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.