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November 4, 2004

Experiences with juries doing sentencing factfinding

Though US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), recently refused to allow the government to submit sentencing factors to a jury (as detailed here), there are anecdotal report of juries involved in sentencing factfinding in many courtrooms. For example, Ellen S. Podgor at the White Collar Crime Prof Blog reports here on the on-going Enron-related criminal trial where five convicted defendants "are back in court today for the jury to hear evidence for the purpose of sentencing." And Michael Ausbrook at INCourts reports here on reports of a state judge presiding "over a real, live, Indiana, non-capital sentencing jury --apparently without objection from the defense."

I would be grateful if readers might be inclined to utilize the comments to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding. I surmise from various anecdotal reports that having juries involved in this factfinding has not proved too cumbersome or problematic, but I doubt I am getting a complete picture from reading the occasional caselaw and newspaper accounts.

November 4, 2004 at 02:21 PM | Permalink


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We just finished a trial last week wherein we included several factual inquiries for the jury in the verdict form, including drug amounts and whether a firearm was use "in connection with" a drug trafficking offense. We did have to do some of "if you found the defendant guilty of the offense in count one, answer the question on page ___. If you did not find defendnat guilty, go to page ___," but overall the jury seemed to find it quite manageable.

Posted by: Erin Dailey | Nov 4, 2004 5:43:29 PM

Thanks, Erin. Very interesting.

Posted by: Doug B. | Nov 4, 2004 8:06:07 PM

I am a defense attorney in the US District Court for the Northern District of Iowa, Cedar Rapids Division, which Judge Linda R. Reade presides. The government got a superseding indictment in a child pornography case to include sentencing factors. The Judge kept them out of the case in chief on my Motion In Limine. She then proposed a bifurcated trial with the same jury. I resisted on the ground that there is no basis in law because Booker and Fanfan have not been decided to extend Blakely to the Guidelines, and the Eighth Circuit has withdrawn Mooney and Pirani, leaving us in a pre-Blakely position. Judge Reade denied the resistance. She asked whether the defendant would stipulate that she could find the factors. I said no. The sentencing factors have been submitted to the jury.

Posted by: Charles H Nadler | Nov 5, 2004 12:29:08 AM

California courts do it every day. Well before Apprendi and Blakely ever blipped the radar screen, California, by statute, has afforded defendants the rights to jury trial and proof beyond a reasonable doubt to establish facts used to enhance/increase a defendant’s sentence, including facts regarding the offense (gun use, bodily injury, weight, $ amount, etc.) and the offender (on bail, prior prison term, indeed, prior conviction/strike).

But they don’t do it every hour. Many defendants admit the aggravating fact even while trying the “elements of the offense” lest the jury have to “decide,” say, how much the meth weighed while deliberating whether the drug was possessed for sale, or whether the burglary defendant was on bail at the time of the offense. What defendant wants the jury to hear this?

As for the aggravating sentencing factors at issue here in California regarding the offense (extreme cruelty, e.g.), or offender (lack of remorse), while Blakely may shift power from the judge to the jury, the idea the prosecution should balk at presenting aggravators to the jury or the defendant should balk at stipping, I say bunk. Rumors of court chaos, assuming Blakely applies in the federal arena, are premature.

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