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October 16, 2008

Intriguing little habeas sentencing ruling from the Seventh Circuit

Yesterday the Seventh Circuit issued an interesting little decision in the habeas case, Burr v. Pollard, No. 07-4031 (7th Cir. Oct. 15, 2008) (available here).  Here is the issue as described in the opinion:

Burr renews his claim here that his due process rights were violated when the judge considered the “bullying” allegation after striking it from the record and that his Fifth Amendment rights were infringed when the judge enhanced the confinement component of his sentence because he remained silent.

Folks familiar with the challenges of modern habeas claims by state prisoners can likely predict the outcome.

October 16, 2008 at 12:40 PM | Permalink


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I was not surprised at the ruling but still disappointed. I agree with the court on the first claim regarding the PSR but I strongly disagree with it's reasoning on the 5th amendment claim. It's treatment of the 5th is too willing to split the difference and apply a balancing test when there should be a bright-line rule. It's clear that the unwillingness of the defendant to speak, particularly compared to the other defendant's choice to speak, was a major factor in the judge's decision. With the PSR, I am inclined to give the judge the benefit of the doubt that it was a slip of the tongue in light of all the other factors considered. But the 5th amendment is not something to be trifled with so easily, although trifling with the constitution has always been Posner's MO.

Posted by: Daniel | Oct 16, 2008 4:34:55 PM

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