Change in law gives juries more defendant information

For some of Missouri's criminal defendants, sharing their life story with a jury may get them sympathy and a lighter sentence -- but for others, a checkered past can make matters worse.

A recent change in state trial law is giving jurors a new window into the history and character of some criminal defendants before they take up sentencing. The change took effect after Gov. Bob Holden signed Senate Bill 5 on June 27.

The earliest this process, called a bifurcated trial, could take place in a Cape Girardeau County courtroom is Tuesday in the jury trial of David R. Wann of Memphis, Tenn., charged with possession of methamphetamine, or Wednesday in the trial of Matthew H. Jones of Jackson, charged with assault and resisting arrest.

'Seems very experimental'

A bifurcated trial divides a case into two parts -- one for a jury to determine guilt and another hearing for consideration of sentencing, complete with new opening and closing remarks from attorneys, testimony and evidence.

Prosecuting Attorney Morley Swingle said the new procedure is unpredictable. Jury trials that previously took up only one day in court will most likely take two.

"This was not an aspect of the bill I was enthused about," Swingle said. "It seems very experimental to me. My indication to my staff is that we will do this as little as possible."

He is wary of these cases being overturned by a higher court because jurors were told something that is later deemed information they shouldn't have heard.

A couple things in the law haven't changed: Jurors still can't hear about a defendant's past deeds before deciding guilt and judges will still decide any actual sentence.

However, because judges tend to follow the will of juries, proponents of the change expect it to result in stiffer sentences for serious offenders.

"The good part about this is that jurors will be told a lot more of the facts before they're asked for a sentence," Swingle said.

However, that information is still subject to a judge's discretion before it can be presented, he said.

The concept of a two-part trial is not new. In many murder cases, a victim's family can make impact statements to the judge before a sentence is made, he said.

Circuit Judge John Heisserer likes the idea of jurors having the same information he gets, he said. But it will likely complicate an already full court calendar, he said.

"It's done in a number of other states and it seems to work well, but I doubt there will be many one-day trials anymore," he said. "But we'll see."

The defendants who could benefit from a bifurcated trial are those charged with serious felonies but who have no criminal history or other negative past.

This second stage of a trial can be avoided if a defendant requests that only the judge assess punishment or if the prosecution proves the defendant is a prior, persistent or predatory offender.

The jury is instructed on the range of punishment available for each crime. It can recommend any amount of time within that range but it can't consider probation -- only judges can suspend sentences and issue probation.

The legal change won't affect many represented by public defenders, said Dan Gralike, deputy director of the Missouri State Office of the Public Defender. He estimated his office may see 100 to 150 bifurcated trials a year.

"That seems relatively low in that we represent scores of indigent defendants," he said. "But the reason for this low number, in most cases, is that the law provides the punishment phase applies only to those with no prior convictions or where the state chooses to present or prove up prior convictions."

Defense attorneys wary

Swingle is not alone in his criticisms; some defense attorneys aren't enthused either.

"I really don't care for it," said Steve Wilson of Cape Girardeau. "It unnecessarily lengthens the time jurors have to be there."

Wilson is representing Wann, the man charged with possession of methamphetamine, at Tuesday's trial and expects to file a request to have sentencing taken away from the jury and left with the judge, he said.

Defense attorney Jeff Dix of Cape Girardeau is representing Jones, the man charged with assault and resisting arrest. He also expects Wednesday's case will not become a bifurcated trial. He doesn't intend to do them often.

"It's going to be on a case-by-case basis," he said. "I really don't think it's going to make all that much difference in terms of what a jury does. But for a first-time offender, I think a jury will be a lot more lenient in certain cases."

Dix doubts judges will dramatically lengthen sentences after bifurcated trials, he said.

"Judges aren't supposed to punish defendants more for going through with a jury trial," he said. "If you deserved probation before the trial, then you deserve it after the trial."

mwells@semissourian.com

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