Monday, October 04, 2004

The Respondents Strike Back

Here is Part II of the afternoon: arguments on behalf of the Respondents, Mr. Booker and Mr. FanFan.

First, it was Chris Kelly's turn, the attorney for Mr. Booker. Justice Breyer jumped in with the first question. It is interesting to note that Justice Scalia, the Justice who wrote the majority opinion in Blakely, was the most active questioner of the Petitioner; while Justice Breyer, who wrote a vigorous Blakely dissent, was the most active questioner of the Respondents. I guess each Justice wanted a chance to take his shots. Justice Breyer's question was in three parts, with each part asking Mr. Kelly whether a given sentencing system would violate Blakely. The purpose of these questions seemed to be to test the Blakely rule and try to figure out exactly what sorts of sentencing systems would be allowable under that case's holding. First, Justice Breyer lofted a softball: a system where a judge finds necessary facts. Mr. Kelly responded that this would be unconstitutional. Second, Justice Breyer asked whether a system in which a parole board determined facts would be constitutional. Such a procedure presents a system where the executive branch makes factual determinations, and gets to the issue presented earlier: whether it even matters for the Sixth Amendment what branch of government is doing the factfinding if it is not the jury. Either way, Mr. Kelly responded that such a system would also violate the Constitution. Finally, Justice Breyer asked whether Courts of Appeal would be able to make factual determinations after Blakely. Mr. Kelly's answer was again, no.

Justice Breyer then brought up what Jason has termed (and what has bothered me as well) the sentencing paradox: Under an indeterminate system a judge can pick any number of years, for any reason, based on the "finding" of any fact, but under a guideline system, the limited discretion of judges triggers constitutional problems. On this point, Justice Scalia jumped in, responding that under the indeterminate sentencing system, a Defendant is not entitled to any sentence less than the statutory maximum, whereas the guidelines create legal rights for the defendant. In his mind, this solves the paradox. (But it is still paradoxical to me that our two choices are either: (a) unrestrained judges, or (b) restrained juries, with no option for (c) restrained judges.) Justice Kennedy follows on the point, asking what policy or values create this preference for an indeterminate system over a determinate system. There seems to be no answer to this question. (Although I imagine Justice Scalia would respond that the preference is based on the choice of the Framers and their values and policies.)

Moving on, Justice Kennedy then asks Mr. Kelly about the old California system, which was an indeterminate sentencing system, but where some correctional authority (a parole officer or board) would find facts that lead to a specific sentence. Mr. Kelly remained consistent, and responded that such a system would also violate Blakely. Chief Justice Rehnquist then asked about a hypothetical system where the sentencing range is from one year to life, and then within that sentencing range the parole officer, instead of the judge, got to decide how long the defendant remained in jail. Unfortunately, there seemed to be no answer for that question.

A brief discussion of perjury followed, wherein Justice Stevens suggested that there would be no need for a separate "perjury" trial after conviction because there are instances where a defendant's testimony on the stand, if convicted, would necessarily be rejected by the jury's verdict. That in and of itself could sustain a perjury conviction. Mr. Kelly did not agree. He argued that in addition to just being not true, a perjury conviction requires that the jury find the defendant was knowingly misleading the jury. A jury's rejection of the defendant's testimony would not necessarily mean that they thought he was misleading them, but perhaps just that he was mistaken, confused, or held a different conception of events.

Mr. Kelly, a Federal Defender, [correction: Chris Kelly is not a Federal Defender; he is a private attorney, known for excellent appellate work, from Madison WI, who was CJA-appointed for Mr. Booker] relied upon and repeatedly referred to his experience as a defense attorney in order to shed light on the issues of the case. When compared to the Justices and Mr. Clement, Mr. Kelly is indeed a criminal trial expert, and it would be interesting to know how much weight the Justices gave to his statements based on experience in the trenches.

Justice Ginsburg brought up the Kansas system of sentencing juries, but that did not go anywhere.

Finally, plea bargaining was discussed. Mr. Kelly stated that in most cases federal prosecutors simply charge offense that will be easiest for them to prove. That ease of proof puts pressure on the defendant to plead guilty. Then, after the guilty plea, the prosecutors let the sentencing enhancements do the leg work, increasing the sentence based on other conduct for which their case was not as strong, and conduct that was not the topic of plea discussions. Mr. Kelly argued that if the Respondents prevail, plea bargaining would be more meaningful for all parties and there would be no surprises for defendants at the sentencing stage.

And with that, Mr. Kelly left the lectern and turned the floor over to Ms. Rosemary Scapicchio, the attorney for Mr. Fanfan. Ms. Scapicchio began by accusing the government of being (my word choice, not hers) a flip-flopper. In its Blakely amicus, the government argued that the SCOTUS should uphold the Washington guidelines at issue in that case because the USSG were indistinguishable. Now here, the government is trying to distinguish the two systems.

Ms. Scapicchio echoed and strengthen the point made by Mr. Kelly---that prosecutors simply charge the easiest offense to prove and then rely on sentencing enhancements---by noting that Mr. Fanfan's case was an example of just such prosecutorial maneuvering. Mr. Fanfan was charged with involvement in a cocaine conspiracy. The prosecutors chose not to charge Mr. Fanfan with involvement in a cocaine-base conspiracy, even though they had some evidence of his involvement. Mr. Fanfan then pleaded to the cocaine conspiracy charge, and at sentencing the prosecution introduced the evidence relating to cocaine base as part of Mr. Fanfan's relevant conduct. The eventual sentence received by Mr. Fanfan was 15 years greater than the sentence he would have received under the cocaine conspiracy alone. [correction: Mr. Fanfan did NOT receive the increased sentence, even though that is what the USSG would seem to require. The trial judge imposed the lower sentence and the Government appealed, seeking the higher sentence.] Justice Ginsburg made a comment noting the huge discrepancy---15 years---between the sentence for the plead to charge, and the actual sentence received.

The discussion then turned to severability and remedies. Justice O'Connor noted, and all parties and Justices seemed to agree, that whatever the SCOTUS does here will be at best a temporary fix because Congress is certain to act. With that said, Justice Stevens stated that he doesn't want to tear down the entire guidelines system to cure what may not be a large problem. Considering his question earlier in the afternoon about the percentage of Blakely-affected cases, Justice Stevens seems focused on the scope of the problem. If there are, indeed, only a few cases that would raise Blakely problems, Justice Stevens seems to favor some sort of band-aid solution, such as a jury sentencing system, as opposed to striking down the entire USSG system.

Finally, Justice Breyer asks if anyone has heard of anything, anything pre-Apprendi that argued the USSG were unconstitutional as a violation of the Sixth Amendment. A brief, a law review article, a comment, anything. No one had a response.

And that was all for the Respondents. I'll leave it to Jason to fill in the gaps and make sense of all this, but all in all it seems like an exciting afternoon. Now the waiting begins...





Comments:
David: Great job backing up the Man. Two points on which you may have misunderstood Jason, one bigger one smaller. Small point: Chris Kelly is not a Federal Defender; he is a private attorney, known for excellent appellate work, from Madison WI, who was CJA-appointed for Mr. Booker. By the way, under the name "TChris," he is also a deputy and substitute blogger on TalkLeft. Bigger point -- Fanfan's sentence was NOT increased 15 years by a finding on crack (cocaine base). That's what the PSI recommended and the govt advocated, and the Guidelines would seem to have required. But the judge at sentencing ruled for the defendant. He refused to enhance for non-conviction "relevant conduct," and imnposed a sentence of 78 months. The government appealed this sentence and then took the case directly to the Supreme Court without awaiting a First Circuit decision. -- Peter Goldberger, Ardmore, PA
 
Thanks for the corrections! I'll update the posts to reflect the new information. Sorry readers.
 
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