From Chapter 12 of Alice’s Adventure’s in Wonderland:
'Let the jury consider their verdict,' the King said, for about the twentieth time that day.
'No, no!' said the Queen. 'Sentence first - verdict afterwards.'
'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'
'Hold your tongue!' said the Queen, turning purple.
'I won't!' said Alice.
'Off with her head!' the Queen shouted at the top of her voice.
“Sentence first, verdict afterwards” is a classic line for criminal defense lawyers. Fellow Austin lawyer Leon Grizzard said it to me in court not less than a month ago. It popped back into my head when I read this story about a DWI case in the Houston Chronicle:
On the afternoon of the third day, the jury retired to consider its verdict. And that's when it got interesting.
While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.
Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.
The judge also said if Price tested positive, the results would be given to the jury, says LaValle…
So far, we only have a judge manufacturing extra punishment evidence for the prosecution. It’s a little out of the ordinary… but wait, it gets better:
Before the drug test could be arranged, the jury returned with its verdict.
Price wasn't surprised. She said she felt the video clearly demonstrated that she wasn't drunk. Still, she was relieved. She was free.
Or so she thought. But Judge Johnson had different ideas. Having ordered the drug test, she instructed the bailiff to take Price away for the drug test.
That’s right. Over the defense lawyer’s objections this acquitted defendant was ordered to go take a drug test and then even forced to pay for it. For all the problems in Federal Court with taking acquitted conduct into account for increasing punishment, at least you have to be convicted of something.
So I guess we have to rearrange the saying. It’s not sentence first, verdict afterwards, it’s
Not Guilty First… Then the Sentence
Even better. After all, if you’ve prejudged what the defendant should get before the jury comes back, it wouldn’t be logical to let the jury’s decision stand in your way.