My comment re: wasting time was in response to the initial post indicating that jury trials would occur to provide training and experience for prosecutors. I certainly recognize that there are numerous reasons for jury trials, and that they are a right that we and the defendants have, but explaining to the judge that this case is not a plea bargain case and will be a jury trial because you want to gain some trial experience seems likely to irritate the court. It seems that it would be better to limit trials to those cases where there is a legitimate dispute as to what constitutes a reasonable punishment, admissibility of evidence, or some factor independent of just needing trial experience.

Let's be honest, our honorable profession is taking a real beating not just across the nation, but in our very own state. Over the past 4 years, I have witnessed a noticeable change in the trust of jurors in my conservative jurisdiction. It is frustrating that someone would even consider implementing this sort of policy that will obviously provide fodder for the anti-prosecutor crowd. In our quest for justice, don't we have enough fronts to fight? It would be nice to think that we don't have to worry about a potential juror sitting there thinking, "Geez, I wonder if we are here only so the prosecutor can get experience."

is there at least not at least some violation in spirit of equal protection under the law with the whale scheme? If you are gonna single out some defendant for a no plea offer program just to make them go to trial, then how come other similarly situated defendants get plea offers?

Not to mention the costs for appointed lawyers for these cases.

It's a really bad idea that makes our profession look bad. I can't believe an experienced attorney came up with the idea.

There is no right to plea bargaining. So, absent some wrongful change of policy against a protected class (race, religion, etc.), pushing cases to trial does not raise any equal protection issues.

That said, the policy does suffer from a potential ethical problem: using a case as a pure training exercise rather than the pursuit of justice.

On the other hand, having a policy that sets a higher punishment standard for the best cases (by not plea bargaining) is a perfectly righteous approach. Frankly, it seems counterintuitive to plead out the best cases and then go to trial on bad cases. What, exactly, does the State get as a benefit from pleading all the good cases? They were going to get convicted and well-punished anyway.

Seems to me that the better policy is to negotiate a disposition of those cases that have defects -- justifying a reduction in punishment -- and try (or set higher plea recommendations) for those cases that were investigated well and have strong punishment facts.

In the long run, the jury verdicts will support your authority in seeking plea bargains and avoid a waste of time in trying and losing otherwise questionable cases.

Yes, occasionally the State must try a difficult, close case with lots of distracting issues. But, that should be the exception if you are choosing your trials carefully and educating your law enforcement on what you need to make a strong plea recommendation.

Perhaps I'm not following the Michael Richard execution drama closely enough to ask this question... but isn't it the capricious application of a semi-formal office policy that led to allegations of a due process violation by CCA Judge Sharon Keller?

And now back to the regularly scheduled program.

I guess you don't see the connection?

"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? "

Note that the jury would hot have been voir dired on punishment since the defendant elected to go to the judge before jury selection.

First, he has to be admonished since he's changing his plea. Then I'd say give the jury the regular charge--not a slow plea charge--and let them find him guilty. Let the judge do punishment. Tell the jury later that the defendant has all the rights and can be a horse's butt. I bet the judge won't be so sympathetic on punishment. Or you could argue 26.14 and say he has to go to the jury if you think punishment qualification would favor the defense more than you.

People can certainly muck up the system. We had a guy just recently who changed his plea just before guilt arguments recently. But, that jury had been punishment qualified. We admonished him, allowed him to enter the new plea before the jury, and then treated it as a slow plea. He got hammered by the jury, but it was a nasty sexual abuse child porn case. Defendant just wanted the attention--boy did he get it.

Interesting question. State has some interest in controlling who decides punishment once an election to judge has been made. Defendant has to get State's consent for that change. That's in conflict with the notion that jury decides punishment in unitary proceeding upon plea of guilty before jury.

I suppose the State could argue that it's too late for defendant to change his plea. Or, that a change of plea during the trial doesn't trigger a unitary proceeding and an automatic change to jury punishment. Personally, I would welcome the change of plea and presume that the jury will only view the defendant as previously wasting everyone's time.

Probably a good idea during voir dire to briefly cover the choices of a defendant in pleading guilty and electing a punishment by judge or jury, noting that defendant can change his mind.

What is the actual process when the defendant pleads guilty and the State refuses to waive a jury trial so the case goes to the jury for punishment. I have read it is a unitary proceeding, so does the Court instruct the jury to find the defendant guilty and assess punishment at the same time in one charge? Does the defendant stand up and plea guilty and then the Judge finds him guilty and the jury then hears the evidence and goes to deliberate on punishment? How does this actually work?

Take a look at The Perfect Plea, including Chapter 2, Plea Procedures, page 25 (To Jury).