Knee Jerk Legislative Reaction (1/12/01)

I ran into Lisa Mullen a while back in downtown Fort Worth. Lisa is a former assistant district attorney for Tarrant County and, hands down, can cross examine a witness better than anyone in the state. After leaving the DA's office, Lisa gained a little notoriety when she represented a man charged with murder. According to the Star-Telgram, the story can be summarized as follows:

In 1999, Watkins got 10 years' probation when he testified that he found his wife, Nancy, and her boyfriend, Keith Fontenot, at the Watkins home. Watkins burst in, found his wife in the kitchen and shot her in the head. Then Watkins turned his gun on Fontenot, shooting him twice. When he pulled the trigger again, the gun didn't go off, and Watkins fled. But Watkins returned and shot his wife as she called 911 operators for help. Attorneys for Watkins contended he snapped when his wife taunted him about her affair with Fontenot. The "sudden passion" provision lowers the crime to a second-degree felony, punishable by two to 20 years in prison.

There are two important aspects about the case. First, jurors found that Watkins had acted under the influence of "sudden passion". Watkins was still convicted of murder, but his range of punishment, because of the finding, was dropped from a first degree felony (which carries with it a maximum of life in prison) to a second degree felony (no less than 2 and no more than 20 years).

The critical factor, however, is that Watkins received probation for the offense. Please note that even if the jury had not made the "sudden passion" finding, they still could have granted him probation. I'm not saying he deserved it, but jury verdicts like that happen more often than you would think.

Watkins, by the way, despite being given probation, is still in jail. More about that in a moment.

The public goes nuts whenever they hear the word "probation". They go even crazier when probation is granted by a jury in a murder case. The Watkins case made every local news station and Lisa Mullen even appeared on a national talk show. (I can't remember which one).

But whenever there is a public outcry, there will soon be a politician to try and grab some votes.

Enter the annual winner of the Best Legislative Hairdo contest and state Republican Senator from Flower Mound: Jane Nelson. Nelson is constantly sticking her nose in criminal justice issues although she demonstrates time and time again that she knows little about the practical aspects of criminal justice. She is, however, a politician of the highest order.

Nelson is sponsoring a bill this session to do away with the "sudden passion" defense. According to the Star-Telegram, "Nelson said her bill to remove 'anger, rage, resentment' as adequate causes for a sudden passion defense during the punishment phase of a trial was inspired by the Watkins case."

Give me a break. You can tweak with the law all you want to, but juries are always going to assess a sentence that they feel is just and right.

Remember, that the "sudden passion" defense is technically not a defense at all. The finding by a jury only changes the range of punishment from a first degree (5 years to life) to a second degree (2 to 20 years). For example, Watkins sentence was 10 years in the penitentiary probated for 10 years. If the sudden passion defense had not been available (causing the jury to consider between 5 years and life instead of 2 years to 20 years), is there any question that the exact same sentence would have been imposed: 10 years in the pen probated for 10 years? Of course the jury would have reached the same result.

The abolition of the sudden passion defense, therefore, will have no practical effect at all.

But, boy, it will make for a good headlines and some great news conferences.

When I ran into Lisa, she told me that Watkins was still in jail. I didn't understand why since he had received a probated sentence, but Lisa told me about a change in the law that I had not been aware of. Another great piece of  legislation was enacted that states anyone convicted of a serious offense (and murder is on the list), is not eligible for a bond during the pendency of any appeal. Watkins, you'll recall, was convicted of murder. He wanted to appeal the case because if the appellate court finds the evidence was insufficient, he will be acquitted and can never be retried again. But to do so he has to remain in jail despite his probated sentence because, under the statute, no one convicted of murder can be on the street while he appeals his sentence. Probation be damned. (This law is being challenged but without success so far).

No justice, no peace?

Barry Green served as District Attorney for Wise and Jack Counties from 1993 through 2000. He is now a partner in the Decatur law firm of Smith & Green, P.C.

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