Standing Mute on the Death Penalty

December 9, 2010

Some of you may be following the case of John Edward Green, in which he and his attorneys have challenged the constitutionality of the Texas death penalty.  Click here and here for some background information on the case.  The case took a new turn Tuesday, as the Texas Court of Criminal Appeals ordered that a hearing to determine the death penalty’s constitutionality be stayed and that the parties brief the issue for the Court.

Prior to the ruling, the hearing had proceeded for two days.  Instead of responding to the defense’s  evidence, the State of Texas made the decision to “stand mute,” (not present evidence) during the hearing.  I must admit that the State’s choice to stand mute came as a surprise to me, and it is something that I can’t say I’ve encountered before.

Black’s Law Dictionary, 9th Edition (BLACKS on WL) gives two definitions for “stand mute.”  The first refers to a criminal defendant’s refusal to enter a plea.  The second states: “. . . to raise no objections.”  So, would the State’s choice to stand mute affect an appeal in this case?  It is probably a safe assumption that the state would appeal an order declaring the death penalty unconstitutional.  Given the general rule that an objection or argument not raised in a lower court is waived (for a statement of the Texas rule, see Penry v. State, 903 S.W.2d 715, 729 (Tex. Crim. App. 1995)), would the state be unable to defend the statute’s constitutionality on appeal?

I ran searches on the issue in both (stand! stood /3 mute! /s appeal! appell! /s waiv! in TX-CS) and WestlawNext (waiving appeal by standing mute, choosing Texas as the jurisdiction).  Many of the results dealt with issues such as a criminal defendant standing mute in lieu of entering a plea or plea agreements that called for the prosecution to stand mute during sentencing.  One case that came up in both search results seems to address the issue:

When the verdict was rendered by the jury, the trial court asked both the State and appellant if they had any questions as to the verdict. Both said that they did not. Because appellant stood mute, i.e. made no objection to the verdict when it was rendered, he waived the error about which he now complains.  Finch v. State, 2003 WL 22909180 (Tex. App. Dec. 10, 2003).

Regardless of the answer, it may not matter in this case.  The Court of Criminal Appeals may ultimately prevent the hearing from continuing.  Also, there is quite a lot of history in this case regarding the death penalty issue.  In fact, the judge issued an order in March declaring the death penalty unconstitutional, only to later rescind the order and schedule the current hearing.  Thus, it is likely that the State has already put forth arguments that it could renew on appeal.

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