Criminal Justice 101: An Overview of the Process Two Longhorn Players Face

Two Longhorn wide receivers have been charged with Sexual Assault. As hard as we try to keep discussion civil on this board, this topic often gets incredibly contentious as people have deeply held beliefs regarding this matter. During the course of these discussions, I've noticed that many have a fundamental misunderstanding of the criminal justice process in Texas, and that misunderstanding has the ability to skew influence opinions. In that vein, the purpose of this post is not to challenge any person's beliefs; the purpose is to educate and inform BON readers of the judicial process.

Most of you know I am an attorney. However, many of you probably do not know that I am a prosecutor. I represent the State of Texas in criminal prosecutions, and I often handle cases similar to the one that is currently relevant to Longhorn fans. Accordingly, I have a unique perspective regarding these cases, and I hope that my experience in this area will help everyone here better understand the process these two young men and the alleged victim are facing.

Kendall Sanders and Montrel Meander stand charged with the offense of sexual assault. This crime is a second degree felony in Texas, and it carries a punishment range of 2-20 years in the Institutional Division of the Texas Department of Criminal Justice (prison), 2-10 years probation if the facts and circumstances warrant probation, and up to a $10,000 fine.

There are several ways to commit sexual assault, but based on the information released at this time, the relevant portion of the statute is as follows:

A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor...

For the rest of the statute consult Texas Penal Code Section 22.011

At this point, the two players have been charged with the offense of sexual assault, but that does not mean that they have really been charged. I realize that statement on its face does not necessarily make sense, so to better understand it's important that we start from the beginning.

The first step in any criminal proceeding is for a victim to report it to the police or sheriff's office, depending on how a particular county divides up its jurisdiction. Generally speaking, the local police department handles crimes that occur within the city limits while the Sheriff's office handles crimes that occur out in the county. Depending on the jurisdiction there may be other law enforcement agencies in play as well. At the appropriate agency a victim will fill out a statement, and the case will be forwarded to a detective or investigator for further investigation. In cases of this nature, typically a victim is asked to submit to a Sexual Assault Nurse Examination to discover whether physical or biological evidence exists to corroborate a victim's account. The availability and effectiveness of this investigative tool will vary by county. During the course of this investigation the detective has to decide whether enough evidence exists to establish probable cause.

If the detective determines there is probable cause that a defendant has committed the alleged crime, the detective will write up a probable cause affidavit and will secure a warrant for the defendant's arrest. Once arrested on the charge, the defendant will go before a magistrate, and the magistrate will set a bond to secure the defendant's appearance at any future court dates. It is important to note that at this point the defendant has not been formally charged. In Texas a person has the right to be charged by indictment by a Grand Jury for any felony he is alleged to have committed. Before case can go to before the Grand Jury, though, there are a few more steps.

When the detective finishes up the investigation the case is forwarded to the District Attorney's office where an Assistant District Attorney will typically review the case before presenting it to the Grand Jury. This step in the process is why I stated that if arrested on a charge, a defendant is charged but he is not really charged. The Grand Jury indictment is the formal charging instrument in a Texas felony proceeding.

This brings up an important caveat in the process. If an officer secures a warrant for a defendant, that does not mean that a Grand Jury will indict the case. Conversely, often detectives will not make an arrest on a charge and will forward the case to the DA's office anyway in what's called a Grand Jury referral. In this scenario, even though an officer did not arrest the individual, a Grand Jury can still choose to indict. Essentially, an officer arresting a defendant does not mean that a Grand Jury will indict, and an officer not arresting a defendant doesn't mean that a Grand Jury won't indict.  

Once a defendant is indicted, he is arraigned shortly there after. Arraignment is where a defendant is put on notice that he is being charged by the State. At this hearing the defendant has the right to have the charges against him read aloud in open court, and if the defendant is indigent he can request a court appointed attorney. It's important to note here that Texas does not have a public defender's office like many states. Instead, indigent defendants are given attorneys through a court appointment list that defense attorneys can opt in to.

The next step is for the State to provide the defense with all of the discovery in the case. Discovery rules in Texas were changed drastically in the last legislative session and can be quite complex, but essentially, the State provides everything in its file to the defense absent very specific exceptions. Prior to this change in law, the defense was only entitled to exculpatory evidence (though many, if not most, DA's offices already had an open file policy).

The discovery and evidence in the State's file will almost always contain more information that what is available for public view. There can be any combination of inculpatory and exculpatory evidence that will not come to light unless the case goes to trial. This fact is why I encourage everyone to consider the affidavits filed in this case with a grain of salt, as terrible as they sound. They very well may prove to be true, but I can almost guarantee they do not remotely tell the entire story, and they are essentially only on file for law enforcement to establish why there was probable cause to make the initial arrest.

The next step in the process is for the two sides to negotiate the terms of a plea bargain that the state might offer in the case. The state is not required to make any offers and can force a defendant to trial, but the vast majority of cases plea out. Regardless of what anyone might think of this process, it is a functional necessity. There are far too many criminal cases for every single one to go to trial, and dockets across the state are terribly backlogged as it stands. That said, if the two sides cannot reach an agreement that everyone can live with, or if the defendant professes his innocence, he has an absolute right to a trial before a jury of his peers.

Prior to trial there can be any number of pre-trial hearings and legal motions from either side the court has to take up. Once those matters are resolved, though, the case will proceed to trial. In Texas, trials are divided into two parts: The guilt innocence phase and the punishment phase. At trial the State is required to prove every element of the charge beyond a reasonable doubt to the jury in order to convict a defendant. If the jury finds the defendant guilty, the trial proceeds to the punishment phase. Before the start of the trial a defendant elects whether he wants the jury or the judge to assess the punishment if he is found guilty. Most defendants elect jury punishment.

When people think about the criminal justice process, the focus is almost always on the defendants, on their rights. This is an important ideal because if you're going to take away someone's livelihood, you want to be damn sure you get it right. That said, the victims' feelings and rights are often forgotten in the shuffle. If a defendant is guilty, I almost always believe that a plea bargain is in everybody's best interest. Nobody, outside of the lawyers who do this for a living, enjoy trial. A victim's entire personal life is on display, and a defense attorney whose job is to zealously represent his client gets to drag the victim through the mud trying to discredit everything said. It's stressful, it's nerve racking, and prosecutors can't ever promise a guilty verdict, no matter how strong the case seems.

In this country, you cannot be convicted unless the state proves the case beyond a reasonable doubt. I wholly believe in that cornerstone of our justice system and gladly accept this burden in criminal prosecutions.

That said, sexual assault is one of the hardest cases to prove. I constantly find myself telling victims, "We can't promise a guilty verdict, but we can promise we'll fight like hell. Remember, not guilty only means the jury didn't think we got over beyond a reasonable doubt on one of those elements. It doesn't mean it didn't happen."

Happy to answer any specific questions in the comments.