This is the law requiring a totally new trial if the jury is hung on the issue of punishment--even though they've already found the defendant guilty.
Should we be working to proactively to have this part of the statute repealed? If not, why not?

There have been several attempts in the past to fix this mess. But, it is difficult to get such a bill out of committee when the defense attorneys descend and say it shouldn't be done.

Our argument has been that it probably is a benefit to defendants because a judge would be more inclined to grant a new trial if he/she knew it was for punishment only.

On the other hand, perhaps it is good that trial judges don't get to make such an easy decision. Some judges are prone to second-guess themselves during the motion for new trial stage but aren't willing to reverse the entire case.

And I assume the state could appeal any decison to grant a new trial on punishment only.

But, to pass this sort of bill, you need to bury it in a bill that will pass or have a great example of justice gone wrong to pass it as a stand alone bill.

What would be the best course of action? Just repeal the entire subsection or simply add a phrase at the end that stating that any retrial or new trial shall be for punishment only?

We have asked our leg. liason to try again next session. E-mail JD Granger at jdgranger@tarrantcounty.com to let him know your thoughts...

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subsection (c), Section 3, Article 37.07, Code of Criminal Procedure, is amended to read as follows:

(c) In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict
both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the
jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged and no jeopardy shall attach[.] , except that in the event the jury shall fail to agree as to punishment, the court shall commence a new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2 of this Article. If the defendant elects, the court shall empanel a jury for the sentencing stage of the trial in the same manner as a jury is empaneled by the court for other trials before the court. At the new trial, the court shall allow both the state and the defendant to introduce evidence to show
the circumstances of the offense and other evidence as permitted by this Section.

SECTION 2. The change in law made by this Act applies to any trial commencing on or after the effective date of this Act, regardless of when
the offense for which the defendant was convicted occurred.

SECTION 3. This Act takes effect September 1, 2003.

We have some idea of what to do when a case is reversed for error in the punishment phase ... but other issues might be worthy of addressing if a jury has hung on punishment.

After a mistrial in the punishment phase and a new trial commences with a finding of guilty, can/should a defendant be entitled to a new election and have a right to go to the court for punishment if the defendant wishes or does the prior election control? What if the defendant elected jury punishment in the face of a 3(g) offense indictment to have a shot at community supervision, got convicted of a lesser include non-3(g)offense and the jury hung. Now the defendant wants judge punishment as the defendant believes that the judge will grant community supervision?

Can a defendant litigate by writ the sufficiency of the evidence to convict before having to stand a retrial on punishment? When a case is reversed for error in the punishment phase, we usually know there we sufficient evidence ... but in a mistrial situation ... Should it be raised or could it be raised in the appeal after the new punishment phase trial in front of a new jury (or the bench)?

Lots of fun issues ... for the defense

Is this still the law? If so, is there additional authority other than in CCP 37.07(3)(c)?

Some of us talked about this in a prior discussion a few months ago. I agree it makes no sense to start over if the jury hangs only on punishment. But, you know, I have never heard of a jury hanging on punishment. I've had a couple of close calls in my career but it never seems to actually happen. Usually the jury compromises and reaches a verdict. Are there any horror stories out there of bad guys who got a new trial because of a hung jury on punishment and then got off in a retrial?

Our office had a intox manslaughter hang in punishment this week. The last time this topic was up someone asked how often it happens. In Tarrant County, we might get three per year. To the prosecutor who must forfeit the guilty verdict and begin again, however, one time is sufficient. The real inquiry should be how many juries hang in punishment and how many cases are pled during deliberation because of the expectation/fear of mistrial? I believe whether it happens one time or 100 times the case should be retried on punishment only. As the poster above points out, the drafters will have to put some thought into the law but, however novel that concept, a sound staute could be drafted.

[This message was edited by BLeonard on 12-14-04 at .]

Excellent point. It's enough for me. And you are right, I can remember several cases (one very tough murder case comes to mind) when I considered offering a plea when it appeared the jury might hang on punishment and I would not have wanted to take a chance the second time around. Fortunately for me (or unfortunately if you consider the murder case I mentioned above when the jury compromised to a probation verdict) verdicts were always reached after the Allen charge was given. I would support it during the session. I think John's idea of including it in some other bill so that it is not stand alone legislation is a good idea.

quote:

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As the poster above points out, the drafters will have to put some thought into the law but, however novel that concept, a sound staute could be drafted.

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The problem isn't drafting such a law, it's PASSING such a law. Repeated attempts to do that in the '90s all failed. That doesn't mean it can't be done now -- it's just fair warning that it will take a concerted effort by prosecutors to make it so.

Let me float a new proposed solution for your consideration.

Our crack law clerk, Kevin Landtroop, was doing some other research for me when he noted that in the few other states that use jury sentencing, hung juries on punishment do not result in mistrials. Instead, the decision usually defaults to the judge to render sentence, and there is no retrial.

Since we've been unsuccessful in the past in changing our silly (and apparently unique) law to limit retrial to punishment only, would defaulting to the judge be an acceptable Plan B?

The cases don't hang on punishment that often but when they do it is a beating. I would be ok with default to the court if we can't get punishment retrial. My last words to our legislative liaison as he packed for Austin today were on this very subject.

It's not a perfect answer, Shannon, but it's better than losing the guilty verdict.

Man gets 22 years in son's death

Judge has 'some doubt' whether injury was intentional.

By Claire Osborn

AMERICAN-STATESMAN STAFF

Saturday, January 08, 2005

A judge sentenced an Austin man to 22 years in prison Friday for fatally injuring his son in 2001.

Edwin Garcia, 26, will be deported to El Salvador after he is released from prison because he is in the country illegally.

District Judge Jon Wisser, who decided on the sentence, said he had "some doubt" about whether Garcia intentionally injured Sebastian Campuzano.

While baby-sitting his 21-month-old son on Dec. 13, 2001, Garcia called 911 to say Sebastian was not breathing. The child died of head injuries a day later at Children's Hospital of Austin. Last month, a jury convicted Garcia of injury to a child, a charge that carried a maximum sentence of life in prison.

Witnesses testified that Garcia told them the child injured his head after Garcia left him alone on a counter and the boy fell off. Prosecutor Allison Wetzel suggested during the trial that, based on the injuries, the child had been shaken.

Defense lawyer Leslie Halasz called the sentence a "definite defense win."

"I had hoped it would be slightly lower," she said.

Wetzel, who had asked for a life sentence, said she felt defeated but that the "loser here is Sebastian, who can't speak for himself."

"It's too bad that not one person in the courtroom felt sad about that," she said.

Sebastian's mother testified Friday that Garcia should not receive a severe sentence because she did not think that he intentionally hurt the child.

"He's going to have to deal with his guilt for the rest of his life, which is a big punishment. . . . He lost everything he had," Yessie Campuzano said.

She said that when she was involved with Garcia she did not know he was on probation for injuring another child. Garcia had told her he was on probation for drugs, she said.

Garcia was convicted in 1998 for beating the 3-year-old son of a previous girlfriend. The boy had bruises on his rear and back, and Garcia told police that he had punched the boy repeatedly, Wetzel said.

Garcia's father testified Friday that his son had a difficult childhood. Gilberto Garcia said he came to the United States to escape political repression and left 3-year-old Edwin behind in El Salvador. Edwin Garcia was raised by his grandmother, who often disciplined children by beating them with sticks, Gilberto Garcia said.

He brought Edwin to the United States seven years later, when the father was already married with two other sons and working seven days a week to support his family.

He said he became upset at his son for not attending school and for running away and beat him with a belt.

"As a father I failed because I didn't pay attention to him," Gilberto Garcia said.

That's why it's not a perfect solution. There are going to be some bad ones. On balance, I would still rather have the judge sentence than go back to square one because it's been my experience that the cases when jurors most disagree with each other on punishment are the cases that were a close call on guilt.

John, seeing as how it's already tantamount to malpractice for a defense lawyer to seek jury sentencing in Judge Wisser's court, I don't know that he's a good example to use -- juries can't hang on punishment if the defense never seeks jury sentencing to begin with.

1. Even without Shannon's post I was going to guess that an elected judge in Travis County might be the exception that proves the rule. On an presidential electoral map, Austin looks like a blueberry in a bowl of tomato soup.

2. Tim is right. Cases that hang in punishment seem invariably to be those that were hard- fought guiltys. I can recall maybe 5-8 trials where my partner and I were so fearful of a mistrial in punishment we literally argued an Allen charge.

[This message was edited by BLeonard on 01-09-05 at .]

And you always have to look at the other side of the coin. We prosecuted a woman several years ago for capital murder. She had met the victim several times for sex for money and on this occasion he took her back to his home. He was found dead in his bed naked, with over 70 stab wounds, and his car and credit cards had been taken. The defendant was later arrested after a standoff in a hotel room that she had rented using the stolen card. Her defense was post-traumatic stress brought on by her sexual assault at a young age by some older men living on the property where she lived with her family. Despite the fact that the victim had apparently been taken by surprise while lying naked on his back in bed, the defense argued that her PTSD caused her to view him as a threat and to go berserk and kill him. To give credit where it is due, the number of stab wounds did suggest more going on here than murder to facilitate theft, and the jury convicted of simple murder rather than capital.

We very nearly had a hung jury, because most of the jurors wanted life, but one of the jurors actually was holding out for five years (I guess since she figured probation wasn't on the table with the others). They ended up settling on 35 years, if I remember right. I think we would have done better from a judge if they had hung, although retrying the case would have been ridiculous, given the overwhelming evidence of her guilt. I would much rather take the finality of punishment from a judge who the community can vote out of office if they don't like his justice, rather than having to retry cases where guilt has already been demonstrated beyond a reasonable doubt, just because we might have one oddball on a jury who views the case differently than almost anyone else would.

If the best we can do is default to the court, I'm IN!