Roberto Amaya Pacas v. State

Opinion

Dissenting opinion issued January 28, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NOS. 01-18-01016-CR, 01-18-01017-CR, 01-18-01018-CR ——————————— ROBERTO AMAYA PACAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case Nos. 1561964, 1561965, 1561966

REVISED DISSENTING OPINION

Roberto Amaya Pacas pled guilty to three charges of felony assault.1 The trial

court accepted his pleas, found him guilty of all three charges, and sentenced him to

16 years’ confinement for each charge, with the sentences to run concurrently.

1 See TEX. PENAL CODE § 22.02(b). On appeal, Pacas argues that his convictions should be vacated because the

charges were not tried by a jury. Pacas grounds his argument in the text of Article I,

section 10 of the Texas Constitution, which states, “In all criminal prosecutions, the

accused shall have a speedy public trial by an impartial jury.”2 Pacas contends that

the mandatory language of Article I, section 10 creates an absolute requirement that

all prosecutions of felony offenses be tried by a jury and that the trial court therefore

erred in accepting his pleas.3

In its opinion, the majority construes Article I, section 10 not as an absolute

requirement that must be met in every case, but rather as a right that may be waived

so long as certain conditions are met. I respectfully disagree.

As I have previously written, when construed according to its plain meaning

and historical context, Article I, section 10 imposes an absolute requirement that

2 TEX. CONST. art. I, § 10 (emphasis added). 3 See Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) (“When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squarely upon the trial judge.”); see also Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) (explaining that “absolute rights” are “widely considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited by inaction alone” (quotations and ellipses omitted)); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (explaining that “absolute requirements and prohibitions . . . are to be observed even without partisan request [and] can’t lawfully be avoided even with partisan consent”).

2 cannot be forfeited or waived.4 It requires that all prosecutions for Old Code felonies

be tried by a jury—even if the defendant affirmatively seeks to enter a plea of guilty

or otherwise waive his right to a trial by jury.5 I stand by my dissent in Farris, and

its reasoning is dispositive here.6

I write separately today to make a few additional comments in the spirit of the

late Justice Louis Brandeis, whose famous brief marked a turning point in how we

think about and decide important constitutional issues through the use of economic

and sociological data, historical experience, and expert opinion as extratextual

support for legal propositions.7 And in this case, such data makes clear that, in

addition to being legally erroneous, the majority’s construction of Article I, section

10 has contributed to and exacerbated one of the principal problems plaguing our

4 Farris v. State, 581 S.W.3d 920, 925, 929–30 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (Goodman, J., dissenting). 5 Id. 6 As the United States Supreme Court recently observed, “Only the written word is the law, and all persons are entitled to its benefit.” Bostock v. Clayton Cty., Georgia, No. 17-1618, 2020 WL 3146686, at *3 (U.S. June 15, 2020). Article I, section 10 means exactly what it says: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10; see also TEX. GOV’T CODE § 311.016(2) (“‘Shall’ imposes a duty.”). 7 See, e.g., Martha Minow, Foreword: Justice Engendered, 101 HARV. L. REV. 10, 88–89 (1987) (describing Brandeis Brief as “mark[ing] a creative shift for the Court”); see also Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483, 494 n.11 (citing famous “Doll Tests” as support for holding de jure racial segregation in public education is inherently unequal and thus unconstitutional).

3 criminal justice system—the proliferation of the plea bargain and the resultant

scourge of mass incarceration.

A. The rise of the plea bargain

Our criminal justice system is no longer the system of trials that the Founders

envisioned.8 Instead, it is a system of plea bargaining, “negotiated behind closed

doors and with no judicial oversight.”9 The story of how our criminal justice system

evolved into a system of plea bargains is long and complex, but I will try to provide

a brief summary.

Before the Civil War, plea bargains were exceedingly rare.10 After the Civil

War, things changed.11 As waves of displaced Americans and immigrants moved to

cities, crime rates rose, and the plea bargain became a convenient response to

mounting caseloads: “by pleading guilty to lesser charges in return for dismissal of

the more serious charges, defendants could reduce their prison time, while the

prosecution could resolve the case without burdening the system with more trials.”12

8 See Jed S. Rakoff, Why Innocent People Plead Guilty, THE NEW YORK REVIEW OF BOOKS, Nov. 20, 2014, available at https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/ (hereinafter “Rakoff”). 9 Id. 10 Id. 11 Id. 12 Id. 4 Courts were initially skeptical of plea bargains.13 But they eventually came to

approve of them “as an exercise in contractual negotiation between independent

agents (the prosecutor and the defense counsel) that was helpful in making the

system work.”14 Academics were likewise initially skeptical,15 but they too

eventually “came to approve of plea bargaining as a system somewhat akin to a

regulatory regime.”16 Thus, by the early 1950s, over 80 percent of criminal cases

were resolved by plea bargains.17

Another important development occurred in the 1960s, when the United States

Supreme Court issued a series of opinions establishing more robust protections for

13 Id. 14 Id. 15 Id. 16 Id. 17 Id.

5 criminal defendants.18 These rulings had the unintended effect of making trials

lengthier and more burdensome, further incentivizing the use of plea bargains.19

Finally, in the 1960s, 70s, and 80s, rising crime rates, much of it drug related,

provoked a get-tough response from law enforcement officers, prosecutors, and

lawmakers.20 State and federal legislatures significantly increased the penalties for

criminal violations and passed mandatory minimum sentence and three strikes laws,

“provid[ing] prosecutors with weapons to bludgeon defendants into effectively

coerced plea bargains.”21 And aggressive policing resulted in the arrest of millions

of people annually, further expanding the criminal justice system, and further

incentivizing the use of plea bargains.22

18 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (holding that Fifth Amendment right against self-incrimination requires law enforcement officials to advise suspects interrogated in custody of right to remain silent and right to attorney); Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that Sixth Amendment right to counsel is fundamental right that applies to States though Fourteenth Amendment’s Due Process Clause). 19 Emily Yoffe, Innocence Is Irrelevant, THE ATLANTIC, Sept. 2017, available at https://www.theatlantic.com/magazine/archive/2017/09/innocence-is- irrelevant/534171/ (hereinafter “Yoffe”). 20 See Rakoff; Yoffe. 21 Rakoff; see also Rummel v. Estelle, 445 U.S. 263, 285 (1980) (holding that life sentence imposed under Texas’s three strikes law for conviction for felony fraud did not constitute cruel and unusual punishment). 22 See Yoffe.

6 The upshot is that today the overwhelming majority of criminal convictions

are the result of plea bargains. The United States Supreme Court acknowledged this

reality over eight years ago in Missouri v. Frye, which held that the constitutional

right to effective assistance of counsel applies to plea bargaining, as such bargaining

now constitutes a critical stage of the criminal process.23 Writing for the majority,

Justice Anthony Kennedy eloquently summarized the current situation:

To a large extent horse trading between prosecutor and defense counsel determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.24

When the Court issued Frye in 2012, 97 percent of federal convictions and 94

percent of state convictions were the result of guilty pleas.25 Since then, not much

has changed. Last year, for example, some 95 percent of criminal convictions in

Texas district courts resulted from a guilty or no contest plea.26

23 566 U.S. 134, 155 (2012). 24 Id. (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992) (ellipses and brackets omitted)). 25 Id. 26 Annual Statistical Report for the Texas Judicial for Fiscal Year 2019 at 74, available at https://www.txcourts.gov/media/1445760/fy-19-annual-statistical-report.pdf. Corresponding data for federal courts is no different. See, e.g., Year One of Trump’s DOJ: The National Criminal Sentencing Statistics, THE NAT’L LAW REV. (June 4, 2019), https://www.natlawreview.com/article/year-one-trump-s-doj-national- criminal-sentencing-statistics (“Of the offenders sentenced in FY2018, 67,610 pleaded guilty to one or more offenses with which they were charged – a rate of 97.4%. This is the highest percentage of guilty pleas in federal cases since the 7 B. The problems plea bargains cause

I readily acknowledge that our contemporary plea-bargaining systems has its

advantages. In complicated cases involving organized crime, prosecutors can use

plea bargains strategically, “extracting information from low-level offenders and

pushing further up the criminal hierarchy.”27 Plea bargains often “provide genuinely

good deals to people facing long prison sentences.”28 And, most fundamentally, plea

bargains are economical.29

Commission began reporting data. The lowest guilty plea rate was in FY1991 (85.4%). The percentage of guilty pleas in federal cases has grown steadily since that time.”). 27 Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, THE ATLANTIC (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts- prosecutors/524112/ (hereinafter “Walsh”). 28 Walsh; see Frye, 566 U.S. at 144 (noting the “potential . . . for defendants to admit their crimes and receive more favorable terms at sentencing” as among benefits of plea bargains); Brady v. United States, 397 U.S. 742, 751–52 (1970) (noting that “both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law”). 29 Frye, 566 U.S. at 144 (noting the “potential to conserve valuable prosecutorial resources” as among benefits of plea bargains); Walsh (“Trials are expensive and protracted. Two rational parties, goes the logic, can more cheaply and quickly come to an agreeable outcome through stripped-down bartering: The prosecutor offers a lenient charge if the defendant foregoes trial and admits guilt.”); Yoffe (“Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time- consuming and costly trial is avoided, and everybody benefits.”).

8 Nevertheless, a growing body of research shows that these benefits have been

largely overstated and are outweighed by significant costs. Our plea-bargaining

system values efficiency over justice;30 undermines democratic values;31 and invites

abuse and arbitrary results through a lack of transparency and regulation.32

But most concerning of all, our system of plea bargains causes a not

insignificant number of defendants to plead guilty to crimes they did not actually

commit. This is largely because the “bargaining takes place within a coercive

framework in which the parties have asymmetric information and act through

imperfect agents.”33

30 See John Rappaport, Unbundling Criminal Trial Rights, 82 U. CHI. L. REV. 181–99 (2015) (hereinafter “Rappaport”). Efficiency, as the late Chief Justice Warren Burger recognized, is not an end in itself and should not be prioritized over courts’ fundamental responsibility of sorting the guilty from the innocent. See Mayer v. City of Chicago, 404 U.S. 189, 201 (1971) (Burger, C.J., concurring) (“An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.”). 31 See Rappaport; Rakoff. 32 Rakoff. By and large, plea bargains are the products “of largely secret negotiations behind closed doors in the prosecutor’s office, and [are] subject to almost no review, either internally or by the courts.” Id.; see also Walsh (“Judges are not regularly allowed to take part when a plea deal is made, and written records of a deal are almost never required.”). Such a system “inevitably invites” abuse and arbitrary results. Rakoff. 33 Rappaport.

9 In a typical case, the defense lawyer meets her client when or shortly after the

defendant is arrested, so “at the outset, she is at a considerable informational

disadvantage to the prosecutor.”34 And if the defendant cannot make bail, as is often

the case, the defense lawyer will have “only modest opportunities, within the limited

visiting hours and other arduous restrictions imposed by most jails, to interview [the

defendant] and find out his version of the facts.”35 The prosecutor, by contrast, will

typically have a full police report, complete with witness interviews and other

evidence, grand jury testimony, forensic test reports, and follow-up investigations.36

The prosecutor’s evidence “may be one-sided and inaccurate.”37 But it still gives

him “a huge advantage” over the defense lawyer.38 And it may make “the prosecutor

confident, maybe overconfident, of the strength of his case.”39

It is against this background that the defense lawyer, usually within a few days

of the defendant’s arrest, meets with the prosecutor, “who makes clear that, unless

the case can be promptly resolved by a plea bargain, he intends to charge the

34 Rakoff. 35 Id. 36 Id. 37 Id. 38 Id. 39 Id.

10 defendant with the most severe offenses he can prove.”40 Under these circumstances,

even if the defendant is innocent, he will often make the rational choice to plead

guilty, reasoning that serving a short sentence for a crime he did not commit is better

than the risk of serving a much longer sentence for a more serious crime he did not

commit.

But how often does this actually happen? How often do innocent defendants

plead guilty. It’s hard to say for sure, but the available data indicates the number is

appallingly high. For example, of the more than 300 people exonerated by The

Innocence Project with DNA evidence, nearly 11 percent pled guilty.41 According

to The National Registry of Exonerations,42 the total number is even higher at 15

40 Id.; see also Yoffe (“To induce defendants to plead, prosecutors often threaten ‘the trial penalty’: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted.”). 41 Innocence Project and Members of Innocence Network Launch Guilty Plea Campaign, The Innocence Project (Jan. 23, 2017), https://www.innocenceproject.org/guilty-plea-campaign- announcement/#:~:text=Innocence%20Project%20and%20Members%20of%20In nocence%20Network%20Launch%20Guilty%20Plea%20Campaign&text=Innoce nt%20people%20are%20pleading%20guilty%20to%20crimes%20they%20did%2 0not%20commit.&text=With%20the%20system%20stacked%20against,lengthy% 20prison%20sentences%20at%20trial. 42 The Registry “collects, analyzes and disseminates information about all known exonerations of innocent criminal defendants in the United States, from 1989 to the present.” Our Mission, The National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/mission.aspx (last visited July 13, 2020).

11 percent.43 Whatever the precise figure, one thing is clear: Innocent people routinely

plead guilty to crimes they did not commit.

C. A potential solution

What can we do about our problematic plea-bargaining system? One solution

is to have more trials. Because trials are better at distinguishing the guilty from the

innocent, having more trials “would reduce the social costs of wrongful convictions

and enhance the criminal law’s deterrent effects.”44 More trials would also

“strengthen the bargaining position of defendants, whose threats of going to trial

[would] become more credible, nudging plea bargaining closer to the law’s

shadow.”45 Further, trials make the performance of the prosecutor and the defense

“more visible—and thus more accountable.”46 Like an audit, trials “shine a light on

investigatory behavior and the exercise of governmental power more generally.”47 If

the prosecutor or police behave badly, their misconduct will more often than not

43 Guilty Pleas, The National Registry of Exonerations (July 13, 2020), http://www.law.umich.edu/special/exoneration/Pages/Guilty-Pleas.aspx (last visited July 13, 2020). 44 Rappaport. 45 Id. 46 Id. 47 Id.

12 remain buried when the defendant takes a plea.48 Finally, trials “promote democratic

values like local control and help to cultivate an active and informed citizenry.”49

While no panacea, a renewed emphasis on trials would help correct some of

the injustices caused by the proliferation of plea bargains—and conducting

mandatory trials for Old Code felonies is what our constitution already requires. As

I stated in my dissent in Farris, Article I, section 10’s “striking, mandatory

requirement stems from the earliest constitution of the Republic of Texas” and

“emphasizes the importance that Texans place on the mandate for and the right to

jury trials.”50 And as I hope my current dissent makes clear, the problems caused by

our failure to follow this constitutional mandate highlight both the wisdom of our

forefathers and our solemn obligation to follow the principles enshrined in our state’s

founding document.

Conclusion

Whether Article I, section 10 requires trials for Old Code felonies is not

merely a matter of academic debate, but rather an issue of profound importance to

48 See Walsh; see also Rappaport. 49 Rappaport. 50 Farris, 581 S.W.3d at 930. 13 our criminal justice system—the resolution of which may determine whether our

system is truly just. I respectfully dissent.51

Gordon Goodman Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Justice Goodman, dissenting.

Publish. TEX. R. APP. P. 47.4.

51 Because I conclude the trial court’s violation of our constitution’s mandate that all criminal prosecutions be tried by a jury requires that the judgment of conviction be reversed and the case be remanded for a new trial, I would not reach Pacas’s second issue, in which he contends he was assessed duplicative court costs across his three convictions.