Under New Law, Juries Would Hear More Evidence before Sentencing
By William C. Lhotka
Post-Dispatch [St. Louis MO]
May 28, 2003
When the Rev. Bryan Kuchar was on trial last week on charges of molesting a child, the jury was sent out to decide all at once whether he was guilty and what his punishment should be if he was.
As it turned out, the jury could not reach a decision on guilt, so the Roman Catholic priest will be tried again. When he is, the decision-making process will be significantly different if Gov. Bob Holden signs - as expected - an omnibus crime bill sent to him by the Legislature.
It would split the deliberations so a jury would decide first on guilt. If jurors vote to convict, they then would hear evidence and lawyers' arguments about the proper penalty before retiring again to decide punishment.
Text of sentencing bill
The measure is alternately lauded by judges and lawyers as fairer and criticized as a drag on the system.
The change applies only in cases of defendants not previously convicted of a crime. Missouri law says a jury decides their punishment. The vast majority of the state's defendants are repeat offenders whose punishment is chosen by a judge.
A two-part process already is used in first-degree murder cases, in which jurors first decide guilt and then whether the penalty should be death or life in prison. The new law would extend it to every criminal case, felony or misdemeanor, in which the defendant has no prior convictions.
Paul Fox, director of judicial administration in St. Louis County, said the change would add time and costs. He acknowledged that Kuchar's case might be the first in his jurisdiction to put it to use.
Judge John Ross plans to meet Friday with prosecutors and defense lawyers to set a new trial date for Kuchar on six counts of statutory sodomy involving a 14-year-old boy.
Prosecuting Attorney Robert P. McCulloch explained that if Kuchar was convicted, the new procedure would let prosecutors call the accuser and his family to testify for harsher sentencing. Defense lawyers could put the priest's supporters on the stand to speak for leniency.
The jury would then decide with a clearer picture, McCulloch suggested.
Brad Kessler, a criminal defense lawyer in Clayton, said the change could clog the dockets and force lawyers into deeper questioning of jurors on their views toward crime and punishment.
McCulloch discounted worries of a jammed docket, noting that juries were asked to decide punishment in only about 20 percent of the county's criminal cases last year.
"If jurors are going to do the sentencing, then they should be fully informed," McCulloch said. "We owe everybody, the defendant, the victim, a few more hours."
St. Louis Circuit Attorney Jennifer Joyce agreed. Judges have access to that kind of information in the sentences they pass, and jurors should too, Joyce said.
The bill the Legislature passed contained several other provisions amending Missouri law. They include:
Increasing to 12 from seven the "dangerous felonies," like murder, rape and robbery, for which a defendant must serve 85 percent of the sentence. The five new ones are first-degree assault of a law enforcement officer, first-degree domestic assault, first-degree elder abuse, first-degree statutory rape of a victim under 12 and first-degree sodomy of a victim under 12.
Redefining "law enforcement officer" in assault cases to include firefighters, paramedics and other emergency personnel.
Making the theft of anhydrous ammonia or liquid nitrogen a felony that carries a sentence range of five years to 15 years in prison. Ammonia and nitrogen are ingredients in the making of methamphetamine.
Allowing crime victims to be present at all criminal trials, even if the victim is to be a witness. Some jurisdictions bar victims from the courtroom before their testimony.
Requiring sex offenders to notify sheriffs if they are attending universities or colleges, and requiring sheriffs to notify campus police. The same offenders must also notify sheriffs if they drop out of school.
Providing a $4 surcharge on all criminal cases, including ordinance violations, for the Prosecuting Attorneys' and Circuit Attorneys' Retirement Fund.
Providing a $2 surcharge in criminal cases, if approved by the city or county having jurisdiction, to fund a system to identify and track jail inmates.
Reporter William C. Lhotka:
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