Let me step away from Skattershooting for a bit and talk about the Former Dallas Cowboy Dwayne Goodrich's trial that just concluded. It's a case that had the attorneys sweating and confused (and, legally speaking, it took me a while to figure out what happened).

This is a bit long, so feel free to bail out now.

Last January, Goodrich left a topless bar and was hauling butt up I-35 in Dallas. When he got to what used to be known as "restaurant row" (right before you cross the LBJ loop), he swerved to the left shoulder in order to avoid a collision in the roadway. Unfortunately for him, Demont Matthews, 23, and Joby Wood, 21, were standing in the shoulder trying to help an injured motorist. Both men died and Goodrich did not stop. The damage to his car was frightening.

This only happened last January? This system sure does get faster when a celebrity is involved.

What most people forget in society is that people are rarely charged criminally for being stupid (although that is happening more and more). Normally when there is an accident that leaves a person dead, the criminal system steps aside and lets the injured person (or his heirs) sue the guy that was negligent. But this was a high profile case and you can bet a high profile DA is going to jump on it.

The initial jerk reaction from the masses was that Goodrich should be charged with Murder because he killed someone. Well, it doesn't work that way. In general, murder means that a person INTENDED to cause the death of another. Obviously, that didn't happen in Goodrich's case.

Since he was leaving a topless place, most people assumed Goodrich was drunk so they wanted him charged with Intoxication Manslaughter. That charge basically means that a person was DWI and caused the death of another because of the DWI.  Fortunately in our society, a person can't be charged or convicted based upon "assumptions" and there was no evidence that Goodrich was drunk. That charge was out the window.

But the Penal Code does allow for people to be prosecuted for being stupid and that stupidity causes another to die. First there is the charge of Manslaughter. The other is the charge of Criminally Negligent Homicide.

Manslaughter is defined as "recklessly" causing the death of another. Criminally Negligent Homicide is defined as causing the death of another due to "criminally negligent" conduct. For those that really want to get technical, the definitions of reckless is found here under subsection "c" and the definition for negligence is found at the same location under subsection "d". Trust me, if you read them you will immediately get a case of "tired head". A short hand explanation is that "reckless" means you did something incredibly stupid (like seeing a "school zone" sign and deciding to run 90 mph through it) while "negligence" just means normal stupidity (you run 90 mph through a school zone but you didn't know it was a school zone).

The DA decided to go with Manslaughter.

After he was indicted, the basic question everyone had was: How much time could he get for manslaughter? The answer is anywhere from 2 to 20 years in the pen. However, Goodrich could receive probation from a jury because he had never before been convicted of a felony.

The State did not charge Goodrich with criminally negligent homicide for a pretty good reason: It is a state jail felony and carries with it a maximum of two years in a state jail.

What will turn out to cause mass confusion later on will be this: The indictment alleged that Goodrich had used a "deadly weapon" during the offense: his automobile. A couple of quick points: (1) a deadly weapon is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury (2) a person can be found to have used a deadly weapon even if he didn't intend for it to be used as a deadly weapon.

So why alleged a deadly weapon? It is a powerful tool and the prosecution alleged it for one reason: Anyone who is found to have used a deadly weapon during a crime by a jury and who is sentenced to the pen (that is, did not receive probation) will have to serve one-half of their sentence before becoming eligible for parole. Thus, if Goodrich was found guilty of manslaughter and the jury decided the car qualified as a "deadly weapon", he could receive 20 years in prison thereby causing him to serve at least 10 years before even becoming eligible for parole.

As will be seen below, the deadly weapon allegation will have some very unintended consequences.

Here's where things got confusing: The judge, at the request of the defense, allowed the jury to consider whether Goodrich was guilty of the lesser offense of criminally negligent homicide in the event they believed that he was not guilty of manslaughter. It worked! The jury found that Goodrich had done a stupid thing (criminal negligence) but not an incredibly stupid thing (manslaughter).

I learned of the verdict as I was driving home one night. "Ah", I said to myself, "Goodrich has been found guilty of a State Jail Felony so all the jury can give him is two years." (Remember a State Jail Felony carries with it a maximum of two years in the State Jail).  Then the commentator said; "Goodrich will now face a sentence of up to 10 years in prison".

I will admit that I was confused. "Up to 10 years in prison" is a third degree felony. I knew that criminally negligent homicide was a State Jail Felony and not a third degree. Was I missing something?

I was! Remember the allegation of a deadly weapon I spoke of earlier? I had forgotten that the jury probably found that a deadly weapon was used. Therefore, Goodrich had been found guilty of the state jail felony of Criminally Negligent Homicide but they also found that he had used a deadly weapon. A quirk in our law says this: "An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that: (1) a deadly weapon . . . was used". For you following at home, that provision is found at section 12.35(c)(1) of the Penal Code.  This means Goodrich was looking at a maximum of 10 years instead of 2 years. But he could still get probation, right? Hang on.

The next phase of the trial was for the jury to hear any other evidence the State or defendant had and then to assess punishment. Since he was now facing a third degree punishment, the jury could choose a sentence between 2 and 10 years.

The bombshell occurred early that morning when the news began reporting that Goodrich was not eligible for probation from the jury because of a "little known law".  Apparently both the defense and the prosecution were unaware of this law until some defense lawyer, who had no connection with the case, told the prosecutor about it. (I read this in the Dallas Morning News and the defense lawyer sounded a little bit cocky).

That law does exist. It is buried in the Texas Code of Criminal Procedure at art. 42.12 sec. 4(e). It says that a jury cannot give a person probation who is "is sentenced to serve a term of confinement under Section 12.35, Penal Code."  Section 12.35 refers to defendants who have been found guilty of a State Jail Felony.

That clearly is the law. For some reason, a person convicted of a State Jail Felony cannot get probation from a jury. I really have never understood this because a State Jail Felony is the lowest level of felony in the state of Texas.  However, I was amazed that the prosecution and the defense did not know that probation was not an option from a jury that had convicted someone of a State Jail Felony. I do, however, forgive them a little bit in this case because Goodrich was going to be sentenced under the law applicable for a third degree because of the deadly weapon finding. Is someone in that situation also ineligible for probation? I had never thought about it. The real question now was: had Goodrich been found guilty of a State Jail Felony (where probation is not an option) or had he been found guilty of a Third Degree Felony (where probation was available)?

Goodrich soon learned he was screwed. The judge ruled (probably correctly) that Goodrich had been found guilty of a State Jail Felony despite the fact that his punishment would be punished under the third degree law. Remember the law I quoted you earlier? "An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that: (1) a deadly weapon . . . was used".  Yeah, he was being punished as a third degree felon but he had been found guilty of a State Jail Felony. And a state jail felon can't get probation from a jury.

So here was the crazy situation: If the jury had found Goodrich guilty of manslaughter (as the prosecution wanted), the jury could have chosen a sentence from 2 to 20 years but they could have granted probation. However,  Goodrich was found guilty of the lesser offense of the State Jail Felony of Criminally Negligent Homicide, was facing 10 years because of a deadly weapon finding, but could not get probation from a jury!

Goodrich's lawyers were caught by surprise. This is from an ESPN story:

But Goodrich's defense attorney Reed Prospere accused prosecutors of relying on a glitch in the law to deny jurors the option of sentencing Goodrich to probation. Prospere asked jurors to feel free to withhold their vote, which would cause a mistrial. All 12 jurors must agree on a punishment before it can be ordered. "You don't have to vote. It's that simple," Prospere told jurors. "The fact that the law's stupid and doesn't make sense doesn't mean you have to follow along like a lemming."

Goodrich is 25 years old.

And I'll get back to Skattershooting next month . . . my head is tired.

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Update: On  1/6/05, the Dallas Court of Appeals affirmed the conviction.. A link to the opinion should be here.