The Collin County Observer

On December 3, 2009 a man was brought before Judge Jill Willis's 429th District Court. Visiting Judge John McCraw was on the bench. The defendant, Robert Lee Blackburn was charged with 4 felonies after he bit a Plano Police officer while being arrested for possession of cocaine.

Blackburn wanted to plead guilty to all 4 charges. Judge McCraw was asking Blackburn if he understood what a plea of guilty could mean when John Rolater, the Chief of the District Attorney's Appellate Division, objected. Rolater demanded a jury trial, and accused Judge McCraw of holding a bench trial (a trial where a judge, not a jury renders a verdict).

The Judge responded saying, "Sir, I'm not conducting a bench trial. I'm accepting his constitutional right to enter a plea before the Court. I would submit the United States Constitution allows a defendant the right to enter a plea based on the Court's request and to avoid needless four jury trials and have at least a couple of hundred county citizens come forward [as potential jurors, (ed.)] and waive their right to make any type of living that day and costing the county some $5,000 per trial. I don't understand why the State is refusing to allow the defendant... to enter a plea of guilty."

Later in the verbal exchange, Judge McCraw asked Mr. Rolater, "So the State wants to control who sets the punishment hearing. Is that what the fight is about?

Rolater replied, "Your honor, the State does not consent to the defendant's waiver of a jury trial."

And the judge repeated his question, "So the State is, in effect, forum shopping for a particular judge to fix the punishment here. Is that the bottom line?"

Judge McCraw then said, "... you're attempting to create four jury trials unnecessarily. I just don't understand that."

Texas law does require that in order to hold a bench trial, the defendant, the judge and the State must all agree to waive a jury trial. Since most guilty pleas are settled in a plea bargain where the State's attorney and the defendant agree on the punishment, a guilty plea where no punishment is agreed upon in advance is unusual (but not rare).

When, as in this case, the was no plea bargain, and the State objects to a bench trial, it can put the defense in the position of holding a "sham" trial where no defense witnesses are called, and there is no cross examination of the State's witnesses. The jury has really no option but to render a verdict of guilty. However, the defendant may still request that the judge, and not a jury set the punishment. The jury is only allowed to establish guilt or innocence, on a person who has already tried to plead guilty.

These "sham" trials are expensive. They require a jury pool to be summoned. The legal expenses mount up, and valuable court time is wasted. And they happen here in Collin County.

Why?

There are several possible reasons. One is exactly what Judge McCraw was charging. That the District Attorney wants to control which judge sets punishment. In Blackburn's case, Judge McCraw, after accepting the guilty pleas, would then set a date for a punishment hearing. The judge at that punishment hearing, and the one who would set punishment, would be Judge Jill Willis. (A jury trial date had already been set - the trial would have been heard by the visiting judge).

So McCraw was accusing the DA of not wanting Judge Willis to determine the punishment. And he was accusing the DA's office of wasting county money, and jurors' time to do so.

The Collin County Observer has talked with several local defense attorneys. They all told the Observer they believe that the Collin County District Attorney does not want certain judges to set punishment. One of those judges is the newly appointed Judge Willis.

Another possible reason for the DA to refuse to permit a bench trial is rooted in the policies of the Collin County District Attorney's office. Sources who know the system have told the Observer that in this county, a prosecutor's performance is rated primarily by one metric -- the percentage of jury trials resulting in a guilty verdict. Any prosecutor who does not maintain at least a passing average, will not be employed by the county for long. Promotions and raises are all largely based on this win percentage of jury trials.

Prosecutors therefore have an incentive to plea bargain the difficult to prove cases and to take to a jury the slam dunk, easy cases -- even if the trial is just a 'sham'.

Earlier this year, Harris County floated an idea that would be another reason for the State to object to a jury trial waiver - they wanted new, young prosecutors to get more trial experience. They wanted to force defendants to go before a jury so that the States attorney could practice on easy cases. That idea was finally shot down after a howl of protests from the defense bar.

In the Blackburn case, Judge McCraw made his opinion clear. At one point he told Mr. Rolater, "I think we ought to clarify it for the appellate court. As I say, if they want to be involved in forum shopping, fine. Let them do it.... I think the Constitution of the United States allows an individual to enter a plea to the duly appointed judge. That's all I've attempted to do here."

"[The] Court will find that's a waste of judicial economy and needless cost to the citizens of this county for four jury trials, much less the expense of bringing the jurors in to try a case when an individual desires to enter a plea of guilty and allow a duly elected judge to fix the punishment."

On Monday, December 7, the Collin County District Attorney appealed Judge McCraw's ruling to the 5th Court of Appeals in Dallas. The same day, the appeals court ordered a temporary halt in the proceedings against Robert Lee Blackburn.

It is not known when the appeals court will make its decision.

Bill

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UPDATE (December 21, 2009):

The Fifth Court of Appeals has given the defense until December 30 to respond to Roach's appeal.

Hunter Biederman, aka The Frisco DWI Lawyer has written an article that significantly adds to the story I've told here. Hunter's experience as a Collin County trial lawyer adds depth to the explanations of what choices the defendant was facing in the plea hearing. In addition, Hunter was in the court room that day and witnessed the Mr. Blackburn's plea hearing.

You can read his article titled, Collin County DA Denies Citizen From Pleading Guilty here.

Bill

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Notes:

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