To the judge or to the jury, that is the question. This is not so much a legalistic interpretation of Hamlet’s preeminent line, but rather the conundrum of the modern day criminal defense attorney.
You see, in Texas, prior to trial, a defendant must choose from whom he wishes to receive his punishment. Before he knows he will be punished. You choose either sentencing from the judge or from the jury.
And while there is certainly a number of legal issues involved, this is one of those decisions in a criminal trial that is far less legalistic than pragmatic. The decision is one made based more upon experience than scholarship. Instinct than knowledge. Gut than cognition.
Ultimately, it can be the difference between life an death.
“I recently served on a Tarrant County criminal jury where the defendant was a middle-aged repeat offender who was found guilty of robbery. The minimum sentence was 25 years; Judge Ruben Gonzalez sentenced him to 75 years. Now, no one was injured, there was no evidence of a weapon, a small amount of cash and a cellphone were stolen, and the perp was stupid enough to return the cellphone hoping for a $50 reward. He got 75 years, a virtual life sentence.
So what sentence do we give to the criminal who rapes, maims or kills another? Why do I keep reading about killers who get five- to 10-year sentences? Where is the justice?”
This was a recent letter to the editor in the Fort Worth Star-Telegram, entitled Where's the Justice?. This is not from a defense attorney, or a liberal activist, or any one like that. But from one of the actual jurors who convicted the defendant. In Texas. In Tarrant County. Not a hotbed for rights of the criminal defendant, to be frank.
I can’t imagine it’s a good thing for a juror here to question the justice in a judge’s sentencing. If a juror who sits through the entire trial thinks the sentence handed out by the judge is unjust, is it? And here in lies the problem.
We elect our judges. They aren’t appointed. Now personally, I’ve never been a fan of appointing judges because after all, they’re just being appointed by those that were elected. So it’s really just the second cousin of electing judges.
But the fact that judges are elected clearly plays a part in how they do their job.
Now I’m a lifetime Republican. And as such, I know that they teach us that we are all about law and order, public safety, being tough on crime. So if you’re a Republican judge, and you want to continue being a Republican judge, it’s pretty clear you need to be able show the voters you are all about law and order, public safety, and being tough on crime.
But at what cost? You see in this case, one has to wonder whether the newly-appointed Judge Gonzalez of the newly-created 432nd District Court isn’t flexing his judicial muscles. Does he feel he has to show the voters of Tarrant County that will be going to the poll within a year that he’s all about law and order, public safety, and being tough on crime? Did he overcompensate?
Now I have it on good authority that the State’s offer on this case pretrial was 25 years. The defendant was a Repeat Offender. But the fact that the State offered the defense 25 sort of has to tell you what that case was worth from the State’s perspective. Not only that, but the case was originally charged as an Aggravated Robbery, but the jury found the defendant guilty of only Robbery. Of a cell phone.
As the letter indicated, no one was hurt. There was no dead body. So if Judge Gonzales feels this kind of case warrants a 75 year sentence, one has to wonder what will happen after the first murder trial. Sexual Assault trial. Kidnapping trial.
Within the courthouse, it’s no secret which judges are considered “hanging judges.” If you, as a defense attorney can avoiding having one of those judges from being involved in the sentencing of your client, you’re probably always playing the odds to your benefit. And the reverse is true also. There are those that are more willing to sentence a defendant lighter, and if you can get to them, it might be in your client’s best interest.
It’s all part of the system. It’s not perfect. It’s human after all. Any time you have humans imposing sentence on each other, there will likely be issues.
But this was one of the first trials ever held in the 432nd District Court, and presumably the defense felt that by going to a new judge who only weeks before had been a defense attorney himself, was a good bet. From a poker perspective, it looked like a damn good flop for the defense.
But clearly the defense forgot about the politics of the situation. Judge Gonzalez is a newly-appointed Republican judge, who presumably would like to continue being a Republican judge. Perhaps Judge Gonzalez saw this as an opportunity to show the voters of Tarrant County that he was what they hoped for in a judge. And that by imposing such a sentence was a surefire way to avoid having an opponent in the upcoming election.
But if one of those voters just took the time to write that letter, has it backfired?
Such a harsh sentence in an effort to avoid an opponent next year may have resulted in just the opposite. The question remains, will anyone seize upon this to run against Judge Gonzalez. Clearly the case could be made for it.
But what the hell do I know?
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