By James S. Lawrence


SUMMER, 01 The FIJActivist Page 5

The Sixth Amendment to the US Constitution provides for the right of jury trial "in all criminal prosecu- tions." In the past, this has always meant that the jury decides not only that you are guilty of a crime, but how serious a crime you are guilty of. For example, if you are charged with armed robbery, the jury decides whether you are guilty of armed robbery, unarmed robbery, simple larceny (theft), or nothing at all. Similarly, if you are charged with murder, the jury decides whether you are guilty of first degree murder, second degree murder, manslaughter, or nothing at all. At least, that is the traditional approach.

Why the Government dislikes jury trials

Government finds the right to jury trial to be the most chafing, irritating thing that confronts them. After all, why should Government employees have to seek the approval of 12 citizens betore they take action they think should be taken? Not only do jurors slow things down, but there is always the chance they will not vote the way the Government wants. Another problem with the jury trial, as the Government sees it, is that with a jury trial you have to call witnesses, and subject them to cross- examination. They would prefer to simply give a report to the judge on the results of their "investigation," rather than have to call witnesses. Witnesses are highly inconvenient for a number of reasons. First, Govern- ment officials often have to bribe them with reduced charges. Second, many witnesses, being not as bright as lawyers, might not remember all the details of their stories the way the Government agents have told it to them. Third, some witnesses might change their mind in a court- room. Fourth, witnesses subjected to cross-examination by the other side might unwittingly reveal that some of their testimony is false.

The US Sentencing Guidelines -- more than just numbers

If you are charged with murder, you have the right to a jury trial for murder. So, to avoid that, they try you for drugs, or conspiracy to be involved with drugs. Once you are convicted of drugs or drug con- spiracy, the Government can issue a report to the judge blaming you for murder. Based on that report, the judge can find you "responsible" for murder, and sentence you for mur- der, even though you have never been charged with murder, tried for murder, or found guilty of murder. And, you do not have the right to question your accusers. This result comes about by way of the US Sentencing Guidelines. A federal statute, 28 USC 994, pro- vided for a committee to decide on matters of sentencing. Their deci- sions are the US Sentencing Guide- lines. Under the Guidelines, a person's Offense Level determines their range of sentences, and a person's Offense Level depends on facts. Of critical importance to this scheme is that a judge decides the facts concerning the Guidelines. A jury is not in- volved at all. Under Guideline 2D1.1, a person being sentenced for drugs or drug conspiracy can be found responsible for murder by the judge, and receive the same sentence as would be applied for murder. This is true even if, at the trial for drugs, the subject of murder was never even men- tioned. In fact, numerous cases hold that if you are convicted of any federal crime, you can be sentenced for conduct of which the jury found you not guilty, if the judge thinks you really did it. See, among other cases, United States v. Mocciola, 891 F.2d 13 (1st Cir. 1989); United States v. Patino, 962 F.2d 263 (2d Cir. 1992); United States v. Blankenship, 954 F.2d 1224 (6th Cir. 1992).

United States v. Watts: Level of Justice at Supreme Court hits new low

The US Supreme Court, by a 7 to 2 vote, recently upheld this "principle" in the case of United States u Watts, decided January 6, 1997. The jury found Vernon Watts guilty of selling drugs, but not guilty of possessing a weapon. The judge sentenced him for drug dealing and "enhanced" his sentence for his "relevant conduct" of possessing a weapon. In the same case, the Supreme Court sealed the fate of Cheryl Putra. The jury found her guilty of one drug transaction, and not guilty of a second. The judge sentenced her for the first drug transaction and "enhanced" her sentence for her "relevant conduct" of committing the second. In both cases, the Supreme Court thought that was just fine. The Supreme Court stated: "In short, we are convinced that a sentencing court may consider conduct of which a defendant has been acquitted." Justice John Paul Stevens, in dissent, said: "It is difficult to square this explicit statutory command to impose incremental punishment for each of the "multiple offenses" of which a defendant "is convicted" with the conclusion that Congress intended incremental punishment for each offense of which the defendant has been acquitted. The Court, however, appears willing to read the statute's treatment of multiple offenses as though it authorized an incremental penalty for each offense for which the defendant was indicted if she is convicted of at least one such offense. The fact that the text of the statute expressly authorizes such incremental punishment "for each offense" only when a "defendant is convicted of ... multiple offenses" conveys a far different message to thoughtful judges... The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant to that jurisprudence." Justice Anthony Kennedy also dissented, commenting: "At several points the per curiam opinion shows hesitation in confronting the distinction between uncharged conduct and conduct related to a charge for which the defendant was acquitted. The dis- tinction ought to be confronted by a reasoned course of argument, not by shrugging it off. At the least it ought to be said that to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercut ting the verdict of acquittal, con- cerns noted by Justice Stevens and the other federal judges to whom he refers in his dissent. " So, the rule is simple. You can't win, even when you win. Even a not guilty verdict from a jury cannot prevent the government from saying you did it, and punishing you ac- cordingly. It is somewhat comforting that 2 justices were willing to vote for justice in this case, even though 7 were not. It is also disappointing and instructive that of the two Supreme Court justices appointed by a Demo- cratic president, Breyer and Ginsburg, neither was among the two justice minority that voted for justice.

Words get new meaning at Supreme Court

When people are elevated to the Supreme Court, it often causes them, and consequently all courts, to use words in new, imaginative ways. For example, a member of the Supreme Court, rather than being called a "judge," is called a "justice," regardless of whether his or her rulings are just. The judicial principle that words do not mean what they say, especially when what the words say conflicts with the desire of government officials to exercise power, is illustrated by many cases. See, for example, cases dealing with the fact that the Sixth Amendment provides that the accused is entitled to trial by an impartial jury "in all criminal prosecutions." In Lewis v United States (1996) the Supreme Court said that a person could be pros- ecuted for misdemeanors carrying 6 months in prison, without a jury trial. They also said that a person could be charged with multiple misdeameanors, tried for all without a jury, and sentenced to decades of imprisonment from multiple consecutive 6 month terms. So, by reading the rulings of the Supreme Court, you learn that "all criminal prosecutions" really means "some criminal prosecutions", and you have no right to a jury to protect you from the government if you are charged with a "petty" offense. I wonder how petty they would think it was if they had to spend the six months or 10 years in prison. ...



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