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December 9, 2013
Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
In part because federal jury trials for traditional common-law crimes are rare, and especially because this case has already garnered considerable media attention, I am likely to follow closely the high-profile federal murder trial starting today in Montana. This AP article, headlined "Jury selection begins in newlywed murder trial," provides the basics and sets up the sentencing query of this post:
Jury selection gets underway Monday in the murder trial of a newlywed bride accused of pushing her husband to his death in Glacier National Park just days after their wedding. Jordan Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making a false statement to authorities in the death of Cody Johnson.
Graham, 22, and Johnson, 25, had been married for eight days when they argued over her doubts about the marriage, prosecutors said. She texted a friend that she planned to confront Johnson about those doubts the night of July 7.
Graham's trial in U.S. District Court in Missoula is expected to last one to two weeks with dozens of friends, acquaintances and expert witnesses — though no eyewitnesses — scheduled to testify.
Federal prosecutors will attempt to convince jurors that Graham deliberately pushed Johnson to his death, then made up a story about how he was last seen driving off with friends. Graham's federal public defenders will ask jurors to believe that while Graham thought she married too young, she loved Johnson and was only trying to remove his hand from her arm when he fell off the steep cliff.
Witnesses will describe Graham as a naive, immature and shy woman who deals better with the children she watched over as a day care worker than with most adults, federal public defender Michael Donahoe wrote in his trial brief. Johnson liked to race cars, drink beer, play softball and hang out with friends, and he changed for Graham when they began dating, Donahoe wrote. Johnson started going to church and stopped most of his drinking, Donahoe wrote.
Graham may have had misgivings about getting married too young, but that doesn't prove she intended to kill Johnson, Donahoe wrote. Federal prosecutors have mostly circumstantial evidence in their case to prove the killing was premeditated, he wrote.
Assistant U.S. Attorney Zeno Baucus wrote in his own brief that the killing was premeditated, which can be proven by circumstantial evidence. That circumstantial evidence — or the "surrounding circumstances" before, during and after Johnson's death — is needed because Graham and Johnson were the only direct witnesses to what happened on the cliff, he wrote. Graham had told Johnson before the wedding that she had a "surprise" planned for him later that day, Baucus wrote.
After she pushed him, she didn't call police or seek any assistance. Instead, she began sending text messages to friends, planting stories about Johnson's disappearance and talking about her dance moves, Baucus wrote. Graham initially told investigators that Johnson had driven away with friends the night of July 7. Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings....
In the recorded portion [of a police interview], Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier park, according to a transcript. Graham said Johnson grabbed her arm at one point. She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail. "I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.
As I review these facts, it seems that there is essentially no dispute that Graham pushed her husband off a cliff to his death. At issue at trial is only what her mens rea was at the time of this push, which in turn will determine whether she is guilty of murder, manslaughter or perhaps not guilty of any homicide charge.
Given these realities, I am eager to hear now some reader perspective on what would be appropriate sentencing outcomes if we assume the best and/or assume the worst about this defendant's mens rea. If a jury were to conclude she was a premeditated, purposeful killer of her new husband and thus convicts this defendant of first-degree murder, do folks think an LWOP sentence would be justified? Alternatively, if a jury concludes that the cliff push was a terrible, but still blameworthy, mistake and thus convicts this defendant of involuntary manslaughter, do folks think a short or lengthy prison sentence would be appropriate?
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this really shouldn't be a federal case.
Posted by: HGD | Dec 9, 2013 12:22:02 PM
Mens rea is always a difficult term and concept for courts to straddle. Here, she liked children, didn't hate men and barely pushed him. If she had a rea we would know it from the direct evidence not some circumstantial evidence. Without some mens rea she is guilty of marrying the wrong guy at the wrong time and maybe being at the place of the accidental death. First, the case is called a circumstantial evidence case. Then the article depicts it as an admission of being at the crime scene, if it was a crime, so the only thing circumstantial is the intent. Which gets us back to her mens rea. Cant speculate on that either. If she says that she did not mean to push him over a cliff then there is no other evidence to say that she did. Unless the text messages prove otherwise.
Posted by: Liberty1st | Dec 9, 2013 12:35:43 PM
Oh, if you do a translation of mens rea from Latin to English it says Her Mind. So, what was on her mind? That should be a jury instruction. No speculation please.
Posted by: Liberty1st | Dec 9, 2013 12:39:23 PM
"If she had a rea we would know it from the direct evidence not some circumstantial evidence."
Posted by: Adamakis | Dec 9, 2013 12:48:11 PM
If he "fell" accidentally, she calls 911 in sixty seconds max. A 10 year-old would know to do that.
When you don't call 911 -- or any other emergency service, not in sixty seconds not in an hour and not that afternoon -- what does that mean?
It means that it was not "accidental."
Of course defense lawyers like Liberty1st will try to sell us on the notion that the most basic common sense gets suspended at trial, and we should enter the Twilight Zone instead.
Posted by: Bill Otis | Dec 9, 2013 1:08:01 PM
1. During an initial interview with law enforcement, Graham provided a completely fabricated tale of no involvement,
and probably played the part of the 'grieving new bride' [she told another tale two days thence.]
2. Nearly one week later when pressed, "She went on to say that: she could have just walked away, but due to her anger,
she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff."
3. Jordan Graham has pleaded not guilty to charges of 1st-degree murder, 2nd-degree murder and making a false statement
to authorities in the death of Cody Johnson.
4. --> What did she think would happen? --> If the death was unintentional, why did Graham not seek help, even hours later,
but was rather “planting stories about Johnson's disappearance and talking about her dance moves”?
5. The massive woman pushed a man who was facing away, over a "sheer" cliff-face.
--> "the body was found in an area of the park so steep and rugged that a helicopter had to be used in the recovery".
Posted by: Adamakis | Dec 9, 2013 1:08:45 PM
I am not surprised, but still a bit annoyed, that everyone here is eager to debate what her mens rea was back on July 7, 2013, with respect to the demise of her husband. Go at it, folks, but I am confident nobody can really be confident about what was in her mind at the key moment (including Graham herself, who may have had many conflicting thought when she pushed the guy and went on to cover up the results of her pushing).
Though I do not want to stop debate over her mens rea, I do want to encourage discussion of sentencing views if/when a jury eventually resolves the question of her mens rea and convicts her of some offense(s): if we assume she had the worst possible mens rea, would all agree that LWOP is the right sentence? If we assume she had the best possible mens rea (say she was just negligent/reckless when pushing), would we all agree that a few years in prison is the right sentence? That issue, resolved now before the jury resolves the mens rea issue, is what has me interested from a sentencing perspective.
Posted by: Doug B. | Dec 9, 2013 1:20:20 PM
My underlying problem is that I am not convinced a crime was committed at all so assuming that she had the "least amount of mens rea" then that means she should spend no time in jail.
The problem with Bill's logic (which for the record is cogently stated) is that it asks me to take the logical leap that because she acted guilty after the fact (by trying to engage in a cover up) that means that she had a guilty mind at the time she pushed. This "logic" is nothing more than the post hoc ergo propter hoc fallacy. So Bill's post is unpersuasive.
Posted by: Daniel | Dec 9, 2013 3:09:22 PM
Sorry, I said Bill but looking back I see I meant the post by Adamakis.
Posted by: Daniel | Dec 9, 2013 3:18:00 PM
I note that AG Holder apparently made the death penalty no-seek decision pre-indictment. Good move by the USAO, otherwise this case would be delayed at least a year.
Guideline analysis: A first degree murder conviction carries mandatory life under the statute. Second degree conviction gets a Level 38 (19.5 years to 24.4 years). Voluntary Manslaughter gets a Level 29 (7.25 years to 9 years.) D would most likely argue for §5H1.3 departure for mental and emotional condition and make numerous §3553 variance arguments.
My take is that most likely the mandatory life and the guidelines sentences would be reasonable. Don't have enough facts to opine on departures and variances
Posted by: AUSA12 | Dec 9, 2013 4:55:00 PM
In terms of sentencing. If she is found guilty. I would say a year in prison, five years probation, no right to marry for those five years, and stay out of the mountains.
Posted by: Liberty1st | Dec 9, 2013 6:51:24 PM
"My take is that most likely the mandatory life and the guidelines sentences would be reasonable. Don't have enough facts to opine on departures and variances."
Thank goodness for someone who actually wants to wait for the details.
Posted by: Bill Otis | Dec 9, 2013 7:19:14 PM
Latin, the language of a church. Violation of the Establishment Clause.
Requires mind reading, a supernatural power attributed to God only by the Medieval church. Not even that church believed men could it. Supernatural doctrines? Violation of the Establishment Clause.
Plagiarized from the analysis of mortal sin in the Catechism at Section 1857.
"1857 For a sin to be mortal, three conditions must together be met: "Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent." Violation of the Establishment Clause.
The damage to the victim is exactly the same no matter whether an accident or a paid mob assassination.
How does one know the accidental killer is less dangerous than the paid assassin and should be allowed to go home? Again, the accidental killer is more dangerous than the paid assassin, because the latter will not kill unless paid. Again, the lawyer dumbass has made an aggravating factor into a mitigating factor in the upside down Twilight Zone World of Lawyer Idiocy.
In 1275 AD, the sole penalty was death, so loopholes had to be devised to avoid killing people for stealing a loaf of bread. This was a humanitarian advance, inspired by the Catechism. It is no longer necessary.
All crime should be strict liability. And sentencing should be based on the past of the defendant, and the threat to public safety, especially by the simple count of 123D.
Posted by: Supremacy Claus | Dec 9, 2013 11:12:05 PM
She goes home, count on it. There will be many more instances of unintended cliff jumping by girlfriends and boyfriends.
Posted by: Supremacy Claus | Dec 9, 2013 11:15:34 PM
I have come around to Supremacy Clause's point of view. Society ought to kill this itchBay, whether she meant to kill hubbypoo or not. We need to take the Latin out of our criminal justice system. If someone says "mens rea" then counter with "women's rea". So getting to Doug B's request to consider sentencing. Why not the death penalty for anyone involved in the death of another. I call it Turn About Is Fair Play. Or Fair Play For Cubans. The guy who sends a drone up to kill someone should be killed in return. By a return drone. For every drone, there should be another drone to kill the drone sender in drone number one. This would keep the military industrial complex and the Koch Brothers in money for a long time. And my previous notions of the Sixth Commandment preventing the killing of another human? I recant. Kill anyone who kills, maims or blames another. Forget religion when it comes to justice. We don't need no Pope round here.
Posted by: Liberty1st | Dec 10, 2013 7:25:58 AM
Bill, I continue to find your support for MMs and mandatory guidelines inconsistent with a wait for the details attitude at sentencing. By definition, most federal MMs say only the details of the objective offense matter -- e.g., what was quantity of drugs, was a gun nearby.
How can you keep supporting severe MMs in federal system while also assert that details are supposed to matter at sentencing. Is it your view that only prosecutors can and should be trusted to sort out all the details that matter at the charging stage?
Posted by: Doug B. | Dec 10, 2013 8:37:22 AM
If we had a system that required mandatory death for a death then there would be no quibble. Someone has to pay. An eye for an eye. Is that not a Ten Commandment? And if they are dimwitted then kill em when they demonstrate dimwittedness like the Germans did under Hitler. Three generations of idiots are enough. And if they shot someone then shoot them. If they raped someone then rape them-- well have a mule do it. Turnabout is fair play even if you have to turn a perp over to rape em for good measure. Ya have to rape a male perp face down so make em look in a mirror. As for theft, take everything they own.
So if you commit a crime in our new ideal state there is only one thing you can do:
Ask for the following, of the Lard:
"Send lawyers, guns and money!
Lard, get me outta this!"
Crime and politics should not be so complicated.
Posted by: Liberty1st | Dec 10, 2013 9:14:19 AM
I just don't think it's that hard. You say: "I continue to find your support for MMs and mandatory guidelines inconsistent with a wait for the details attitude at sentencing. By definition, most federal MMs say only the details of the objective offense matter -- e.g., what was quantity of drugs, was a gun nearby.
"How can you keep supporting severe MMs in federal system while also assert that details are supposed to matter at sentencing. Is it your view that only prosecutors can and should be trusted to sort out all the details that matter at the charging stage?"
No, it's my view that not all details are created equal. Some details are minor, and should affect the sentence a little one way or the other. But some blockbuster details make the offense so serious as to demand at least a rock bottom sentence that even the Weinstein's, Bennett's, Kane's, and Gleeson's of the world will be forbidden from galloping off on their ideological horse, and impose some nothing sentence that would scandalize most normal people (and judges).
Exhibit A is one you blogged about, to wit, Jack Weinstein's porn-just-ain't-that-bad sentencing in the US v. c.r. case.
The statute provided for a least 20 years. The guidelines provided for 14 - 17 years. The mandatory minimum was far less -- 5 years, not exactly "draconian" for an adult convicted of a child porn DISTRIBUTION offense.
Weinstein, doing exactly what you want to enable and encourage system-wide with the destruction of MM's, gave him 2 and 1/2 years and a kiss on the cheek.
His frolic was too much, way too much, even for a liberal-dominated panel of the Second Circuit, which unanimously reversed and, in unusually harsh and direct language, told Weinstein to get with it and impose the MM 5 years no matter what.
What you are missing is the essential nature of mandatory minimums. The are just that -- minimums. Congress has concluded, as would the huge majority of normal people, that distributing the grossest, sickest for of child pornography is going to get you a rock bottom five years. Do you really think that is either (a) a violation of the 8A, or (b) a vicious, punitive policy?
Maybe you do. You are of course free to make such a case. But if not, will you now openly admit that Weinstein is out to lunch, that the Second Circuit got it right, and that the higher Court (not to mention Congress) is on sound footing on demanding at least 5 years for this creep?
Note that this is not the end of discretion for the sentencing court. Hardly. It is merely the end of discretion to impose an unacceptably low sentence that all but laughs at the crime. Weinstein continues to have oodles of discretion: The statute permits from 5 to 20. That's a range of 15 years, right? So the notion that I have turned my back on judicial discretion is flat-out wrong.
I believe in a great deal of discretion. I just don't believe in 100%, unlimited, ideological, temperamental, how-ya-feelin'-that-day discretion with no top and no bottom. And if you believe that law is better than will in the federal sentencing system, you should join me.
Posted by: Bill Otis | Dec 10, 2013 11:02:52 AM
Let me throw another consideration in the mix, since we are being normative. Why would LWOP necessarily be an appropriate sentence, even assuming the strongest form of mens rea. Putting aside juveniles, LWOP for first degree murder seems to go largely unexamined in this country. Most of our peer Western industrialized countries would never impose a life sentence, let alone LWOP, particularly for a first time offender in a case that probably had something to do with mental illness or heat of the moment considarations. It is not clear to me, why we believe such a sentence is ever justified -- let alone should mandatory -- even for murders, when most peer systems seem to do fine without LWOP. Why not at least provide a possibility for re-evaluation, based on the additional facts about the offender -- say 15 or 20 years down the road. With all the discussion about mandatory minimums for drug offenses and the like, this fairly fundamental question seems to get little attention. Is there something unique to the US experience that drives this divergence from most systems?
Posted by: Michael | Dec 10, 2013 1:21:03 PM
for a first time offender in a case that probably had something to do with mental illness
sad..modern America..help us God
Posted by: Adamakis | Dec 10, 2013 2:12:44 PM
Whom would people prefer as a cellmate, who would scare you more, this lady or a mob assassin?
Lib mistakes me for a retributionist. Rape the rapist, steal from the thief. I have strenuously opposed retribution as a waste of time, and from the Bible, and reflecting the Iraqi tribal culture of the authors of the Bible. They lived like animals even compared to the far more civilized Romans.
I support incapacitation as the sole mature goal of the criminal law.
Posted by: Supremacy Claus | Dec 10, 2013 2:40:12 PM
Why don't you just come right out and say what you think: That Amerika stinks, is a uniquely brutal, punitive and savage country, and should be ashamed of itself. While we're at it, the max sentence for any crime should be 15 years (assuming arguendo that there actually are "crimes," as opposed to unfortunate events principally caused by mental illness and maybe a tad of bad temper).
Tell me that you strongly disagree with any of that.
Posted by: Bill Otis | Dec 10, 2013 2:52:34 PM
Prof. Berman makes the additional extra point aganst mind reading. It has to be done for an act taking placce 6 months ago.
Posted by: Supremacy Claus | Dec 10, 2013 4:49:12 PM
You give a patented Otis response. You do not engage on the merits, but rather mischaracterize my position. I am calling for discussion about the possibility parole possibilities rather than strict LWOP, not exactly a radical position. I never said sentences over 15 years are never appropriate, let alone said anything bad about this country. I simply made the point that comparative analysis can be useful. Your refusal to engage seriously on the merits with those with whom you disagree, frankly, speaks volumes about the lack of merit to many of your positions.
Posted by: Michael | Dec 10, 2013 8:34:54 PM
So I get it, Bill, anyone who disagrees with you on criminal justice matters hates their country. You just get grumpier and grumpier and sound increasingly like like a 60s era reactionary. For someone who holds themselves out as a criminal justice expert, you can be remarkably unserious and dismissive of responsible questioning.
Posted by: Liberty Lawyer | Dec 10, 2013 8:42:30 PM
No one is facing up to the mind reading problem, a power attributed to God, never to man, not even by the Medieval Church.
Posted by: Supremacy Claus | Dec 10, 2013 11:50:22 PM