...

With all due respect to Scott, the Thom case was not capital murder, it was unlawful possession of marijuana. Thus, it simply stands for the proposition that there is no bifurcated trial upon a plea of guilty [in a non-capital offense].

Secondly, Scott is correct that the Ricondo and Frame cases do mean that once a guilty plea is entered before a jury, the “trial then becomes only about one issue punishment.” That is exactly the point, it becomes a “unitary procedure.”

Unitary means “whole” or “having the indivisible character of a unit.” It cannot be divided. If you are pleading guilty to a jury in a unitary proceeding -- there is no opportunity to switch to the judge for punishment. That would be bifurcated.

Texas Code of Criminal Procedure Article 26.14 is pretty clear when it states, “Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”

Article 1.13 states that the waiver of a jury trial requires “the consent and approval of the court, and the attorney representing the State.” Article 37.07 holds that the judge sets the punishment by default only if the defendant pled not guilty.

Bottom line: If a defendant pleads guilty to a jury, even if it is involuntary because the prosecutor refuses to waive a jury trial, it is a unitary proceeding and the jury is there for only one purpose -- to assess punishment.

Maybe there is some authority out there which Scott or some one else can point me to, but I didn’t find any during the ten minutes of research I did for this online comment.

Gritsforbreakfast said...

Jeff, I think you're incorrect on this. Even if they go to trial, after the defendant pleads guilty he may choose between being sentenced by the judge or the jury and the DA gets no say in the choice. As I understand it, it's not the case under any circumstances that the jury would sentence the defendant unless he chose it - only for the death sentence is jury sentencing mandatory. All the prosecutors get is a different JUDGE to issue the sentence.

Sam said...

You've left out the "elephant-in-the corner" reason that DA's sometimes do this. They get angry, for one reason or another, at the defendant, or the defense attorney, or both. I'm not defending this I am just saying I suspect this happens more often then we'd like to think.

In part it could be something as trivial as the prosecutor working all weekend on the case and being annoyed that now the Defendant wants to plead open to a visiting judge or to roll the dice on getting a more favorable judge for punishment.

This motive also may be played by the defense counsel as well, to avoid a "hanging judge" or a perceived "hanging jury".

Its all fairly unsavory in my mind. particularly when you factor in the waste of the court's resources, the juror's time, and county costs for a sham trial.

Jeff Parker said...

Grits, I understand that you think I’m incorrect, but I think I’m handsome. For whatever reason, though, the ladies disagree with me and the law disagrees with you. I admit I did all of ten minutes worth of research on the issue, but I did not locate a single case or statute that stands for the proposition that a defendant can plead guilty before a jury and then go to the judge for punishment in a non-capital case. If I’m wrong, I’ll be the first to admit it. Heck, if I had a nickel for every time I was wrong I wouldn’t be posting comments on someone else’s blog, I’d be driving an expensive sports car! But don’t just tell me that you think I’m wrong, prove me wrong.

Scott Stevens said...

Jeff Parker is correct. The CORRECT state of the law is that if the defendant pleads guilty before the jury, then the jury MUST set the punishment as the trial becomes a unitary trial. In order to make an election for judge punishment when the State refuses to waive a jury trial on guilt-innocence, the defendant must plead not guilty to the jury and then have the judge set the sentence.

He is also correct that one reason prosecutors insist on a jury trial is to cut of the ability of the court to give deferred adjudication, as deferred may only be given by a judge and only upon a plea of guilty or no contest.

This, of course, does not address whether the Collin County prosecutors had that motive in their practices. It does, however, address Grits' invitation for prosecutors to posit other reasons for insisting on a jury trial. While neither I nor Jeff Parker are currently prosecutors, we have both served in that capacity and I, at least, have insisted on a jury trial as a prosecutor precisely for the purpose of cutting off the court's and defendant's option to give/ask for deferred adjudication.

Jamie said...

If you want a reasonable excuse for getting it wrong, see John Bradley’s first answer: If the defendant elects to have judge punishment and the state refuses to waive a jury, then the guilty plea simply forces a jury to find the defendant guilty. Punishment would then be decided by the judge. The State can't force jury punishment simply by refusing to waive a jury trial.

If you want to know the law, see John Bradley’s second answer: Upon further review, I amend my explanation above. Indeed, if a defendant is forced to have a jury trial because the State won't waive the right to a jury trial, and the defendant wants the judge to decide punishment, the defendant will have to plead not guilty to preserve that right. That's because of the unique interplay between articles 26.14 and 37.07, CCP.

I say that with respect, because if JB can miss the answer the first time around, then anyone can.

Whether this is "doable", or by what method it is done, might miss the point though. I think a lawyer can find some way to have a defendant enter a plea of not guilty, but do it in a way that shows they are not contesting guilt. Don't know why you would even need to do that though, unless you were going to the jury for punishment, which is the opposite of what's going on here.

Change the hypo if necessary to Defendant wants to plead guilty and have judge set punishment, but is forced to plead not guilty by state. The rest of the discussion (why would the state do that?) then remains the same...

Scott Stevens said...

Oh yes, let us all bow down to the great god John Bradley...pphhhhhttttthhhhh

Sorry Jaime, I agree with and appreciate the rest of what you said, but I'm sick of the attitude that what someone says about the law is only right if a prosecutor is the one speaking. Perhaps you did not mean it that way, but it really strikes a nerve with me.

Gritsforbreakfast said...

Jeff Parker, I stand corrected. My bad.

Scott @ 9:27, Actually Jamie's pointing out that John Bradley initially made the same error I apparently did, then was corrected on a string at the prosecutor's user forum by a colleague.

Susan said...

I once had a client who was about to go the pen for 10 yrs on a 3g offense, but had a piddly evading arrest case holding him in county. The DA refused to do a TDC dismissal and refused to accept a plea so we teed it up. She took about 45 minutes to do her part of jury selection (yes, I said 45 minutes for a Class B) and when it was my turn, I told the jury that, 1) the DA has the right to a jury trial, as did the defendant and 2) even if the defendant wanted to plead guilty to the case, the DA could still request a jury trial. I then said that rather than wasted any more of the jury's time, I would take the first six. It took all of about 2 minutes. I waived opening stmt, cross examination, and did not put on a defense. During closing arguments, I just asked the jury to do the right thing and sat back down. After deliberating about 2 hrs longer than it took to try the case, they came back with a hung jury ... 5-1 for not guilty.

There are other strategies defense attorneys can employ to get around this DA manuever, but since so many prosecutors read your blog, I wouldn't want to give away any trade secrets.

Hook Em Horns said...