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December 12, 2013

Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case

3E0237FA0F4888A92E8D34325C05D590_292_292As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:

A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.

In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.

Graham could face a maximum sentence of life in prison on March 27.

In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.

Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.

Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.

Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....

Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony.  The plea agreement was reached before closing arguments took place.

As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life."  The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.

If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.

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Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.

If I were a betting man (well I am a betting man, but only sports and cards), I'd take the under. I would think she'd get two points for pleading guilty, although certainly not the additional point for doing so in a timely fashion. Vulnerable victim seems like a stretch to me, plus there's the empirical reality that (at least last time I saw this studied) women who murder their husbands tend to receive significantly lower sentences than vice versa. Level 36 puts you in the 188-235 range. I will guess 17 years.

Posted by: dsfan | Dec 12, 2013 4:51:41 PM

Regardless, I think it is a good deal for her and once again shows the power of plea bargaining. Assume 20 years at the highest. With good behavior she will be out in 17. That means she will be roughly 40. Her expected lifespan is probably around 80. So she still has half a life to lead after her sentence. Now compare that to the risk of going to trial and getting convicted on a 1st degree count in which case she is looking at a life sentence. Is 17 years gone in the prime of one's life a hard knock? Yes. But at least she'll live to fight another round, which is more than one can say for him.

Posted by: Daniel | Dec 12, 2013 5:48:09 PM

I think the prosecutor got taken. You have to think the jury would see through a "defense" consisting of "videos of Graham smiling as she had her hair done and tr[ying] on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance."

That's a defense to murder??? A defense to anything???

The Casey Anthony jury taught us that juries can indeed be dumb as carrots, but most aren't. A "defense" like that virtually advertises guilt. I would have let the jury have its say.

Posted by: Bill Otis | Dec 12, 2013 6:18:19 PM

Do you thus encourage prosecutors now to urge a life sentence at sentencing, Bill?

Posted by: Doug B. | Dec 12, 2013 7:30:00 PM

Bill, you seem to have sadistic tendencies, and that appears to inform your views on sentencing issues. Is 20 years or so just not enough? Is the problem with this country that our system is not even more harshly punitive relative to other civilized societies? How does your fondness for LWOP reflect legitimate punishment goals as opposed to the basest form of reactionary, populist sentiment? Your views on this site are, frankly, anti-intellectual and somewhat disturbing. I would expect more from a Georgetown professor.

Posted by: Liberty Lawyer | Dec 12, 2013 9:32:03 PM

Did undue 'threat of a harsh sentence' kill a prospective jury trial?

Think not: her own palpable, 1st degree guilt convinced this defendant to shy away from a jury,
as with so many others.

Posted by: Adamakis | Dec 12, 2013 10:21:23 PM

It's hard to say what a jury would have thought. I suppose someone could ask them, though. If a jury wanted motive, the Prosecution has to mostly speculate. Her version isn't inherently implausible and is more Manslaughter than Murder. Without sitting through the trial I can't say I would have voted for the lesser sentence, but there was always a chance. Given that, this plea is probably an appropriate weighing of the odds for each side. It's closer to what the Prosecution likely would have gotten while being discounted for the uncertainty of a jury who could have believed her.

On a side note, I'm always shocked at how complicated federal sentencing guidelines are. I've heard it described as "Advanced Calculus" before. Do people who routinely practice in federal courts know the guidelines by heart or is it still an effort to plow through them to reach an accurate result?

Posted by: Erik M | Dec 13, 2013 9:11:03 AM

Liberty Lawyer --

I'm thankful for your comment. I tend to be happy when the other side is willing to say out loud what they actually think.

"Bill, you seem to have sadistic tendencies, and that appears to inform your views on sentencing issues."

Always best to impute sadism to those who disagree. Far out!

"Is 20 years or so just not enough?"

I don't know. I'd like to see the PSR and the submissions of the parties, rather than -- as you are doing -- just reflexively beat the drum for some predetermined sentence.

"Is the problem with this country that our system is not even more harshly punitive relative to other civilized societies?"

The main thing about this country is what a wonderful place it is. Yes, it has problems, and in my view the greatest are unpayable debt, complacent and degraded values, a growing culture of victimization, entitlement and dependency, and -- last but not necessarily least -- people who castigate it while happily enjoying the freedom to do so it protects, never once understanding the irony.

"How does your fondness for LWOP reflect legitimate punishment goals as opposed to the basest form of reactionary, populist sentiment?"

I don't recall expressing fondness for LWOP either in this thread or others. Could you quote me? For some crimes, e.g. the Boston Marathon bombing, I much prefer the death penalty.

How 'bout you? Anger management for Mr. Tsarnaev?

"Your views on this site are, frankly, anti-intellectual and somewhat disturbing. I would expect more from a Georgetown professor."

And for the most part, you'd be right, since Georgetown, like other very good law schools, is dominated stem to stern by liberals. Still, Georgetown has a degree of respect for intellectual diversity, so there I am (my wife, too (a co-founder of the Federalist Society and former Supreme Court clerk)).

As to my intellectual failings, I'll just let you take a stab at where I stood in my class at Stanford Law.

Should I wait to hear back?

You have a nice day, Mr. Liberty Lawyer.

Posted by: Bill Otis | Dec 13, 2013 9:37:12 AM

Georgetown has Randy Barnett. His views are strong enough to singlehandly make it hard to call the school "dominated stem to stern by liberals." ;-)

Posted by: Erik M | Dec 13, 2013 9:53:37 AM


Bill,

Nobody is saying you are not a smart man, so enough about your rank at Stanford Law and your "Supreme Court clerk" wife. (It is particularly rich that you trot this out, when you and your ilk typicaly denigrate those with elite credentials and expertise, and complain about any attempts to increase their influence in criminal policy outcomes.) What many find disappointing is that you use your intelligence, education, and experience, to try to perpetuate a criminal justice system that is outrageously overly-punitive. That much was given to you, makes your lack of emphathy particularly gauling. It is also telling that, your only answer to any mention of comparisons with other countries, is that the person bringing them up is somehow un-American or doesn't appreciate the good things about this country. Our over-incaceration is, in fact, a national disgrace, and that is being increasingly recognized by folks on all parts of the ideological spectrum (including many associated with the Federalist Society, e.g., Ed Meese). Your repeated resort to McCarthyist, "America, love it our leave it" rhetoric says a lot about the weakness of your arguments and your lack of compassion, judgment, and openness to good policies that have worked in other places, but nobody is saying that you are dumb. So quit the whining.

Posted by: Liberty Lawyer | Dec 13, 2013 11:15:31 AM

Liberty First stated: "Nobody is saying you are not a smart man,..."

No, just a sadist.

You stated: "(It is particularly rich that you trot this out, when you and your ilk typicaly denigrate those with elite credentials and expertise, and complain about any attempts to increase their influence in criminal policy outcomes.)"

Two (at least) logical fallacies rolled into one statement. First, the straw man. No one here "denigrates" those with "elite credentials and expertise." We/I "complain" about their insistence that such credentials automatically result in their deserving more votes in public policy than the truck driver. It is completely un-Democratic and, frankly, tyrannical. The second is an argument from authority.

You stated: "What many find disappointing is that you use your intelligence, education, and experience, to try to perpetuate a criminal justice system that is outrageously overly-punitive."

The "everybody knows" (argumentum ad populum) fallacy.

You stated: "That much was given to you, makes your lack of emphathy particularly gauling."

Or, perhaps your empathy is misplaced. Even more likely is that you have so bastardized the meaning of the word "empathy" (a typical Progressive ploy), that it is beyond recognition. Empathy does not have to mean let criminals out of their deserved prison terms.

You stated: "...says a lot about the weakness of your arguments and your lack of compassion, judgment, and openness to good policies that have worked in other places,..."

That you resort to "sadistic", "lack of compassion", etc. says far more about the weakness of your arguments.

Posted by: TarlsQtr | Dec 13, 2013 12:15:49 PM

Erik M --

There's Randy Barnett, Nick Rosenkranz, Don Wallace, and the Otises. That's it. The other 116 are liberals.

Randy, incidentally, is more a libertarian than a conservative in the classic sense. He favors legalization of drugs, for example, and argued the defendant's side of Gonzales v. Raich in the SCOTUS.

He's a great guy, smart as they come, and much more of a scholar than I'll ever be. But we are massively outnumbered.

Posted by: Bill Otis | Dec 13, 2013 1:41:27 PM

TarlsQtr --

Well, Liberty First is right about one thing: Much has been given to me.

I received many things along the way: A self-made man as my father, who taught me that what works is production not excuses; a mother who was two generations ahead of her time in women's independence; a brilliant wife who is among the intellectual leaders of the conservative legal movement, and an incredibly giving and (good thing for me!) forgiving person; and friends like you, federalist, Kent and others I met initially on the Internet, and who have taught me a great deal.

Yes, I have been given lots of good stuff. I'm trying to give something back by speaking up for a sentencing system that has helped dramatically lower crime -- to speak up for it on pain of being called "sadistic" by those who prefer indulgence to accountability.

It's OK, though. One of the many great things about this country is its tolerance for -- nay, encouragement of -- those who trash it. Mark to the contrary, I don't want these folks to "love it or leave it." I want them to keep right on keepin' on. The more the public sees of the pro-crime biases that animate them, the better off my side will be. The LAST thing I want them to do is leave.

Posted by: Bill Otis | Dec 13, 2013 2:10:19 PM

Bill,

You again confuse concern about a weakness in our society with trashing the country. And to call people with concerns about the fact our country incarcerates at a rate almost an order of magnitude higher than most others, "pro-crime" is pretty pathetic. You sometimes make fair points about balancing incapacitation with leniency considerations, but that viewpoint is, of course, not mutually inconsistent with sharing concerns about overly-harsh sentences and contributing to the discussion about how to address that problem, rather than trashing those with the temerity to call it out and, yes, use comparisons with other countries as part of the discussion.

Posted by: Liberty Lawyer | Dec 13, 2013 3:01:21 PM

‘Why can’t we be as enlightened as Europe & Scandinavia?’

If one were to ponder the "outrageously overly-punitive" invoking of Martial Law in selected areas of Paris --
as well as fire-hosing these Arab ghettos on occasion; the racial segregation of Gypsies in Italy; the thievery of Greek taxation/redistribution;
Irish protection of government and religious (Catholic) sexual/forced labour abuses; British & Canadian undemocratic practices such as restricted speech
and no death penalty despite constant 60-65% support; Norwegian & Scottish coddling of mass-murderers, &ct., &ct., &ct.,
he might reasonably characterise a hunk of Euro/progressive societies as morbific and dystopic.

To stay with the French -- whom John Kerry so adores -- they ban the burqa, continue to embrace dictators, and with facile charm, straight faces,
and palpable hypocrisy, will harbour a foreign rapist or murderer whilst charging his homeland with racism!

A liberal exchange student from Sweden whom I knew well, and who grew to be an international music producer today, told me during the Reagan Era
that about 80% of Euro-Scandinavian criticism of America was grounded in jealousy.

Why would we want to be as benighted as Europe & Scandinavia?

Posted by: Adamakis | Dec 13, 2013 3:30:43 PM

Liberty Lawyer is not the same guy as Liberty 1st.

Liberty1st, got here on the blog first. Be the first to discern the difference between the two and acknowledge that never the Twain shall meet. Liberty1st is from Hannibal.

Posted by: Liberty1st | Dec 14, 2013 7:46:33 PM

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