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January 15, 2008

Gun sale sentencing goes forward without "victim" input

As detailed in this Salt Lake Tribune article, the "man who sold Trolley Square gunman Sulejman Talovic one of the guns he used in his deadly Feb. 12 rampage was sentenced Monday to 15 months in prison."   This sentencing is notable in part because it went forward without the involvement of persons who claimed to be victims of this crime and vigorously sought to participate.  As the article explains:

Before imposing the term, U.S. District Judge Dale Kimball denied a request to delay the hearing by the parents of Vanessa Quinn, who was fatally shot with the .38-caliber Smith & Wesson that Hunter sold to Talovic.  In a motion filed shortly before the sentencing, Sue and Ken Antrobus, of Cincinnati, asked Kimball to give them three weeks to try to overturn a ruling that their daughter is not considered a victim of the illegal sale.  The two had requested the designation under the federal Crime Victims' Rights Act (CVRA). They hoped it would allow them, as their daughter's representatives, to ask the judge to impose a 99-month sentence.

Kimball said although the Antrobuses are victims of the shooting, they are not considered victims under the CVRA of the gun sale.  That ruling was upheld Friday by a three-judge panel of the 10th U.S. Circuit Court of Appeals.  Lawyers for the parents said Monday they will appeal to the full 10th Circuit and then to the U.S. Supreme Court if necessary to get the couple, who did not attend the sentencing, designated as victims.  If they are successful, the Antrobuses could then petition for a new sentencing.

Their attorneys believe there is evidence that Talovic talked to Hunter about a bank robbery, which would have been a warning that the gun might be used in a violent crime. One of the lawyers, Paul Cassell, said the Antrobuses are disappointed Hunter got only 15 months behind bars, followed by 36 months of supervised release. "This is the man who sold the murder weapon that killed their daughter," said Cassell, who described Hunter's apology as "too little too late."

Notably, under normal SCOTUS timelines, it seems unlikely that the Antrobuses could obtain Supreme Court review and get a ruling before the defendant Hunter served his prison term.  That is obviously why, as discussed here, Congress included a "rapid return" provision for circuit review under the CVRA.  But there is no comparable provision requiring the Supreme Court to more quickly, even though the Justice might in their discretion give this type of CVRA appeal fast-track treatment.  (After all, death row defendants often get fast-track treatment in their appeals.  I would hope parents of a murder victim would get at least as much procedural attention from SCOTUS as most murderers get.)

Interesting, as detailed in this post, Paul Cassell has just joined the ranks of The Volokh Conspiracy.  I hope he will blog about this case and/or all the other CVRA litigation he gets involved in.

Some recent related posts about this case:

January 15, 2008 at 07:44 AM | Permalink


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Your comment about victims getting the same procedural protections as defendants reminded me of the criminal defendant's right to allocute before sentencing. The reason for this is not that the defendant might reveal new evidence or convince the judge he's innocent; it's probably very rare that the defendant says anything new or unexpected. The reason is that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. U.S., 365 U.S. 301, 304 (1961). In the words of the 3rd Circuit, "denying [the defendant] his right of allocution was tantamount to denying him his most persuasive and eloquent advocate. And the district court was likewise denied the opportunity to take into consideration [the defendant's] unique perspective on the circumstances relevant to the sentence, delivered by his own voice." U.S. v. Adams, 252 F.3d 276, 288 (3d Cir. 2001). See also U.S. v. Prouty, 303 F.3d 1249 (11th Cir. 2002); U.S. v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994). While this doesn't necessarily address the caustion requirement, it does speak directly to the district court's statement that it wan't important to recognize Vanessa as a victim because he knew what her parents would say anyways.

Posted by: Chris | Jan 15, 2008 12:40:49 PM

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