Be Careful What You Ask For, You Just Might Get It (5/29/97)

This week, prosecutors with the Tarrant County D.A.'s Office attempted to have an individual found guilty of attempted capital murder for abandoning one of her two children near a garbage bin in freezing temperatures. An expert testified that the child would certainly have died if she had been exposed to the cold weather for a few more hours. It was a horrible, irresponsible act on behalf of the mother.

What was interesting, however, is the charge and punishment sought by the prosecutors. The defendant readily admitted that she had abandoned the child, but maintained she never intended to kill her. In fact, this is exactly what she told investigators in a written statement after her arrest. That act of abandonment, in itself, is a criminal offense. But this admission, at least to the prosecution, was not enough. They asked the jury to find that the defendant intended the child's death or, alternatively, that she was reasonably certain that the child's death would occur. Attempted capital murder, the charge sought by the State, is a first degree felony carrying a punishment with it up to life in prison and a $10,000 fine.

Pretty aggressive you say? That's not all. The State also attempted to prove that the "cold weather" was a "deadly weapon". This is critical in that if the jury had found the defendant guilty and that she had used the weather as a deadly weapon, she would have been required to serve one-half of her term or 30 years in prison, whichever occurred first. Without a deadly weapon finding, parole would come much more quickly.

The result of the trial was a deadlocked jury, 7-5 in favor of guilt. However, five individuals choosing not to convict, from a prosecution standpoint, means you were miles away from obtaining a conviction. Quite frankly, it wasn't even close. The deadlocked jury lead to a plea bargain of ten years in prison. (Ten years probation was the agreement for the abandonment of a different child under non-life threatening circumstances). It is not entirely clear from the news reports, but it appears the State abandoned its quest to seek a finding of a deadly weapon. By doing so, the defendant will probably be paroled in a 2 to 3 years although such matters come exclusively under the jurisdiction of the Board of Pardons and Paroles. (News reports said she would serve three to five years, but I believe this is incorrect).

Several questions come to mind: Did the State over charge its case? Should the State have alleged the mother intended to murder the children when she clearly did not choose to take their lives in more readily available means? What's up with the allegation that the cold weather was a deadly weapon? Was credibility lost with the jury with this allegation despite the fact that "anything", under the law, can be a deadly weapon?

Welcome to the world of the district attorney. The decision to charge an individual with a crime and what specific offense to include in the indictment is oftentimes a gut wrenching decision. Legalism aside, I generally base my decision on the simple question of: "Is it the right thing to do?". The answer to that question can sometimes keep a prosecutor up at night, or, at least, it should.

I do not fault the prosecutors in the Tarrant County case for seeking the charges they ultimately chose to pursue. In fact, I know both of them personally and respect their abilities as ethical and capable prosecutors.

Some would ask why the prosecution should not always seek the maximum charge and punishment. One can argue that since the prosecution cannot convict and only a jury has that power, let the jury "sort it out". This, in a sense, has a ring of truth to it.

But to rely on a jury to "sort out" all cases does not guarantee justice. (Remember O.J. Simpson?) Anyone who has been a trial lawyer for any period of time knows that a jury trial, in a sense, can be very unpredictable. In almost all cases, a jury will do the right thing. However, this does not occur 100% of the time. Anything can happen. For this reason, it is critical that a prosecutor only seek a charge and a punishment that is just and right. It is within the realm of possibility that a defendant can be convicted for a crime they did not intend to commit. I hope it happens rarely and in those cases I'm equally optimistic that an appeals court will overturn the conviction. Once again, however, there are no guarantees.

I always keep this in mind when I'm drafting an indictment for the grand jury. If I get what I ask for, I ask myself, will justice be served?

It can cause some sleepless nights.

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

These website pages are Copyright. Contents or HTML representation and Graphics are Copyright 1997, Wise County on the Web, and may not be copied or mirrored without prior written permission.