To Charge And Instruct The Jury – ‘Specific Intent’

Themis perched stage left, high above the proscenium arch, beckons

Casie (Gotro) tells me when she starts working on a case, the first place she starts is writing the jury charge, because that’s where you first understand the case. – Thomas Lane, co-counsel for the defense

Jerusalem-On-The-Brazos – A Titaness, Themis gestured in a gray day’s rainy chill on hump day, November 8, the daughter of Gaea, primordial mother of Earth’s natural order – and Uranus, seventh rock from the Sun, his constantly shifting magnetic poles blasted by Sol’s windy radiant and effusive energy.

We soldiered on in the gathering gloom of the Fall’s first wintry afternoon, as the attorneys, both those committed to condemn Bandido Jake Carrizal and his defense, struggled with the melding of the statute, and its interpretation, as granted by the courts.

Precisely at the work day’s final hour, between 16:30 and the government’s most significant whisker stroke, 17:00, the third chair co-counselors serving both sides of the question stepped up to the Temple Barre and gave the Judge their summations as to the highest walk of the barrister’s craft – the Jury’s charge – in this croft of reason, the forge of the fate of an accused criminal offender, the court of original jurisdiction that heard the State v. Christopher Jacob Carrizal, a Bandido, accused by indictment of the specific offenses of 1), engaging in organized criminal activity; and 2), directing the activities of a criminal street gang.

Texas Penal Code – PENAL § 71.02. Engaging in Organized Criminal Activity (a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;

Texas Penal Code – PENAL § 71.023. Directing Activities of Criminal Street Gangs (a) A person commits an offense if the person, as part of the identifiable leadership of a criminal street gang, knowingly finances, directs, or supervises the commission of, or a conspiracy to commit, one or more of the following offenses by members of a criminal street gang:

(1) a felony offense that is listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure ;

(2) a felony offense for which it is shown that a deadly weapon, as defined by Section 1.07 , was used or exhibited during the commission of the offense or during immediate flight from the commission of the offense;  or

(3) an offense that is punishable under Section 481.112(e) , 481.112(f) , 481.1121(b)(4) , 481.115(f) , or481.120(b)(6), Health and Safety Code .

<Text of (a) effective January 1, 2017>

(a) A person commits an offense if the person, as part of the identifiable leadership of a criminal street gang, knowingly finances, directs, or supervises the commission of, or a conspiracy to commit, one or more of the following offenses by members of a criminal street gang:

(1) a felony offense that is listed in Article 42A.054(a) (a)(1), Article 42.12, Code of Criminal Procedure ;

(2) a felony offense for which it is shown that a deadly weapon, as defined by Section 1.07 , was used or exhibited during the commission of the offense or during immediate flight from the commission of the offense;  or

(3) an offense that is punishable under Section 481.112(e) , 481.112(f) , 481.1121(b)(4) , 481.115(f) , or481.120(b)(6), Health and Safety Code .

(b) An offense under this section is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years.

In the “roadmap” requested by Judge Matt Johnson, he identified two key areas of Count 2, in which the defense team desired a special instruction.

They are found in the statute at the Subsection wherein “(a) A person commits an offense if the person, as part of the identifiable leadership of a criminal street gang, knowingly finances, directs, or supervises the commission of, or a conspiracy to commit, one or more of the following offenses by members of a criminal street gang:”

At one point during the informal afternoon’s “visit” between counsel to meld the judge’s thinking with a suitable compromise between the Court, the prosecution, and the defense, Judge Johnson stood beside the bench with a pensive expression, and said, “In my research, I learned that committing increased the penalty by one level; conspiring does not.”

Defense counsel requested a special instruction for jurors to weigh the difference in their finding, “beyond a reasonable doubt,” and the associate counsel for the prosecution chose to oppose the amendment of the charge, saying that “There is so much push  back in the appeals courts” that he finds it unnecessary to so instruct the jurors.

The co-counsel for the defense allowed that he dared not allow the issue to get lost in the jurors’ deliberations, that there must be a mens rea – that is, the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused – required to establish specific intent, else the jurors may become confused.

When the stroke of the second hand reached quitting time, the Judge overruled the defense’s objection as to that alleged omission of clarifying language in the charge.

In Count One, Judge Johnson’s opening statement, delivered in a conversational tone while standing under a knitted brow between the door to his chambers and the railing of the press box, was that “All the indictment was was for murder…”

Defense counsel was holding out for a jury finding that if Mr. Carrizal had not been proven to have an intent to profit by his alleged actions, then they must vote to acquit rather than to convict because there is no manner or method of the actus reus – that is, the way the murder was committed. 

When the judge retook the bench and instructed the Court Reporter, “We are back on the record out of the presence of the jury in Cause No. 2015-2263-C2, State V. Carrizal,” he overruled that defense objection to the language of the jury charge, as well.

Naturally, the ability of jurors to pay strict attention to the details of the law as interpreted by the Judge, the facts as presented by the prosecution, and the defense case for acquittal, will determine the temper and tone of their findings, and their verdict in each count.

In a final action, the judge granted both sides a full hour to present their jury summations, in which lead prosecutor Michael Jarrett asked for two warnings – the first that there are 25 minutes remaining in his allotted time, the second that he is at the five minute mark in the remainder of his summation of a final argument.

Ms. Gotro had requested a total of “Twenty-five minutes, call it a half-hour,” and said she would require a “five minute warning” that her time will expire within the next five minutes.

She smiled, turned on her heel, and smirked, as if at the irony of it all, as she returned to the task of helping her team pack up their legal materials and trial brief. It occurs to knowledgeable that her primary task throughout the trial and its pre-trial drama has been to preserve and perfect the record for appeals judges to pore over in deliberation of an area of the law new and subject to evolving interpretations in a rising tide of militarized police presence and the resulting militant prosecution of offenses thereby identified in reaction to perceived threats to the peace and dignity of We The People of the State.

The Judge estimated that it will require an hour of the Court’s time to read the charge to the jurors aloud in its entirety before the case is tendered to their deliberation.

So it goes.

So mote it be.

  • The Legendary

 

 

 

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