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September 1, 2005

Judge Kopf takes on Judge Bataillon on the burden of proof

When Booker was handed down, I likely would not have predicted that the District of Nebraska would become the hotbed of sentencing debates.  But I just received an amazing memorandum and order which reflects a brewing battle royale over sentencing procedures there. 

As detailed in recent posts here and here and here, Judge Joseph Bataillon (who sits in Omaha) last week issued a significant decision on due process and burdens of proof in US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which he decided that he should not base "any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt."  In response, Judge Richard Kopf (who sits in Lincoln and whose colorful sentencing opinions are well known to readers of this blog) has filed memorandum and order which asserts, inter alia, that "Judge Kopf will not follow Judge Bataillon's 'reasonable doubt' standard at sentencing."

Judge Kopf's brief memorandum, which pulls no punches, can be downloaded below.  Here are some highlights:

In the non-death-penalty context, I respectfully disagree with [Judge Bataillon's] assertion that the Fifth Amendment requires a judge to find facts beyond a reasonable doubt when sentencing a defendant who has been previously found guilty after a trial or a plea that complies with Constitutional requirements.  Nothing in Booker, Blakely, or Apprendi compels or justifies such an assertion. Indeed, one need only read the cases Judge Bataillon cites to recognize the legal weakness of his views. Once the ordinary criminal has been found guilty by plea or trial that complies with the Constitution, there is no applicable precedent for cloaking an undisputably guilty person with the Constitutional protections intended for the innocent.

If the Fifth Amendment is to be expanded beyond any currently recognized legal boundaries, that decision should be left to the Court of Appeals or the Supreme Court, bodies far better suited than individual district judges to "discovering" new Constitutional rights. Booker and its (tangled) predecessors do not provide a legitimate invitation for district judges to implement their personal policy views about proof standards. See, e.g., United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc) ("Nothing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.").

In the end, and while what Judge Bataillon proposes may be good policy (although I doubt it), his newly discovered Constitutional right to "proof beyond a reasonable doubt" at sentencing is like the mythological chimera (a fire-breathing she-monster with a lion's head, a goat's body, and a serpent's tail).  It is the product of an agile mind, but it has no claim to the here and now.

Download kopf_on_burden_of_proof.pdf

September 1, 2005 at 11:02 AM | Permalink


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Way to go Judge Kopf!!! And no indigestion this time!!!

Posted by: hmm | Sep 1, 2005 6:13:10 PM

Prosecutors lie. They are allowed to lie. They are encouraged to lie. They lie all the time. Most defense lawyers (especially the free ones) don't even bother objecting to the lies. It's too time consuming to fight. So, the preponderance of evidence used in the majority of cases in a plea bargain situation is 1) the prosecutor made up a tale 2) the judge bought the lie. That's your preponderance of evidence. Who said anything about proof?

With all the lies going on, is the accused (and convicted) guilty of anything at all? Who knows?

I certainly cannot read any case document and believe one word of it.

Posted by: jewel | Sep 2, 2005 2:59:04 PM

(former attorney) take whatever Judge Battailon says with a grain of salt reserved for the quixotic crusading spirity you would expect from the most vigorous aclu advocate. if you want sound analysis of the Booker-Blakely mess that we have now, i would stick with Kopf's ruling

Posted by: Dale Gribble | Sep 5, 2005 7:24:33 PM

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