A rose by any other name...

Remember when you were in school and asked the teacher what a particular word meant? She told you to find it in the dictionary. Not the online dictionary, mind you. I'm talking about the thick book that you had to thumb through page after page to find the word.

Back in 2010, Scott Kirsch was arrested for and convicted of his second DWI. It turns out that a woman was driving home from work one night when she saw Mr. Kirsch straddling his motorcycle in the middle of the road at an intersection. After she watched him fall to the ground, she called the police who came out to investigate.

When the police arrived, Mr. Kirsch was trying to kick-start his bike -- without success. According to the arresting officer, Mr. Kirsch had poor balance and difficulty following directions. Mr. Kirsch was then arrested and charged with driving while intoxicated.

The question at trial was, of course, whether Mr. Kirsch was operating a motor vehicle while intoxicated. The prosecutor argued that he was exercising control over the bike when police arrived. Mr. Kirsch argued that since the bike wasn't running, he was operating it at the time.

The trial court issued a jury charge that included a definition for "operating" over Mr. Kirsch's objection. The definition was taken out of Denton v. State, 911 SW2d 388 (Tex. 1995), a case in which the Court of Criminal Appeals had defined operating in the context of determining whether the evidence was sufficient to uphold a conviction. The Court of Appeals found no error and Mr. Kirsch appealed to the Court of Criminal Appeals.

In Kirsch v. State, No. PD-0245-11 (Tex. 2011), the Court of Criminal Appeals held that by providing a definition for operating, the trial court was making an improper comment upon the weight of the evidence. The Court held that it was proper for a jury charge to include definitions taken from the Texas Penal Code but, where the code offered no definition, it was up to the jury to decide just what the word meant.

Somethings are just best left unsaid.

Proving a negative

In a comment to a recent post ("A little shifting of the burden"), Adam Poole referenced a provision of the Texas Code of Criminal Procedure that states a judge shall submit the question of the defendant's guilt or innocence to the jury prior to final argument (Art. 37.07(2)(a)).

He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.

In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."

As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.

Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.

But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?

And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.

If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.

But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.

The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.

When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.

Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.

Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.

A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

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.

Jury charge undermines presumption of innocence

One of the things a judge always tells a jury (in one form or another) is that "the jury is the exclusive judge of the facts, but is bound to receive the law from the court and be governed thereby." The law is contained in the jury charge the court gives to the jury prior to their deliberations. The jury charge used in many of the misdemeanor courts in Harris County, however, misstates the law.

The standard jury charge used in County Criminal Court at Law No. 3 is one of those charges.

The law does not require a defendant to prove his or her innocence or produce any evidence at all.

That is the essence of the presumption of innocence. It is the prosecution's burden to prove that the citizen accused committed each and every element of the offense.

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 guilt or innocence of this Defendant.

It is not the jury's duty to determine whether the citizen accused is innocent of anything. It is the jury's duty to determine whether the prosecution has proved each and every element of its case beyond all reasonable doubt. If the prosecution fails to prove its case beyond all reasonable doubt, then the jury must find the citizen accused not guilty.

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.

This is the last paragraph of the charge and the law is misstated twice -- and this is the last thing the jurors hear from the judge before beginning their deliberations. The "sole duty" of the jury in a criminal case is to determine whether or not the prosecution has proved each and every element of the alleged offense beyond all reasonable doubt.

Using the phrase "guilt or innocence of the Defendant" three times in the charge only serves to undermine the presumption of innocence and shift the burden of proof from the state to the citizen accused.