Saturday, October 24, 2015

Conspiring to Party in Texas (Part II of II)

UPDATE (01/12/2016): Hurst v. Florida, discussed in the original post was decided on 1/12/2016. In a 8-1 decision (Justice Alito, dissenting) SCOTUS reversed finding a Ring v. Arizona violation. The case was remanded to Florida state court for harm analysis. The jury unanimity issue the subject of my original post was not part of the opinion. Lyle Dennison at wrote the following on the unanimity issue:
In taking the case to the Supreme Court, Hurst’s lawyers had also made a challenge to the lack of unanimity in the jury’s recommendation.  The Court’s decision did not deal with that issue at all. Presumably, when the case returns to Florida courts, his lawyers will make the argument that the split verdict on that recommendation supports the argument that the flawed procedure was not harmless.
In other words, SCOTUS may be asked to revisit the case again.

ORIGINAL POST:  If I asked my neighbor, "Do criminal juries have to be unanimous for a criminal conviction in Texas?" he would likely tell me, "Of course!" He would be right, but not to the extent and reasons he believes. According to our Court of Criminal Appeals, the Texas Constitution requires unanimity for a criminal conviction. In reality it is problematic in a number of situations.

Contrary to what my neighbor may think, there is no Federal 6th (and 14th) amendment right to unanimous jury verdict in a state criminal prosecution. The Supreme Court of the United States (SCOTUS) case standing for this legal proposition, decided in 1972, was split on the principles involved. The decision has been criticized for many years both inside and outside SCOTUS. However, despite several opportunities to revisit the issue, SCOTUS has declined to so do.

The bee in my legal bonnet on lack of jury unanimity in Texas is party criminal liability. This was the focus of my first post on the topic last week. In Texas, a trial court may submit three separate theories to a jury of how a defendant committed a single criminal act: As a principal, a party, or as a party conspirator. The jury can splinter on which applies. They can further splinter if they think the defendant was a party, but disagree on HOW the defendant was a party, so long as all 12 get to the same place: Guilty beyond a reasonable doubt on the criminal act.

This term could bring change - or at least set the stage for change - in party liability submissions to Texas juries. It may still be a few years away, but criminal defense lawyers should consider preserving error in these kinds of jury submission based on 6th and 14th Amendment grounds while keeping an eye on SCOTUS.

Hurst v. Florida involves the Florida death penalty scheme. In their scheme, Florida juries play an advisory role at the punishment stage. Flordia has a number of specific aggravating and mitigating factors the jury is told to consider. Their verdict recommending death does not require them to specify the aggravating factors applying, but allows a simple majority (7-5) to recommend death. The scheme, however, does require the split, if any, be disclosed if death is their recommendation.

This is what happened in Hurst. The jury gave the judge a 7-5 general verdict recommendation of death. After separate hearing, the Judge made specific aggravating findings in sentencing Hurst to death. SCOTUS has 2 issues before it: One is whether the jury advisory role violates the 8th (and 14th) Amendment, the second is whether allowing the jury to recommend death by simple majority, while not knowing if their aggravating factors are different than what the judge later relies on to make the death decision violates the 6th (and 14th) Amendment.

It is the later issue that piqued my small Texas town, down in the trenches, trial court interest.

Here is an exert of oral arguments in that case (audio is here). Allen Windsor is the Florida Solicitor General defending the Florida scheme. Appearing at pages 43-44 of the transcript:
JUSTICE SOTOMAYOR: I want to clarify. You think a seven to five recommendation is finding an element of the crime that makes death penalty by a unanimous or functionally equivalent unanimous jury? 
MR. WINSOR: We do, Your Honor.... 
JUSTICE SOTOMAYOR: What do you do with the statement in our case law that says a simple majority is not a unanimous jury? 
MR. WINSOR: Well, we don't say that unanimous jury. Let me step back and say that the seven­ to- ­five vote, by the way, is not necessarily five votes that there was no aggravating circumstance, because, again, there's two things ­­that go on in the jury room. One, they decide whether there were aggravating circumstances. And, two, they do...
                                                                 *    *    *    *
JUSTICE SOTOMAYOR: They [the jury] don't agree with which one [aggravating factor]?
MR. WINSOR: And they don't agree

JUSTICE SOTOMAYOR: We don't know. What does the seven to five tell us the jury found?
MR. WINSOR: The seven to five tells us that at a minimum, a majority of the jury at a minimum, found beyond a reasonable doubt that the State had proven the existence of one or more aggravating circumstances. And getting back to..
JUSTICE SOTOMAYOR: Not the same one?
MR. WINSOR: Not the same one.
Conventional wisdom has SCOTUS finding the Florida scheme is a 8th and 14th amendment violation based on Ring v. Arizona. However, Justices Sotomayor and Ginsburg's questions at oral arguments signal to me that part of the Court may concur in the result based on lack of unanimity on the elements of aggravation. It is important to note though a Court conservative, Justice Alito has never been a fan of the SCOTUS decision on jury unanimity. I could, of course, be wrong but keep an eye out for this decision.

How can this play out for Texas? Let me set it up with a hypothetical:

Two defendants (D1 and D2) engage in the robbery of a drug dealer, commonly called a "drug rip." During the drug rip, the dealer, foreseeably, brings a weapon out and is shot and killed. There is a dispute about whether D1 or D2 is the triggerman. There is also a dispute about which defendant brought the weapon to the drug rip. D1 and D2 are charged with Capital Murder, but the death penalty is waived.

At the close of evidence, at the state requests the trial judge submit to the jury theories that would result in conviction for Capital Murder based on principal (pulled the trigger), party (aided and assisted in commission of Capital Murder) or party conspiracy liability (conspired to commit robbery, and anticipated the capital murder would occur).

If convicted, D1 and D2 automatically are sentenced to life without possibility of parole (LWOP).

See the problem the SCOTUS decision in Hurst may visit upon Texas? A Texas jury returns a general verdict - just like in Florida's jury death recommendation. Like Florida, this results in not knowing how the jury split on the submitted theories. This a constitutional problem because there is no way of assuring there was, at a minimum, the "functional equivalent" of unanimity on any combination of theories resulting in conviction for the single criminal act.

Just as significant is the automatic sentence of LWOP in a Capital Murder prosecution based on a simple majority vote. In virtually every other criminal prosecution, the defendant gets the benefit of a separate sentencing hearing decision by either a jury OR judge (the defendant in Texas decides which). Not in a Capital Murder prosecution where the state has made the decision to waive the death penalty. No hearing, no separate decision on punishment. Potentially, an automatic LWOP on a simple majority vote.

Conceptually party liability is justified under reasoning a defendant who is a party to a crime is just as criminally responsible as a principal. Any reduced culpability of a party is, and should be, taken in account in punishment. This is true in virtually every criminal prosecution in Texas except Capital Murder, if the state waives death.

More fundamentally - in all criminal prosecutions - lack of unanimity diminishes the collective obligation of a criminal jury to deliberate. It becomes more of a consensus building exercise among those jurors seeking to persuade others to convict.

Hurst may signal a change, or at least the beginning of change.

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