Death Penalty Cases


I want to help you obtain the most favorable outcome possible in your case.

  • Contact me today for a FREE case strategy meeting.
  • Available in-person, by phone, or by video.
Brett Pritchard Law

Death penalty cases are capital cases, and they are obviously the most serious criminal cases. Many people are confused by what distinguishes a capital case from any other murder charge, which is quite serious on its own. There are considerable distinctions when it comes to death penalty cases, and because the State of Texas ranks highest among all the states for death sentences that ultimately result in execution, better understanding how death penalty cases work is helpful. If you are facing a criminal charge of any kind, turning to an experienced Killeen criminal defense lawyer for the legal guidance you need is the right move to make.

How Death Penalty Trials Differ from Others

Death penalty trials differ from other traditional criminal proceedings in a variety of ways, but one of the most important is that, in death penalty cases, there is a separate trial in which the sentence is determined. The sentencing options include being sentenced to death or receiving a life sentence without the possibility of parole. The sentencing trial comes after the trial itself – in which the jury weighs the evidence and determines the defendant’s guilt or innocence. The jury weighs all the relevant evidence – along with any mitigating factors – presented by the defense and all the relevant evidence – along with any aggravating factors – presented by the prosecution, and if the defendant is found guilty, the matter moves on to the sentencing trial.

At this sentencing trial, the jury will balance those mitigating factors with the aggravating factors to come to a determination regarding whether the defendant who has been convicted of capital murder should be sentenced to death or to a life sentence without the possibility of parole. In most other criminal cases, the jury makes its determination regarding whether or not the defendant is guilty, and the judge typically hands down the sentence.

How Juries Are Chosen for Death Penalty Cases

Juries for death penalty cases are chosen in the same manner that they are for other criminal cases, and this means that that they are chosen from a pool of potential jurors in a process called voir dire. In Texas, jurors do not have to possess any special skills or legal knowhow, but the following must all apply in order for someone to qualify as a juror for any criminal case:

  • The candidate is at least 18 years old.

  • The candidate is a U.S. citizen.

  • The candidate is a resident of the specific Texas county in which the trial is set to take place.

  • The candidate must be qualified under the U.S. Constitution and all relevant laws to vote in the Texas county in which the trial in question is set to take place.

  • The candidate must be of sound mind and of good moral character.

  • The candidate must be able to read and write.

  • The candidate must not have served as a juror for six days out of the preceding three months in the county court in question – or for six days out of the preceding six months in the district court.

  • The candidate must not have been convicted of, be under indictment for, or be facing any legal accusations related to a misdemeanor theft or a felony of any kind.

The completion of deferred adjudication does not disqualify a candidate for jury duty in the State of Texas.

Death Qualified

The attorneys for both sides have the opportunity to submit questions to the jurors that are designed to identify any potential biases related to the case at hand. Because jurors in death penalty cases are required to do the sentencing, they must be what is called death-qualified, which means that each of them must be capable of imposing a death sentence if such a sentence is warranted. The idea is to find jurors who are not strictly opposed to the death penalty but who also are not ready to impose the death penalty in every capital murder case. The process is intended to compile an impartial and fair jury for capital cases, but research suggests that it may be more likely to produce a jury with a bias against the defendants in capital cases.


Those in the jury pool are asked questions about their overall ability to objectively consider both mitigating and aggravating considerations and whether or not each is capable of rendering a death sentence. The judge will dismiss any potential jurors who oppose the death penalty across the board. The same is true of any potential jurors who are uncertain about their ability to obey the court’s forthcoming instructions. Further, both the defense and the prosecution have the power to remove a specific number of jurors without providing any reason at all.

Because women and certain minority groups are more likely to oppose the death penalty on principle, they are often underrepresented on juries in death penalty cases.

The Potential Effects of the Death Qualification Process

There is considerable research out there that the death qualification process may be predisposed to favor convictions. Further, there is some evidence that, because the qualification process is so focused on various punishment options, jurors are left with a presumption of the defendant’s guilt. Another trend is that when death penalty cases go to trial, the jurors chosen in the death qualification process may put more emphasis on aggravating factors that end up tipping the scale toward death sentences.

The Sentencing Phase of Trial

In the sentencing phase of a capital murder case, the prosecution offers all evidence of aggravating circumstances. In the State of Texas, these can include:

  • The victim was a police officer or firefighter who was on the job, and the defendant knew that he or she was a police officer or a firefighter.

  • The defendant intentionally committed the murder in the course of committing another crime, including kidnapping, robbery, burglary, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat.

  • The defendant committed the murder for money or profit or as a result of the promise of making money or profiting from the murder, or he or she employed someone else for either profit or the promise of profit.

  • The defendant committed the murder while escaping – or attempting to do so – from prison.

  • The defendant murdered an employee of a prison while incarcerated in prison.

  • The defendant murdered more than one person during the same criminal act or pursuant to the same unlawful scheme.

  • The defendant murdered someone who was younger than ten years old.

  • The defendant committed the murder in retaliation against the service or status of a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

From here, the defense will present any mitigating evidence that supports why the death penalty is inappropriate for the case at hand. Examples include:

  • The defendant’s age

  • The defendant’s mental health or state at the time he or she committed the capital crime in question

  • The defendant’s lack of prior criminal involvement

  • Any evidence that the defendant was under duress when the capital crime in question was committed.

At this point, victim impact statements – expressing how the crime has affected the lives of family members, friends, and loved ones – may be presented. Once all the evidence has been presented, closing statements have been made, and victim impact statements have been given, the jury deliberates regarding the sentence, which boils down to two choices – a death sentence or a life sentence with no possibility of parole.

The Stages of Appeal

The laws related to the death penalty are, by necessity, more complicated than they are for ordinary criminal proceedings, which means there are more issues for review and more opportunities for appeal. The first stage in the appeal process is the direct appeal that happens as a matter of course after sentencing. At this stage, the highest criminal court in the state reviews the capital conviction and the attendant sentence.

The defense attorneys have the opportunity to challenge any trial errors, including errors made in relation to jury selection, the admission of specific evidence, testimony, and jury instructions. If relief is denied at this juncture, there are rare instances in which the U.S. Supreme Court will review the case.

There are other review processes in place that are designed to help ensure that every defendant’s constitutional rights are protected throughout the legal process, including:

  • The Sixth Amendment right to effective legal representation

  • The Fourteenth Amendment right to due process, including the guarantee that the prosecution will share exculpatory evidence (evidence that potentially supports the defendant’s innocence or that potentially supports his or her avoidance of the death penalty)

Additionally, defendants have the right to request clemency, which commutes a death sentence to the less harsh sentence of life without the possibility of parole. In Texas, the governor has the authority to grant a defendant clemency – but only on the recommendation by a majority vote of the Texas Board of Pardons and Paroles. The governor also has the power to grant – without the Board’s recommendation – a one-time stay of execution that cannot exceed 30 days.

The Lawyers in Death Penalty Cases

The quality of the defendant’s legal representation can be the most important factor in death penalty cases. The requirements for determining if a criminal defense lawyer is qualified for the assignment of representing (in the capacity of a public defender) a defendant who is facing a death penalty case generally include the following in the State of Texas:

  • The criminal defense lawyer must be a member of the State Bar of Texas.

  • The criminal defense lawyer must have at least five years of criminal law experience.

  • The criminal defense lawyer must exhibit legal proficiency and a consistent commitment to providing high-quality representation to defendants in death penalty cases.

  • A state or federal court cannot have found the criminal defense lawyer guilty of providing ineffective assistance of counsel during the trial or appeal of a capital case (unless the Local Selection Committee determines – as a matter of majority vote – that the underlying conduct in question is no longer an accurate reflection of the attorney’s ability to provide quality representation).

  • The criminal defense lawyer must have served as lead defense in at least eight felony cases that were tried all the way to verdict, including trials for homicides and other offenses that are punishable as second-degree, first-degree, or capital felonies.

  • The criminal defense lawyer must have trial experience in both employing and challenging mental health and/or forensic expert witnesses.

  • The criminal defense lawyer must have trial experience in uncovering and presenting mitigating evidence at the sentencing phase of a capital trial.

  • The criminal defense lawyer must have completed 5 hours per year of continuing legal education that is pertinent to criminal defense in death penalty cases.

While the Supreme Court holds that the legal counsel provided to death penalty cases be effective, the reality is that many attorneys that are assigned by the court in this capacity are overworked and underpaid – in addition to sometimes lacking even the minimum necessary qualifications.

The Average Stay on Death Row

According to Pew Research, the average amount of time on death row nationally is about 22 years, but according to The Texas Tribune, the average stay on death row in Texas is just shy of 17 years. Death penalty cases all but guarantee that everything about them will be lengthy, including the appellate process. Ensuring wrongful convictions is naturally paramount, and the multiple legal layers required help to ensure that death row stays are lengthy.

An Experienced Killeen Criminal Defense Lawyer Can Help

If you are facing a criminal charge of any magnitude, the legal and social consequences of a conviction are simply too great to leave to chance. Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a well-respected criminal defense lawyer whose practice focuses on zealously advocating for the legal rights of clients like you – in the driven pursuit of advantageous case resolutions. To learn more about what we can do to help you, please do not hesitate to contact us online or call us at 254-501-4040 today.


Related Posts
  • The Charge of Evading Arrest in Texas Read More
  • Sex Trafficking Charges in Texas Read More
  • Frequently Asked Questions about Assault Charges in Texas Read More