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December 19, 2007

Is it gender bias, a good-looks discount, and/or the virtues (or vices?) of jury sentencing?

NewsIn this new post, Eugene Volokh flags an interesting case from Texas in which a jury convicted Traci Rhode (pictured here) of murdering her husband, but then sentenced her to probation.  Here are the basic details of the crime and sentencing from this local article (with paragraphs reordered below):

[Traci Rhode] maintained her innocence throughout the trial, claiming Scott Rhode shot himself in their bedroom while she showered after a morning walk.
The prosecutors counter that Traci awoke at about 5 a.m. on Oct. 15, 2003, and shot her husband with a .45-caliber handgun while he slept....

The jury that convicted the Fort Madison, Iowa, native of killing her husband in their Brownsville home four years ago also set her free Thursday, to the delight of her lawyer and the dismay of local prosecutors. “I am ecstatic with the jury’s assessment of probation,” said her lawyer, Ernesto Gamez.  “It literally legitimizes and justifies their verdict because deep down inside they had a very tough decision to make.”

It took jurors two days to deliver their guilty verdict and another three days to sentence Rhode to 10 years supervised release. Judge Ben Euresti tacked on a $10,000 fine to her punishment and she was released from the Carrizalez-Rucker Detention Center within a few hours.

Eugene comments: "This is pretty puzzling to me; the jury convicted, which means they didn't buy the defense's "husband shot himself" theory.  But if the wife deliberately killed him, what's the basis for the probation sentence for a deliberate murderer?"  And commentators respond with a variety of viable theories, though this related local article about evidence presented to the jury at the sentencing stage provides additional grist for the speculation mill:

Shane Rhode pleaded with jurors Monday to set his mother free. “I want my mom to come home,” he said and reminded the court that she is the only parent left to him and his two siblings. Shane’s mother, Traci Rhode was found guilty in the murder of the 15-year-old’s father, Scott Rhode.  “I want her to come home because I love her,” a tearful Nicholas Rhode, 14, added during a dramatic sentencing phase that continued into the evening.

Of course, in the wake of Blakely, I wonder if readers of this blog think this case shows the virtues or the vices of having juries involved in non-capital sentencing determinations.

December 19, 2007 at 05:31 PM | Permalink


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This happened in the Valley? wow we are becoming famous :D

Posted by: EJ | Dec 19, 2007 5:45:27 PM

It seems to me either you trust the jury system or you don't. Why have faith in the jury system to decide guilt/innocence but NOT the punishment?

Posted by: bruce | Dec 19, 2007 6:01:27 PM

A husband-killing wife who says, "Have mercy on me because I'm my child's only parent" sounds a heck of a lot like the definition of chutzpah, i.e. a parent-killing child who says, "Have mercy on me because I'm an orphan."

Posted by: YesBut | Dec 19, 2007 6:07:47 PM

The question that really needs to be asked is whether a civilized society can demand that the parents of the decedent stand down after such an outrage.

Posted by: federalist | Dec 19, 2007 6:40:21 PM

Doug, concerning your comment about "in
the wake of Blakely..." I think Blakely
has nothing to do with this case because,
as Scalia said in Ring, "today's decision
has nothing to do with jury sentencing."

If a jury is involved in sentencing, in
either capital or noncapital cases, it is
strictly due to statutory law, not
constitutional law.

bruce cunningham

Posted by: bruce cunningham | Dec 19, 2007 6:49:14 PM

other Bruce: I think Doug only meant that Blakely revitalized the notion of increased discretion to sentence defendants as they see fit, and brought about a whole new debate about the proper determination of a defendant's sentence.

I've never quite understood why the right to a jury trial doesn't include (at the defendant's choice) the right to jury sentencing. Jury sentencing was certainly intended insofar as sentencing facts (that increase the sentence) must be proven to a jury beyond a reasonable doubt (Blakely). So why is there no right to have a jury sentence you?

Posted by: bruce | Dec 19, 2007 7:04:57 PM

Sounds to me like a good example of the need for mandatory minimums for violent crimes.

"So why is there no right to have a jury sentence you?" If you mean the Sixth Amendment right, because sentencing was not understood to be part of trial by jury when that amendment was adopted.

Posted by: Kent Scheidegger | Dec 19, 2007 7:37:05 PM

Kent: Yeah I mean I've never quite bought that explanation re: understanding of jury trial at the time the 6th Amendment was adopted. And it seems that the whole line of Apprendi cases provides evidence against that explanation.

There is no such thing as a "good example for the need for mandatory minimums" for any crimes. A very good case can be made that the state did not prove her guilt beyond a reasonable doubt. The jury probably could not come to a unanimous conclusion on guilt, so they agreed to find her guilty but give her probation. Happens all the time.

The problem is if the jurors don't unanimously agree (or convice 11 of the 12 jurors even), then the state didn't prove its case beyond a reasonable doubt, and it should be an acquittal, not a mistrial/redo. The threat of a mistrial and having to do it all over again (even knowing it will be a different jury) makes jurors often come to hasty bargains.

Posted by: bruce | Dec 19, 2007 8:07:13 PM

She's lucky she's not a 12-year-old boy.

Posted by: George | Dec 19, 2007 9:24:29 PM

"The question that really needs to be asked is whether a civilized society can demand that the parents of the decedent stand down after such an outrage."

I'm almost afraid to ask, but what, exactly, does that mean federalist? Should the parents kill the jurors? The defendant? The defense lawyer? All of the above?

Posted by: Anon | Dec 19, 2007 11:04:12 PM

Well, Anon, the answer is that society demands that they do nothing. The question, and I think it a fair one, is whether the society has a right to demand that. Society certainly has the power, and from a practical standpoint, it has to, as we'd have chaos if people settled scores in cases like this. But it is an interesting question, I think.

Posted by: federalist | Dec 20, 2007 8:33:09 AM

Perfect example example as to why we need Sentencing Guidelines and judges to make sentencing decisions. If juries make decisions -- look at the disparity. Sorry to bring this up, but race probably had something to do with this, as well as gender. If we want to eliminate giving breaks to good looking white women, we need to take sentencing decisions out of the hand of jurors, and make judges rely on Guidelines or presumptions. THis does not mean that all sentences should be within Guidelines or within a presumptive time period, but come on, probation for an intentional and premidated murder?!!! What a joke!

Posted by: Gary | Dec 20, 2007 9:37:48 AM

People always talk about sentence disparity, but they're never talking about all the facts of the case. No two cases of the same penal code violation are the same. Just because two people convicted of aggravated robbery get vastly different sentences doesn't mean it was unwarranted disparity, or even disparity at all. If one defendant already had 4 prior convictions and the other had a clean record, where's the disparity?

Sure, two defendants in exactly the same situation but for their race should get relatively similar sentences. But except in a few rural southern counties I don't think this is as big of a problem as it once was.

We have pure jury sentencing in Texas with no guidelines (we will NEVER have sentencing guidelines in Texas), and I never hear complaints about sentencing disparity.

I will say this about race, though. I'm down at the court a lot, and a lot of the hispanic and african american defendants come to court wearing basketball jerseys and pants below their ass. Some white defendants dress like that too, but not nearly as many, most come to court in at least nice khaki pants and a clean shirt. Don't tell me the minorities can't afford nice clothes, that limited edition Michael Jordan jersey and the $500 sneakers cost much more than pants and a shirt from the Gap.

It's about respect for the court and for the judge. When a defendant comes to court wearing a tattered sports jersey and pants so low his balls are hanging out, he should get a higher sentence than someone who comes to court dressed respectfully. If minority groups insist on being disrespectful to the court, they shouldn't be whining about "sentence disparity" vis a vis the white folk.

Posted by: bruce | Dec 20, 2007 2:35:07 PM

Wow, bruce, some interesting generalizations. While your point about respect for the court and generalized differences in attire between races appearing in front of judges may be valid, your statement that "If minority groups insist on being disrespectful . . . " is unfair and borders on bigotry. It's the difference between saying "blacks are more likely to commit crimes than the average citizen" and "Blacks ought to stop committing crimes so often." We should avoid language like that. That a community has a higher rate of criminality DOES NOT mean that all members of that community are criminals. That some members of minority groups insist on wearing inappropriate clothing for court DOES NOT mean that all members "insist on being disrespectful to the court".

I think you ought to apologize.

Posted by: federalist | Dec 20, 2007 3:52:50 PM

federalist: I'm saying blacks (and hispanics) are more likely to show up to court wearing sports jerseys and low-hanging pants than white people. This is based on my first-hand observation while being down at the criminal courts at least 2-3 days a week.

You're literally putting words into my mouth by saying what I said is equal to saying blacks commit more crimes.

Do you not agree that a defendant who shows up to court wearing pants below his testicles and a tattered basketball (or sometimes football) jersey is being disrespectful towards the court? I certainly do. Ditto for the white people who come dressed like that. For whatever cultural reason, however, white people do not come to court dressed like that anywhere close to the frequency that african americans and hispanics do.

I think you ought to read exactly what I said and not try to read racism between the lines. I do not apologize for anything. My point re: clothing worn to court, which you concede "may be valid" is based entirely on first hand observation in Harris County, Texas (primarily).

I do not find it reasonably debatable that wearing pants below your scrotum and a sports jersey to court is disrespectful to both the court, and the judge. Would you hire a lawyer to represent you who wore a Michelob Light t-shirt and tattered jeans? Would you think a lawyer who walked into court dressed like that was being respectful towards the court? Same applies to litigants.

Posted by: bruce | Dec 20, 2007 5:05:21 PM

Bruce, you wrote:

"If minority groups insist on being disrespectful to the court, they shouldn't be whining about 'sentence disparity' vis a vis the white folk."

That statement is beyond the bounds of acceptable discourse, in my view. That statement lumps all minorities into the disrespectful category and is therefore ill-put. And I didn't say you were a bigot, I said that the statement borders on bigotry.

We all know that there are different rates of criminality among races here, and there are different cultural norms etc. etc. The point is that you cannot make statements that can reasonably be interpreted as saying "All minorities . . . . " And that's what your statement does.

I don't think that we should be shy about discussing empirical facts about race and criminal punishment. I do think that we need to be careful about blanket statements.

Posted by: federalist | Dec 20, 2007 5:54:47 PM

federalist: you're taking that one sentence out of the context of everything else that I wrote along with it.

Yes, that statement alone, without any reference to what I mean by "being disrespectful" sure sounds bad. I don't write expecting people to take one sentence and nitpick it out of the context of everything written before and after that one sentence. You should strive for discourse higher than that of Matt Drudge. You call it a "blanket statement" but it was most certainly NOT a blanket statment. It was surrounded by several paragraphs (in two posts) explaining exactly what I was referring to.

Interestingly, you ignore the substance of my comments (based on my own observations, not stereotypes), regarding whether wearing tacky clothes and your balls hanging out of your pants to court is disrespectful. Is it, or is it not?

Minorities have their own cultures and ways of dressing, which is fine. I could care less how people dress out in public, in the mall, on the street, or even at schools. But in court, you should dress well, if for no other reason than self-preservation when you're the criminal defendant appearing before the judge (and making an impression on the prosecutor).

I stand by my statements (plural, taken as a whole). I think you should read my statements as I write them (I pick my words carefully) and not how you think other people might "reasonably interpret them." I also think we need to be careful about calling things "blanket statements" when they are not. If that was the only sentence that I wrote, then it would be a "blanket statement" and I'd agree with you that it sounds somewhat bigoted, and would require further explanation. I provided all the explanation that was necessary.

The only legitimate complaint about what I said is that people should be allowed to wear whatever they want to court and it should have no impact on the justice they receive. If you would like to partake in that debate I'd be more than happy to comply. To some extent, I agree with it. A judge really should not sentence someone more harshly just because he came to court wearing a Michael Vick jersey and his pants are below his balls, or because she came to court wearing a bra and shorts so high you can see vaginal hair (can't afford a wax due to paying bail...).

Posted by: bruce | Dec 20, 2007 8:38:15 PM

For a person who picks his words carefully, you certainly reference balls a lot.

Posted by: Anon | Dec 27, 2007 1:26:07 PM

I am a law student. Reading these comments, posted I'm sure by Texans, shows how pathetic the state really is. In Texas a female can commit first degree murder, but get no jail time upon conviciton. Bigotry, stupidity, and ignorance rein supreme there. The words of these fools are as much a commentary as the "get out of jail free" policy for female killers they espouse. Just sad.

Posted by: Tom Crews | Apr 24, 2009 10:03:49 PM

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