stumped on this one, just want to see what others have done. This time, the judge did not write on the order "joined into cause number so and so" so it reads that defendants "be prosecuted in a single trial" so I was hoping he would let me have them joined just for trial and that they could keep their original cause numbers, but he did state on the record that they are joined into the first cause number, and he wants to to find out how to proceed with publishing the indictments and the jury charge. Anyone dealt with such a "true consolidation" joinder in the criminal context before? Advice please.

I have never seen it done that way. The practice I have seen in the two counties where I have prosecuted was one defendant per cause number, and both causes are called and tried together.

Yes, this "true consolidation" option is not what I wanted. Anyone know any case law, statutes or commentary I could show to the judge to show him the way it is normally done?

Do the indictments read the same (except for the defendant's name)? If so, then it seems the case should now be treated as though the two defendants were named jointly in a single indictment from the start (as permitted by art. 36.09). See also Dix and Schmolesky, Criminal Practice & Procedure sec. 25:198, 39:3.

So, you would be asked to read the indictment in the remaining cause number and where it reads "A did then and there," you would read "A and B did then and there." Alternatively, I guess the court would say "please read the indictment as to the defendant A" and afterward say "now please read the indictment as to the defendant B." The jury charge could have several shared provisions, but must have two separate application paragraphs and two separate verdict forms.

Thanks! One count is shared between two of the three defendants; all the other counts are unique. I guess I could publish at the beginning, having combined the one I can combine, and then I could state, "and the first count exclusively against defendant A reads..." Good idea.

Anyone have any case law on this matter thought? I looked, then called Westlaw researcher for help and couldn't really find anything. Worried about the pitfalls involved. One older former prosecutor from another county warned me that when the defendants are indicted together in one count (which is essentially what the judge has done to one of the counts in my case, I'm assuming), the State is required to prove both guilty or they're both not guilty. Haven't found any such case, and that doesn't seem right, but concerned, because my good friend is usually right.