Uh ... say what, now?

[unixronin]

[...] even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty."

WTF?

Excuse me if I've been asleep a long time, but ... the last time I knew, the standard of proof in a criminal case was not "by a preponderance of the evidence", it was "beyond a reasonable doubt".  And then the high court refused to hear an appeal?

Somebody just got railroaded here, and if this stands up, it's a very, very dangerous precedent.  What's the next step?  Presumption of guilt instead of presumption of innocence?  Eliminating the jury altogether and going to an inquisitorial court system like, say, Italy's?  Perhaps we could allow secret evidence in all trials, not just ones where someone within a half-mile radius said the word "terrorist", and deny all defendants the right to confront their accusers, hear and contest evidence presented against them, or know the charges against them.

Comments

[yndy.livejournal.com]

One: I'd have to read the actual decision. That's a summary of what the court decided and particularly slanted.
Two: The appellate courts only rule on procedural issues, not issues of fact - so it's kind of a weird world for non-legal folks
Three: We lost Habeus Corpus sometime during the Bush administration - so it's not terribly surprising that "imprisonment without relief" applies after a ruling as well as before it.
Four: Yeah, the big issue is really "whose job is it?" Because technically, the judge is supposed to apply the law *as enacted by the legislative arm* of the government, be it local, state, or federal. But thanks to Madison v. Marbury, the Supreme Court (SCOTUS) gave themselves the right to "overrule" the legislative branch based on their interpretation of Constitutionality. By extension, that "right" dropped down to the State Supreme Courts as well... so technically, even if legislated, if they think it is unconstitutional (state or fed) they can just disregard that law. It's a power struggle. The loser is ALWAYS the people.
Five: there have been a lot of absurd rulings lately - this one doesn't even come close to the one where the Supreme Court ruled that you can execute a man even if he's innocent of the crime.
http://www.jackandjillpolitics.com/2009/08/scotus-orders-a-new-hearing-for-troy-davis/
The good news is that the internet enables us to stand up and say WTF???!!! in large enough numbers to force new hearings when the ruling is just beyond the pale. Hope it happens for the guy in the case you linked too.

[unixronin.livejournal.com]

All caveats noted. Still, I find this alarming.

[jhetley.livejournal.com]

'E's got to be guilty or 'e wouldn't be 'ere.

[attutle.livejournal.com]

... after all, where's the sense in taking innocent people to trial?

[cipherpunk.livejournal.com]

I find the lack of facts in the Slate article troubling. There’s a lot of talk, but very little actual fact. The conclusions being drawn fly directly in the face of recent Supreme Court precedent.

[cipherpunk.livejournal.com]

Particularly, SCOTUS has ruled that any enhancement to a defendant's sentence must be rooted in facts reported by the jury. If the jury's findings do not encompass a certain material fact, the judge is forbidden from relying on that fact to enhance or diminish the sentence.

Scalia in particular was adamant on it, saying that to do otherwise would be to insult the jury system. Juries are the ultimate triers of fact, and for a judge to make any determination of fact usurps a power which the people have reserved exclusively to the jury.

So yeah -- without additional facts, I don't buy this reporting.

[unixronin.livejournal.com]

I'm with Scalia on this one.

[echristo.livejournal.com]

It is a disturbing verdict. IANAL but I read through it a bit. That said it's a sentencing issue and not a guilty/not-guilty. Basically the judge sentenced him to the time for both his guilty charge (selling cocaine) and the one on which he was acquitted (selling crack cocaine).

Still though, disturbing. I'd like to hear more on it from the people who made the decision.

[unixronin.livejournal.com]

That said it's a sentencing issue and not a guilty/not-guilty.

I find that somewhat debatable. On the face of it, yes, it's sentencing. But when the judge sentences him both for the charge on which he was convicted and the charge on which he was acquitted, the judge is de facto setting aside the jury's verdict on the second charge.

[vetpsychwars.livejournal.com]

Don't you people do any basic research? It's an April Fool's Joke!

Tom

[cipherpunk.livejournal.com]

It is not an April Fools' Joke. The case is real, as is the decision. I am reading through it now, and am deeply troubled by it.

[vetpsychwars.livejournal.com]

I stand corrected. Slate picked the wrong day to run this.

As for whether it's right, there is certainly precedent for it and the sentencing guidelines are just that. The judge can impose any sentence he wants, and the appeals court upheld it; that the US Supreme Court neglected to hear the case means that there was no error.

[cipherpunk.livejournal.com]

Wow, where to begin with the errors...

First. The sentencing guidelines are not "just that." The guidelines themselves say that 90% of a judge's cases ought fall within sentencing guidelines. If a judge falls beneath that, the appellate court will rap his or her knuckles pretty solidly.

Second. The Supreme Court failing to hear the case does not mean there was no error. Of all the cases appealed to the Supreme Court, under half a percent are accepted. 99.5% of the time, the appellate court is as far as it goes. SCOTUS does not care if the law was correctly applied in your case. They really don't. It's not their job to make sure that all procedural safeguards were met. SCOTUS cares about questions of Constitutional interpretation, not "but there was a flaw in my trial."

Third. Just because there's precedent for it doesn't mean the decision is correct. The history books are full of appalling cases given color of law by the Supreme Court. Korematsu, Miller, Dred Scott, Plessy... the Supreme Court has been known to screw up to an appalling degree and with appalling frequency. Everything you've said re: "as for whether it's right" is absolutely irrelevant to the question of whether it's right -- only whether it's lawful.

[vetpsychwars.livejournal.com]

The errors are not mine. The appeals court found the sentence proper, therefore BY DEFINITION there is no error on the part of the trial court.

Since the Supreme Court did not hear the case, BY DEFINITION there is no error on the part of the appeals court.

Argue all you want whether the sentence is "right and just". There is no error in law.

If you want the law changed, then it's up to the Legislature to do it.

But you can't just jump up and down and say it's wrong. Our system says that no error was found on appeal.

I'm sure your favorite law professor will tell you the same thing.

[unixronin.livejournal.com]

The errors are not mine. The appeals court found the sentence proper, therefore BY DEFINITION there is no error on the part of the trial court.

Since the Supreme Court did not hear the case, BY DEFINITION there is no error on the part of the appeals court.

Uhhhhhh..... No. Sorry. It doesn't work that way.

Assume for a moment that your logic is correct.
Hypothesize for a moment a criminal case in which the defendant appeals the sentence.
If the appeals court upholds the appeal and overturns the verdict, then there is no need for any higher court.
If the appeals court upholds the verdict, and we take this to mean that "by definition" the trial court made no error and the verdict is correct, then there is no need for any higher court.

In short, if your supposition were correct, then no case would ever REACH the Supreme Court.

There is no error in law.

Are you really sure you want to make that blanket declaration?

[vetpsychwars.livejournal.com]

Yes, it works exactly that way. The Supreme Court is the last appeal. It refused to hear the case. There is no other appeal. Therefore the finding is that there is no error in law.

I am using very specific language, narrowly defined, to mean one specific thing. Don't try to twist it otherwise.

I don't disagree that the drug dealer might have gotten shafted some, but the courts have said that he didn't, so you'd need the Legislature to say that he did.

Feel free to argue more. I'm done. :-)

[cipherpunk.livejournal.com]

Let’s look at your “very specific language, narrowly defined, to mean one specific thing.”

As for whether it's right, there is certainly precedent for it and the sentencing guidelines are just that. The judge can impose any sentence he wants, and the appeals court upheld it; that the US Supreme Court neglected to hear the case means that there was no error.

I am unable to read that in any sense other than to mean courts are not bound by guidelines for the majority of their cases (they are); that judges can impose any sentence he wants (they can’t); and that SCOTUS refusing to hear a case means there was no error in the case (it doesn’t).

If I am somehow “twisting” your words, please correct me.

You have also said:

There is no error in law.

That sentence comes from a bold assertion that since the appellate court failed to find error and SCOTUS denied cert, therefore it’s correct. Yet we know that’s not true at all. Look at, e.g., Brown v Board of Education, which held that the decision previously reached in Plessy v Ferguson was incorrect. Either you’re correct and whatever SCOTUS decides is always a priori correct — or SCOTUS can be correct when they say, “sometimes we make mistakes.” (For another case that reversed a precedent, look at how Katz effectively invalidated the legal reasoning of Olmstead.)

But you can't just jump up and down and say it's wrong.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Sorry. Too many Americans have died protecting that right for me to turn a blind eye to your assertion that we shouldn’t exercise it. The right to tell the government saying “no, you’re wrong!” is embedded in the Constitution. It is a principle worth fighting for, worth dying for, worth killing over.

If you’re willing to give up your right to say a decision of the government — in this case its judicial branch — is wrong and has caused you a grievance, fine: let that be your folly.

But don’t expect us to join you in it.

[cipherpunk.livejournal.com]

The definitions you are using are unknown to the legal system.

My favorite law professor is my father, who sits on the Eighth Circuit Court of Appeals, and until recently served as Chief Judge of that court. He also teaches political science at Cornell, and intermittently teaches law school courses.

He's the guy who drilled into me from an early age that the courts serve the people and not the other way around. As such, for the people to say of a court decision, "they ruled that way, hence it is correct" is an abrogation of our civic duties. It turns the courts into the people's master instead of the people's servant. The people are allowed and even encouraged to scream at the top of our lungs, "how could you rule that way, it is so obviously incorrect." We are not allowed to contest the fact a decision was reached: we are encouraged to contest the rightness, the legality, the fairness, the equity and the justice of the decision.

Edsger Dijkstra warned programmers that code audits can only prove the presence of bugs, not their absence. The appellate and Supreme level is the exact same way. They can find problems -- but they cannot prove the case is correct.

[cipherpunk.livejournal.com]

More details here (http://www.abajournal.com/magazine/acquitting_time/). I agree: this trend is deeply, deeply troubling. I will be speaking with my favorite law professor about it tomorrow to learn more.

[unixronin.livejournal.com]

That's a pretty thorough article. Thanks for the pointer.

[cipherpunk.livejournal.com]

The Wikipedia page on Apprendi v. New Jersey (http://en.wikipedia.org/wiki/Apprendi) is also interesting. That’s the case I was musing on earlier, the SCOTUS precedent which I said seemed to be staunchly opposed to this practice.

There seems to be a conflict between two principles. The first is that Congress has established there is no limitation on what information may be considered at sentencing. The courts have interpreted "no limitation" to mean exactly that. The second is that SCOTUS has established "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

I suppose the big question is whether the imposed sentence was within the allowable range for the crime for which he was convicted. Apprendi concerns itself only with judges moving penalties beyond those set by the laws broken by the now–convicted defendant. Movement within that range is still left up to a wide range of judicial discretion.

[cipherpunk.livejournal.com]

With benefit of a little perspective and a little research, I now think this case has been overblown.

It appears to be the case that the sentence imposed was within the statutory limits. If you're found guilty of an offense that's punishable by two to five years, then any sentence between two to five years is Constitutional.

In this case, it seems to be true that the sentence Hurn received was within the statutory limits of the crime for which he was convicted. The furor and uproar seems to be about a judge deviating from sentencing guidelines -- which judges are encouraged to do when they feel it is appropriate, and happens in about 10% of all cases -- and saying "I think you did those things for which the jury acquitted you," as he imposed the sentence.

The judge had the right to impose that sentence under federal law. It was within the range of acceptable punishments. The judge used his discretion, provided to him by law, to throw out the sentencing guidelines and impose a different sentence which was still within statutory limits.

I think the argument to be made here is "drug prohibition is stupid," instead of "this is a Constitutionally questionable practice."

[unixronin.livejournal.com]

Perhaps I'm missing or misremembering something here. Was it not the case that he received a seventeen-year sentence, although the offense he was actually convicted of carries a five-year statutory maximum?

[cipherpunk.livejournal.com]

The sentencing guidelines called for about 30 months, but I believe (and I could be mistaken) that the conviction is punishable by a sentence within that which he was given.

His acquitted conduct was given as a reason to deviate upwards outside of the guidelines, but so far I've found no reporting that says the sentence was above statutory limits.

[unixronin.livejournal.com]

I can't find the article right now, but I recall reading one report at the time which asserted that the statutory limits for the charge of which he was actually convicted, "possession of powder cocaine with intention to distribute", are two to five years for small amounts (where the 50g of powdered cocaine found is considered a small amount). But his sentence was 17.5 years.

That said, I haven't been able to find an actual reference online stating what Wisconsin sentencing limits are for drug offenses, though I was able to find that Wisconsin classifies powder cocaine as a schedule II drug. So I can only go by my recollection of what I read at the time.