We have a capital murder trial coming up and the defense has filed a motion to allow the jury to consider the sentences imposed throughout the state in other capital murder trials.

I know that this issue has to have been decided before, but I cannot seem to find the right words to search on Westlaw. If anybody has any insight, I would appreciate it.

Of what relevance is some other defendant's and victim's unique set of facts to your defendant's and victim's unique set of facts? Who cares if this is the only DP case in the state, or the millionth? We don't instruct the jury about the sentences in other intoxication manslaughter cases, sexual assault cases, or drug cases. There is no basis in law at all for such an instruction or discussion. I'd be curious to see what the defense's argument is that there is such a basis.

I agree completely with what you wrote. I am just curious if there is a case out there that does away completely with the nonsensical idea.

First I've heard of that. It's creative, but without basis in the law. If I was doing a search, I'd look through the annotations to CCP 37.071 for "proportionality" or something similar -- that's the concept that has been twisted through false comparisons by those seeking to halt the death penalty.

The only related thing I've heard of is defense counsel subpoenaing prosecutors to testify about their decisions to seek the death penalty; for more on that, see this thread:

https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=4243038775&r=4243038775#4243038775

Maybe not exactly on point, but in Morris v. State, 940 S.W.2d 610 (Tex. Crim. App. 1996) the CCA held that a defendant did not have the right to present as mitigating evidence the State's decision not to seek the death penalty on two co-defendants.

If the defendant can't even introduce the sentences of his co-defendants, how are sentences for other defendants that are even less similarly-situated relevant?

This argument would seem to go to a complaint that the jury should be allowed to consider such sentences. If the argument is (as Shannon suggests) that these other capital murder life sentences show somehow that the death penalty is arbitrary imposed due to a prosecutor's discretion to seek or not seek the death penalty, I think that has been decided againts him. See e.g. Russeau v. State, 171 S.W.3d 871, 886-87 (Tex. Crim. App. 2005); Hankins v. State, 132 S.W.3d 380, 387 (Tex. Crim. App. 2004).

[This message was edited by David Newell on 12-02-08 at .]

A man by the name of James Marquart used to try to testify that it was impossible to determine "future dangerousness" using statistical jargon. The CCrA said that such testimony was useless in determining the individual's propensities; such evidence was determined to be confusing and without merit.

I think that was Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996).

In Hankins v. State, 132 S.W.3d 380 (Tex.Crim.App. 2004) cert.den. 543 U.S. 944, 125 S.Ct. 358, 160 L.Ed.2d 256, (2004), the defendant filed a pretrial motion claiming that the Texas death-penalty statute was unconstitutional for its failure to provide a consistent state-wide method for determining in which cases the death penalty would be sought. The Court held:

The State has discretion to seek the death penalty and this prosecutorial discretion is not unconstitutional. Cantu v. State, 842 S.W.2d 667, 692 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Barefield v. State, 784 S.W.2d 38, 46 (Tex.Crim.App. 1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that prosecutorial discretion was not unconstitutional). We have specifically rejected the claim that this discretion violates the Eighth and Fourteenth Amendments. See Ladd v. State, 3 S.W.3d 547, 574 (Tex.Crim.App. 1999)

Id. at 387. More to the point in your case, the Court of Criminal Appeals upheld the trial court's quashing of subpoenas for five district attorneys to come testify about their practices relating to death penalty cases. The Court has rejected, therefore, allowing the defense to poll prosecutors as to how their practices would differ from county to county in seeking the death penalty. So to the extent your defendant is asking for this evidence to be presented as an equal protection issue involving state action, the constitution does not require it.

If your defendant is, instead, asking for the court to allow him to present what juries did in other cases as some sort of "baseline" for what should happen in his case, every capital murder case and defendant will be different to greater or lesser degree than every other case. Cases will be stronger or weaker depending on the defendant, the witnesses, the victim, the investigators, the evidence available, the community from which the jury will be drawn, etc. For every case the defendant would show that a similarly-situated defendant received life, you could find one to show a defendant that received death. Why should the jury start second-guessing the results in every other case in Texas when the facts available to resolve the issues in this case are right in front of them?

To be relevant, evidence must make a fact in controversy more or less likely to be true. None of the special issues asks the jury to decide any question which would make the evidence of other jury verdicts relevant.

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Originally posted by WHM:
More to the point in your case, the Court of Criminal Appeals upheld the trial court's quashing of subpoenas for five district attorneys to come testify about their practices relating to death penalty cases . . .

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I think that's Russeau v. State, 171 S.W.3d 871, 886-87 (Tex. Crim. App. 2005).

It happened in both Hankins and Russeau. As tends to happen with these issues, once one capital defendant tries a novel approach, it starts to show up everywhere.

I blame the Internet.