How Good Intentions Can Go Wrong

By Erik Roskes

Therapeutic courts may have consequences not intended by their leaders and participants.  Most of these courts begin with noble motives. That said, good intentions can lead in many directions if unchecked by objective reviewers or evaluators.

An Optimistic Counterpoint for the Holidays

By Erik Roskes

During this holiday season, I thought I would take a break from my usual criticisms to point out how well things can go when people simply refuse to give up and accept the “inevitable.”

Should Coverage of Criminal Cases Focus on Defendant or Victim?

By Robin L. Barton

To describe the recent U.S. and international media coverage of the Amanda Knox case in Italy as intense would be an understatement. One of the key criticisms of this coverage was that it primarily focused on the defendants—or at least one of them—with the victim, Meredith Kercher, almost forgotten.

A Camera in Every Courtroom

By Matt Kelley

It’s time for American courtrooms to open...

To Tweet or Not to Tweet

By Robin L. Barton

The Fugitive (both the TV show and movie) is said to be...

Who Deserves Prison?

Read more of Mark's work at his blog D.A. Confidential.

There has been much talk of closing prisons here in Texas.  The Crime Report covered that issue a week or so ago, and the local paper has also written about it.  From what I've read, the move seems budgetary rather than a result of some philosophical shift, and as I sit down to contemplate the subject a case that came up in court this week seems like a good representation of how I feel.

Several years ago, a couple of guys arrived at a business here in Austin and robbed it at gunpoint, tying up the proprietor, who was terrified beyond belief.  A woman drove the getaway car, but did not go in. They were caught and the gunmen got prison, she got probation. This week, she was before the court because, not for the first time, she’d violated the terms of her probation by using an illegal substance.  Each time, she’d been continued on probation rather than having it revoked and being sent to prison.  Mostly because the violations weren’t that bad, the minimum prison term for her is five years, she has several children, and is pregnant with another. Today, she wept and told the court that she’d smoked weed, yes, but done it because when she smoked the beatings she got from the man she lived with hurt less. A made-up story for sympathy? Sounds like it, except she went to SafePlace (a shelter for abused women) and told them the same thing before being picked up for the probation violation. As frustrated as we might have been with the violation, she bought some sympathy and credibility by her admission, and by her admission that she wanted treatment for her drug use

So it became a stark choice: either she gets prison for a bad act followed by repeated failures to abide by probation conditions, or she is left on probation in the hope that the reasons (or excuses, depending on your perspective) stop.  I think it’s fair to say that most of us (except the defense lawyer, I guess) were tired of excuses, aware of the serious underlying offense, and starting to wonder if it was impossible to make someone take hold of their life and turn it around. But we all agreed, ultimately, that this time prison wasn’t the answer so she was sent to in-patient treatment for her repeated drug use, somewhere she’d be safe from abuse, where she could work on the many issues she obviously has. Make no mistake, she’s on thin ice and knows it, I’m guessing she won’t get any more breaks if she doesn’t get her act together. After all, there’s only so much the state can do when it comes to offering a helping hand. But I think it was the right thing to do, for her, for her children, and also when you look at the cost of imprisoning someone like her. Would prison make her a better member of society when she gets out? Unlikely.  Is she a danger to those around her?  Certainly not, if she takes to the treatment.

I also think that her case is emblematic of how the criminal justice system has been going lately, certainly in my county. Just the other day I ran into a reporter who was gathering information for a story about all the programs running in the county that work to “fix” people, rather than imprison them. Drug courts, DWI courts, all those.

Make no mistake, there are times when people have been offered help, assistance, support, and treatment. Times when we offer mercy and what we see as justice, but they see as weakness. Some people won’t help themselves, they just don’t want to put in the time and the effort.

They don’t seem to realize that life is hard for all of us, we all have to work and make sacrifices. They have, and I’ve seen it, a sense of entitlement and for them leniency is just a way of amassing convictions without prison time. I have no problem with the criminal justice system keeping a hammer in its back pocket for those cases. But in general, as happened this week, I am inclined to think that a few helping hands will fix more problems than prison, and cost us less to boot. A long- and short-term savings, coupled with the salvation, if you will, of individuals has got to be a good thing, right? With prisons closing, perhaps we can make the rehab thing work. One just hopes that those in charge of the purse-strings don’t look for a cut in those other programs, too, because I’m certainly not in favor of opening up the prison doors just to save money, with nothing else to keep our streets safe.  But here’s a quote from the Austin American Statesman’s story:

“Closing prisons? It's absolutely on the table,” said House Corrections Committee Chairman Jim McReynolds, D-Lufkin, whose panel oversees the state-run system of lockups. “As tight as our budget situation looks, we cannot unravel the fledgling system of diversion and treatment programs that are paying big dividends now for the states. And there’s only one other place to look — prison operations.”

So maybe a budget crunch is just what we needed.  I know at 160-odd cases that I’m handling, a wee drop in customers would be more than welcome.

Qualifying for the Death Penalty

Mark Pryor, Assistant District Attorney in Travis County, Texas writes the blog DA Confidential. He will be blogging for The Crime Report every other Wednesday. Read his blog here.

The New York Times recently wrote about the American Law Institute's decision to, essentially, walk away from the death penalty.  This is significant in that the ALI is the body responsible for the synthesis and (usually theoretical) standardization of our system of laws.  Thus, the ALI developed the model penal code (the "MPC"), including language providing for the death penalty.  Some states adopted the language of the MPC, some didn't, but now the ALI has decided that, in the words of the NYT, "the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness."

I come at this from a slightly different angle, as a prosecutor addressing matters of life and death every day, working on cases in which real people are murdered and mutilated in body, not in theory.  I do not discount the value of an intellectual and theoretical approach to the death penalty, after all I went to a (Southern) Ivy League law school where such matters were debated hotly.  I even worked with the school's death penalty clinic (highest grade, thank you very much).

But as a practicing prosecutor, since the days of law school my views on the death penalty have shifted.  A disclaimer, though: I have not handled a death penalty case myself, though I am no stranger to murder cases.  Here, in Travis County, Texas, we have a special approach to cases that qualify for the death penalty.  We do, of course, observe the constitutional requirements regarding aggravating factors and future dangerousness, but we go further.  Only the most heinous of cases get presented to a committee of experienced senior prosecutors (including our elected DA) to consider whether or not the death penalty should be sought.  A great deal of consideration, including the facts of the case, proof issues, and the wishes of the family of the victim, goes into each case.  The result is that when we seek the death penalty here, we go to trial believing completely several things: that the defendant is truly guilty of a very heinous murder (or series of murders); that he presents a risk to other inmates and guards in prison; that the family of the victim(s) support our decision.

The ALI's decision appears, from what I have seen, to be based on the impossibility of procedural consistency, an inability to make sure the same kinds of defendants are getting the ultimate sanction for the same types of crimes.  That, as opposed to a more fundamental intellectual or moral objection to the death penalty itself.  But from my view, the thoroughness with which we in Travis County, Texas, approach these cases, there is little risk of an innocent man being executed, or of racial discrimination, or of some other disparity that raises procedural or substantive inconsistencies (and therefore unfairness).  Nor do I see incompetent lawyers being assigned these cases, not at all.

Which is to say what?  Really, to echo an idea that I am by no means the first to express: the application of the death penalty isn't something that can be micro-managed by learned professors or berobed intellectuals a thousand miles away (literally and figuratively).  A better system, should one exist at all, should be entrusted to those working with detectives and victims, those who see the prison violence first-hand and have access to gang information.  People who have taken a solemn oath to see that justice is done, for victims and those charged with crimes.  To people who live in the communities where these crimes take place. 

I suppose one point I would like to make clear is that in my view, blanket assertions that the death penalty is per se immoral are acceptable, legitimate, and intellectually supportable.  What I prefer not to see, are blanket statements suggesting that in all jurisdictions the death penalty cannot be sought in a thoughtful, considered, fair, and even-handed manner.  The New York Times article begins by noting that the number of death sentences has been falling, and that is certainly true here in Texas.  I wonder if those jurisdictions who are seeking it less often are, perhaps, following the approach we use here in Austin.  That, if so, while not being a victory for those who oppose the death penalty, should give some comfort at least.

One final point.  Every single case I handle, like all my colleagues, requires a synthesis of punishment and fairness; the bank robber with no other criminal history, the embezzler who stole because his own retirement account was plundered.  And one possessor of cocaine will not necessarily get the same sentence as the next possessor of cocaine.  To me, this means that there needs to be more to the generalized criticism of the death penalty, a criticism that "every case is different so uniformity is impossible."  If that were a bar to imposing serious sentences, our prisons would soon be empty.  But I agree, as the Supreme Court has noted, the death penalty is different.  Which is why we, here in Austin, treat it the way that we do.

Mark Pryor, Assistant District Attorney in Travis County, Texas writes the blog DA Confidential. He will be blogging for The Crime Report every other Wednesday. Read his blog here.

The views of our independent bloggers do not reflect the editorial opinions or policy preferences of The Crime Report.  Blogs are only edited for taste, accuracy and grammar,  in keeping with our role as a non-partisan platform for a broad range of perspectives on the criminal justice system.

Anatomy of a Trial

Mark Pryor is an assistant district attorney in  Travis County,Texas. A former newspaper reporter, he will write for theCrimeReport.org every other Wednesday giving readers a glimpse into the world of a state prosecutor in Texas. Today, he explains to our readers the "anatomy of a trial."

In substance they (trials) are all different, of course, all fact-dependent, but the basic skeleton is the same: a two-part sytem whereby guilt is assessed in the first phase, in other words where the jurors are faced with the yes/no issue of "Is the defendant guilty of the crime charged?"
Then comes the second phase, the assessment of punishment (i.e., probation? How many months/years in jail?) if the defendant is found guilty in phase one.

Here's how it breaks down, starting with the Guilty/Not Guilty phase:

1. Voir dire -- on Monday afternoon after the morning docket, the panel of 60 jurors is seated and the lawyers conduct voir dire. Here in Travis County, we always have two ADAs trying a case, the lead lawyer (aka the "first chair" and a helper, or "second chair"). The first chair prosecutor goes first, then the defense attorney talks to the panel. Strikes for cause and peremptory challenges are made, and the final 12 is chosen.

2. The reading of the charge -- this usually happens Tuesday morning. Before the trial gets under way one of the ADAs will stand before the jury and read the indictment. The defendant will be asked how he pleads (always "not guilty," hence the need for a trial).

3. Opening statements -- immediately after the reading of the indictment the prosecution will give its opening statement. It's called a "statement" as opposed to an "argument" because both sides are limited to telling the jury what they believe the evidence will show, as opposed to arguing what the evidence means. For the State, it's usually the first chair who gives the opening.

4. State's case -- the State will put on all the witnesses it belieevs it needs to prove the case beyond a reaosnable doubt. When finished, the ADA will tell the judge and jury that "The State rests."

5. Case for the defense -- if the defense is planning to call witnesses, to mount a defense that way rather than arguing that the State has simply failed to meet its burden, then this is when the defendant's witnesses testify. Once they have done so, the defense counsel will similarly anounce, "The defense rests."

6. State's rebuttal witnesses -- if the defense has put on witnesses, the State may call additional witnesses to rebut their testimony. For example, if the defendant calls his boss to testify that he believed the defendant was working that day, the State can call his work colleagues to testify that, in fact, he was not at work that day.

7. The "Close" -- after all rebuttal witnesses, the State will tell judge and jury "they State closes." The defense will do the same.

8. Preparing the Jury Charge -- if it hasn't been done beforehand, or during trial, the judge will hand a copy of his proposed charge to the prosecutor and defense lawyer. If they are satisfied with its contents (see below) they say so, or if not they ask for changes. The judge has the final say what is included.

9. Reading the Jury Charge -- The jury is brought back in and the Judge reads the charge to them. So what is the charge? The charge lays out the elements of the crime charged, and gives legal definitions for some or all of those elements. For example, in a DWI case the charge will give the legal definition of "intoxication." The charge is a roadmap for the jurors to follow in deliberation, and they are told to consider only those issues included in the charge. Another example: in a murder trial a jury cannot deliberate on whether the defendant is insane if that issue isn't inlcuded in the charge.

10. Closing arguments -- most lawyer's favorite time. Studies show that most jurors have made up their minds by this point, but we don't seem to care. We are far too impressed with our rhetorical skills and powers of persuasion to worry about that! Again, because we have the burden of proving the case, the State goes first. Then the defense gets to argue, and when they are done the State gets to finish the argument. Usually, here, the second chair takes the first part of closing, and the first chair takes the last part.

11. Deliberations -- after the closings, without further ado, the jury is sent to begin its work.

12. Punishment phase -- if the verdict is "not guilty" then that's it, there is no more. If it's "guilty" then we move onto the punishment phase. This second trial is structured pretty much like the first, in terms of who does what when. The State puts on evidence of other nasty thins the defendant has done, and the defense puts on mitigating evidence.

A Secret Murder Trial? It Can Happen In Your Court

Does the public have a right to know when a defendant accused of a violent crime is going on trial? If you're a crime reporter, you probably said yes. But if you cover a jurisdiction with hundreds of criminal prosecutions under way at any one time, you probably also know that another important question is: How is the public supposed to find out?

In Georgia, for example, there is a strong presumption in the law that the courts are open to the public. But there's no requirement that anyone other than the lawyers, defendants, and witnesses in the case -- and sometimes families of victims -- be notified of a trial date. A reporter (like me) can keep up with court "calendars," but those documents really are just lists of dozens or hundreds of cases that might come to trial soon. A few will be scheduled and many will show up again next month on another "calendar."

Of course, reporters make friends with lawyers, judges, and others who are in the loop and might give a heads-up on a trial. But what if all of those people involved with a particular case decide they would prefer not to have any public notice of an upcoming trial?

It happened to me last week. I am following a notorious case in which a home invader killed a 7-year-old boy and critically wounded his sister in what authorities say was a hit on witnesses to an earlier attack against the same family. I recently found in the online court docket an order for an imprisoned witness to be brought into court. I asked the district attorney's office, a defense lawyer, and the judge's office why the witness was coming in. The defense lawyer said he didn't know; the DA's office wanted to talk about a different defendant who would go on trial this summer; the judge's office said talk to the DA.

I showed up at the courtroom the day before the witness was to be there and found the lawyers, defendant, and judge preparing for jury selection. The judge called me back to his chambers and explained he had agreed to a joint prosecution-defense request to put the trial on an "unpublished calendar." He said he was worried about more attacks on witnesses. He said state budget cuts have made it harder to protect witnesses. He said he believed in openness, but he said the Constitution calls for balancing needs such as witness security vs. public trials.

That's a legal question I'll leave for others. But as a beat reporter, I came away wishing for a more reliable system to track criminal cases. I cover police as well as courts, and I don't have time to patrol my county's 10 felony courtrooms every day. It probably was a fluke I discovered the trial. (By the way, the defendant pleaded guilty shortly after I spoke to the judge, so the trial was over before this story was posted online: http://www.ajc.com/metro/content/metro/dekalb/stories/2009/02/23/secret_trial_home_invasion.html)

Most journalists I talk to about this issue are surprised courts don't issue public notices of their scheduled proceedings, in the same way most local governing bodies do. But I can't recall hearing of any proposal to require such notices.

I hope you'll comment if you can share information about courts which provide detailed schedules or any efforts to require them. Also share your tips on how to track court cases in the absence of official notices.

A New Criminal Justice Funding Infusion?

Criminal justice advocates are anxiously awaiting passage of the economic stimulus bill now quickly making its way through Congress. The reason? It could include up to $4 billion for justice system improvement projects. This would be a huge turnaround from December 2007, when Congress without warning deeply slashed the popular Byrne JAG program, which provides aid to states and localities, to a mere $170 million annually from $520 million--a sum that had itself been cut from previous years.

Republicans could still force cuts in the new bill, but the likelihood is that police and other justice system agencies could get a quick infusion of funds. At least one version of the bill could require spending plans within 60 days.

Are states ready to spend this money? Yes, they say. Maine, for example, would use funds to prevent the layoff of 7 agents on its statewide antidrug task force. The state also would fill vacant positions to prosecutor drug and domestic-violence cases, among other things. North Carolina would use money to continue drug treatment courts that would otherwise have to close because of a state funding shortage. It could also use aid to expand the number of delinquency prevention programs, including alternative schools for suspended and expelled students.

On the policing side, both the House and the Senate Appropriations Committee favor spending $1 billion on hiring police officers, roughly 13,000 nationwide.

The National Criminal Justice Association, which represents states and localities in Washington, says that three-fourths of the stimulus money could be used for personnel, which is one of the bill's main purposes. Now the question is how much will be available and when.