Standing up and fighting

"All persons are presumed be be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives no rise to inference of guilt at his trial."  -- Texas Penal Code Section 2.01

"No person shall be...deprived of life, liberty, or property, without due process of law..." -- 5th Amendment to the U.S. Constitution

"No citizen of this state shall be deprived of life, liberty, property, privileges or immunities...except by the due course of law of the land." -- Texas Constitution, Art. 1, Sec. 19

"You are instructed that the criminal information is not evidence of guilt. It is the means whereby a defendant is brought to trial in a misdemeanor prosecution. It is not evidence, nor can it be considered by you in passing upon the innocence or guilt of this defendant." - Standard jury charge, Harris County Criminal Court at Law No. 13

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the information in this case, and restrict your deliberations solely to the issue of guilt or innocence of the defendant." -- Standard jury charge, Harris County Criminal Court at Law No. 13

This is not the first time I've addressed this issue, and I'm sure it won't be the last time, either.

The jury charge used in Harris County is just plain wrong and unconstitutional. It is not the duty of the jury to determine whether a defendant is innocent or not. It is the duty of the jury to determine whether the prosecution has proven all elements of its case beyond all reasonable doubt.

In telling a jury it is to decide whether a defendant is innocent or guilty, the court is placing a burden on the defendant to prove his innocence - an unconstitutional shifting of the burden of proof. How can one prove his innocence? How does one prove a negative? It's impossible.

The use of this charge makes a mockery out of the presumption of innocence and the right to remain silent. If one is presumed innocent, then the only matter for the jury to determine is whether the state has proven otherwise.

I was nearly thrown in jail on a contempt charge on Monday when I objected to this very language. I objected outside the presence of the jury and presented a proposed charge that said the duty of the jury was to determine whether the state had proved each and every element of its case beyond all reasonable doubt. (As an aside, since Judge Atkinson resigned his post as of September 30, a visiting judge was appointed to sit on the bench until the election.)

The judge, without concern for the constitutional rights of my client, overruled my objections and rejected my proposed language and proceeded to read the charge, as is, to the jury. When I objected to that language as the judge read the charge, he threatened me with contempt if I interrupted him again. My co-counsel then quickly drafted a motion for a personal bond while he waited to see if I would rise to object yet again.

Read the court's proposed charge. Draft your own proposed charge. Object like hell if the language shifts the burden of proof to your client. Change never occurs because someone sat down politely and didn't raise his voice. Change happens when men and women of conscience stand up and fight for their cause.