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September 30, 2004

Sentenced for an uncharged murder

In his opinion for the majority in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge." The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."

Though this passage expressing concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I just noticed a decision a few weeks ago in US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), which documents that defendants in federal court can and do get punished for uncharged murders. Vernier involves a sad case of the kidnapping, robbing and possible murder of victim Ron Mesika after he picked up defendant Jonathan Vernier as a hitchhiker. (The facts of the case remind me of the disturbing hitchhiker episode on HBO's Six Feet Under, which this article explains was nicknamed by producers as "the departure episode"!)

Though the case's facts would seem to have (and should have?) supported a lot of very serious criminal charges, defendant Vernier was allowed to plead guilty to two relatively minor counts for the fraudulent withdrawal of money from the victim's credit card, and for the interstate transportation of stolen goods and money. I can only speculate as to why defendant Vernier was allowed to plead guilty to these lesser charges, though the fact that Ron Mesika's body has never been found perhaps explains the outcome.

As explained by the sentencing court, under the applicable federal guidelines for the offenses to which he pled guilty, "Vernier would normally be sentenced for an offense level of 17 and receive 51 to 63 months imprisonment." But, based on evidence presented at sentencing, the Court "finds the evidence sufficient that Vernier was responsible for Mesika's death and grants the government's motion for upward departure, bringing Vernier's offense level to 32, resulting in an imprisonment range of 210-240 months," the maximum sentence available under the offenses to which Vernier pled guilty. In justifying this departure, the sentencing court cites McMillan, Williams and Harris and also notes a number of other cases in which federal sentencing courts enhanced sentences relying on "circumstantial evidence [which] showed by a preponderance of the evidence" that a defendant was involved in a killing, even though "there were no convictions and no body recovered."

In the concluding section of his thoughtful and obviously heartfelt decision, US District Judge Shelby Highsmith explains the essence of his ruling and drops a footnote with reference to Blakely:

The circumstances surrounding Vernier's charged crimes, specifically the abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier, sufficiently take this case outside the heartland of typical theft cases falling under § 2B1.1. Failure to recover Mesika's body does not preclude this Court's determination that Vernier is responsible for Mesika's death. The evidence clearly shows — based on the presence of Mesika's blood splattered on the windows, door, and roof of the van, Mesika's blood and tissue found on the tire iron, the attempt to use the cleaning agents to hide this evidence afterwards, and the impunity with which Vernier used Mesika's credit card without worrying about the consequences — that Vernier murdered Mesika. Therefore, considering the unique and aggravating circumstances of the heinous crime perpetrated by the Defendant, this Court GRANTS the government's motion for upward departure and hereby sentences the Defendant to 210 months, as specified in this Court's Amended Judgment.[FN1]

FN1. When this Court imposed sentence on May 10, 2004, the United States Supreme Court had yet to issue its decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Recognizing that this decision may impact this Court's sentence, this Court entered an Order on July 27, 2004 directing the parties to file briefs addressing the issue on how Blakely affected this Court's Judgment. While the parties disagreed on Blakely's impact, both parties agreed (and this Court concurs) that the ultimate arbiter of Blakely's impact on this Court's Judgment is the United States Court of Appeals for the Eleventh Circuit. This Court sincerely hopes that the Eleventh Circuit, after examining the totality of circumstances surrounding Mesika's horrific and untimely death, will uphold this Court's Judgment, which was only entered after much thought and reflection. This Court acknowledges that its upward departure and sentence may appear, at first glance, to be extreme. But this Court is also convinced that they are just.

So much could be said about this sad and disturbing case, and it does provide a chilling example of who might get a sentencing windfall from Blakely and why we might want to rely on an administrative rather than an adversarial system of sentencing justice.

But what troubles me most about this case is why the defendant was allowed to plead guilty to such relatively minor charges when, in Judge Highsmith's words, the "evidence clearly shows ... that Vernier murdered Mesika." If there indeed was "abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier," why isn't Vernier facing sentencing on a murder charge?

The decision to allow Vernier to plead out to lesser charges capped his sentence at 20 years for a crime that, according to this LA Times Article, Attorney General John Ashcroft might have wanted pursued as a federal death penalty case. The case thus reinforces my worry that we should be more concerned with the sentencing windfalls handed out by prosecutors than those that might result from a serious commitment to the Sixth Amendment.

September 30, 2004 at 07:30 AM | Permalink


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"... a serious commitment to the Sixth Amendment." How quaint.

I jest, of course. I know that none of the Constitution or Bill of Rights was intended to be taken seriously, or thought to be worthy of serious commitment, except sometimes. My problem is that I don't understand the nuances of when things really really apply, and when they sorta kinda apply. Is this what DAs are for?

(Now removing tongue from cheek.)

Scalia is right.

Posted by: Jeannie | Sep 30, 2004 10:49:03 AM

I don’t pretend to understand a lot of this but isn’t this an extreme example of why this current system is so dangerous to citizens and why placing great power in the hands of a few government lawyers is such a serious error? I don’t want to let murderers out of prison either but considering only theft charges were offered, I suspect that the murder case was weak- how can we suspect anything else? This is a prime “back door” prosecution under a low standard of evidence and the evidence presented in a PSR or sentencing hearing is inherently very one sided. At the typical plea stage, who conducts the investigation? Government. Who pays and employs the experts? Government. Who has full and sometimes exclusive access to witnesses and evidence gathered? Government. At the plea stage there are no defense forensic experts, no cross examination of DNA evidence, no witness cross examinations, no realistic opportunity to directly confront your accusers. You take the plea and then you get what you get.

I don’t doubt that the judge believes very strongly that there is sufficient evidence to support his departure but where did that evidence come from and what is the evidence standard that he is held to to give what could essentially be a life sentence for minor theft admission? Seems to me that there goes the “transparency” argument that some guideline supporters like to throw around.

Posted by: Non-Lawyer | Sep 30, 2004 11:44:26 AM

I have just read your entry on the Vernier case and feel compelled to comment. You've stated that: "what troubles me most about this case is why the defendant was allowed to plead guilty to such relatively minor charges when, in Judge Highsmith's words, the "evidence clearly shows ... that Vernier murdered Mesika." If there indeed was "abundance of evidence pointing to the brutal killing of Ran Mesika by Vernier," why isn't Vernier facing sentencing on a murder charge? " You assume the judge's view of the evidence is accurate. I would suggest that you should examine this assumption. Perhaps this would lead you to rephrase your question: "If there really were an 'abundance of evidence' showing that Vernier killed Ran Mesika, would some ambitious prosecutor not have charged Mr. Vernier with murder?" Moreover, you might consider whether a single judge's view of the quantity and quality of the evidence, a view formed after review of a probation officer's report compiled on the basis of information supplied by the prosecutor, might differ significantly from that of a jury of twelve people of varying experiences whose views are formed after a real trial and full adversarial testing of such evidence. You might ask whether it is not likely, that Mr. Vernier was "allowed" to plead guilty to theft charges by a prosecutor who had suspicions and little evidence but who knew that he could convince a single judge by a preponderance of the evidence to sentence Mr. Vernier for murder? And is this not exactly the sort of practice that undermines the right to jury trial and that Blakely is intended to curtail?

I am a defense attorney, the Chief Asst. FPD in the S.D.Fla. My office represents Mr. Vernier, and I have some familiarity with this case.

Posted by: Reuben Cahn | Sep 30, 2004 3:32:44 PM

Thanks for your comments, Reuben. Obviously, you know that your questions would be more accurate than mine. And, of course, we both know how this all shows how important and significant Blakely/Booker and this whole new sentencing world could be.

Posted by: Doug B. | Oct 2, 2004 4:03:23 PM

I am afraid to comment on anything concerning Federal criminal matters. I am extremely fearful of the federal law enforcement apparatus and its' very long arm. I was a defense attorney admitted in New York and US District courts. I very rarely practise anymore. I was never sanctioned or admonished in any way, but I prefer to get depressed by reading about Crim Pro than practising it. You may check my credentials on line but please never never pulicly name me.
Thank You
William A. Vanson Esq.
[email protected]

Posted by: William A. Vanson | Oct 10, 2004 1:28:54 AM

As a disabled vet my only question is how did we allow statute law to replace common law in our country? As near as I can find our Constitution allows only three types of law. Maritime, Contractual, and Common. It was my impression that every elected official swore to uphold and defend the Constitution not ignore it. Perhaps I missed something so please enlighten this old vet if you know what I missed. Thanks

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Posted by: ocnsss | Mar 22, 2007 10:37:37 PM

Vernier's murder trial will begin tomorrow in the WDLA Lake Charles Division tomorrow

Posted by: patti | Apr 6, 2008 9:36:44 PM

It has been pending there for some time. Perhaps you all need to expand your research

Posted by: patti | Apr 6, 2008 9:43:19 PM

Might interest all of you to know that Vernier was recently convicted in the Western District of Louisiana, Lake Charles, Louisiana, on the charge of carjacking resulting in death. At the time he pleaded guilty in Miami, plans for such a prosecution were already underway. I would know such things as I was the former FBI case agent in this matter before I retired.

Posted by: Joe Duenas | May 13, 2008 12:25:38 PM

I was googling the Mesika story after reading about it in today's Ha-aretz.

I'm a retired education professor who attended one year of law school and then became a high school teacher I have been interested in the law's application to teacher and student civil rights. The whittling down of Tinker v. Des Moines over the length of my career was a disappointment.

Schools, for the most part, have always been authoritarian institutions, but I had hoped they might learn to practice the civics lessons they preach.

I enjoyed reading your blog. Thank you.
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