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A right to plea bargaining?

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March 28, 2009, 06:05
A right to plea bargaining?
A plan to provide novice prosecutors with more experience by forcing some Harris County defendants to stand trial, even if the accused wants to plead guilty, may now be on hold after the proposal drew fierce opposition from defense lawyers this week.
While some Houston defense attorneys called it a "world class bad idea" to force defendants in the county's misdemeanor court system to go to trial, Jim Leitner, the Harris County district attorney's first assistant, said such a plan would boost morale for prosecutors and provide valuable training.


[This message was edited by JB on 03-28-09 at .]
March 28, 2009, 19:00
You think in Harris County there would be plenty of chances to try cases, even without having to resort to that.
March 28, 2009, 20:36
There is. And the better justification is: the defendant may want to plead guilty but that doesn't mean he wants to agree to the punishment recommended by the State. Most trials are held because there is a disagreement over punishment. But we don't say the defendant is unethical for demanding that we prove his guilt, now do we?

So, why should the State be accused of unethical conduct if a trial is required to determine punishment? There is no constitutional or statutory right to an agreed punishment.
March 29, 2009, 06:09
Sounds like blog bait.
March 29, 2009, 22:23
Why is this an issue? The State cannot stop the defendant from pleading guilty. Even if the State refuses to approve a jury waiver, the defendant can still plead guilty, request court punishment, and essentially force an open plea to the court. If the defendant wants to plead so bad, then take it to the judge and let him deal with it. Assuming the judges don't approve of the DA's plan, that would be the quickest way to put a stop to it anyway.
March 30, 2009, 06:44
Aren't there enough cases to try without practice ones?

[This message was edited by Dan Bradley on 03-30-09 at .]
March 30, 2009, 06:50
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.
March 30, 2009, 07:37
Andrea W
I disagree. A guilty plea transforms the trial into a unitary proceeding. There's no separate guilt and punishment phases, it's just a sentencing question at that point. If the guilty plea is to the jury, then the jury asesses punishment. Haven't we had threads on this before?
March 30, 2009, 07:48
[Absent an election for jury punishment by the defendant, the judge decides the sentence. A unitary proceeding occurs only if there is agreement that guilt and punishment are both to be decided before the judge or jury.]

Sec. 2. (a) In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed. If the jury fails to agree on the issue of guilt or innocence, the judge shall declare a mistrial and discharge the jury, and jeopardy does not attach in the case.
(b) Except as provided by Article 37.071 or 37.072, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend community supervision and the defendant filed his sworn motion for community supervision before the trial began, and (2) in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury, except as provided in Section 3(c) of this article and in Article 44.29. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.
March 30, 2009, 08:16
For a discussion of how a defendant actually waives both rights, see this opinion. Typically, the waiver of the right to a jury trial on guilt encompasses a waiver of the right to a jury trial on punishment. But, a defendant could forced by the State to have a jury trial on guilt (by the State refusing to waive its right) but maintain the right to a trial on punishment by the judge (by not electing a jury trial on that issue).
March 30, 2009, 09:20
Wait a second, are you saying you can have a "slow plea, judge punishment"? The text of Articles 26.14 and 37.07 indicates to me that, if the State does not waive a jury trial, and the defendant then pleads guilty to the jury that the jury must assess punishment.

There are cases on point. I'm trying to find them.
March 30, 2009, 09:38
earlier thread: link
March 30, 2009, 10:03
State ex rel O'Connell, 976 S.W.2d 972:

Therefore, the jury waiver procedure for both felonies and misdemeanors is now the same. Without the State's consent and approval of a defendant's jury waiver, whether the defendant's plea is guilty or not guilty, the case is tried to a jury. When a defendant pleads not guilty before the jury, the proceeding is bifurcated. In such a case, article 37.07, section 2(b), applies. When a defendant pleads guilty before the jury, the proceeding is unitary. The jury's function is to assess punishment. Article 37.07, section 2(b), does not apply. Indeed, having a jury rather than the court assess punishment, in some cases, can inure to a defendant's benefit, as we have recognized. See Rojo v. State, 629 S.W.2d 88, 91 (Tex.App.-Dallas 1981, no pet.) (jury may assess probation with a deadly weapon finding although the court may not). The jury, after all, is in a unique position to determine �the interest of the community.� Id.
March 30, 2009, 10:40
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.

Thanks for the correction, JohnR. You got it right AndreaW.

So, I suppose a DA could increase the number of jury trials by refusing to plea bargain and declining to waive the right to a jury trial. If the defendant pleads not guilty and retains judge punishment, I would think it would irritate the judge, who considers the time spent picking a jury wasted. If the defendant pleads guilty, then it would be a punishment trial, which is generally a good thing, as it reminds us all how the community values the case.
March 30, 2009, 14:00
Larry L
I assume if the defendant files a written waiver of jury trial, and a written election to have the judge assess punishment, then announces that because the state has refused to waive a jury trial the defendant is entering a plea of not guilty to preserve his right to have the judge assess punishment, it would not take long for the judge to figure who is insisting on wasting his time, and causing the taxpayers to incur the additional expense of a jury trial when the purpose of the trial was to provide additional experience for ADAs. An alternate method of increasing the number of trials would be to increase the terms of plea bargain cases, which should result in a least a smaller number of guilty pleas.

On a related note, what if the defendant indicates AFTER THE STATE has rested, that he desires to change his plea to guilty (and defendant has filed an election to have the judge assess punishment)? Could it still be a "unitary" proceeding at that point?
March 30, 2009, 14:12
Andrea W
I don't think that the State is necessarily wasting anyone's time just because the defendant wants to plead open in front of the judge and the State doesn't want to let him. There are plenty of legitimate reasons for wanting a jury on both sides. It's not just the defense's right. The point is that BOTH sides are giving something up for a plea bargain. If the defendant won't give up anything the State wants, why should the State have to give up all the benefits of a jury trial?
March 30, 2009, 15:46
I have experienced judges who refused to consent to a jury waiver so that they could ring up some stats.
March 30, 2009, 16:36
Cory Crenshaw
Personally, I have only refused to waive a jury in the few circumstances when I was concerned that the judge would grant deferred and I wanted to prevent that thus requiring the defendant to plea in front of the jury. Luckily, that has only been a threat and I've never wasted a jury doing that. John, I guess I shouldn't be surprised that some judges out there would be so concerned about stats to take on such a policy, but I am glad I am not in front of any of them ... Roll Eyes
March 30, 2009, 19:34
I would be mighty glad to waive a jury and try a case before any one of my judges. Very satisfied in that regard.
March 30, 2009, 21:50
I think I learned more by losing quite a few of my first DWI cases to Mr. Logene Foster, Esq., in my early prosecution days than I would have by winning "whale" cases.

In fact, I learned more in a few years of trying dwi cases against him than I ever learned in law school. He always had me on my toes.

And I publicly thank him.