Star Telegram columnist Bud Kennedy is generally an exception although he did manage to anger many Wise County residents with his column last year referring to us as an outlaw county. I thought the writing was somewhat tongue in cheek but most folks around this part took it pretty seriously.

Nevertheless, Bud got on his high horse recently when he wrote about noted parolee Wesley Wayne Miller. Miller was convicted and sentenced for the offense of burglary with the intent to commit sexual assault in the early 1980s and received a 25 year sentence. After serving 16 years of the sentence, he is now eligible for parole.  Kennedy  basically wrote that Miller was getting a break for being eligible for parole and, thus, should stop his “whining” to the media about various restrictions that will be placed upon his freedom.

But one paragraph in particular got my attention: “The jurors said 25 years. They meant 25 years”. Initially, I believed Mr. Kennedy to be incorrect but, upon reflection, he’s probably right. However, under current law what a jury sets as a sentence for a crime probably does not accurately reflect what it really desires.

Let me explain.

Since 1985, long after Miller’s trial, juries have been given parole eligibility instructions which informs them, in general, when a “hypothetical prisoner” becomes eligible for parole. For example, currently jurors are told that a person sentenced to the penitentiary will have to serve ½ of his sentence or 30 years, whichever is less. Such an instruction was required primarily in response to the incredible rate of parole that was occurring in the 1980s and was a backdoor “truth in sentencing” provision.

Practically, a jury who now wants to send a Defendant to prison for 10 years might come back with a verdict of 20 years. If that is their intent, however, they have violated a different portion of the trial court’s instructions. Oddly, the jury is also told by the judge that “you are not to consider the manner in which the parole law may be applied to this particular defendant”.

The whole concept is crazy. Tell a jury about the parole laws (even give them the mathematical formula) and then advise them to ignore what they’ve learned.

Justice LeeAnn Daughinot, who is an appellate judge in Fort Worth, probably said it best in a concurring opinion a couple of years ago in Taylor v. State, 911 S.W.2d 906 (Tex.App.- Fort Worth 1995, no pet.):

“The jury is . . . expected to perform the impossible--to listen to the judge charge them on parole eligibility, to listen to the prosecutor argue parole eligibility, to have the written charge which instructs them on parole eligibility, to be told they may consider the parole law, but at the same time to be prohibited from applying that law to the defendant on trial.“

Further, she wrote “[w]e have created many fictions in criminal law.   We have created the fiction that the trier of fact determines the actual length of incarceration.   We have created the fiction that a jury may be instructed on the application of the parole law and consider the existence of the parole law, but will disregard its application to the person on trial.   We have created the fiction that when a lawyer argues the parole instruction, the lawyer is simply summarizing evidence or making a reasonable deduction from evidence which is found nowhere in the record.   An equally great fiction is that a lawyer who argues the parole instruction is not inviting the jury to consider parole as it applies to the defendant on trial.

“Since we do not have legislative authority, we are powerless to change the laws regarding parole and the parole instruction.   We do, however, have the authority to question fictions which require suspension of intellectual integrity.   We should ask the Court of Criminal Appeals to provide guidance to the lower courts and, balancing the competing interests of prosecution and defense, instruct us that it is improper for either side to argue the parole instruction because it encourages the jury to apply the parole law to the defendant at bar”.

She’s right. Jurors already have a difficult job which doesn’t need to be complicated by contradictory instructions from the judge.

But Bud Kennedy was probably correct in the case of Wesley Wayne Miller. In 1981, the jury would not have been instructed about parole eligibility and would have had every right to believe 25 years meant 25 years. Today, it is likely that the same jury would have given Miller a 50 year sentence in order to reach the desired result of a “real 25 year sentence.” But to do so, under the current state of the law, would ironically violate the judge’s instruction. On the other hand, to believe that same jury would ignore the parole eligibility instruction and not apply it to Miller is very naïve.

The simple answer is that jurors deserve to know exactly how long a Defendant will serve in prison. That’s a concept that has alluded our society far too long.

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