Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Fort Bend County Loses the "Scent Lineup" Issue Again

Last year, I posted about a murder case wherein a Fort Bend County dog handler used three bloodhounds to conduct a "scent lineup" to match a suspect's body scent to the scent of certain evidence from the crime scene.  See the post HERE.  In that case, the CCA ruled that the scent evidence was not enough to establish that the suspect had committed the murder.  The CCA did not comment on the admissibility of scent lineup evidence.

Today, the First District Court of Appeals (Houston) issued an opinion in another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler's methodology that the court noted were:

• He carries around his "blind" non-supect scent samples (called foil samples) in ziplock bags;
• His foil samples are old samples, while the scent sample of the suspect is fresh;
• He does not do negative runs where the sample of the suspect is excluded;
• He uses multiple dogs during each test rather than allowing the dogs to work alone; and
• He is mostly self-taught and his methodology is something he created. 

On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.

Now the courts have intervened twice to smack down the Fort Bend County dog handler's "scent lineup" evidence.  The question is: will they keep using the dogs in Fort Bend or will there be three former police bloodhounds on Craigslist by the end of the week?

CCA Refuses to Grant New Trial in Capital Case After Medical Examiner Recants Trial Testimony and Trial Court Recommends New Trial

Ex Parte Neal Hampton Robbins – Tex. Crim. App. , June 29, 2011

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of "undetermined" is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced. Characterizing Robbins’s application as a “bare innocence claim,” the CCA explained that it must “look to see whether there is ‘clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’”

The CCA concluded that:

[The original medical examiner] did not entirely repudiate her testimony. Although she can no longer stand by her more definite trial testimony, it remains at least possible that [the child’s] death could have occurred as [the medical examiner] originally testified. Thus, [her] re-evaluation does not void her trial testimony. The jury could have considered [her] “undetermined” opinion and still found Applicant guilty, especially in light of all of the other evidence adduced at trial. Applicant has, therefore, failed to make the requisite showing “by clear and convincing evidence that no reasonable juror would have convicted him in light of” [the medical examiner’s] re-evaluation.

Application for writ of habeas corpus is denied.

Judge Cochran, joined with Judges Womack and Johnson dissented, stating:

I certainly agree [that]…applicant has not established his actual innocence-not even close. But, given the inexperienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence (or the honest admission that science cannot resolve the critical issue.)

Judge Alcala also dissented in a separate opinion, stating that she would grant relief because Robbins “was denied due process of law by the State’s use of false testimony to obtain his conviction.”

If only Robbins had been tried in Florida by Casey Anthony’s jury, this entire appeal could have been averted.

Military Capital Case Unlikely to Result in an Execution (Even in Texas)

On the fringes of Texas criminal law is the notorious case of Major Nidal Hasan, the Army medical officer and American Muslim that killed 13 people during a shooting rampage at Texas’ Fort Hood in 2009.

CNN reports HERE that the Convening Authority (the Army General that forwarded the charges to court-martial) has decided that this will be a capital case. That the death penalty would be on the table was thought by many to be a foregone conclusion. However, unlike Texas capital cases, the likelihood of the death sentence being executed is a longshot in the military system.

As reported by the Court-Martial Appellate blawg CAAFlog,

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.

Further, a survey of the 10 death sentences that have been adjudged in the military in past 37 years indicates that the reversal rate on appeal of death sentences in the modern military system is 80% (and none of the death sentences were reinstated when resentencing was authorized.)

The most shocking statistic, especially to Texans like me, is that there has not been a military execution under the modern system, ever. And it does not appear that one is imminent for the existing military death row inmates.

The death penalty may be an option for the Hasan jury and it may indeed be the sentence that is handed down, but if history is our guide, Hasan will spend his remaining days at Leavenworth and there will be no execution.

Post Conviction DNA Testing – How It Works

What follows is an excerpt from the Texas Court of Criminal Appeals’ recent published decision in Ex Parte Gutierrez regarding the propriety of post-conviction DNA testing. It does not reflect new law on the subject, but is helpful as a refresher.  These are the statutory hurdles a person must jump in order to have the original evidence tested for DNA in hopes of proving his/her innocence:

There is no free-standing due-process right to DNA testing, and the task of fashioning rules to “harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice” belongs “primarily to the legislature.”  In Texas, Chapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing when requested by a convicted person if it finds all of the following:

(1) evidence exists that by its nature permits DNA testing;

(2) the evidence was either:

     (a) justifiably not previously subjected to DNA testing [because DNA testing i) was not available, or ii) was incapable of providing probative results, or iii) did not occur “through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing”]; or
   
     (b) subjected to previous DNA testing by techniques now superseded by more accurate techniques;

(3) that evidence is in a condition making DNA testing possible;

(4) the chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

(5) identity was or is an issue in the underlying criminal case;

(6) the convicted person has established by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(7) the convicted person has established by a preponderance of the evidence that the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

An indigent convicted person intending to file a motion for post-conviction DNA testing now has a limited right to appointed counsel. That entitlement used to be absolute, but it is now conditioned on the trial judge’s finding “that reasonable grounds exist for the filing of a motion.” If all of the prerequisites set out above are met, the convicting court must order testing. Then, after “examining the results of testing under Article 64.03, the convicting court must hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Chapter 64 is simply a procedural vehicle for obtaining certain evidence “which might then be used in a state or federal habeas proceeding.”

Juvenile Life Without Parole Sentence Affirmed

In 2005, the U.S. Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), holding that the Eighth Amendment prohibition against cruel and unusual punishment forbids the execution of juveniles (i.e. anyone under the age of 18). At that time, the juveniles in Texas that were on death row had their sentences commuted to Life with parole. Also in 2005, the Texas Legislature amended Section 12.31(a) of the Texas Penal Code to require Life Without Parole (LWOP) sentences for capital cases in which the State does not seek the death penalty. This new LWOP provision applied to offenses committed on or after September 1, 2005.

Consequently, because juveniles could no longer be sentenced to death, all juveniles convicted of a capital crime in Texas were automatically sentenced to LWOP. In 2009, however, the legislature again amended section 12.31(a), to provide, in relevant part:

An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the [TDCJ] for life [i.e. with parole], if the individual’s case was transferred to the court under Section 54.02, Family Code.

The new life imprisonment (with parole) ceiling on juvenile capital offenses was not applied retroactively. The legislature specifically provided that the amendment applied only to an offense committed on or after September 1, 2009.

Chris Joshua Meadoux, the subject of a recent Court of Criminal Appeals opinion, was a juvenile capital offender sentenced to LWOP for a double murder that occurred in 2007. Unfortunately for him, his offense was committed during the 4 year window in which LWOP was the required punishment for a juvenile capital offender. He complained on appeal that his sentence violated the Eighth Amendment because the 2009 amendment reducing LWOP to life indicates that LWOP is a cruel and unusual punishment for juveniles. His specific arguments on appeal were:

1. Juveniles were less morally culpable (i.e. blameworthy) for their crimes than are adult offenders;
2. Life imprisonment without the possibility of parole did not serve as a measurable deterrent for juveniles; and
3. The Legislature’s recent amendment of the Texas Penal Code Section 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders signified that the evolving standard of decenecy, at least in Texas, forbade the categorical assessment of LWOP for juvenile capital offenders.

Appellant requested that his case be remanded back to the trial court for a new sentencing hearing in which life imprisonment would be the maximum penalty.

The 4th District Court of Appeals (San Antonio) held that the Eight Amendment did not bar LWOP in Appellant’s case, as his crimes were committed during the time in which LWOP was the required punishment. In its opinion of November 17, 2010, the CCA agreed, holding that:

(1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering the balancing of these four factors, we conclude that Meaduox has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

Judge Meyers penned a dissenting opinion and was joined by Judge Johnson. They would hold that because the Legislature subsequently determined that LWOP is inappropriate for juvenile offenders, the sentence in Appellant’s case is unreasonably harsh.

I won’t make a lot of friends with my opinion of this holding, because I think the court got it right. In fact, I think the Legislature got it wrong in 2009. I believe that LWOP should still be an available punishment for juvenile capital offenders, but as an option, with life as the other alternative. We should let the jury decide whether LWOP or life is appropriate in each case. In this case, Meadoux committed a double murder and then tried to burn the bodies in a house fire to destroy the evidence. He got what he deserved.

CCA Applies Estoppel Theory to Defendant Whose Counsel Helped Draft the Defective Jury Charge

Below are of few of the recently reported slip opinions from the Texas Court of Criminal Appeals that were designated for publication.

Defective Jury Charge on LIO
Woodard v. State - The defendant was indicted for murder but somehow convicted of an unindicted offense of conspiracy to commit aggravated robbery.  On appeal, he claimed that the trial court erred by instructing the jury on the conspiracy offense because, under the Almanza  factors, conspiracy to commit aggravated robbery is not a lesser included offense of murder.  The CCA concluded that if appellant had simply failed to object to the jury charge, he would be entitled to reversal under Almanza, but because the appellant actually helped draft the objectionable jury charge, the CCA applied an estoppel theory.

Our [past cases have] recognized that, if “the record showed that the appellant requested the charge on the [unindicted] lesser offense . . ., he would be estopped from complaining of its inclusion in the charge.” We believe that the record in this case fairly reflects that, at the very least, appellant had some responsibility for the jury instruction on the unindicted conspiracy to commit aggravated robbery offense.  The record reflects that appellant helped prepare the charge, including the instruction related to the unindicted charge of conspiracy to commit aggravated robbery, to which the State unsuccessfully objected.  This is a great deal more than just simply not objecting to the charge or just stating “no objection” to the charge.  Under these circumstances, we decide that appellant may not be heard to complain for the first time on appeal that the trial court erred to instruct the jury on the unindicted conspiracy to commit aggravated robbery offense.

In her concurrence, Presiding Judge Keller would take this case one step further and and adopt the doctrine of beneficial acquiescense, "by which a defendant who fails to object to an instruction on a LIO would be estopped from complaining on appeal." (Emphasis added).

Simply to note how curious she finds this case, Judge Cochran also concurred.



Capital Murder (Accomplice Liability)
Padilla v. State - CCA affirms appellant's conviction for capital murder as legally/factually sufficient under an accomplice theory of liability.

CCA Upholds Death Sentence for Coble

Billie Wayne Coble was convicted of capital murder in 1990 and sentenced to death.  In 2007, the 5th Circuit Court of Appeals (federal court) granted habeas relief and remanded the case for a new trial on sentencing.  A second jury sentenced Coble to death and now the CCA affirms that sentence.  The opinion is 68 pages long and I'm sure it is chocked full of interesting material, but I don't have time to peruse it now.  For those of you that are interested, you can get the full opinion HERE.  Presiding Judge Keller concurred HERE.

Something Doesn't Smell Right: CCA Reverses Capital Murder Conviction Due to Unreliable Dog-Scent Lineup Evidence

In August 2004, Murray Wayne Burr was found murdered in his home.  One of the those suspected of committing the murder was Richard Lynn Winfrey.  Winfrey remained a suspect even when the police investigation concluded that blood, hair, and DNA samples obtained at the crime scene excluded him as a match.  Without any evidence linking Winfrey to the murder scene, the Texas Rangers called upon a dog handler with the Fort Bend County Sheriff's Office.  The dog handler then conducted a "scent lineup" using three bloodhounds.

This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including [Winfrey].  The dogs were "pre-scented" on the scent samples obtained from the victim's clothing.  The dogs then walked a line of paint cans containing the sent samples of the six white males.  All three dogs alerted on the can containing [Winfrey's] scent sample. 

When this scent identification was later admitted at Winfrey's capital murder trial, he was convicted and sentenced to 75 years in prison.

After the 11th Court of Appeals affirmed the conviction and sentence, the Texas Court of Criminal Appeals granted to review to address whether it was proper for the Court of Appeals to rely upon a dog scent lineup in determining that the evidence was legally and factually sufficient.

"Identifying someone's scent at a crime scene is not an indication of complicity," the CCA explained.  The Court also noted, as originally stated by Supreme Court Justice Souter, that "[t]he infallible dog, however, is a creation of legal fiction."  The CCA then went on to identify courts around the country that have held that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.  Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.  Like the Supreme Court of Washington, we believe that [t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.

Finding it "undeniable" that the jury and the Court of Appeals found the dog scent lineup evidence compelling, and further finding that there was no corroborating evidence placing Winfrey at the scene of the crime, the CCA reversed the lower court of entered a judgment of acquittal.

Takeaway:  "[W]hile [dog scent lineup] evidence may raise a strong suspicion of [a person's] guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.

Going Beyond Relevance

Capital Murder Conviction Reversed for Improper “Bad Acts” Evidence Offered by the State.

The State had a solid Capital Murder case against Desmond Dewayne Jackson. Here’s some of the evidence the State introduced to show that Jackson robbed the victim, shot him, and then fled:

• Jackson admitted to a friend that he committed the murder.
• Jackson admitted that before he attempted the robbery (which resulted in the murder) he studied the victim’s routine of going into the bank and returning with money for his store.
• Jackson stated that he killed the man with “a .45.”
• The victim died of gunshot wounds from a .45 caliber pistol.
• Jackson stated that he stole approximately $8,000 and fled through the woods.
• The victim had just received $8,884 from the bank.
• Nearby witnesses saw a man fitting Jackson's description flee into the woods near the time of the murder.
• Expended shells seized during a search of Jackson’s house had similar bunting markings as the shells found at the scene of the murder.
• Jackson flew from Dallas to Atlanta the day after the crime.
• Jackson’s wife had some poorly explained absences from work on the day of the crime.
• Jackson lied to the police on several occasions concerning his whereabouts on the day of the crime.

Despite what the 6th District Court of Appeals characterized in its opinion as “substantial evidence of guilt,” the State apparently did not feel that it had enough. Perhaps that was why, at the conclusion of the defense case-in-chief, the State spent another 2 and ½ days introducing “rebuttal” evidence that Jackson also committed an armed robbery of a Kroger grocery store using a .45 caliber pistol. The State did not contend (at trial or on appeal) that the crimes were related nor did it allege that the two crimes demonstrated a modus operandi (common scheme) by the perpetrator. Rather, the State offered the extraneous offense evidence “to prove identity, to prove intent, and/or to rebut a defensive theory.”

The general rule is that extraneous offense (other bad acts) evidence is not admissible to prove the character of a person in order to show that he acted in conformity with that character on the day in question. It may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In this case, the State chose “identity” and “intent” as the exceptions de jure in its attempt to offer this unrelated offense to the jury.

Identity
Regarding the identity exception, the Texas Court of Criminal Appeals has explained that

When the extraneous offense is introduced to prove identity, the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005). As an illustration of this principle, think about the movie Home Alone, in which the burglars always left the water on in the home they burglarized in an attempts to be known as “The Wet Bandits.” In this case, however, as the court points out,

the only similarities between the pawn shop murder and the Kroger robbery are that both offenses were armed robberies committed with a .45 caliber pistol. We see no similarities that indicate a distinctive and idiosyncratic manner of committing criminal acts.

Intent
The State argued that the Kroger robbery, in which no one resisted or was injured, shows that Jackson intended to kill the victim in the pawn shop robbery because he resisted. Jackson argued, however, that he did not contest the issue of intent. Citing the CCA case of Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996)(op. on reh’g), the Court explained:

When the State’s evidence on intent is uncontradicted by the defendant or not undermined by cross-examination of the State’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy. Because Jackson never contested intent, the extraneous-offense evidence was inadmissible under Rule 404.

Harm
In holding that the trial court abused its discretion by allowing the State to introduce the Kroger robbery, the Court next had to consider whether the error resulted in harm. While noting the “substantial evidence of guilt” in the case, the Court stressed that there are other factors it must consider when determining harm, including “the character of the alleged error and how it might be considered in connection with other evidence in the case.” The Court further stated:

Extraneous-offense evidence is inherently prejudicial, tends to confuse the issues, and forces the accused to defend himseld against charge not part of the present case against him. By its very nature, an improperly admitted extraneous offense tends to be harmful.

Holding that the evidence of the Kroger robbery may have had a profound effect on the jury’s decision, the Court concluded that it was reversible error.

Capital murder conviction and LWOP sentence reversed and remanded.  Read the opinion HERE.

LWOP Abolished for Juvenile Offenders in Nonhomicide Cases

Today, the U.S. Supreme Court released its opinion in Graham v. Florida, wherein it held:

The [Cruel and Unusual Punishment] Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.

Justice Kennedy delivered the opinion of the Court, in which Justices Stevens, Ginsburg, Breyer, and Sotomayor joined.  Chief Justice Roberts concurred.

Writing for Justices Scalia and Alito (in part), Justice Thomas stated is his dissenting opinion:

     The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide.  Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.
     The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of Columbia, and 37 States (but not Texas!) allow judges and juries to consider this sentencing practice in juvenile nonhomicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered.

He goes on to state:

     I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.

This opinion should not make much as a ripple in Texas law, however, becuase Texas does not allow LWOP for any juvenile offense, having abolished LWOP for juvenile capital murder last year.  Even so, it's a big case for 37 other states out there.

Trial Court has No Duty to Sua Sponte Instruct on Lesser-Included Offenses

Yesterday the Texas Court of Criminal Appeals released it opinion in Tolbert v. State (majority opinion HERE).  In Tolbert, the Court considered "whether the trial court was required to sua sponte instruct the jury on the lesser-included offense of murder in appellant's capital murder prosecution." It held that no such instruction is required.

At trial, the government proceeded under a felony-murder theory, alleging that Appellant committed the murder in the course of a robbery.  However, some evidence was presented that Appellant did not decide to rob the victim until after she killed him, which would make it murder and not capital murder.  Accordingly, the State requested a jury instruction on the LIO of murder, a request which the trial judge denied.  When asked, Appellant stated "no objection" to charging the jury on capital murder only - otherwise known as the "all-or-nothing" tactic.  The jury found Appellant guilty of capital murder and she was sentenced to life. (State did not seek the death penalty).

On appeal to the 5th District Court of Appeals, Appellant apparently changed her mind regarding whether the trial judge should have charged the jury on the LIO of murder.  Irrespective of the State's request for the LIO instruction, the 5th Court held that by not sua sponte instructing the jury on the LIO, Appellant was "egregiously harmed" under the Almanza (686 S.W.2d 157) factors and reversed (5th Ct. opinion HERE).  


REVERSING the 5th Court's decision, the CCA stated:

Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party’s request. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.

We, therefore, decide that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of murder and that a jury instruction on this lesser-included offense was not 'applicable to the case' absent a request by the defense for its inclusion in the jury charge.

Judges Johnson and Holcomb dissented, believing that the instruction on the LIO was not an issue that must be requested by the defense, but was part of the "law applicable to the case" which would require a corresponding jury instruction.  Judge Price dissented without opinion.


My thoughts:  Our trial judges are supposed to instruct the jury on the "law applicable to the case." With this decision, the Court departs from years of precedent and would require the defense to specifically request instructions on a LIO.  So now, this is a "defensive issue."  There are definite tactical advantages that can be gained by using the "all-or-nothing" technique of not requesting an LIO instruction, namely the fact that you force a jury of average citizens to make a tough decision on whether to convict for the greater offense rather than letting them essentially "split the baby" with an LIO.  In this case, it simply didn't work and the CCA was not going to correct Appellant's "tactical error" after it proved unwise. (I say "tactical error" simply because it didn't work in this case, not because it should never be done).

LWOP Upheld for Juvenile Capital Murder Case

The Fourth Court of Appeals (San Antonio), who, by the way, issues the most aesthetically pleasing opinions, just upheld a Cruel and Unusual Punishment challenge Texas' sentencing scheme (pre-Sept 1, 2009) that imposed a mandatory life without parole (LWOP) punishment on a juvenile capital murder offender.  Meadoux v. State.

Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course).  The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished.  Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.

After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent.  "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights.  Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."

If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here.  Justice Speedlin does an excellent job in her presentation of the law and application of the facts.  Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.

I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders.  I hate that the Court gave such little attention to this issue (4 measly pages).  As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.

I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented."  Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases.  If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.

This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP.  But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.