ORIGINAL POST: Although not a news story outside my home of Brazos County, Gabriel Hall's fate is now with a Brazos County jury. He will soon be sentenced to either death or life without possibility of parole (LWOP). The trial judge, Travis Bryan III, according to The Bryan/College Station Eagle, has told the jury they will be sequestered if unable to reach a verdict today or tonight.
Here is what they must decide. These questions come straight out of Article 37.071 of the Texas Code of Criminal Procedure entitled simply, "Procedure in Capital Case."
As relevant to this case, there will be two questions:
1. Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
2. Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.For the death penalty, the question 1 must be answered "Yes" and question 2 "No." Question 2 is worded in awkward fashion and would facially appear to place the burden of proof on the defendant, but that is not how the Supreme Court of the United States has interpreted it.
It is the second question the defense has hammered on. The question asks jurors to consider not just the circumstances of the offense, but Hall's background (amongst other things) in determining whether mitigating circumstances (or circumstance - it could be a single thing) exist to justify LWOP.
The argument for death or LWOP will, as it usually is in Texas, become one about the existence and sufficiency of mitigation evidence against death.
The jury has been told (instructed) by the judge they do not have to agree on what is a mitigating circumstance or circumstances. In other words one juror could decide Hall's upbringing in the Philippines is sufficient to mitigate against death. Another could decided Hall's life in the adoptive household of Karen and Wes Hall is sufficient mitigation, without regard to Hall's life in the Philippines.
Of course another juror could decide within the totality of the evidence, including what happened to the victims in this case, the mitigation, if it exists, is insufficient. If so, then how the jurors split becomes important.
The jury is instructed by the judge if they answer question 2 "No" (death), they must be unanimous. The jury is also told to answer question 2 "Yes" (LWOP), ten or more of the jurors must agree. This is why the judges instruction on mitigation evidence, noted above, is important.
The jury is NOT told that if they cannot answer question 2 at all, the default imposed by the law is LWOP. No new trial. Therefore, to the defense it does not matter whether question 2 is answered, because even if there is single holdout juror, LWOP will be the court's sentence.
So here we are.
The, literally, $4 million dollar question is what will happen? I use that figure because of what our local television station, KBTX reported yesterday (10/06/2015 [13:07 entry]) on it's blog:
In July 2015, Marc Hamlin, the Brazos County District Clerk, told KBTX that the county is out more than $2 million so far, and that was 'on the conservative side.'The rule of thumb is cost of trial doubles the pre-trial costs. Using that admittedly non-empirical estimate, the total cost of getting Gabriel Hall to verdict will be $4 million dollars. If death is the sentence, there will be, statistics show, a ten year direct and habeas appeal process. That cost will, in my view, double the figure again to $8 million.