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May 14, 2010

Texas jury returns life sentence based on unconvicted and uncharged conduct

A helpful reader forwarded to me this fascinating local sentencing story out of Texas.  The report is headlined "Prieto gets life in prison for beating," and here are the details:

Enrique Prieto could have walked out the courthouse door a free man, but instead he is going to prison for life. A Lubbock County jury sentenced Prieto, 41, to life in prison for robbing and beating an elderly man in September 2008.

Prieto on Monday pleaded guilty to the aggravated robbery of then-71-year-old Danny Moore, who he beat with a saw and pipe before taking his wallet and truck. "With a life sentence and maximum fine, justice was served to this defendant for what he did in this case," prosecutor Jaret Greaser said....

Prieto was eligible for probation because he had never been convicted of a felony, but he did have multiple felony charges pending against him.

Prosecutors spent three days essentially trying to prove those charges to jurors in hopes they would levy the maximum penalty for the aggravated robbery. Jurors heard evidence that Prieto burglarized another home while out on bond.

Perhaps the nail in Prieto's coffin was the testimony from one of his daughters, who said he raped her from the time she was 6 or 7 years old until she was 13 years old.

Prieto's wife testified the girl's story was improbable because she would have known if Prieto was abusing their daughter, but a sexual assault nurse said the girl had penetrating injuries consistent with a history of long-term abuse.

Prosecutors told jurors in closing arguments to focus on all the charges against Prieto. "This case is so much more than just that aggravated robbery," assistant district attorney Mandi Say said....

The jury deliberated for a little more than an hour before returning the life sentence.

This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely

If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case.  But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards. 

I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence.  Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape).  And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.

May 14, 2010 at 09:51 AM | Permalink


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He probably deserved a life sentence even without the evidence of the uncharged misconduct.

Posted by: federalist | May 14, 2010 10:45:09 AM

One wonders if the Judge was actually awake during the court proceedings!

Posted by: peter | May 14, 2010 11:24:34 AM

I don't see the issue here. A life sentence was within the range of punishment for a first degree felony, as was probation. In Texas, a first degree felony in punishable by 5-99 years or life, and any sentence less than 10 years is probation eligible. This is the ultimate in discretionary sentencing, designed to take into account the wide range of aggravating and mitigating factors in any serious felony. The Texas legislature designed things this way, and had every right to.

Add to that the fact that Texas has a long history of jury sentencing (which meant that Apprendi had little impact in Texas) and there is no due process issue here. The jury heard everything and could choose to believe or disbelieve any of it when it selected a sentence from within the lawful range. As far as notice is concerned, the defendant was well aware of his own prior bad conduct and did not need to be informed by an indictment that he had sexually abused his daughter. Perhaps counsel did not adequately prepare to rebut those allegations, but that is an issue that the defendant can litigate during postconviction proceedings.

Posted by: Ed | May 14, 2010 12:00:43 PM

from what i read here. this whole trial was an illegal farce. Since the only thing not mentioned as far as any real evidece was the crime he was actually on trial for!

So from where i set it's an illegal trial followed by an illegal inprisonment so he has every LEGAL right to get out anyway he can no matter who get's hurt.

It's CRIMINAL STUPIDTY of this type that has destroyed this country.

Posted by: rodsmith | May 14, 2010 12:02:58 PM

"The Texas legislature designed things this way, and had every right to."

That is the suspect question, isn't it? What about this thought experiment?

Say during trial of the pending felonies the government calls the jurors in this case. Say all the jurors testify that he got this sentence because they found beyond a reasonable doubt that he was guilty of all the unindicted and unproven extraneous crimes alleged in the present trial.

The government rests without producing any other evidence and this new jury finds him guilty. After trial the jurors explain that if the previous jury found him guilty beyond a reasonable doubt, he must be.

At least as a thought experiment, there is something fundamentally wrong with this picture.

Posted by: George | May 14, 2010 12:51:05 PM

Ed comments: "As far as notice is concerned, the defendant was well aware of his own prior bad conduct and did not need to be informed by an indictment that he had sexually abused his daughter."

That, of course, assumes he is guilty. So notice is not required because every defendant is guilty of all allegations and thus already knows what he did?

Posted by: Fortunatus | May 14, 2010 12:58:17 PM


He already pled to the crime he was convicted of. There was no need to prove that conduct to the jury at all. As was pointed out by Ed The only issue here was sentence and the jury had incredibly wide latitude in formulating the end product. The guy entered his plea knowing that a life sentence was on the table (at least assuming minimally competent counsel). He probably knew from the fact that a sentencing trial was going to be held that the state was in fact going to seek that life sentence. There is no requirement that the factors that go into crafting a sentence be proved beyond reasonable doubt, only that the factors that provide exposure to any particular sentence be so proven. And here the convict himself provided that proof as part of his plea.

Posted by: Soronel Haetir | May 14, 2010 1:10:46 PM

Soronel, thanks for the explanation, but that sidesteps the point. If the jury arrived at this sentence based on yet to be proven allegations, then the jury found him guilty of those allegations. So what if during trial on the pending charges the prosecutor calls the jurors as proof?

It is only a thought experiment, but the idea would be the government could use something like res judicata in the pending charges trial.

Prosecutor to new jury in closing arguments: "We have faith in our jury system. You heard testimony of the previous jury and the previous jury already found he was guilty of the charges in this trial. Therefore he is guilty and you should find him guilty. I do not need to produce any other evidence."

This thought experiment is only meant to point out the Alice in Wonderland absurdity.

Posted by: George | May 14, 2010 1:31:34 PM


Your "thought experiment" is so far from reality that I don't find it a useful exercise. This jury did not find the defendant guilty of anything, they had no ability to do so. The question wasn't even posed to them. So to then jump into some alternate reality where those jurors are even allowed to testify to such a matter is straying so far as to be utter fantasy. Might as well posit a reality where juries are abolished in favor of the judge using a Ouiji board.

Posted by: Soronel Haetir | May 14, 2010 1:44:19 PM

George: the problem with your hypothetical is that the burden of proof is different in a sentencing proceeding than in an actual trial. The sentencing jury didn't have one. It could believe what it wanted to believe from the evidence presented to it. A subsequent trial on the sexual assault charge would require proof beyond a reasonable doubt. There can be no res judicata here.

Ironically, a common argument from the defense bar is that prior bad acts elicited during sentencing should require proof beyond a reasonable doubt. If such an argument prevailed and became the law, then perhaps your scenario would work, and res judicata would apply.

Posted by: Ed | May 14, 2010 2:01:50 PM

Soronel, are you saying the jury thought he was NOT guilty of the unindicted charges that were not proven beyond a reasonable doubt pursuant to due process? If that is your argument, then you argue the jury did not consider him guilty of those charges. That is contrary to the article because the jury did consider him guilty of those charges. That they could not find him guilty of those charges beyond a reasonable doubt is a mere technicality in the thought experiment. The government could still argue the previous jury, after hearing the evidence, already thought him guilty of the pending charges now at trial and theoretically that could be proof beyond a reasonable doubt in the current trial.

It's only a thought experiment. Not a legal treatise.

Posted by: George | May 14, 2010 2:03:13 PM

George: without allowing the jurors to testify to hearsay--the content of the testimony they heard in the previous trial--I don't know how you could prove anything beyond a reasonable doubt. I suppose a subsequent jury could chose to disregard its oath and instructions and find the defendant guilty anyway without actual proof beyond a reasonable doubt. But such a verdict would most likely be reversed (and retrial would be jeopardy-barred) for legally insufficient evidence. Which begs the question of why a prosecutor would risk such a strategy.

Posted by: Ed | May 14, 2010 2:18:18 PM

I think there are two separate issues here which are being conflated. I disagree with Ed that under the 8th amendment that a legislature can establish the base sentence of a crime from probation to life. While I have defended discretionary sentencing in the past I have never defended arbitrary sentencing. Why not make this same sentence for jaywalking? The 8th amendment, in my opinion, prohibits just such tyranny of the majority.

I have also stated in the past I have no trouble with sentencing based upon acquitted conduct. But in the cases that have been discussed on this forum that I recall, that acquitted conduct has some relevance to the crime...in this case burglary. Here, the jury did not hear evidence related to crimes about robbery. They heard evidence that the guy was a "bad man" and convicted him on that basis. I believe that is offensive to justice.

Posted by: Daniel | May 14, 2010 2:18:28 PM

Daniel: what if the Texas legislature made the sentencing range for a first degree felony 60 years to life? Would you find that arbitrary? What is not arbitrary in your opinion? Twenty to life? Ten to life? Five to 99 years allows a jury to show leniency when appropriate, e.g., a borderline self-defense or sudden-passion case, and react with severity to a particularly egregious case, e.g., torture. All based on the aggravating and mitigating evidence presented by the State and defense. That's the opposite of arbitrary (determined by chance, whim, or impulse, and not by necessity, reason, or principle). Perhaps jury sentencing is just too arbitrary for you altogether?

Before we decide to junk jury sentencing, let's not forget this was a first degree felony (he pleaded guilty to severely beating an elderly man), not jaywalking. And let's also remember that, while we can reasonably disagree about what the Eighth Amendment means, the Supreme Court has never held that a legislature cannot do what the Texas legislature has done here. Until they do, I don't see the problem.

Posted by: Ed | May 14, 2010 2:33:04 PM

Ed, thanks for the clarification.

Suppose the prosecutor calls each juror, and each juror testifies to having heard all the evidence during the previous trial. And each and every juror, having been direct witnesses to the evidence as presented, testifies that they thought the defendant in the current trial was guilty then because of evidence x, y and z.

Now suppose the present jury finds guilt beyond a reasonable based on this testimony.

The government could not proceed this way, but suppose it did?

The point is this: how reliable was the previous jury's finding guilt under any burden of proof? If it was reliable by a preponderance of the evidence, then perhaps collectively it could be proof beyond reasonable doubt in the present trial.

The thought experiment is far fetched, but the only point is that there is a logical contradiction at work.

Posted by: George | May 14, 2010 2:51:15 PM


Whether the jurors thought he was guilty beyond reasonable doubt of the acts litigated at the sentencing trial isn't particularly relevant. The threshold of proof was only preponderance. You cannot use proof at a preponderance level to pass the beyond reasonable doubt hurdle. If you could then we would have no need for trials at all as the probable cause required for grand jury indictment or preliminary hearing has generally already surpassed that level.

Posted by: Soronel Haetir | May 14, 2010 2:53:08 PM

"Here, the jury did not hear evidence related to crimes about robbery. They heard evidence that the guy was a 'bad man' and convicted him on that basis. I believe that is offensive to justice."

Daniel, if you followed the thread you'd know he was convicted on the basis of a guilty plea. Then he was sentenced based in part on his prior bad acts. Is that offensive to justice?

You are correct that evidence of unadjudicated offenses should be strictly limited during the guilt phase of a trial. The Rules of Evidence do this, prohibiting evidence of other crimes or bad acts that do not prove certain things ("motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). But in sentencing, everything's on the table. What if the defendant decided to embark on a crime spree, committing a murder, 15 armed robberies, 20 burglaries, and 30 sexual assaults? Could the State not try and convict him on the murder charge, then prove the remaining crimes during punishment in order to ensure the maximum sentence. Or must they try him on each crime individually and stack the sentences? I can't imagine a greater waste of taxpayer money.

Posted by: Ed | May 14, 2010 2:53:23 PM

"You cannot use proof at a preponderance level to pass the beyond reasonable doubt hurdle."

And yet, in effect they did just that! Never had to clear the reasonable doubt hurdle on the other crimes, but they got to punish him for them.

Posted by: Gritsforbreakfast | May 14, 2010 3:38:58 PM

"Or must they try him on each crime individually and stack the sentences? I can't imagine a greater waste of taxpayer money."

If you think proof beyond a reasonable doubt and due process are a waste of taxpayer money, then the Constitution is a waste of taxpayer money, which a lot of people think it is. Depending of course on which of the Bill of Rights they like or not. So, yes, the government should have to prove each and every charge if the defendant exercises a right to trial on each and every charge (extremely rare). Where is any Originalist theory is it otherwise?

The posts here explained Texas law well, but there is still a logical contradiction and perhaps a constitutional contradiction.

Soronel, maybe you missed this sentence: "The point is this: how reliable was the previous jury's finding guilt under any burden of proof? If it was reliable by a preponderance of the evidence, then perhaps collectively it could be proof beyond reasonable doubt in the present trial."

Posted by: George | May 14, 2010 3:48:48 PM


The man pled to the robbery, he was therefore lawfully exposed to the life sentence. And the sentencing jury could accept it as proven with no additional showing. SCOTUS requires that some procedure be used for coming up with the actual sentence after that point and not just tossing darts or drawing numbers out of a hat. The threshold for sentencing is preponderance. And any factor relevant to crafting an appropriate sentence should be fair game. I see this as the flip side of allowing testimony about traumatizing childhoods and other things I frankly see as irrelevant to mitigation.

Note that I am at least accepting that the jurors took their charge seriously. Everything I've seen on jury deliberations tells me that people do in fact take the task seriously, trying to do the best they can with often confusing instructions.


The sum total of the proof was preponderance. Anything the jurors could testify to (accepting your absurd situation where they are even allowed to testify to anything) could not meet any higher threshold.

Juror #1 testimony + juror #2 ... juror #12 = preponderance.
Your hypothetical would easily (again accepting that they are allowed to testify) be enough to meet the showing required for indictment, but not conviction. Any of these jurors testifying alone or in any combination could not meet any higher burden than preponderance. It's not ta case where one juror alone is enough to meet preponderance and every juror after that is preponderance plus some fraction of proof.

Posted by: Soronel Haetir | May 14, 2010 4:03:48 PM

This couldn't happen in most states, as aggravated robbery by a first offender isn't sufficient to warrant to life sentence in most states, or under federal law. Texas, as usual, is harsh. Jury sentencing is also rare outside Texas, except in death penalty cases and courts-martial.

It is hard to challenge this on constitutional grounds under existing precedents, as federal judges are permitted to sentence based on uncharged conduct and even based upon acquitted conduct. Surely, a state jury is not held to a higher standard.

The only leg the defendant might have to stand on in this case is that the defendant did not by pleading guilty to one offense, consent to introduction of evidence on a totally unrelated and uncharged offense at sentencing. This might be an implicit breach of a plea deal. The prosecutor's conduct of these case certainly appears unethical to me.

Alternately, the fact that the prosecutor presented and the judge permitted this testimony might be viewed as an implicity form of misleading jury instruction - the jury was led to believe that the defendant was being sentenced for child sexual assault and robbing an elderly man, rather than making clear that he was being sentenced only for the latter offense.

This said, both the federal practice and this situation in Texas are clearly problematic from a due process perspective. It doesn't take much of a due process doctrine to reach this conclusion. We have an elaborate process to make sure that someone can only been punished on the basis of conviction for specific crimes that are proven beyond a reasonable doubt at a trial. While general information about an offender may be appropriate to consider at a sentencing hearing, allegations that someone committed another crime which are not subject to hearsay, relevancy, notice and proof beyond a reasonable doubt protections horribly subvert this process, particularly in cases where there is a wide range of sentencing options as a result of a conviction.

Sentencing for uncharged conduct, particularly before a jury, also raises difficult double jeopardy questions. Does the fact that the defendant hasn't been charged or convicted of the conduct considered at sentencing mean that he can be later charged and convicted of that conduct and sentenced to additional incarceration?

It isn't hard to draw a line that says that allegations of criminal conduct for which a defendant has not been convicted may not be admitted into evidence at a sentencing hearinng. It is a simple rule to apply and much more consistent with the rest of our constitutional criminal procedure jurisprudence.

Taken to an extreme, the logic that allows this kind of sentencing hearing also permits Texas to simply have a sentencing range of probation to life for any crime, and to put it all in the discretion of the sentencing jury. Prosecutions could proof J-walking and then win life sentences for a panopoly of uncharged offenses in a sentencing hearing.

If there is evidence that the defendant committed separate crimes, then put him in prison for this one and bring evidence of other crimes later.

The criminal justice system is so dirty in Texas, that the state probably should just be put under receivership by a federal judge a la Reconstruction, rather than fixed piecemeal. But, that is wishful thinking, and until then the best one can do is simply notice cases like these.

Posted by: ohwilleke | May 14, 2010 4:14:12 PM

Soronel, I know it's an absurd thought experiment. Most thought experiments are. *

"Any of these jurors testifying alone or in any combination could not meet any higher burden than preponderance."

They would be direct witnesses to the evidence they saw in the first trial and would recount that evidence in the second trial on the pending charges used in the first trial. Since you agree that jurors take their duty seriously, that recounting would be taken as true.

* Thought experiment
From Wikipedia, the free encyclopedia

A thought experiment is a proposal for an experiment that would test or illuminate a hypothesis, theory,[1] or principle.

Given the structure of the proposed experiment, it may or may not be possible to actually perform the experiment and, in the case that it is possible for the experiment to be performed, no intention of any kind to actually perform the experiment in question may exist

Posted by: George | May 14, 2010 4:25:17 PM

Posted by: ohwilleke | May 14, 2010 4:14:12 PM

Umm, what makes you think there was a plea deal to break in this case? Such a deal, if one existed, would remove the need for a sentencing trial at all, no?

If we are going to have a system where every bad thing that ever happened to a criminal is going to be considered potentially relevant for mitigation then I fail to see how every bad act of the offender for which there is even a scintilla of evidence is not equally relevant.

And as I've said before, I believe the default rule for felonies should be execution with mercy being the rare choice.

Posted by: Soronel Haetir | May 14, 2010 4:41:18 PM


I suppose I should add this:

A second (guilt) jury hearing the exact same evidence that the first heard might be able to conclude that the charges were proven beyond reasonable doubt (I'm not saying the prosecution actually did present that level of proof, only assuming they did because it doesn't matter to the question you asked). However the members of the sentencing jury under discussion can only relate that evidence at a preponderance level of confidence.

Think of it somewhat like drug tests. You have a first (cheap) test which has few false negatives (actual users who test clean) but does produce a fair number of false positives (non-users who ate a poppy seed muffin or whatever). You are then supposed to subject every positive result to a more refined test that can distinguish between the two situations. It doesn't matter how many of the cheap tests you preform, it's never going to be able to discriminate between the two cases you are interested in.

The jurors from this sentencing trial are like a stack of positive test results from the cheap drug test. They give you enough to be concerned but not enough to prove the case in chief.

Posted by: Soronel Haetir | May 14, 2010 4:55:14 PM

"And as I've said before, I believe the default rule for felonies should be execution with mercy being the rare choice."

If false or misleading news reporting and propaganda were felonies on top of the thousands of other felonies, that might be a good idea. And since false or misleading news reporting and propaganda would be recurring crimes in cyberspace for all eternity, it would be possible to wiggle around the ex post facto clause.

Posted by: George | May 14, 2010 5:04:00 PM

Grits, George: if the prosecution had done nothing during sentencing, the defendant could have been sentenced to life based on his guilty plea to a first degree felony. Leaving everything else aside, where is the problem here? The only one I see is that the Texas legislature made aggravated robbery a first degree felony and first degree felonies punishable by (up to) life imprisonment. That problem is a political one, not a constitutional one. Write a letter to your representative or, better yet, run for office and change the law. There is no due process issue here whatsoever.

Ohwilleke: where is the ethics breach here? You are just making up facts about potential plea deals and then assuming those deals were broken. While we're doing that, I'll make one up. What if the State offered the defendant 20 years and the defendant refused, preferring to take his chances with the jury and possible probation? What if the defendant then called his mother, his priest, and his psychologist to testify that he was a good boy? Is the State not entitled, under those circumstances, to rebut that with evidence that the defendant was not such a good boy but, rather, that he had committed multiple offenses? As Soronel correctly observes, as long as the defendant is entitled to put on whatever mitigating evidence he desires, the State is entitled to rebut that evidence. There is nothing here which indicates the State did so in bad faith or in violation of the rules of evidence. Nor is there anything here which suggests the defendant was prevented from confronting or rebutting the State's evidence with the assistance of counsel. Thus, there is no due process problem.

Posted by: Ed | May 14, 2010 5:18:49 PM

"The jurors from this sentencing trial are like a stack of positive test results from the cheap drug test. They give you enough to be concerned but not enough to prove the case in chief."

That was exactly the point of the thought experiment. I understand the legalities and understand under Texas law the judge does need any reason to sentence to the max, but there are reasons here the judge will consider from the cheap drug test.

I'm not arguing what the sentence should be (10 years or a 1,000 years) because that is irrelevant. What is troubling is that the sentences is based, at least in part, on the cheap drug test.

Posted by: George | May 14, 2010 7:29:16 PM

George: under Texas law, the jury does the sentencing, unless the defendant intelligently and voluntarily waives his right to a jury. This was one Professor Berman's original observations regarding Apprendi, and why I am at a loss that anyone is bent out of shape about this story. Everything necessary for a life sentence was proved beyond a reasonable doubt to a jury when the defendant entered a guilty plea. Apart from the voluntariness of the plea, there is nothing to legally challenge here. All debate is necessarily centered on the policy decisions made by the legislature when it enacted the Texas Penal Code.

Posted by: Ed | May 14, 2010 8:27:16 PM


That's always the case (at least outside the death penalty context). Everything that can be shown by more than a preponderance is in the mix for consideration.

I would have been fine with the Booker fix being jury fact finding beyond reasonable doubt to determine the applicable range, but that is not the route SCOTUS chose. And I don't think all that many defense attorneys would like a system where they had to convince jurors beyond reasonable doubt that one of the few available guidelines for relief applied to their client.

So long as the jurors struggle under the task they are given and don't treat it lightly I really don't see the problem here.

If there actually are armed robberies, standing alone and without other convictions, that warrant a life sentence, how are we supposed to find them without such a process as was used here?

Posted by: Soronel Haetir | May 14, 2010 8:32:36 PM

It takes only a single juror to disagree. There is no tyranny of the majority in a jury if one juror can effectively veto the majority.

Defendants are allowed to present evidence to light at sentencing which paints a positive piscture of themselves as well. One can't reasonably argue against admitting adverse hearsay without also arguing against positive hearsay at sentencing.

Posted by: Jardinero1 | May 14, 2010 10:27:53 PM

Ed, nobody believes the sentence would have been life if the jury had not heard about the unproven offenses. You and Soronel can split theoretical hairs, but that's the reality.

Posted by: Gritsforbreakfast | May 16, 2010 8:01:50 AM


No, I agree with you there, the sentence would not have been life without the additional material.

Our disagreement is over whether that material is relevant to deciding what this one offenders sentence should be. I say that it is relevant because it is the counterweight to otherwise unrebutable testimony about how the convict is actually a great guy set upon by misfortune. If sentences are to be crafted based on who the offender is then the sentencing authority needs to know as much as possible, both good and bad, about who the offender is.

And the preponderance burden is the correct one in this setting because the offender has already opened himself to the lawful range of sentences for the charged crime by the act of pleading guilty. So long as the process of going from a range of probation to life to the actual sentence is a considered one I fail to see the _legal_ problem.

Posted by: Soronel Haetir | May 16, 2010 10:47:32 AM

Soronel Haetir: "And the preponderance burden is the correct one in this setting because the offender has already opened himself to the lawful range of sentences for the charged crime by the act of pleading guilty."

In other words, the legislature sneaked around the "beyond a reasonable doubt" standard by by making the sentencing options so wide.

What if the legislature passed a law of 6 months to life for simple battery? Say you slapped someone (a felony in the hypothetical) and pled guilty. Do you think it would be just to sentence you to life based on other crimes uncharged and unproven beyond a reasonable doubt? I'm going to go out on a limb and say you wouldn't approve as applied to you.

Whether this is a policy or a constitutional issue is the question. To challenge it it would probably be necessary to prove the legislative intent was to sneak around the beyond a reasonable doubt standard. Even if that was the intent, the legislature would probably lie and say it wasn't and claim the law merely respects the jury's discretion. In other words, the law could be a cunningly crafted deception. That possibility is what is so troubling.

Posted by: George | May 16, 2010 2:02:32 PM


I would accept execution as a suitable punishment for your hypo, why not life instead? It is within the legislature's purview to do many stupid things. What the legislature cannot do while exercising its vast authority, among other things, is make distinctions based on my race or the race of the person I slapped, though they can make distinctions based on my reason for slapping even if that reason is based on the race of the person I slapped. That I am brought before a particularly unsympathetic sentencing authority while others are not is no reason to grant me an undeserved reprieve.

Note that I am not arguing that a death sentence for simple battery is a wise choice on the part of a legislature. Only that it should in fact be within the range of options available to such a body so long as the law is applied evenly.

Posted by: Soronel Haetir | May 16, 2010 3:24:34 PM

As for the law possibly being a cunningly crafted deception to avoid the burden of proof beyond reasonable doubt, as I understand it Texas has had jury sentencing for decades at least if not far longer. If they had adopted this scheme in response to Aprendi you might have a point. I don't think you can reasonably claim a system that predates the adoption of the federal sentencing guidelines was crafted with problems that would later be found in such guidelines in mind.

Posted by: Soronel Haetir | May 16, 2010 3:35:39 PM

First of all, this piece of shit got what he deserved. He should never see the light of day again. I believe he raped his daughter and I hope he gets raped in every way every day he's in prison. For someone who raped his daughter, he should of been on his best behavior and considered himself lucky he didn't go to prison for it. But then again, an animal like that is incapable of being on his best behavior or worse, maybe committing felonies is his best behavior. A case like this makes me happy knowing that there is more than one way to skin a cat who didn't get tried for other offenses. People like this cannot be rehabilitated, they can only be killed or caged.

Posted by: Common Sense | Apr 5, 2011 11:28:52 PM

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