Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 4, 1995 TAG: 9506050009
SECTION: VIRGINIA PAGE: VIRGINIA EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
When he faced a Roanoke jury last month, Pierre Banks looked anything but dangerous.
At 5 feet 1 inch and 110 pounds, the 23-year-old's body was weakened by pancreatitis, severe asthma and scoliosis. He had not been expected to live past his 17th birthday, a relative would later testify.
But at the end of the day, the jury sentenced Banks to 10 years in prison - the maximum punishment for possession of cocaine, and one of the stiffest penalties given in the city for a drug offense that did not include dealing.
In interviews after the trial, two jurors said they decided to impose the maximum sentence after learning that Banks had two prior drug dealing convictions.
The jury would not have known about the previous charges, prosecutors say, had it not been for a new law that mandates bifurcation of all felony jury trials in Virginia.
In the two-part trials, juries first decide on guilt or innocence before returning to court to hear additional testimony - often about the defendant's prior criminal record - before setting a sentence.
Under the old system, when juries deliberated guilt or innocence and sentencing at the same time, jurors were not told about a repeat offender's prior record if he or she did not testify.
Banks was the first person in Roanoke to be sentenced under the law, which was passed by the General Assembly last year. And prosecutors say his case is a perfect example of the need for bifurcated trials.
"The repeat offenders have used up their luck with this law," Regional Drug Prosecutor Dennis Nagel said, "because the jury will now have more information about who that person is and what impact they had on the community."
In Banks' case, the bifurcated trial could have made the difference between a harsh sentence and no time at all. "Based on how young the defendant looked, and the medical evidence that was presented on his behalf, I would not have been surprised if he walked out of the courtroom with a small fine" under the old law, Nagel said.
Melvin Hill, a Roanoke defense attorney who represented Banks, called the 10-year term for possessing a single rock of crack cocaine "way out of line." Hill said he plans to ask a judge to reduce the sentence.
During the sentencing phase of the trial, Hill had called a relative to testify that doctors had not expected Banks to live past 17 - in hopes that the jury would not be too hard on him.
Although a bifurcated trial could be helpful to a defendant by providing the chance to present mitigating factors or information such as Banks' medical condition, Hill said there's a risk that the testimony will be "overshadowed" by a prior record.
"It seems to me it could have a chilling effect on someone who has any sort of record at all," he said.
During a one-day trial May 25 in Roanoke Circuit Court, police testified that they arrested Banks on an outstanding traffic warrant in November at 13th Street and Patterson Avenue Southwest. After Banks was taken to the city jail, police noticed white powder on his face and then extracted a small, partially disintegrated rock of crack from his mouth, according to testimony. Banks denied having the drug in his possession. Because he testified, the jury learned that he had two prior felony convictions - but no other details.
At the sentencing phase of the trial, however, jurors learned more about the convictions. Nagel presented certified copies of court records that showed:
In 1989, when Banks was 17, he was charged with possession of cocaine with intent to distribute. He received an indeterminate sentence under the Youthful Offender Act.
In 1991, when Banks was still on probation for the previous offense, he was charged again with possession of cocaine with intent to distribute. He received a sentence of seven years and seven months.
Two jurors, who asked not to be identified, said Banks' prior record was the main reason they settled on the maximum sentence.
"We just felt like a statement needed to be made to him," one of the jurors said.
Some lawyers have worried that bifurcated trials will bog down the system, dragging one-day trials into a second day.
But that was not the case with the Banks trial. "We were able to do it in a single day," Nagel said.
Prosecutors expect the new law to reduce the number of jury trials requested by repeat offenders. In the past, repeat offenders would take their chances with a jury, choosing not to testify so their record remained a secret, Nagel said.
When someone pleads guilty, a judge usually sets the sentence after reviewing a report that details the defendant's prior record.
In some jurisdictions, defendants have switched to a trial by judge halfway through a bifurcated trial. That practice, known as a "slow plea," entails pleading not guilty to initiate a jury trial, then changing the plea to guilty after the jury comes back with a conviction - in the hopes of being sentenced by a judge instead of the jury.
Controversy over the practice has led the state Judicial Council to consider whether or not it is valid, according to a May 22 article in Virginia Lawyers Weekly.
One reason for a "slow plea" is that juries traditionally impose harsher sentences than judges. In Roanoke, that has been particularly true in drug cases.
Roanoke lawyer Paul Beers, who had prepared for a bifurcated trial earlier this year, said "It's a high-risk choice either way."
by CNB