Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, April 2, 1994 TAG: 9404040185
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER NOTE: Lede
DATELINE: LENGTH: Long
After a 13-year-old girl testified in tears about how she was sexually abused by a Roanoke man, the prosecutor stood and faced the jury.
``I wish I could ask you to sentence him to one year in prison for each tear she shed,'' Assistant Commonwealth's Attorney Greg Phillips said.
That would have been more than 40 years, the maximum that Edward Lee Forrest faced. Instead, the jury gave Forrest 10 years in prison on two counts of aggravated sexual battery.
What the jury did not know, however, was that Forrest had twice before been convicted of rape. He had been out of prison for about a year when he assaulted the 13-year-old.
``I'd have given him 20 years [on each charge] if I'd have known he did it twice before,'' said Harliss Ramey, one of the jurors. Several other members of the jury agreed with Ramey in interviews Friday.
Under current Virginia law, juries are not told of a defendant's criminal background if he or she does not testify.
``It's not fair for us not to know these things,'' said one juror, who asked not to be identified. ``It makes our job guesswork.''
That will change July 1, when a law passed this year by the General Assembly goes into effect. The law will create bifurcated trials, similar to those in capital murder cases, for all felony jury trials.
If a jury decides someone is guilty after the first phase of the trial, it will hear additional evidence - including the defendant's past record - during a second, sentencing phase.
Prosecutors predict that the new law will reduce the number of jury trials by eliminating a common defense tactic.
Many defendants choose to be sentenced in a vacuum by asking for a jury trial, then not testifying so that the jury does not learn about their prior convictions, Phillips said.
``It benefits him to roll the dice with a jury, because they don't know anything about his criminal history,'' he said.
But Steve Milani, an assistant public defender who represented Forrest, said bifurcated trials may make the judicial process more protracted.
``I think it will make it harder for the defense attorneys, because you basically have to prepare two cases,'' he said. ``My feeling is that it's going to make the process even more cumbersome.''
Presenting evidence of prior convictions will require little effort for prosecutors, Milani said, while defense attorneys will have to spend more time piecing together mitigating circumstances to better explain their clients' actions.
``The record doesn't say nearly as much as the surrounding circumstances,'' Milani said.
Under current law, defendants who are convicted based on guilty pleas or bench trials are sentenced by judges. The judges consider information in pre-sentence reports, which detail the defendant's criminal record, family history, education, work history and other factors.
Some lawyers wonder whether such a comprehensive picture will be presented to juries in every bifurcated trial.
And even if it is, juries lack some of the powers at a judge's disposal, such as suspending a sentence or placing someone on probation.
``The flip side to the coin is that juries can't do that, and when you have a case with a high minimum sentence, there may be some extenuating circumstances'' a jury cannot address, Milani said.
In Forrest's case, jurors said they were not given enough information on which to make a fair decision.
``We didn't know anything about him, and some of us were saying it would be bad to send someone so young off for a long time,'' said one juror, who asked not to be identified.
Ramey agreed that jurors, having heard nothing from the defense, were left to speculate.
``The man was well-dressed; we thought maybe he was a working man with a job and a home. We didn't know,'' Ramey said.
During the daylong trial Thursday in Roanoke Circuit Court, the 13-year-old girl testified that Forrest, an acquaintance, sexually abused her last October. She said he gave her a ride that became a two-hour tour of the town. They ended up in the parking lot of a warehouse, she testified, where Forrest fondled her.
Forrest, 38, did not present any evidence in his defense. If he had testified, prosecutors would have been allowed to ask him if he had ever been convicted of a felony - but little more.
Jurors are instructed that they can consider a defendant's prior criminal record in judging his or her credibility as a witness, but they should not assume guilt based solely on a prior offense.
Had Forrest testified, jurors would not likely have heard a detailed account of his record. Phillips provided one after the trial:
In 1978, Forrest was convicted of having sex with a minor in California and was sentenced to 180 days in jail.
In 1985, he was convicted of rape in Tennessee and was sentenced to 10 years in prison. He had been out for about a year before being arrested in Roanoke.
After the jury's verdict, Judge Clifford Weckstein revoked Forrest's bond and sent him to jail to await a formal sentencing.
Although Virginia is one of the few states with jury sentencing, judges make the final decision. They are not allowed to increase a jury's sentence, and only rarely do they reduce one.
Ramey said he and other jurors had been puzzled by Forrest's silence.
``We wondered why he didn't uphold himself,'' he said. ``I can understand why, now. If I had that on me, I'd have sat quiet, too. Real quiet.''
by CNB