There has been some ado in the blawgosphere lately about the fact that Texas juries could convict people of murder, and then give them probation. (It’s not the law anymore — for murders after September 1, 2007, probation will not be an option for the jury.) Furriners (anyone unfamiliar with Texas culture, including reporters from the Dallas Morning News) express surprise that, in a state well-known for executing killers, probation was an option available to juries.
The truth is that Texas’s propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn’t execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who — in the eyes of Texas — needs killing is the accused, and sometimes he’s the complainant.
“He needed killin’, and my guy was the guy to do it” has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn’t secure convictions despite being technically murder; it’ll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.
In the “murder” case that I just finished trying, the complainant didn’t need killing. His brothers were bad dudes, sure, and there were pictures of him flashing gang signs and guns (the jury heard about them, but didn’t see them), but basically he was a 17-year-old high school kid who loved to play soccer. Without a probation option, however, I am convinced that the jury would not have been able to agree on a guilty verdict at all.
It sometimes happens that, in the culpability phase of a trial, the jurors who favor conviction will agree to put an accused on probation if the pro-acquittal jurors will agree to convict the accused. I didn’t talk to our jury afterwards (want to be lied to? Talk to a jury about its verdict.), but the notes they sent out, along with the brevity of their punishment deliberations, suggest to me that their minds were made up on probation before the punishment case began.
What was wrong with the State’s case? Calling what my client and his brother did “murder” was a stretch. The State’s theory was that they were parties to the felony murder of the complainant. The crime — felony murder — was intentionally firing a gun at a car and (incidentally — nobody had to intend it) causing someone’s death. So not only did my client not need to intend to cause anyone’s death, but nobody needed to intend to cause anyone’s death.
Murder? I suppose the law says so. But not the sort of thing Texans (other than the naifs in the DA’s office) are inclined to get particularly worked up over.