When a first degree murder charge is brought against an accused man, that is only the first step in a long and complex legal operation leading to a trial.
This is probably especially true because of the recent re-establishment of the death penalty as a possible penalty for conviction in first degree – or pre-meditated – murder.
In Mesa County, when a defendant has been formally charged, he is taken as soon as possible to county court for advisement on his rights to have a lawyer. That normally takes place within 24 to 48 hours after he had been arrested, although it could take longer on a weekend when courts are normally closed.
If the defendant proves at the court hearing that he does not have the money to employ a lawyer, the judge appoints either the public defender or another lawyer to handle his defense.
If he is not represented by a lawyer at the original hearing, a return date within a few days time is made, giving him time to obtain and talk with a lawyer.
Within 10 days after the initial hearing is held in county court, the defendant and his lawyer must indicate whether they wish a preliminary hearing.
Such a hearing is a review of some of the prosecution’s evidence before the county judge, to establish whether there is probable cause to believe a crime has been committed by the defendant.
Bond on some criminal charges is set when the defendant is arrested, and sometimes it is set at the initial hearing.
However, “murder one” is not normally a bondable offense.
The law does provide that “all persons shall be bailable before conviction except in a prosecution for a capital offense in which the proof is evident of the presumption is great.”
Thus, it is possible that, even though the judge may refuse bail, the defense lawyer could ask for a bond hearing, with a demand that the district attorney show proof or presumption of guilt. If the district attorney does not satisfy the judge, the defendant could conceivably be bonded. This seldom happens.
If a preliminary hearing is requested, it is set and held as soon as possible. If that 10-day period ends and no preliminary has been requested, the case is bound over to the district court.
Assuming that the case is bound over, either as the outcome of a preliminary hearing or because no such hearing was requested, a date for the initial district court hearing is set.
At about that time, several notices of intent to file various motions will probably be made.
In a case of the magnitude of “murder one,” there may be motions for suppression of evidence and of the defendant’s statements, if he has made any to law enforcement officials. The motions for suppression are normally offered on the defense lawyer’s contention that they have been illegally obtained.
There may be a motion for discovery of evidence which the district attorney plans to introduce into the trial, and the district attorney may file a similar discovery motion against the defense.
There will almost certainly be a motion for change of venue to another county.
The law provides for a change of venue “when a fair trial cannot take place in a district” or “when a more expeditious trial may be had by a change from one county to another.” The change is granted or denied by the presiding judge after hearing arguments by the defense and the prosecution.
Pre-trial publicity – as it may relate to the preliminary hearing or the affidavit in support of an arrest warrant or simply to the incident itself – and the temper of the community can be expected to be cited as reasons for a change of venue.
If that change is granted, the judge from the judicial district where the trial is to be held would normally hear the case, but the Mesa County district attorney and the defendant’s lawyer would remain as prosecutor and defense attorney.
A change of venue motion would normally request a district outside the coverage area of Mesa County publications, radio and television.
An omnibus hearing on the motions – one hearing for all motions – is usually set. The judge may make his verbal decisions on motions during the hearing, or he may take up to several weeks to review his notes and write out his opinion.
The strategies of defense attorneys differ, with some of them proffering a plea before motions are argued and some waiting until they learn the outcome of the motions.
But sometime within the general time-frame of offering and arguing motions, the defendant would offer a plea. His attorney might also request a psychiatric examination.
Examination by one or more court-appointed psychiatrists normally takes from two-weeks to 30 days. Some defendants and their attorneys or the district attorney’s office sometimes asks for a second psychiatric examination. This would take another two weeks to 30 days.
When the defendant offers a plea, he has several choices.
Should he plead guilty to “murder one” he is allowed to do so only with the written consent of the district attorney because the charge is a capital offense. Such a plea in a first degree murder charge is fairly unlikely, however.
He may plead not guilty and not guilty by reason of insanity. Or he may plead simply not guilty.
If the insanity defense is entered, he may go to trial before a jury on the issue of insanity or he may waive the jury trial and be heard by the court.
If he is found to be insane under the criminal law – incapable of determining right from wrong at the time the crime is committed – he would be sent to a mental institution.
If the case progresses to a trial on the murder charge, the law related to “murder one” provides for bifurcation of issues.
Should there be a guilty plea, the case is heard by the judge, without a jury, who then decides the degree of punishment – the death penalty or imprisonment.
If a plea of innocent is entered and a jury trial is held, a jury will first hear the evidence and establish guilt or innocence. If the defendant is found guilty, the same jury will immediately return to court and decide on the death penalty or imprisonment.
Further complicating the trial issue are the possibility of a plea bargain in which the defendant could plead guilty to a lesser offense and the inclusion within the first degree charge of lesser charges on which the jury could find the defendant guilty.
When the defendant is found innocent of charges, he can never be tried again for the same offense.
If he is found guilty and sentenced, numerous motions for new trials and appeals to the state and U.S. Supreme Courts could keep the sentence from being carried out for a very long time. They could also lead to overturning of the original sentence on a legal technicality.