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March 7, 2005

Just when you thought it was safe to go back into the (cert. pool) water

Please excuse the silly Jaws 2 reference, but I am suffering a bit of the shakes after now having had a chance to read the the Supreme Court's opinions in Shepard, all of which can now be accessed at this link.  Because the facts and law surrounding the actual holding in Shepard are complicated and opaque, few may instantly realize its block-buster status.  But Shepard is huge, because it (1) seems to limit the scope of the Almendarez-Torres "prior conviction exception" to Jones-Appendi, (2) hints that the Alemedarez-Torres "prior conviction exception" will be overruled soon, and yet (3) leaves Almendarez-Torres "prior conviction exception" alive, though now it is bloodied and perhaps gasping its final breath.

I will need future posts to explain why Justice Souter's opinion for the Court so terriby muddies the current status of the Almendarez-Torres "prior conviction exception."  For now, let me spotlight that the four Justices speaking for the Court in Shepard, who are keeping the Almendarez-Torres "prior conviction exception" just barely alive, were the four dissenters in the Almendarez-Torres.  The key fifth vote upholding judicial factfinding of a prior conviction and thus creating what is now the "prior conviction exception" to Jones-Appendi, back in 1998, was Justice Thomas.  Here's what Justice Thomas says today in his Shepard concurrence about the Almendarez-Torres "prior conviction exception": 

Almendarez-Torres ... has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.  See 523 U. S., at 248–249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520–521 (THOMAS, J., concurring).  The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres' continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements."  Harris v. United States, 536 U. S. 545, 581–582 (2002) (THOMAS, J., dissenting).

March 7, 2005 at 11:30 AM | Permalink


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I am dizzy trying to digest all of these appartently conflicting rulings. How does the 5th now square Mares with Shepard? Aren't all post-Booker affirmances subject to remand? I think the Circuit should relax, especially the 6th, so that the 1st and 11th have time to breath.
You should start a pool on which Booker pipeline case will be selected for the next session.

Posted by: Bob | Mar 7, 2005 12:01:21 PM

It seems to me that well settled principles limit Shepard and require the limiting language (except for prior conviction) of Apprendi and Booker. A conviction is a final judgment. Apart from collateral attacks, once appeals have been denied or the time for appeal expired, the judgment is final. A defendant in a later case is estopped from contesting whether he robbed the liquor store when he is next on trial for something else just as a civil defendant is estopped from saying he didn't fix prices if he was previously convicted or found liable for doing exactly that (and, applying principles of collateral estoppel, we really do mean EXACTLY). Shepard says that whether the prior conviction was for a crime of violence must be determined with reference to the indictment, the conviction (especially with reference to a special verdict if there is one) or the plea agreement, not with reference to what a police note says or what a prosecutor might have charged. This is, it seems to me, the same as determining exactly what issues are precluded from being relitigated. So Shepard is very important: a sentence for an offense for which a defendant is newly convicted cannot depend on evidence about a prior offense other than the documents of the conviction itself. Judges, in other words, can find the sort of judicial facts that they have been finding for decades. But Shepard is not the camel's nose under the tent that, together with Apprendi, will require relitigation of all facts relevant to the prior conviction. In this respect, Shepard is entirely consistent with and anticipated by Apprendi.

Posted by: Phillip C. Zane | Mar 7, 2005 1:32:21 PM

I spoke with you briefly at the AFDA seminar in Los Angeles. I had provided a handout on the Booker decision. Florida has a minimum mandatory with no ceiling on the maximum. I'd like to know your thoughts on why such a system is likely to fall. Ed Leinster

Posted by: ed leinster | Mar 7, 2005 6:37:56 PM

Mr. Zane has really hit the nail on the head. All of the hand-wringing can be eliminated if those in a position to decide/implement/live by Shepard would just understand what Mr. Zane is saying. You shouldn't be able to re-litigate final closed prior cases. If it's not in the final record of conviction, it doesn't exist. Like Scalia said, the government cannot use an old lane change conviction to increase a current sentence by using new fact-finding to determine that the prior lane change conviction really was a crime of driving a getaway car in an armed bank heist. [Even if that is true, the government had its chance, and decided against pursuing it, or lost. They should not be given this bogus second bite at the apple.] I am obviously not a lawyer so the terms I use are the common English usage ones, not legal terms. I am sure you can do the translation. My point is if the intent was to allow the use of prior convictions to increase current sentencing, then the government cannot add new (and BTW indefensible by all the original protections of the law) prior convictions that do not in fact exist.

Posted by: Jeannie | Mar 8, 2005 10:04:05 AM

I'm not sure Mr. Zane's suggestion is correct that a defendant can't contest facts established in one criminal trial when the government seeks to rely on those facts in a subsequent criminal trial. There is some case law favoring a defendant's right to have the new jury decide every fact essential to the conviction, regardless of what the last jury decided.

Posted by: TChris | Mar 8, 2005 10:54:32 AM

TChris, you may be right about facts essential to conviction.

However, what about facts that are only relevant to increases in sentencing, post conviction? That is what bothers me tremendously, as noted above in Scalia's example. He addresses fact-finding for prior convictions that increase punishment in the sentencing phase of the instant conviction. Specifically he addresses fact finding for prior convictions that allows finding facts that are not limited part of the actual record of conviction.

Other serious problems derive as well even if there are to be essentially retrials of old closed cases (prior convictions). These faux trials would be for the sole purpose of increasing sentences for instant convictions based on facts that are not part of the prior conviction's final disposition statemnt or plea colloquy, as the case may be.

Posted by: Jeannie | Mar 8, 2005 12:42:22 PM

TChris, maybe a sticking point is the phrase you used, "...facts established in one criminal trial...". That is different than "the fact of a prior conviction".

The fact of a prior conviction does not mean all information recorded from the time a crime is discovered to the time of conviction. The fact of a prior conviction should mean just the fact of a prior conviction, documented in the final conviction judgement. Everything leading up to the documentation of the final judgement is just information, and does not necessarily constitute an accumulation of discrete "facts" that can be taken independently at some time in the future and used to enhance punishment for an unrelated crime. If that is to be the case, then every piece of documented information in a criminal case that's not an element of the actual charged crime, that might be used against the defendant in the future, must be opposed and litigated for the record. This is the only adequate representation if a citizen is to have any hope of a just result for the rest of his life.

It seems much superior that a defendant should only have to defend against the charged crime. It therefor seems logical that the judgement of conviction only refers to the fact of guilt of the charged crime and not every utterance or police report note used to come to that conclusion. This document then becomes the sole basis of the fact of a prior crime, when used in the future for sentencing purposes of a new crime.

In Shepard, the statutory definition of his prior burglary convictions does not include the element that makes it a strike. It is clear to me that the fact of the prior conviction can't be changed after the fact (no pun intended). Maybe the legislature needs to revisit its definition of burglary or its definition of strike. To make their inconsistency be borne by the citizen seems worse than a mockery. The defendant is made to retroactively prove his innocence of an element of old crime that didn't even exist at the time of commission, upon threat of a defacto life sentence not otherwise available to the state for the instant crime.

Are these valid concerns, or concerns borne of being uneducated in the law?

Posted by: wishful | Mar 8, 2005 4:21:43 PM

I am searching for case law in florida regarding plea agreements being upheld. The judge sentenced me to 20 years of which he intended I do 25 to 35% of my time. Of course, this calculates out to 5 to 7 years. I ended up doing 11 full years through no fault of my own. I'm still on probation looking to terminate the entire sentence do to doing extra time.
PLea agreements cetainly the state must honor their agreement. Any help would be appreciated.

Thank you
David Lavish

Posted by: David Lavish | Mar 12, 2005 3:55:25 AM

Mr. Leinster if you see this please email me back. I have been trying to find you for a long time for an old friend of yours.

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