As the jury deliberates the fate of David Graham, I must admit that I have never understood the defense in the so-called Cadet Murder Trials. Graham, along with Diane Zamora, was charged with capital murder where the State waived the death penalty. A conviction means an automatic life sentence that translates to at least 40 years in prison before becoming eligible for parole.

The word "automatic" is the key. In any non-capital murder case, the jury has the opportunity to deliberate on punishment at which time they are provided with a sentence range that includes, assuming no prior felony convictions, the option of probation.

For example, a Defendant convicted of "plain" or "simple" murder is allowed the option of having the jury assess his punishment at anywhere between 5 years and life in the penitentiary. Once again, probation is an option if the Defendant has no prior felonies and the crime "deserves" 10 years or less. More importantly, the statute requires a Defendant sentenced to prison for murder to actually serve "only" 1/2 of his sentence or 30 years, whichever is less before becoming parole eligible.

But both cadets were charge with capital murder meaning they allegedly committed the offense of murder during the course of another enumerated crime. In their case, the State alleged the murder was committed during the course of kidnapping.

But to paraphrase the judge from the movie Presumed Innocent, "Just because the State says it's so, doesn't make it so". That is, if during the trial of capital murder there is some evidence that a Defendant is guilty of "only" murder without the additional act of kidnapping, then the jury would be given the option of finding the Defendant guilty of simple murder. The key to such a finding is that the "automatic" life sentence the State sought is no longer available since it attaches only to a capital murder conviction. Because the Defendant has been found guilty only of murder, the jury would be required to reconvene and hear evidence relevant to punishment, if any, and then deliberate on a sentence of 5 to life and even consider probation.

Now back to the cadet cases.

Both defendants went with the "all or nothing" defense. That is, they argued that they weren't guilty of any crime. With such a defense, the jury is left with only two real options: guilty of capital murder or not guilty of capital murder.  (Technically, in David Graham's trial the jury was given the option of finding him guilty of simple murder but the defense lawyer couldn't urge the jury to so find since he took the position that his client wasn't at the murder scene!).

Memo to the defense lawyers: There is no way those two young people were/are going to be acquitted when the evidence includes a confession to a gruesome murder.

What was the alternative defense? Persuade the jury to convict your client of murder. While on its face it does not seem very appealing, such a conviction at least gets you a shot at a sentence of less than 40 real years.

Would the jury buy a defense of "only murder"? Well, I must admit that under the Penal Code the victim was technically kidnapped. But on the other hand, it did not occur in a manner that the typical juror expects when he or she envisions a "kidnapping". According to trial testimony, the victim was lured into the car under false pretenses and then driven to a location where she was eventually killed. I suspect that a typical juror expects a kidnap victim to forcibly be moved against her will.

With the facts being what they are, the following scenario was possible: David Graham takes the stand and admits to murder but disputes the facts about kidnapping. The jury listens to the evidence and believes the cadet did a horrible thing but, giving Graham credit for accepting responsibility, feels that 30 or 40 years in prison is more appropriate than an automatic life sentence. If that is the desired result, the jury could dismiss the kidnapping aspect of the case and find the Defendant guilty of murder solely for the opportunity to have the option of assessing punishment.

Is there a guarantee that such a defense would work? Absolutely not. But it is a chance - something he did not have when the jury was given the "all or nothing" defense.

To place odds on the Graham case as it was tried, there is a 95 out of 100 chance he will be convicted of capital murder. However, admitting to murder would probably have lowered the odds to something like 80 out of 100. If he's lucky enough to hit on that 1 in 5 chance, he may still have an uphill battle in getting the jury to deliver a sentence less than a figure close to the maximum. But even if they assess Graham life in prison, he could still take some consolation in that fact that he becomes eligible for parole after 30 years instead of the 40 years that comes with capital murder.

It may seem like only 10 years, but for a man who is 20 years old, I suspect that when he turns 50 years of age that those 10 years will become very important. 

Barry Green is the District Attorney for the 271st Judicial District.