Texas: Prosecution will not Take 'Guilty' for an Answer

The Dallas News

Robert Blackburn wants to tell a judge that he's guilty. But the people charged with punishing him – the prosecution – won't let him.

When visiting Judge, John McCraw, tried to allow Blackburn to plead guilty to drug possession charges, saying taxpayers should not have to pay for unnecessary trials, the ruling set off a flurry of legal maneuvers in which the Collin County district attorney's office asserted its right to demand that a jury hear the case rather than let him plead guilty to the judge.

"We're not up here just going through the motions," District Attorney John Roach said. "We have reasons for everything we do – our reason has to do with the promotion of justice."

The spat between judge and district attorney has created a stir in legal circles and the blogosphere. But Roach says the brouhaha over forced jury trials in Collin County, which has arisen occasionally in other counties, is due to "defense lawyers that don't like being made to go to trial."

Roach declined to discuss the Blackburn case, citing pending litigation. But in a peculiar twist due to Texas law, if Blackburn goes to trial, he can demand to be sentenced by the judge, putting the case back where it started after considerable taxpayer expense. Blackburn's attorney is promising to take the issue to the Supreme Court to allow his client to plead guilty to a judge.

Roach said his office doesn't think it is an "honest process" to accept open pleas in which the accused pleads guilty to the judge and the judge decides the punishment without approval by the prosecution.

"A lot of time the defendant and the state, it's just a wink and nod and forcing the judge to decide what the punishment should be," said Roach, who also is a former judge.

Few cases go to jury

Despite the hallowed American right of defendants to face a jury of their peers, 99 percent of criminal cases in Texas never go to trial. Guilty pleas are the grease that keeps the system moving, because it would break down if everyone entitled to a jury trial demanded one.

Texas is one of a handful of states that allow jury sentencing; most leave that task to a judge. But in the few states that do, if you demand a jury trial, you get jury sentencing. Texas is the only state that allows the defendant to choose who sentences the guilty – judge or jury. Only if a Texas defendant pleads guilty to a jury must he or she be sentenced by the jury.

Juries generally are considered less predictable than judges when it comes to punishment.

And in Texas, like many other states, prosecutors must agree to a defendant's decision to waive a jury trial and go before a judge.

Though it is unusual for prosecutors to demand trial when the defendant wants to plead guilty, it's not unheard of.

"It's costly, but it might serve some educational purpose for the public to air the facts," said Nancy King, law professor at Vanderbilt University. "It's a way to test the proof, if there's some doubt about whether the offense actually occurred."

Shannon Edmonds, government liaison for the Texas District and County Attorneys Association, said a trial also might \enable the judge to "learn something new in that trial he wouldn't have learned otherwise," and give the victim "their day in court, which they don't get to do if there's a plea."

But judge shopping – by the defense or the prosecution – is always a possibility.

In Blackburn's case, McCraw thought he saw just that. In his December ruling, McCraw accused the district attorney's office of "forum shopping for a particular judge to fix the punishment."

Assistant District Attorney John Rolater, who is handling the Blackburn case, denied it in court.

Attorneys cannot request that a case be assigned to a specific judge, but they can try to gauge a judge's calendar to see when he or she will be presiding.

Hunter Biederman, a Collin County defense lawyer who was in court the day McCraw accepted Blackburn's plea, said efforts by prosecutors to avoid certain judges are outrageous.

"If we're going to elect our judges, who are supposed to be neutral magistrates, why are we going to take that [sentencing] power away from them?"

Roach said his office does not target specific judges as some allege. "That's an ignorant statement," he said. The law says prosecutors are entitled to demand a jury trial "and it doesn't make any difference what our motives are."

Rolater also pointed out in court that without a trial, a judge could give Blackburn deferred adjudication in which the accused's record is wiped clean if he or she completes this special probation. Authorities said Blackburn, 27, tried to swallow the evidence and scuffled with an officer. He faces four felony counts.

Prosecutors opposed deferred adjudication in Blackburn's case. But McCraw called that argument a "straw man" because Blackburn did not request deferred adjudication.

"The state wants to control who sets the punishment hearing," McCraw said. "Is that what the fight is about here?"

DA's reasons debated

Biederman, who wrote about the twists and turns of the Blackburn case extensively on his blog, mentioned other reasons the district attorney's office might insist on trials in cases in which defendants want to plead guilty, including giving rookie prosecutors courtroom experience or inflating the district attorney's conviction rate for political purposes.

Roach dismissed those ideas as well, pointing out that young attorneys cut their teeth in misdemeanor court, not felony court, and saying his office doesn't need to "pump up" its conviction rate.

"I'm hired by the people of Texas to try criminal trials – that's what we do," he said. "Who wants an idiot for the district attorney who won't work to try a case?"

When McCraw allowed Blackburn to plead guilty over prosecutor's objections, he said, "I would submit the United States Constitution allows a defendant the right to enter a plea based on the court's request."

McCraw cited "judicial economy" in his ruling, saying the county should not have to pay for up to four jury trials at a cost of about $5,000 per trial when the defendant is willing to plead guilty.

Other costs related to any trial – attorney fees, costs to jurors' time – also would be incurred.

An appellate court overruled McCraw, citing the state law that says the case must go to trial because the prosecutor and judge must consent to the waiver of a jury trial and saying Blackburn failed to "specifically raise a constitutional argument for this court to address."

Blackburn's attorney, Michael Curran, said he is filing a motion asking the appellate court to rehear the issue. If he loses in state courts, as others challenging the law have done, "This thing can go all the way to the U.S. Supreme Court," he said. "I intend to take this as far as I can."

Roach stands by his policy to adhere to the law that allows him to refuse to let judges accept pleas without his consent. Even though the law allows Blackburn to be sentenced by a judge after a jury trial.

"I don't think it's a waste of taxpayer money for fellow citizens to make a determination about whether a person is guilty of a criminal offense."