- Brian Foley
What does Steve Harvey have to do with criminal procedure?
in 2019 Steve Harvey famously announced that Miss Colombia had won the Miss Universe Pageant. Only she hadn't! She was the runner up and was devastated when he made the correction. In a criminal case this kind of thing happens too! Sometimes the wrong verdict is read out loud in court and when the jury intended on finding the defendant not guilty they incorrectly write guilty on the verdict form and vice versa. I call it the Steve Harvey effect. So who would have guessed that this thing even happens?
When I saw that this mistake had happened in a case called Hernandez v. State, I could barely believe it. But alas, this isn’t even the first time. In Reese v. State, 773 S.W.2d 314, 316 (Tex. Crim. App. 1989) the trial court had to send the jury back twice for further deliberations due to confusion over the verdict forms. The defendant in Reese was charged with sexual assault and compelling prostitution. The jury charge listed regular prostitution as a lesser-included offense jurors could consider instead of compelling prostitution. When the verdict came back the first time, the trial court noticed the jury had found the defendant guilty of sexual assault but neglected to return any verdict in the compelling prostitution case. The trial court told the jury, “You forgot to sign a verdict on one and all the jury needs to go back in there a minute.”
The jury again returned from deliberation having found the defendant “guilty” of the compelling prostitution charge but “not guilty” of the lesser-included charge of regular prostitution. The judge had to send them back again because such a verdict created a conflict from a logical perspective: How could a defendant be not guilty of a crime that is subsumed in the greater crime of which he was found guilty? Jurors should not have considered the lesser-included charge because they had found Reese guilty of compelling prostitution. Finally, they struck through the not-guilty verdict on the lesser charge and the defendant was convicted on both higher charges.
The code even contemplates this conundrum. Texas Code of Criminal Procedure Art. 37.04 reads, “The verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom …” The very next section, Art. 37.05, is about polling the jury. Polling asks each juror separately if the verdict is hers. The remedy proscribed is that “the jury shall retire again to consider its verdict,” so the judge in the Reese case made no substantial error.
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