A couple of weeks ago, I happened to be present in the 429th District Court and saw an individual, Mr. Robert Blackburn trying to plea guilty, but was barred in doing so by the Assistant District Attorney. I didn’t think too much of it at the time, because I have seen the DA do this many times — including to my clients.
What happened differently on this occasion, is that the (visiting) Judge John McCraw stood up to this ridiculous practice. I was pleased to read a great article by the Collin County Observer reporting the incident and subsequent appeal by the DA.
First, lets go through how a criminal case is disposed.
A person accused of a crime may either plea guilty or plea not guilty regarding criminal charges against them.
Plea Not Guilty
Texas has a bifurcated trial system, meaning "two parts." The first phase is to determine whether or not a person is guilty, the second phase is to determine punishment (if found guilty). Obviously if found not guilty, there is no punishment phase. As far as the second phase goes, one must choose before the trial begins as to whether or not to have the judge or jury handle sentencing if found guilty.
1. Plea Not Guilty, Judge Punishment: A citizen requests a jury to determine if they are guilty or not guilty, and if found guilty, elect the judge to impose punishment. This is the most common, as most attorneys know that judges get to see lots of cases and can understand the seriousness/non-seriousness of the particular crime. Additionally, it is easier for an attorney to advise a client on the likely punishment if you know who will be doing the sentencing opposed to jurors you have never met.
2. Plea Not Guilty, Jury Punishment: A citizen requests a jury to determine if they are guilty or not guilty, and if found guilty, elect the jury to impose punishment. If in front of a tough, unreasonable, or unknown judge, one might elect a jury of their peers to decide their fate.
1. Negotiated Plea: This is the most common plea. The DA and the citizen (often with the help of their attorney), negotiate a punishment, and they plea and receive punishment.
2. Non-Negotiated "Slow" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter a "slow plea." This means the accused will plea guilty, but allow the jury to assess the punishment.
2. Non-Negotiated "Open" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter an "open plea." This means the accused will plea guilty, but allow the judge to asses the punishment.
In this case, the defendant, Robert Lee Blackburn was charged with 4 felonies after he bit a Plano Police officer while being arrested for possession of cocaine. It seemed that everyone agreed as to his guilt, but there was no agreement on what the punishment would be.
Mr. Blackburn and his attorney agreed he should plea guilty, and wanted the presiding Judge (in this case, Judge Jill Willis) to assess punishment. Mr. Blackburn wanted to plea guilty in an "open plea," but the District Attorney refused to allow him to do so. They did this by invoking the State’s right to a Jury Trial.
In Texas, the State has a right to a jury trial. It’s a bit silly in my opinion, but too complicated to debate in this article the legality of the whole issue. I’ll save that for another article.
By invoking the right to a jury trial, it means that a defendant CANNOT enter an "open plea." This means that if Mr. Blackburn wants a judge to assess his punishment, he must plea not guilty, go through the farce of a jury trial, and elect the judge to impose the sentence.
That is exactly what the Assistant District Attorney, Gary Knapp forced upon Mr. Blackburn’s. I do not know if this was his personal decision, or if someone higher up in the office instructed him to do this. (The Observer reported and provided a transcript showing Appellate Chief John Rolater who was arguing the case — which is accurate at the second hearing. Originally it was Knapp barring the plea of guilty, and calling the Appellate department for assistance). In this case, the Judge did not allow the State to invoke their right to a jury trial, and ordered the plea be accepted. The State has since appealed, and the case is in limbo until the appellate court reaches a decision.
Why would the DA force a "sham" trial on a defendant when everyone agrees on their guilt?
There can be several possible reasons, none of which seem justified to me:
1. Forum Shopping – Forum shopping is an attorney (on either side of the case) attempting to pick what judge is going to hear a case. Defendant’s cases are randomly assigned to courts, so one cannot pick a judge. However, visiting judges are often called in when judges are out of town, or want to run a "double-docket," to help clear out some cases.
I am almost positive I heard the DA that if Mr. Blackburn wanted to plea to a visiting judge, they would allow it, but not to the presiding judge. I cannot remember for sure, and am not willing to make this claim positively. I wish that a transcript available of the hearing that took place before the appellate department got involved. That is where the true hearing took place. I personally believe forum shopping was part of the reason why the DA did not allow the plea.
2. Padding Statistics – This is political gamesmanship. If a DA wants to boast about their conviction rate, they can pad the stats. I have seen Collin County DA literature boasting about conviction rates in the past. Additionally, if a prosecutor wants to look good to their superiors, they will try to win as many cases as possible.
The DA can offer really tough plea bargains to a defendant. This will bar someone from pleading guilty in a negotiated plea. In a court where the defendant chooses to allow the judge to accept punishment, this will force a trial if the state invokes their right to a jury trial. The DA will have a slam dunk case of guilt, and get to put it down as a win.
They will additionally get to put it up on the "Board" which is at the DA’s office. The "Board" is where attorneys write down their trials they are having that week, along with the results. It was there when I was an assistant district attorney, and assume it is still there.
3. Practice for young prosecutors: I guess if someone wants some experience in a trial, they could force a sham trial just to get some experience. This is not what happened in this case, because these are felony prosecutors with plenty of trials under their belts already.
4. Manipulating the Punishment Range: The entire range of punishment is available to either a judge or a jury. With one exception: Deferred Adjudication. A citizen accused can only get deferred adjudication from a judge after a guilty plea (negotiated, or not negotiated). By barring a person from pleading guilty, the DA is barring the possibility of them getting Deferred Adjudication. Basically usurping the elected Judge’s powers. The DA in this case says this is the reason for their behavior, however I have personally seen them d
o this in cases where the client is not even deferred eligible. I don’t see why the DA would stop an elected presiding Judge (or in this case, a judge appointed by Governor Rick Perry) from doing the job they were put there to do.
My hope is that with this article, one of the new candidates for District Attorney will stop this archaic practice of barring a person from pleading guilty to an elected Judge thus forcing a sham trial. In the end, it is about the difference of what should be done, versus what can be done. After about seven years of the same elected District Attorney, I think a new DA will be the only factor that change this practice.
Petition for Writ of Mandamus, In re John Roach, Fifth COA case number 05-09-01451-cv
Reporters Record, December 3, 2009 Texas vs Robert Lee Blackburn
Order granting Emergency Motion for Temporary Relief, In re John Roach, Court of Appeals, Fifth District.
Link to Court of Appeals case 05-09-014510-CV, In re John Roach
Link to Collin County cases 199-80283-08, 199-80284-08, 199-80285-08, 199-80286-08, State vs. Robert Lee Blackburn
Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at firstname.lastname@example.org or (888) DWI-FRISCO