Circular Logic, Circular Justice

When the legislature set out to revise the penal code back in the 1970s, section 7.02(b) didn't exist, says Seth Searcy, a longtime Austin attorney who served on the state bar committee that helped rewrite the code in 1971. (The revision was first introduced in 1971 and enacted in 1973.) That section's definition of conspirator liability "was not in the draft report that we submitted," Searcy said. The intention was to simplify the law of parties, which in its previous incarnation was considered unwieldy and confusing. The revisions included the language currently contained under Section 7.02(a), which requires direct evidence of a defendant's involvement in a crime. But according to Searcy, the state's prosecutors were not happy with the new language, so "[t]he Texas District and County Attorneys Association crafted section 7.02(b). The purpose ... is to construct the intent to kill in a conspiracy situation," Searcy said, by saying that "an intent to kill arises out of a conspiracy [itself]." The result of that seemingly circular logic is that "everyone is caught in the net" as "was intended" by the prosecutors, without the burden of proving specific criminal involvement. "Just understand the source, and their objective, which was to make [liability] easier to prove. ... It is much too broad," Searcy said. "Keep in mind, part of the problem is that [defendants sentenced to death under the statute] get an automatic appeal to the CCA, which is pretty comfortable with 7.02(b)."