Mike Fouts
The Texas Code of Criminal Procedure charges prosecutors with doing justice above all else, even if it means not getting a conviction. I know this is old news to prosecutors and their staffs, but it compels the question, “What is justice?” I know of no prosecutor who does not take this directive seriously. No one seeks to convict an innocent person—that is a given. The concept of justice sometimes causes me personal difficulty in that murky gray area all prosecutors have encountered in making an appropriate plea bargain offer. The prosecutor is the only person who can dispose of the case short of a trial. He exercises wide discretion in the eventual punishment of most defendants.
I live and prosecute in an area that is extraordinarily conservative, and the community has little tolerance for crime. On one occasion when I was negotiating a plea bargain, the defense attorney attempted to appeal to my kinder side. That same defense attorney might explain that while my girth provides for a lot of side, that part devoted to kindness is mighty small. I disagree with such a wholly inappropriate assessment, I am simply aware of my constituency’s expectations in regard to the punishment of law-breakers. I can’t begin to tell you how many times have I heard from defense attorneys, “I know a jury would hammer him, but you should give my client probation. Don’t hammer him just because you can.”
I fancy myself a bit of a philosopher, and while I have not been classically trained in philosophy, I have spent an inordinate amount of time riding a tractor, which from sheer boredom lends itself to deep thinking (and inflamed hemorrhoids). Thus, I have given great and delicate consideration to the proposition that despite the fact a jury would likely hand down a significant sentence, I should somehow be the voice of reason and give the gentle fellow probation. This concept on its face seems perfectly reasonable, even advanced and sophisticated (arguably the direct antithesis of me). After all, a prosecutor is supposed to seek justice, and surely my intervention protecting the defendant from a jury’s arbitrary sentence would constitute justice.
But here is the problem in my mind with that argument: Whose measure of justice should we use as a metric? Certainly the defendant and his family will have a different opinion of an appropriate sentence than the victim and her family. Likewise, my opinion will likely differ from that of a defense attorney. While undoubtedly Texas prosecutors have been bestowed with a great deal of discretion in the prosecution of cases, I am not sure my personal views have any relevance. I doubt seriously that a defendant or defense attorney would complain that I have been too lenient or soft or that true justice has not been meted out.
After the mental dissection of this issue, I have personally arrived at this conclusion: Your community should set the standard of justice. While I am undoubtedly wise beyond my years, why should my personal sense of justice be substituted for the larger community? If the community insists on jail time, I don’t think I should trump that because of my personal opinion.
Changing gears here: The Texas Penal Code and other criminal statutes are chock plumb full of criminal laws applicable throughout our great state. However, we are a large and diverse place. Trust me, the common man of rural West Texas does not necessarily share the same opinion, values, and beliefs as the tattooed and pierced—some might shorten to “classic”—Austinite. Not that there is anything wrong with him.
Many years ago, when I wore the hat of a criminal defense lawyer, one of my clients found himself in the unfortunate position of being caught at a cockfight with three of his prized roosters. Our urban friend Mr. Tattoo might call it a rooster fight or chicken fight, but west of the Brazos it is a cockfight. The guilt of my client was not at issue, and I worked out a plea bargain where the county attorney agreed to allow my client to plead to gambling promotion or cruelty to animals. I conveyed this to my client, and he responded that he would plead to the cruelty to animals charge because it didn’t sound as bad as gambling. I thought to myself, “You have got to be kidding me, brother. To most folks cruelty to animals is right below sexual assault in the ‘sounding bad’ category.” It should be noted that my client, while an ardent gamecock fighter and prolific beer drinker, insisted that his mama not know he smoked cigarettes. He didn’t want to disappoint her with his life choices.
Now my client and his mouth-breathing uncle were offended that cockfighting is even considered an offense—they can expound for days on the virtues of cockfighting—while others likely think it should be a capital crime. The reality is, the perception of your community to the law affects the prosecution of your cases. In my part of the world, if someone shot a feral hog in the middle of a group of preschoolers playing marbles, you would have to do some selling to get a conviction. Yet by the same token, it would not be surprising for a jury to assess jail time for possession of half a joint. Imagine either scenario in Austin, just as a for instance.
The reality is the culture of your community and jury pool has an effect on your success in prosecution. I sometimes struggle with this because while a violation of the law is a violation of the law, it is just not that simple. Our esteemed executive director Rob Kepple once told me, “Sinning ain’t sin if good people do it.” Taking account of the culture of your community has to play some role in how you charge and prosecute cases if you are going to be successful, in my opinion.
So the next time you have a case that clearly constitutes a crime but you have your doubts that a jury will convict, offer them a plea to cruelty to animals “’cause it don’t sound that bad.”