Thursday, March 4, 1999

Judge says jury need
not know punishment

By Mary Adamski


It is not required or relevant for a jury to know what punishment its verdict will bring to the defendant, according to a courts official.

"They make a specific factual decision, they are not to make a decision based on what they think the penalties will be," said Criminal Administrative Judge Victoria Marks. "They are not to make a decision that they think will benefit the government or the defense."

Marks spoke to reporters yesterday in response to questions about the jury verdict for Kimberly Pada, convicted Monday for shaking her son, Reubyne Buentipo Jr., 4, with such force that brain damage has left him in a vegetative state.

But the judge's responses were not specific to the case, which is forbidden by the Judiciary code of professional conduct. She cited state statute and case law, spoke in general terms and answered questions about "hypothetical" cases to describe what the court must provide by way of instructions to the jury, and what outcomes might occur.

A Circuit Court jury found Pada guilty of attempted second-degree murder. But the decision was, in effect, reduced to attempted manslaughter by the jury's answer to a question from Judge John Lim.

The jury said "no" to the question: Had the prosecutor proved beyond a reasonable doubt that Pada was not under the influence of extreme mental or emotional disturbance at the time of the attempted murder?

Because of the answer, the judge must sentence Pada for attempted manslaughter since emotional disturbance diminishes penal liability for the crime. Instead of facing a life sentence with parole available after 15 years, Pada faces a 20-year sentence with a mandatory minimum of six years and eight months in prison.

City Prosecutor Peter Carlisle criticized Lim's use of the question without explaining the effects of a yes and a no answer. Some jurors were also critical, saying they didn't know the ramifications and weren't given the choice of an attempted manslaughter verdict.

"It is a defense ... manslaughter due to extreme mental or emotional disturbance. The state must disprove it beyond a reasonable doubt," Marks explained. It is not a chargeable offense, but "a sentencing consideration."

She said: "It would be hard to explain all the ramifications at any given trial."

There are standardized instructions to the jury and a continuing review by a jury instructions committee because of legislative changes and case law, she said. "They are aids to judges so they don't have to reinvent the wheel. They are not carved in stone."

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