CREATIVE SENTENCING Capital Sentencing Techniques for Your Non-Capital Client

Transcription

1 CREATIVE SENTENCING Capital Sentencing Techniques for Your Non-Capital Client Kathryn Kase Executive Director Texas Defender Service

2 Your Most Difficult Client... Describe him without reference to the offense How did he find himself in this situation? What choices in his life did he not make? But for the choices that were made for him, would he be here? Why is he the way he is? Why did he do it? How will he adjust to prison life? What can be done to make his future different?

3 Sentencing Investigation Goals Understand the client Reduce sentencing exposure Develop a sentencing package that heals the client Develop merits-related evidence And if we re really lucky: Achieve restorative justice for the complainant

4 The Law of Sentencing You are entitled to present any matter the court deems relevant to sentencing, including: prior criminal record general reputation character opinion regarding his character circumstances of the offense any extraneous crime or bad act proven beyond a reasonable doubt conduct while participating in a program as a condition of release on bail This applies to judge sentencing as well! TEX. CODE CRIM. PROC. art (a)(1)

5 What the Sentencer needs to know History What happened to him to make him this way? (I don t want excuses, but I want to know why.) Why did he turn out to be a drunk/burglar/rapist/murderer when his sister lived in the same house and seems fine? Why was he there that night? What could have been done to make him different? Why didn t the treatment he received help? Why didn t probation and jail (or prison) straighten him out? Prison Will he be punished? Will he suffer enough in prison? Will this be enough to help the victim(s)? If he gets probation/doesn t get a long sentence, will others be safe? Message What message does it send to others if he doesn t get prison? Hope Is there a contribution he can make if I show mercy?

6 How to Answer those Questions Investigate the client s life history Don t forget to also investigate his family s history Obtain at minimum his educational, medical, and incarceration records Consult with experts Investigate the capacity of the prison and/or community supervision system to rehabilitate the client Move for a mitigation specialist to help with the investigation Seek expert(s) to explain the importance of your investigation

7 Look for these common mitigating themes in your client s life... Mental illness Intellectual disability Institutional failure Child abuse Child neglect Child abandonment Neurotoxin exposure Poverty Emotional trauma Youth Age Discrimination Substance abuse Head injury Gang involvement Remorse

8 Don t fail to investigate... 1) How will your client be punished if convicted? Will this punishment reform him or make him worse? Is there an alternative plea or punishment that would reform him? Can the way the punishment is served be changed? Drug treatment? Mentally retarded offender program? Work release? 2) What does the complainant want? Use a DIVO for this outreach if you do not have a trained victim outreach specialist on your team Can the complainant s needs be met without the full weight of the legal system? 3) What can your client contribute to his family/community/the world if he is shown mercy?

9 Use a Sentencing Presentation to Get a Better Plea Offer Tell the story of why your client is more than what he s charged with Make the case for a lesser sentence Consider making the presentation: In writing with mitigating evidence attached Via powerpoint On film with your best sentencing witnesses and evidence Caveat: TRE 613 applies to your witnesses outtakes

10 Use Your Sentencing Mojo at Trial...even at merits!

11 Coordinate your merits-phase legal theory and emotional theme with your sentencing theory and theme.

12 You Can Coordinate Theories in the Innocence Case You do not have to give up on innocence, but your mitigation theme must be consistent. E.g.: Explain why he would be a suspect Tell jurors they need to know everything possible about him before locking him up for life Show why the crime was so out of character with his history. (This is a don t-throw-out-the-good-with-thebad theme).

13 Other possible themes... He could only juggle so many balls Choices in his life were made by others He looked at life through a different window He tried to get help, but they failed him Every glass will break differently His brain worked like a dropped laptop Childhood matters He never had a chance If only they had listened to the coach...

14 Choose Jurors who can Hear Your Sentencing Evidence (this works only if you elect to go to the jury for punishment)

15 Voir Dire for Bias regarding the Punishment Range Cardenas v. State, 325 SW3d 179, 181 (Tex. Crim. App. 2010), aff g 305 S.W.3d 773 (Tex. App. Ft. Worth 2009). I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child. They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital... Could you honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment? Appellate court and CCA said this hypothetical was proper because jurors must consider the full range of punishment.

16 Standefer allows Hypotheticals If the question will lead to a challenge for cause, then it is proper. Standefer v. State, 59 SW3d 1777 (Tex. Crim. App. 2001). Jurors must commit to doing those things that the law requires them to do.... A juror who cannot obey this law can be challenged for cause because of the juror s bias against the law. Tex.Code Crim. Proc. art (c)(2). It is NOT a commitment question to determine if juror can honestly consider full range of punishment. Cardenas v. State, 325 SW3d 179, (Tex. Crim. App. 2010).

17 Use Sentencing Evidence at Merits Frontload your mitigation Traditional frontloading: E.g., with the mentally ill client, litigate insanity or mens rea (Clark v. Arizona) Non-traditional: What motivated your client to do what he did? Use your knowledge of the client s life history to humanize him

18 After the Jury says, Guilty... Bury the hatchet: We believe strongly in Bubba s innocence, but we respect your verdict. Tell them what comes next: We will be telling you about Bubba s life because you told us in jury selection that you want to know how someone could come to be in this situation. State your mitigation theory: Bubba has spent his life trying to get beyond being the child of a severe alcoholic father who controlled his family through verbal and physical abuse. As hard as Bubba has tried, this case shows he has had difficulty leaving his past behind and he is sorry. Now, you can choose to stop the cycle of abuse by giving him a punishment that also rehabilitates him. Preview the various mitigating themes.

19 Use the Juror Bill of Rights... to motivate jurors to do the right thing at punishment

20 Juror Bill of Rights The Law Never Requires that Jurors Give the Maximum Sentence. No law in Texas requires that jurors sentence the defendant to the maximum. Ever. In fact, a law that did that would be a mandatory presumption, which is unconstitutional.

21 Juror Bill of Rights Each Individual Juror has the Power to Decide What a Reasonable Doubt Is. Texas law does not define reasonable doubt. Paulson v. State, 28 SW3d 570, 573 (Tex. Crim. App. 2000); see also Mauicio v. State, 293 SW3d 756 (Tex. Crim. App. 2009). The law in Texas allows each juror to decide for himself or herself what a reasonable doubt is.

22 Juror Bill of Rights Jurors are not Required to Agree about What a Reasonable Doubt Is. Each juror may have a different definition of what reasonable doubt is. Goff v. State, 931 SW2d 537, 550 (Tex. Crim. App. 1996) No law requires that jurors have the same definition of reasonable doubt.

23 Juror Bill of Rights The Law Does Not Require a Juror to Justify or Put Into Words What His or Her Reasonable Doubt Is. Each juror must decide the case for himself or herself. Allen v. United States, 164 US 492 (1896). Texas law does not require a juror to explain to anyone not even another juror what his or her reasonable doubt is or why that doubt exists.

24 Juror Bill of Rights Each Juror Has the Right to Have His or Her Opinions Respected by the Other Jurors. There is no law in Texas that allows a juror to bully, harass or intimidate another juror for his or her opinions about what that juror believes is the appropriate punishment.

25 Juror Bill of Rights A Juror has the Right to Alert the Judge if His or Her Vote isn t Respected. If a juror is being disrespected, treated in an undignified manner, or anything else inappropriate or unfair is occurring in the jury room, you have the right to alert the judge. Write a note to Judge and give it to his bailiff. He is charged with making sure these proceedings are conducted in a dignified, respectful, and fair manner, and he takes this responsibility very seriously. TEX. CODE CRIM. PROC. art (Jury May Communicate with Court)

26 Juror Bill of Rights The Law Does Not Require Jurors to Agree on a Sentence. The jury is to be discharged when it cannot agree. Tex. Code Crim. Proc. art (3)(c) Each juror must decide the case for himself or herself. Allen v. United States, 164 US 492 (1896).

27 Juror Bill of Rights The Law is Always Satisfied with a Sentence of. No law in Texas requires a jury to return a particular sentence not in this case or in any other case. There may be a choice of sentences, but no jury is ever required to deliver one particular sentence.