Aggravated Robbery and the PSI Blockade

NOTE:  The first half of this lengthy post explains the law to people who don't regularly deal with criminal law.  If you already know criminal law, jump down about ten paragraphs and start reading.

Aggravated Robbery.

The name of the charge just sounds menacing.   The first degree felony is punishable by between 5 years and 99 years or Life in the Texas Department of Criminal Justice -- just like a Murder case.  Also like a murder case, there are countless ways that an Aggravated Robbery can be committed -- from the dramatic bank robbery with guns blazing and people injured to the proverbial starving mother who pulls a kitchen knife while shoplifting bread to feed her family.

Because there are so many different ways that an Aggravated Robbery can be committed, it is understandable that such a wide range of punishment is available for the offense.  Some cases clearly merit a higher sentence, while others do not.  However, because Aggravated Robbery is considered such a serious offense, a person who is convicted of it can only be given probation by a jury under Section 42.12 (3)(g) of the Texas Code of Criminal Procedure.  In other words, a Defendant on trial for Aggravated Robbery cannot ask a judge to give him or her probation if they are found guilty.  Only the unanimous verdict of the jury can save them from prison at that point.

The exception to this, of course, is Deferred Adjudication.  For those outside of the legal profession, Deferred Adjudication is where a judge finds sufficient evidence to find a Defendant guilty, but withholds a finding of guilt and places them on community supervision instead.  Since there isn't a final conviction, the Defendant can avoid prison as long as he or she successfully completes the terms of community supervision.  The downside to receiving Deferred is that if the Defendant screws up probation, he or she is only entitled to a hearing to the judge and the judge has the power to sentence him or her up to 99 years or Life in prison.

As a general policy, the Harris County District Attorney's Office will not offer a Deferred Adjudication to any Defendant accused of Aggravated Robbery.  I'm not a big fan of sweeping policies that forbid ever offering certain types of punishment for certain types of crimes.  Any lawyer that has handled felony cases for over a month realizes that there are exceptions to every rule and no matter how serious the words "Aggravated Robbery" sound, there are many some cases where a prison sentence just isn't the appropriate punishment.

Unfortunately, no District Attorney ever got elected on a platform of being "more understanding on violent crime."  I understand why such a policy exists, even if I don't agree with it.

Historically, if a Defendant wanted to get deferred adjudication on an Aggravated Robbery, he or she had to plead to the judge without an agreed recommendation from the State (WOAR).  In essence, that is the equivalent of throwing oneself to the Mercy of the Court.   In some instances, the judge would tell both the prosecutor and the defense attorney that if the Defendant pled to them without an agreed recommendation he or she (the Judge) would give them deferred adjudication.

For this to proceed, however, the State would have to agree to waive its right to a Jury Trial.

Like a Defendant, the State has the same right to a trial by jury.  If the State refuses to waive that right, then the Defendant's guilt or innocence must be determined by a jury.  If that jury finds the Defendant guilty, then the judge can no longer give them probation or deferred adjudication on an Aggravated Robbery (because a finding of guilty has been entered).  As noted above, only the jury can save the Defendant from prison with a probated sentence at that point.

Another way of resolving cases where the prosecution and the defense can't agree on an appropriate punishment for an accused is a Pre-Sentence Investigation (PSI) Hearing.  In a PSI Hearing, the Defendant pleads guilty to the offense and the Community Supervision (Probation) Department does a background check that ultimately results in a report to the judge.  That report can include information about the offense, the background of the Defendant, the criminal history of the Defendant, the feelings of the Victim, the substance abuse issues of the Defendant, and many other factors.  That report is given to the judge and then a sentencing hearing is conducted.

During the sentencing hearing, both the prosecution and the defense (usually) have the option of calling witnesses.  Usually, the prosecution calls victim impact witnesses and the defense calls character references for the Defendant.  At the close of the hearing, the judge has the full range of punishment available to him or her.  In the case of an Aggravated Robbery PSI hearing, the judge can place the Defendant on Deferred Adjudication, or sentence the Defendant to Life in Prison.

A PSI Hearing is generally an educated gamble for a Defendant and his attorney.  However, for a PSI to proceed, once again, the State has to waive its right to a jury trial.  If the State wants to remove the mere possibility of a deferred adjudication being granted to an Aggravated Robbery defendant, all they have to do is refuse to waive a jury trial.

And in recent months, that's exactly what the Harris County District Attorney's Office has been doing with increased frequency.  Refusing to waive a jury causes a jury panel of 65 people to be called to court, so that 12 of them can be selected, so that the Defendant can simply plead guilty to them and then ask them for probation.

Now, keep in mind, there is absolutely nothing dirty, suspect or fishy about an Aggravated Robbery case going to a PSI hearing.  Part of any judge's duty is to determine sentencing for accused in such a hearing if called upon.  Certainly, some judges have reputations for being tougher on punishment than others, but a PSI hearing offers absolutely no guarantees.

Determining an appropriate punishment is what a judge is elected to do.

If at the close of a PSI hearing, a judge determines Life in prison is appropriate, so be it.  If a judge determines that deferred adjudication is appropriate, then that is okay, too.

Over the past several months (and twice in the past two weeks), I've been told in certain courts, the District Attorney's Office would be refusing to waive a jury trial on an Aggravated Robbery case I was handling,  thus prevent me from going to the judge for punishment.  In essence, the message that refusal sends is quite clear:

The District Attorney's Office doesn't trust the elected Judge to do the "right thing" on the case, and therefore, it won't risk going to a PSI Hearing with him or her.

That's a pretty arrogant stance to take with an elected official.  It also belies the underlying feeling that a judge should merely be an extension of the prosecution.  Unless that judge is guaranteed to not even consider something so dastardly as a a deferred adjudication (if appropriate) on an Aggravated Robbery case, then that judge shall not be entrusted to determine punishment.  In other words, unless the judge is definitely going to do what the prosecution wants, that judge should not be trusted.

Apparently, judicial neutrality is not something that is valued by the D.A.'s Office.

In one of my instances, I was told that the State would not agree to a PSI on an Aggravated Robbery in the trial court, unless I agreed to let the case be removed to Impact Court where a different judge would be presiding.  I pointed out to the prosecutor that this was the equivalent of the D.A.'s Office giving the middle finger to the trial judge.

The irony of this is that the District Attorney's Office has the power to block a judge that they feel is too lenient, while a defense attorney who feels that a judge is too harsh is just shit out of luck.  Additionally, it completely disrespects the fact that the judge, like the District Attorney, is also an elected official who was chosen by Harris County voters.  If the voters trust a judge's judgment, why doesn't the District Attorney?  A judge is an independent entity and not an extension of the prosecution.  Sadly, this is an idea apparently lost on the Office at the moment.

On occasion, some judges find themselves at odds with the District Attorney's Office.  For instance, when former Judge Kevin Fine declared the Death Penalty to be unconstitutional, the District Attorney's Office more or less went to war against him.  Without commenting on what side I was rooting for in that battle, it was at least understandable as to why the battle was occurring.  Recently, it appears the D.A.'s Office is ready to fight with a judge over every instance where it disagrees with that judge.  Judges who disagree with the Office (or take them to task) risk being labeled as the next Kevin Fine by the prosecution.

Perhaps the District Attorney's Office should take a moment to remember that almost every single criminal judge in Harris County is a graduate of the District Attorney's Office (including two of the judges that the D.A.'s Office indicated they would block PSIs to).  If a former-prosecutor-turned-judge has a different outlook on criminal justice than the current prosecution, maybe it shouldn't be entirely disregarded.

Not to sound cliche here, but if a prosecutor's duty is to see that justice is done, perhaps that same prosecutor should come to terms with the idea that he or she is not the ultimate arbiter of justice.

Theoretically, that person should be the neutral judge.