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Decision No. 504

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October 22 1981
In Re: Request for Reconsideration of Decision No. 497 as it Relates to the Scope of the New Trial Ordered Therein.

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After publication of Judicial Council Decision No. 497, a motion was received from Counsel for the Church asking that the new trial ordered by the Judicial Council be limited to the question of penalty only. A communication from the defense attorney opposed such limitation and requested a full retrial. Under Par. 2624.1 (i) the only provision for a trial limited to the issue of penalty is in case of a plea of guilty. The request for limitation of the new trial to that issue is denied. Since there is a possibility that the error discussed in Decision No. 497 could have affected the original Trial Court, we direct that a new Trial Court be convened to conduct a full new trial in accordance with all the requirements of the Discipline including Par. 2624. Unless the matter has been resolved by the parties, the notice of the fixing of the time and place for the selection of the members of the Trial Court shall be given by November 16, 1981 and the Trial Court shall be convened and the trial begin by December 1, 1981. Tom Matheny, President Hoover Rupert, Secretary Dissenting Opinion As stated in the concurring opinion to Decision No. 497, 1 believe we should discuss and rule upon all of the asserted grounds of appeal. The motion asking that the new trial be limited to the question of penalty only forcefully demonstrates the need for considering each claim of error. If the majority of the Council should uphold the fifth specification and find that it was error to introduce evidence of anything that occurred more than two years before the date of the charges, the entire case should be dismissed, for without such evidence there was no support for the charges brought against the accused. If the majority believe specification of error 1, 2, 3, 4, 6, or 9 requires a new trial, I believe that should be discussed and determined for the guidance of the new Trial Court, so that such error will not be repeated. Item 7 was withdrawn by the appellant. If the majority feel, as I do, that as contended under specification 10 the Trial Court had no power to reassemble and modify the penalty some 33 days after it had been imposed, I believe that should be stated for the guidance of the new Trial Court. If that were the only error, however, reversal would not be required, since only the modification would be invalid and the original penalty could stand. On the other hand, if the majority feel as I do, that the only error requiring a new trial is that covered by specification 7, the meeting of the presiding officer with the Trial Court without the knowledge or consent of the defendant, I believe that should be stated and we should then consider the question raised by the present motion as to the extent of the new trial. If we were to consider that question, I find no relevant provision of the Discipline or pertinent previous decision of the Judicial Council. I feel we should therefore turn to the decisions of secular courts, not as precedents, but for such guidance as their reasoning provides as we try to determine a reasonable and just procedure consonant with our determination to safeguard the right of an accused to a fair trial with all proper elements of due process. On the one hand I find numerous decisions of the Texas Court of Criminal Appeals holding that under the wording of the Texas statute a verdict is not complete until a jury has rendered a verdict both on the guilt or innocence of the defendant and, where the jury finds the defendant guilty, on the punishment to be assessed, so that a new trial must involve redetermination of both issues. Among those cases are: Brumfield v. State, 445 S.W. 2d 733 (1969) Acosta v. State, 522 S.W. 2d 528 (1975) Bullard v. State, 548 S.W. 2d 13 (1977) White v. State, 587 S.W. 2d 114 (1979) On the other hand, a contrary result seems indicated by the Supreme Court of the United States in Witherspoon v. Illinois, 391 US 510 (1968). A new trial by a new jury limited to the question of penalty has been ordered in a number of cases decided by the Supreme Courts of California, Georgia, Mississippi, Colorado and Utah in such cases as: People v. Morton, 261 P. 2d 523 (Cal., 1953) People v. Green, 302 P. 2d 307 (Cal., 1956) People v. Purvis, 346 P. 2s 22 (Cal., 1959) People v. Morris, 388 P. 2d 33 (Cal., 1964) People v. Treloar, 393 P. 2d 698 (Cal., 1964) People v. Quicke, 455 P. 2d 787 (Cal., 1969) Miller v. State, 163 S.W. 2d 730 (Ga., 1968) Massey v. Smith, 164 S.W. 2d 786 (Ga., 1968) Arkwright v. Smith, 164 S.W. 2d 796 (Ga., 1968) Williams v. Smith, 164 S.W. 2d 798 (Ga., 1968) Jones v. State, 164 S.W. 2d 831 (Ga., 1968) Lingo v. State, 175 S.W. 2d 657 (Ga., 1970) Rouse v. State, 222 S.W. 2d 145 (Miss., 1969) Anthony v. State, 220 S.W. 2d (Miss., 1969) Quintana v. People, 455 P. 2d 210 (Colo., 1969) State v. Zeimer, 347 P. 2d 111 (Utah, 1960) I feel that the Texas cases were decided upon a technical interpretation of a particular statute, nothing comparable to which is found in our Discipline or appears required to insure the right of an accused to a fair trial. I consider the reasoning of the latter group of cases more persuasive. As stated in the concurring opinion to Decision No. 497, I found no reversible error in the proceedings prior to the announcement of the finding that the charges had been proved. I would therefore direct that the new trial be concerned with the sole issue of fair and appropriate penalty. Leonard D. Slutz

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