I'm in need of some clarification post-Sanchez.

I have an appeal, with a very short deadline.
Infant with 14 fractures old and new, including a new broken back. 2 blows to the head. Abdominal trauma. CoD = blunt force trauma.

We charged injury, causing SBI.

Dad was alone with kid last time kid was alive.
5 hours later, kid is cold and stiff.

We charged blunt force to head and/or torso with the hand or hands, and/or with or agaisnt an object unknown, and/or by shaking, and/or throwing, and/or dropping, and/or cuasing the spinal cord and/or spinal column to extend and/or bend until broken in a manner which is unknown to the Grand Jury.

There was a motion to quash pretrial to excise the unknown.
After the evidence, def objects to unknown in the charge.

Multiple doctors testify that the injuries were blunt force trauma and could've happened in a whole bunch of different ways.

None, unlike in Sanchez, say it was either x, y, or a combo.

Here's my issue.
I'm really struggling with understanding Sanchez. With the whole unknown vs. unknownable.
When we've got a problem with our charge and when we don't.

Honestly, how in the world is this not unknown when all of the injuires are SBI and we don't know how they happened?

Would someone explain Sanchez to me?
And how y'all are handling it?

Your confusion is not the result of not understanding. Sanchez really was written in a way that encourages confusion.

Sanchez has been pending on motion for rehearing for over a year now. They may still change their minds. Or maybe issue a better opinion.

The State Prosecuting Attorney's Office may have the best understanding of the state of the law. (512) 463-1660.

This has created a huge problem in trying to figure out how to plead our cases.

And, for the case I'm working the appeal on, it's a gigantic problem in trying to figure out how to even respond to these arguments.

This kid has all sorts of injuries. And, unlike a stabbing or a gunshot or a bloody bat, we really have no idea if he slammed the kid, punched the kid, shook the kid, dropped the kid, or came up with some new way to do this stuff. We do know that the injuries are consistent with all of these.

We know for sure, however, that he inflicted blunt force trauma that caused SBI.
We've got a bunch of hypos and an unanswered question as to how he did it.

Is that unknown or is that unknowable?

The bigger question is why should it matter?

The indictment is there to give the defendant notice. Saying "unknown" should clearly alert the defendant that there may well be some testimony that won't be super clear on exactly how an injury occurred.

Beyond that, what is the big deal?

Sounds like a tough case. That seems "unknown" to me, rather than "unknowable" because we don't have a finite number of different manner and means. If we could say it's definitely X,Y, or Z, but we don't know which, that's not "unknown" that's "unknowable". This sounds like it could have been X, Y, Z, any of the cyrillic letters, or maybe an imaginary number, so it could rightfully be plead as "unknown".

So I think you can say it is distinguishable from Sanchez where they were dealing with a closed universe of possibilities while your case was clearly an open universe. I don't know how many cases have dealt squarely with this issue post-Sanchez, but I think you can legitimately argue that your case is distinguishable from Sanchez.

[This message was edited by David Newell on 12-07-11 at .]

At the risk of being wrong:
Sanchez addresses the jury charge--but neccessarily does so in the context of the accusation. While the cause of death was known (asphixiation)the manner and means was less certain (choking, stun gun, & unknown--either intentional or act cleary dangerous). The indictment alleged all 4 manner and means (M & M).
The question became whether, during trial, the evidence clarified the M & M. The doctor testified only to choking or stun gun.

The next question is the effect of that evidence on the jury instructions. Because there was no evidence to support M & M unknown, the CCA held those instructions should not have been in the charge.

The case illustrates the confusion that can arise between the legal terms "cause of death" and "the manner and means of death" (how the COA messed up) AND between the medical term of "manner of death" and the legal term "manner and means of death" (the doctor's testimony failed to clarify the difference).

Accusations:
We can still allege unknown M & M in indictments. But the allegation is subject to a pretrial hearing--for notice purposes--to determine the accuracy of the allegation. If it turns out there is known evidence of the M & M, the indictment should be amended to allege the M & M. As confusing as the opinion is, the CCA expressly told us that we do not need to alter indictment practice.

Jury instructions:
If the M & M remain unknown after the presentation of evidence, the instructions should include the allegation. But if the M & M have become known, the instructions should not include the allegation.

Okay, so where does the distinction between "unknown" and "unknowable" come in? Evidence is unknown if it has not or cannot be discovered. Evidence is unknowable if there are options known, but the specific option (actually causing death or the manner and means employed) is unknown.

Your facts:
With that background, it appears that your indictment should have alleged M & M unknown as well as all the options supported by the evidence. This should get you around any potential notice problems. (If before trial your evidence restricted the options, you would have needed to amend your indictment. And if, during trial, the evidence restricted your options you would have needed to tailor the instructions accordingly). Also, because your M & M remained unknown at the conclusion of evidence, an instruction on M & M unknown would be properly submitted to the jury.

That all said, I agree with David that you appear to have M & M unknown. Sanchez is not your your case.

Now let the punches fly!

[This message was edited by John A. Stride on 12-08-11 at .]

Just because a witness testifies to a particular manner or means does not necessarily mean that a jury should no longer be able to consider alternate manner and means, including unknown. Such a position seems to be a comment on the evidence, completely disregarding the ability of a jury to determine for itself the weight and credibility of a witness and to engage in its own inferences from the evidence.

For a judge to hold a pretrial hearing that could potentially alter or narrow the pleadings encourages pretrial trials and gets impartial judges commenting on the weight of evidence.

The opinion is poorly written and does the thing that makes an opinion most subject to criticism: it creates more problems than it solves.

Which is probably why it has been pending on rehearing for over a year.

One further point: Because Sanchez is pending rehearing, it is not yet a final decision and, accordingly, is not a part of our jurisprudence. See Yeager v. S., 727 sw2d 280, 281 n.1 (CCA 87)(per curiam).

And JB, of course you are right on all points! To me Sanchez joins the recent case on self-defense, i.e., Morales. I still haven't figured out that one.

[This message was edited by John A. Stride on 12-08-11 at .]

I spent about an hour speaking with the State's Attorney's Office. I happened to catch the lawyer working on Moulton. Moulton applied (in a back door way) Sanchez.


I've come to the same conclusions offerred by John and David.

It really is unknown.
This isn't a sealed room.
The doctors said it could've been a whole bunch of things and none of them said it was only x or y. I think we're good.

Now it's time to work on finding the authority---which seems fairly bare in this area.


As always, thanks for the help.

What if you then have the defendant "confess" to causing the injuries, but providing an explanation for each that the doctors reject as impossible? If we now have finite options of x, y, and z, does that make the manner and means "unknowable," even though the doctors say that x, y, and z would not have caused the injuries?

I'll take a stab at it. I would venture to say that while the defendant's explanations of how it occurred provide some "knowns" that the jury could choose to believe or disbelieve, I would think the fact that the medical examiner testified that they were impossible means the universe of possibilities is not closed. Had the medical examiner agreed with the defendant then we would know it had to be x, y, or z, just like in Sanchez. But here, unlike in Sanchez, we don't have the medical examiner saying that it was only x, y, or z. So your manner and means would still be unknown rather than unknowable.

But what do I know.

[This message was edited by David Newell on 01-20-12 at .]

All this makes me wonder whether the old was was better--if you couldn't figure it out, you would say manner and means unknown and call a grand juror to say they couldn't figure it out even though they tried. Or, could it be that Sanchez is simply a solution for something that isn't a problem? Have people been alleging "manner and means unknown" simply to avoid giving notice of their theory of the murder? If people were doing so, would some other remedy lie?

I feel that same way about Crawford. What does it say about that new rule that there has to be a new, groundbreaking case every year (for seven years) to explain it?

I do think the CCA's heart is in the right place in that it is kind of silly to have to bring a grand juror in during the case in chief to say the manner and means is unknown. But I also think you're right that splitting hairs about what's unknown doesn't appreciably assist the defense in figuring out what they are facing at trial. It may yield some technical arguments to benefit the defense by limiting theories of prosecution, but I'm not convinced it cuts down on "surprise".

But what do I know.

The CCA today denied the motions for rehearing in Sanchez without issuing a new opinion.

What is this, then?

GRANTED ON COURT'S MOTION FOR REHEARING:


PD-0961-07 SANCHEZ, ORLANDO FROM HIDALGO COUNTY - 13-03-00698-CR
SANCHEZ, ORLANDO FROM HIDALGO COUNTY - 13-03-00698-CR

PD-0961-07 SANCHEZ, ORLANDO FROM HIDALGO COUNTY - 13-03-00698-CR

They already issued a new opinion.

After a quick read, it appears they jettisoned the unknown/unknowable distinction. They now hold that it was error to include the "unknown to the grand jury" manner and means only because there was no evidence to support it -- the evidence showed either a stun gun or choking caused the victim's death, not some other unknown means of asphyxiation. But the error was harmless because there were alternative theories presented and the jury did not need to be unanimous on the manner & means.

Managing web pages is complicated business, I guess. Now to read it.

Good news that they returned to a common sense approach that avoided all the philosophical discussion of unknown v. unknowable. Just look at the evidence.

Note that Judge Womack, who wrote the original opinion, only concurs. Presumably he wanted to keep his original opinion.