Sen. Nixon and Nina Shahravan Meet The Punisher (9/15/97) 
Two misdemeanor cases in Texas made headlines this week.

In Dallas, Nina Shahravan, the woman who falsely accused Dallas Cowboys Michael Irvin and Erik Williams of sexual assault, pled guilty to the offense of perjury and received a sentence of 90 days in jail and a $1,500 fine.

In Austin, State Senator Drew Nixon pled guilty to soliciting a prostitute and unlawfully carrying a weapon. As of this writing, he was asking a jury not to sentence him to jail.

Each case carried with it a range of punishment of up to a year in jail and up to a $4,000 fine. Both defendants, because of their lack of a criminal history, were eligible for probation. (Nixon's case actually has two punishment ranges since he was tried on two separate offenses. Nevertheless, even separate sentences would have to run concurrently).

You may have noticed, however, a significant difference between the two cases from a procedural standpoint. In Shahravan's case a judge assessed punishment while in Nixon's trial the jury is being called upon to make that decision.

What gives? The answer is that every defendant has the option of  choosing, if he is found guilty, between the judge and a jury as to who decides his punishment. Obviously, Ms. Shahravan chose the judge while Mr. Nixon decided to take his chances with a jury. Why the difference?

There are, as you might expect, many factors that effect this important decision of the defendant. In most counties in Texas, a defendant will typically choose a judge to assess punishment if the charge is a misdemeanor while the selection of the jury is commonplace for felony charges.

The basic belief behind this tradition is that most  judges believe that probation is typically appropriate in misdemeanor cases. Of course, this is not to say that it should be allowed in every case, but if you are a defendant looking for probation on a misdemeanor, you're playing a game of odds. And if Las Vegas were to set a line on your misdemeanor punishment, there is no question that the best bet would be with the trial judge. You might receive the desired verdict from a jury, but the odds are better with most judges.

Felony cases are different. The punishment options are vast and expansive and there is a world of difference between life in prison and probation. And unlike misdemeanors, it cannot be said that "most" felony offenses deserve probation. Consequently, the appropriate punishment must be measured on a case by case basis. Because there is no "standard" punishment, a judge is not necessarily a better choice for the defendant than a jury.

In fact, other factors may make the jury the more appealing choice in a felony case.

First, assessing punishment in a felony case is no fun. Even if the judge believes strongly in the concepts or right and wrong as well as personal responsibility, sending a person to the penitentiary is never enjoyable. It may be the appropriate and just, but it is no fun.  Therefore, it is often speculated that a judge may be extremely harsh in the arena of felony punishments in order to persuade future defendants to chose the jury instead.

Secondly, judges are elected in Texas and must answer to the voting public. Because of this, a judge (who, by the way, is only human) may be inclined to think twice about showing compassion in sentencing even when he believes the facts warrant it. A jury, on the other hand, answers to no one, and its members have the additional support of one another in reaching their decision. Simply put, they will assess probation if they believe it is the right thing to do, and they could care less what the public says about it.

So, in general, defendants choose the judge to assess punishment in misdemeanor crimes while they opt for the jury in felony cases. With this in mind, why did Mr. Nixon chose a jury?

I'm not sure.

The fact that this misdemeanor case, unlike others, appeared on the front page of every major Texas newspapers could be a factor. Is he fearful that the Austin judge would try to make a name for himself  by assessing jail time? Maybe. Does the judge have a past of being strenuous when the press is covering one of his cases? If so, the defendant would certainly take that fact into consideration. Whatever the reason, Nixon elected for the jury to decide his fate based upon the apparent belief that they would be more inclined than the judge to do the right thing (at least in Nixon's eyes of what is "right").

Nixon will learn in less than 24 hours if his gamble paid off.

Shahravan, on the other hand, took the typical route in electing the judge to assess her punishment but, relatively speaking, was hammered by the court. This is especially true in that the victims, Williams and Irvin, testified before the court and refused to say she should go to jail. Instead, they stated she had been "persuaded" by others to make the false allegations. Regardless of these mitigating circumstances, the judge ordered her to jail.

Shahravan followed the typical procedure and ended up in jail. Now a different jury deliberates the fate of Nixon who bucked conventional wisdom.  If he ends up in the Travis County Jail, it could be the result of poor trial strategy.

Than again, maybe both of them simply deserved what they got.

Postscript: On September 17, 1997, the jury granted Nixon his requested probation on the prostitution charge but sentenced him to 6 months in jail for the offense of unlawfully carrying a weapon.

Barry Green is the District Attorney for the 271st Judicial District.

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