Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Both Simple Justice, and Truth in Justice, recently commented on the reversal of a criminally negligent homicide conviction in New York. The 17 year old defendant was on his way home when he lost control over his car while going through a turn. He had 3 friends with him, who all died. The defendant was speeding, and only had a junior license. The Court of Appeals concluded that was not enough to make the conduct criminal.

Sometimes people have a hard time accepting that some actions are not crimes. Criminal statutes are generally designed to punish intentional conduct; you know something is wrong, but you do it anyway. You don't always have to intend the result; for instance, you might get in a fight, and during the fight the other person trips, and hits his head, resulting in serious injury. You may still be guilty of an aggravated assault, if serious bodily injury resulted.

All but a few criminal offenses require a mental state. There are three - intentionally, knowingly and recklessly. Recklessness means you aware of the risk, but ignore it. In the assault example, you know something might happen. You can be reckless, and be just as guilty as if you act intentionally.

Sometimes you don't need a mental state at all.  Intoxication manslaughter is one of those offenses. If you intoxicated, and involved in an accident, you are guilty. The State doesn't have to prove the accident was the result of your drinking, they just have to prove you were legally intoxicated. Sometimes its nothing more than bad luck; both for the defendant, and the other parties.

So why should you be guilty if you don't have the necessary intent? The theory is strict liability - you are responsible for the consequences of your actions, no matter what your intent is. If you drive while intoxicated, you are responsible for whatever happens. Some may think it fair, and some may not.

Not everything has to be crime. We have a civil justice system that is designed to handle disputes. We would be better off if we let the civil justice system handle some of those disputes, and not make everything a crime. After all, we have more than enough people in jail already.

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A jury in Waco, Texas recently sentenced a defendant to 20 years for intoxication manslaughter, the maximum sentence. There were also two people injured in the accident, and the jury sentenced him to 5 years for each of those (intoxication assault). The judge stacked the sentences, and he ended up with 30 years.

There was nothing improper about what the judge did, but the question is whether its right. There are several offenses where sentences can be stacked - sexual assaults are the most common. Those offenses can also be combined in a single indictment, which means one indictment can contain several separate offenses.

There are several problems I see with stacked sentences. One problem is with offenses like intoxication manslaughter, where there is no intent to kill anyone, or hurt anyone. Whether one person is in another car, or ten people, is nothing more than luck (bad luck for the other driver). Is it really worse because there are three people, instead of one? Looking at it from the standpoint of the defendant's conduct, you would have to say no.

Another problem is sexual assault cases. Many times, one incident may consist of several possible offenses. For example, in an indecency case, touching the breast and genitals are separate offense. So is contact with the mouth. It's not uncommon for one incident - that may last no more than a few  minutes, to end up in three or more offenses. The result is that instead of facing a potential sentence of 20 years, the defendant is looking at a 60 year sentence. The threat of that happening results in a lot of pleas.

If the legislature wants to increase sentences, they have the right to do so. They shouldn't allow the State to do it through the back door though, which is what happens with stacked sentences.

The most serious problem I see is that the decision to stack sentences is left to judges. If you are going to allow juries to sentence people, then let them do it. As it is, they have no say in how the sentence they assess is carried out. Even worse, they are not even told the judge can, or cannot stack sentences. Its not uncommon for jurors to ask whether the sentences can be stacked, only to be told they are not to concern themselves with that. Why can't they know that, when they are the ones deciding what the sentence should be?

I'm sure it will never happen, because the legislature is not going to support anything that appears to be soft on crime. But some consistency needs to be brought back to sentencing, especially in sexual assault cases. Jurors also shouldn't be kept in the dark - they should know that a judge may be allowed to ignore what they worked so hard to resolve.

Instead of this, my guess is the only thing that will  change is  more offenses will be added to the list of those that can be stacked.

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Intoxication manslaughter cases have been in the Waco news later. Several weeks ago, a young girl was sentenced to 2 years for the death of her cousin. They had both been out drinking at a party, and had a wreck on the way. During the trial, the victim's parents pleaded with the jury to not send her to prison.

Last week, a young man was given 30 years for the death of a mother, and injuries to her children He had been passing in a no passing zone when he collided with the victim. The wreck killed the mother, and seriously injured one of the children. Obviously, the wreck devastated the mother's family. It also devastated the defendant's family. His brother had been killed several years earlier after drinking too much, and driving his truck into a ditch.

This week a defendant decided to plead guilty instead of going to trial. She had been out drinking with friends, including the victim. The victim had also been using drugs. They ultimately got into a fight, and he got out of the car, and the others left. They came back, and ran over him, killing him - he was lying in the road at the time. She agreed to 8 years instead of going to trial. When interviewed, her law stated it was not a good time to be charged with McLennan County. Obviously, the verdict the previous week influenced her expectations o what could happen.

So how come one defendant gets 2 years, and another gets 30. The easy answer is that different juries may look at cases differently. Still, that doesn't really explain the difference between those two results. Even when plea bargains are involved, there often appears to be substantial disparity between similar cases.

It's no secret that the majority of cases are resolved by plea bargain. When trying to negotiate a plea, both lawyers are trying to guess what a jury would do. The defendant does not want to agree to more time than a jury would likely assess. The prosecutor also does not want to offer substantial less than what a jury would assess. When trying to guess what a jury will do, both sides have to evaluate all aspects of case. That includes the facts of the offense, and a defendant's prior history. Although it shouldn't be a consideration, the circumstances of the victim must also be considered. (that will be left to later)

Plea bargaining has a lot of similarities to gambling, and each defendant's attitude towards risk must be taken into consideration. Some people want to know what will happen, and stay away from risk. For them, plea bargaining allows them to know beforehand what is going to happen. Others enjoy risk. For them, they may not shy away from the risk of a trial, where they might get a lower sentence, or one substantially higher than is being offered.

Another factor which cannot be controlled is the prosecutor assigned to the case. Policies vary among Counties, but almost everywhere prosecutors have some discretion when making offers. In some counties, that discretion is almost unlimited, which creates a real problem for criminal defense lawyers. One prosecutor may be more lenient than another, and the luck of the drawer determines whether a client gets a low offer, or a high  offer. That is one of the more difficult things to explain to clients when they see other people coming out substantially better than they are. It is impossible not to compare cases, and everyone does it.

Just as the prosecutor makes a difference, so does the defense lawyer. Prosecutors know some lawyers have a reputation for pleading everything out, and avoiding trials. They also know other lawyers are going to fight for their clients, and aren't afraid to go to trial if they think that is he best strategy. Without a doubt, the latter are the ones who are most effective in negotiating favorable agreements.

In the end, there is no formula or rule you can use to evaluate a case. There is no substitute for experience. That is the only way you can know how juries and prosecutors evaluate cases. Unfortunately, that leaves everyone with their own opinion, which they won't hesitate to share - all you have to do is look at the comments on most news web sites. Of course, that is also one of the things that makes this Country great.

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