Does the jury find the defendant guilty, guiltier, or guiltiest?

In State v. Hansbrough, the prosecutor charged the defendant with first-degree murder.  When the case went to the jury for deliberation, they were given the option of convicting on that charge, as well as the “lesser included” charge of “felony murder.”  The jury eventually convicted the defendant of felony murder, but there was one problem: the judge never gave the jury a verdict form for the option of finding the defendant not guilty.  Instead, the judge only gave one option—guilty—on the felony murder charge.

First, a little background information is necessary.  The only eyewitness to the murder was the murder victim’s girlfriend, and she testified that there were only three perpetrators in the apartment; she was able to identify one of them.  The police had found the other two, both of whom admitted involvement in the killing.  Hansbrough, however, was not one of those three men. 

So why did the prosecutor go after Hansbrough?  Because two of the three men agreed to testify against him, apparently for their own benefit.  They both pled to the same crime of which Hansbrough was convicted—felony murder—but they were not sentenced until after they testified that Hansbrough was the invisible fourth man in the apartment.  Then, after their testimony led to Hansbrough’s conviction, they each got a 63 percent discount off their sentences: Hansbrough was sentenced to 27 years of initial confinement for felony murder, but they—Messrs. Bogan  and Alston—each got ten years for the same crime.  (Hansbrough got even more time for the underlying crimes—crimes that had been dismissed for Bogan and Alston.)    

Surely, given the court’s snafu with the verdict forms, Hansbrough is entitled to a new trial, right?  Perhaps a trial where the jury at least has the option of believing the sole eyewitness instead of the finger-pointing codefendants, and the option of finding Hansbrough not guilty of felony murder?  Wrong. 

The court decided that, while it was an error to give the jury only one option—guilty—it was merely a “harmless error” instead of a “structural error.”  More specifically, the court stated that “we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form.”  Silly Hansbrough.  Here is a brief summary of the arguments in point–counterpoint style:

• Court: The error was harmless because the jury would have convicted you anyway, even if they had been given the option of finding you not guilty.

ü      Hansbrough: How do you know?  The only eyewitness said there were only three people in the apartment, and those people had a huge incentive to implicate me as the invisible fourth person: they got a 63 percent reduction in their sentences!  I’m rotting away for 27 years, while they’ll be out in ten!

• Court: Well, the jury found you guilty of robbery, the underlying crime, so surely they would have found you guilty of felony murder also, even if they had been given the option of finding you not guilty.  After all, the judge did tell the jury to consider the robbery count first.

ü      Hansbrough: Maybe you should look at it in reverse: the snafu with the felony murder verdict led to the guilty verdict on the robbery charge, not vice versa.  That is, “absent a not guilty verdict form for felony murder, the jury likely assumed that guilt on that charge had been determined by the court and, therefore, it must also find guilt as to the underlying felony—armed robbery.” 

• Court: Well, even though the jury wasn’t given the option of finding you not guilty, at least they were properly instructed that the burden of proof was beyond a reasonable doubt.  Therefore, surely they were convinced of your guilt when they returned their verdict, even though guilt was their only option.

ü      Hansbrough:  What good is properly instructing the jury on the burden of proof if the verdict form “deprived the jury of a mechanism by which to find [me] not guilty” of the crime?  Errors like this are so basic that they “seriously affect the fairness, integrity, or public reputation of judicial proceedings and are so fundamental that they are considered per se prejudicial.”  

At least the court admitted that it would have been better to give the jury two forms of verdict from which to choose, instead of just one.  But if one form of verdict is okay, and two is better, why not, for future trials at least, go for three?  Aren’t more choices better yet?  Toward that end, how about three forms of verdict, like this: "Do you, the jury, find the defendant guilty, guiltier, or guiltiest?" 

Surely, no defendant could complain about that.