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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 3              Covering Cases Published in the Advance Sheets through Jan. 15, 2001

Highlights of this Issue:

U.S.S.G. and Sentencing Issues:

Apprendi Watch:

The Defense of Innocent Possession of a Gun:

The Writ of Error Coram Nobis:

Censoring Statements of Death Row Inmates:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision.  Our Apprendi Watch section now includes links to and summaries of more than 100 Apprendi decisions, links to more than 100 Apprendi briefs and motions, and a listing of the 36 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Thompson, 234 F.3d 74 (1st Cir. 2000) (Judge Bownes)

Sometimes it seems that almost any downward departure granted by a district judge from the First Circuit genuinely disturbs both the equilibrium and the patience of the predominately white, predominately male judges from that Circuit; and when the author of a downward departure happens to be District Judge Gertner from Massachusetts, alarm signals seem to go off automatically. In her case, the alarm signals may be appropriate because she consistently (and ably) seems to challenge many of the stock preconceptions of how the Guidelines should be applied.

In this case, Judge Gertner was faced with sentencing a 24-year old African-American who "lived his entire life" in a housing project, who dropped out of school in the eleventh grade to support his pregnant teenage girlfriend, and who consistently worked at his job since then. The defendant pled guilty to a single count of distributing crack cocaine. Ultimately, citing his extraordinary family situation and employment history, when compared with other defendants who had been convicted of the same crime, she granted a downward departure from a Guideline range of 87 to 108 months and sentenced the defendant to a mandatory minimum sentence of 60 months.

Judge Gertner acknowledged that a defendants employment record and his family ties and responsibilities are factors that "are not ordinarily relevant" when considering departures, under the express provisions of U.S.S.G. 5H1.5 and 5H1.6. However, in a decision previously reported at 74 F.Supp.2d 69 (D.Mass. 1999), she also reasoned that "the question of what is ordinary is nowhere defined" in the Guidelines. Further, she continued (and this is probably what really ticked off the Circuit judges) "[w]e are all guessing at whats ordinary. And in the course of making those guesses, we feed in our stereotypes, our biases, cultural, racial, gender, etc. And I want to feed them out of it. I want to see if I can distill them out of this picture, my biases." (Id., at 76).

Using that approach, Judge Gertner then reasoned that what might not be ordinary in the family lives and employment histories of predominately white Americans generally could well be distinctive and extraordinary in the family lives and employment histories of African-Americans living in projects who are accused of dealing in crack cocaine. Thus, she carefully combed through the presentence reports of other similarly situated defendants in her district, particularly focusing on defendants from the same housing project who had been convicted of crack cocaine sales in the same time frame. Only then did she conclude that this defendants family life and employment history were sufficiently extraordinary to warrant the departure she granted.

"Pure heresy," huffed the panel: while her approach "may seem to make sense, . . . it is contrary to the law of this circuit." Citing a 1994 decision, it concluded that when using a factor to justify a downward departure the court "must compare the defendant to others who exhibit that factor, not to others who have been convicted of the same offense." (Id., at 77) (Emphasis added).

The dichotomy between those two approaches is more than just some esoteric, philosophical debate. It was significant enough to cause several groups to file amicus briefs, including one by the NACDL. But we feel that two things probably made Judge Gertners decision particularly troublesome to the Court. First, was the Courts own candid admission that Judge Gertners analysis "seemed to make sense" - a conclusion that put the panel on the defensive from the start. Second, was the unknown: what kind of a pandoras box would be opened up if judges really had to look at sentencing factors based on the characteristics of minority groups which are virtually unseen from the ivory tower of the courts?

United States v. Harris, No. 99-5846 (6th Cir. 1/30/01) (Per Curiam)

The defendants in this case were planning to rob a convenience store on an Army base when two soldiers approached. After brandishing a gun and warning the soldiers to back off, one of the guns discharged, hitting one of the soldiers in the neck. The soldier eventually died from his wounds. After the defendants were caught, they were charged, inter alia, with murder under 18 U.S.C. 1111. The indictment did not specify whether the defendants were being charged with first or second degree murder; but the district court ruled that they were only charged with murder in the second degree.

As the Court then explained, "[i]n order to take advantage of this unexpected good fortune, the defendants pled guilty to the second degree murder charge. Notwithstanding the indictment and plea, however, the district court assigned to the defendants a base offense level of 43, which is consistent with the more severe first degree murder charge. Therefore, the defendants were indicted for and pled guilty to only second degree murder but received a first degree murder sentence of 480 months of imprisonment. Had the district court not applied U.S. Sentencing Guidelines 2A1.1, the defendants would have been sentenced using a base offense level of only 33 and received only 168 and 210 months of imprisonment (using criminal history category III). The decision to use the higher offense level was based on the cross-reference found in the U.S. Sentencing Guidelines 2B3.1(c)(1)."

When the defendants appealed their sentence, arguing that they had been sandbagged into pleading guilty to the lesser charge, the majority disagreed, stating that the ruling was not only proper, it was mandated by prior Circuit precedent. It also concluded that the result was not altered by Apprendi v. N.J., 530 U.S. 466 (2000), because the sentence "did not exceed the statutory maximum for the crime charged in the indictment."

Judge Gilbert Merritt dissented with a short but persuasive opinion that reads in its entirety as follows: "I write to point out the injustice inherent in sentencing a defendant charged with second degree murder using the first degree murder guidelines. Perhaps this sentencing decision is consistent with the letter of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because it does not sentence the defendants to terms of imprisonment in excess of the statutory maximum, nor does it alter the range of penalties to which the defendants are exposed. But both [our prior precedent] and the fundamental basis of our decision in the instant case are clearly contrary to the spirit of Apprendi, which says that factual issues having a significant impact on the defendant's sentence should be charged in the indictment and proved to a jury beyond a reasonable doubt. The Apprendi approach seems to me to disfavor the current judicial and prosecutorial practice of not giving notice by indictment of the real crime at issue and of leaving most of the more salient factual disputes for the sentencing hearing, where the burden of proof is the less rigorous preponderance of the evidence standard and the hearsay rules do not apply. Following the logic of Apprendi, the government should not have been able to cure its charging error simply by convincing a judge outside the normal rules of evidence that the preponderance of the evidence indicated that Harris and Gaines committed first degree murder. This is consistent with my longstanding belief that the Sentencing Guidelines - as interpreted in . . . our previous cases - violate the Due Process Clause. See, e.g., U.S. v. Davern, 970 F.2d 1490, 1500 (6th Cir. 1992) (en banc) (Merritt, C.J., dissenting)."

Treesh v. Taft, 122 F.Supp.2d 881 (S.D.Ohio 2000) (Judge Kinneary)

Our final case for this week deals with one of those senseless "believe-it-or-not" prison regulations that shows anti-prisoner venom run amok. Judge Kinnearys summary of the issues involved in this case says it all: "This case involves a First Amendment challenge to a prison policy that regulates the last statements of condemned prisoners. The policy, known as SOCF W-05-94, prohibits death row inmates from making a final oral statement, audible to spectators, in the moments before their executions. Rather, if a death row inmate wishes to make a last statement, he must do so in writing approximately six hours before his scheduled execution. If the inmate chooses to write out a statement, the statement will be delivered to the warden and typed. The policy provides that the typed statement will not be distributed and read until after the inmate is executed." (Id., at 882).

The plaintiffs contended that SOCF W-05-95 violates the First Amendment, among other reasons, because the warden "enjoys complete editorial control over the prisoner's statement, with unfettered discretion to change it, cut it, summarize it, or censor it altogether." (Id).

For reasons that defy explanation, Warden Stephen Huffman of the Southern Ohio Correctional Facility in Lucasville, Ohio (where all Ohio executions take place) strenuously opposed this lawsuit and demanded that it be dismissed. One of the wardens arguments was that the claims were not "ripe" for review because "it is uncertain when if ever, either of the Plaintiffs will be in a position to seek to issue their last statement" because they were both pursuing appeals. Apparently, even as convicts stand on the brink of extermination, Huffman wanted to exercise his God-like powers to show who was the boss and to prevent the witnesses from hearing anything that he had not appropriately censored.

Focusing on the "mootness" and "ripeness" aspects of the case, Judge Kinneary denied the wardens motion. He declined, however, to declare SOCF W-05-95 unconstitutional on its face; and he never asked why a prisoners last rites has to include the final indignity of a denial of his First Amendment rights.

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