You can be held accountable for murder WITHOUT A JURY TRIAL

The Sixth Amendment to the US Constitution provides for the right of jury trial "in all criminal prosecutions."

In the past, this has always meant that the jury decides not only that you are guilty of a crime, but how serious a crime you are guilty of. For example, if you are charged with armed robbery, the jury decides whether you are guilty of armed robbery, unarmed robbery, simple larceny (theft), or nothing at all. Similarly, if you are charged with murder, the jury decides whether you are guilty of first degree murder, second degree murder, manslaughter, or nothing at all. At least, that is the traditional approach.

Why the Government dislikes jury trials

Government finds the right to jury trial to be the most chafing, irritating thing that confronts them. After all, why should Government employees have to seek the approval of 12 citizens before they take action they think should be taken? Not only do jurors slow things down, but there is always the chance they will not vote the way the Government wants.

Another problem with the jury trial, as the Government sees it, is that with a jury trial you have to call witnesses, and subject them to cross-examination. They would prefer to simply give a report to the judge on the results of their "investigation," rather than have to call witnesses. Witnesses are highly inconvenient for a number of reasons. First, Government officials often have to bribe them with reduced charges. Second, many witnesses, being not as bright as lawyers, might not remember all the details of their stories the way the Government agents have told it to them. Third, some witnesses might change their mind in a courtroom. Fourth, witnesses subjected to cross-examination by the other side might unwittingly reveal that some of their testimony is false.

The US Sentencing Guidelines--more than just numbers

If you are charged with murder, you have the right to a jury trial for murder. So, to avoid that, they try you for drugs, or conspiracy to be involved with drugs. Once you are convicted of drugs or drug conspiracy, the Government can issue a report to the judge blaming you for murder. Based on that report, the judge can find you "responsible" for murder, and sentence you for murder, even though you have never been charged with murder, tried for murder, or found guilty of murder. And, you do not have the right to question your accusers.

This result comes about by way of the US Sentencing Guidelines. A federal statute, 28 USC 994, provided for a committee to decide on matters of sentencing. Their decisions are the US Sentencing Guidelines.

Under the Guidelines, a person's Offense Level determines their range of sentences, and a person's Offense Level depends on facts. Of critical importance to this scheme is that a judge decides the facts concerning the Guidelines. A jury is not involved at all.

Under Guideline 2D1.1, a person being sentenced for drugs or drug conspiracy can be found responsible for murder by the judge, and receive the same sentence as would be applied for murder. This is true even if, at the trial for drugs, the subject of murder was never even mentioned.

In fact, numerous cases hold that if you are convicted of any federal crime, you can be sentenced for conduct of which the jury found you not guilty, if the judge thinks you really did it. See, among other cases, United States v. Mocciola, 891 F.2d 13 (1st Cir. 1989); United States v. Patino, 962 F.2d 263 (2d Cir. 1992); United States v. Blankenship, 954 F.2d 1224 (6th Cir. 1992).

United States v. Watts: Level of justice at Supreme Court hits new low

The US Supreme Court, by a 7 to 2 vote, recently upheld this "principle" in the case of United States v. Watts, decided January 6, 1997. The jury found Vernon Watts guilty of selling drugs, but not guilty of possessing a weapon. The judge sentenced him for drug dealing and "enhanced" his sentence for his "relevant conduct" of possessing a weapon. In the same case, the Supreme Court sealed the fate of Cheryl Putra. The jury found her guilty of one drug transaction, and not guilty of a second. The judge sentenced her for the first drug transaction and "enhanced" her sentence for her "relevant conduct" of committing the second. In both cases, the Supreme Court thought that was just fine.

The Supreme Court stated:

"In short, we are convinced that a sentencing court may consider conduct of which a defendant has been acquitted."

Justice John Paul Stevens, in dissent, said:

"It is difficult to square this explicit statutory command to impose incremental punishment for each of the "multiple offenses" of which a defendant "is convicted" with the conclusion that Congress intended incremental punishment for each offense of which the defendant has been acquitted. The Court, however, appears willing to read the statute's treatment of multiple offenses as though it authorized an incremental penalty for each offense for which the defendant was indicted if she is convicted of at least one such offense. The fact that the text of the statute expressly authorizes such incremental punishment "for each offense" only when a "defendant is convicted of . . . multiple offenses" conveys a far different message to thoughtful judges...

The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant to that jurisprudence."

Justice Anthony Kennedy also dissented, commenting:

"At several points the per curiam opinion shows hesitation in confronting the distinction between uncharged conduct and conduct related to a charge for which the defendant was acquitted. The distinction ought to be confronted by a reasoned course of argument, not by shrugging it off.

At the least it ought to be said that to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal, concerns noted by Justice Stevens and the other federal judges to whom he refers in his dissent. "

So, the rule is simple. You can't win, even when you win. Even a not guilty verdict from a jury cannot prevent the government from saying you did it, and punishing you accordingly.

It is somewhat comforting that 2 justices were willing to vote for justice in this case, even though 7 were not. It is also disappointing and instructive that of the two Supreme Court justices appointed by a Democratic president, Breyer and Ginsburg, neither was among the two justice minority that voted for justice.

Words get new meaning at Supreme Court

When people are elevated to the Supreme Court, it often causes them, and consequently all courts, to use words in new, imaginative ways. For example, a member of the Supreme Court, rather than being called a "judge," is called a "justice," regardless of whether his or her rulings are just.

The judicial principle that words do not mean what they say, especially when what the words say conflicts with the desire of government officials to exercise power, is illustrated by many cases. See, for example, cases dealing with the fact that the Sixth Amendment provides that the accused is entitled to trial by an impartial jury "in all criminal prosecutions." In Lewis v United States (1996) the Supreme Court said that a person could be prosecuted for misdemeanors carrying 6 months in prison, without a jury trial. They also said that a person could be charged with multiple misdeameanors, tried for all without a jury, and sentenced to decades of imprisonment from multiple consecutive 6 month terms. So, by reading the rulings of the Supreme Court, you learn that "all criminal prosecutions" really means "some criminal prosecutions", and you have no right to a jury to protect you from the government if you are charged with a "petty" offense. I wonder how petty they would think it was if they had to spend the six months or 10 years in prison.

It is true that in England before the American Revolution, there was no right to jury trial for "petty" offenses. Perhaps the justices simply forgot who won the Revolution. Perhaps they forgot that the Bill of Rights was designed to change the British way of governing, not to perpetuate it. The Revolutionaries who granted sweeping rights to the American people did so in reaction to the practices of the entrenched judicial establishment of the time. Today's entrenched judicial establishment can void those rights, and regain the power their fellow judges lost in 1787, simply by declaring that words mean something other than what they say.

If the authors of the Bill of Rights really did want to limit the right of jury trial to those criminal prosecutions carrying a penalty greater than 6 months, don't you think they would have said so? Courts don't. Words just do not mean the same thing in a courtroom as they do in ordinary speech.

So what can they say in response? That if the founding fathers had meant "all," they would have said so? They did say so.

Are there other examples? Of course there are. The Eleventh Amendment to the Constitution states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Supreme Court ruled that "Citizens of another State" means not only citizens of another state, but citizens of the same state. See Welch v. Texas Highways & Public Transportation Department, 483 U.S. 468 (1987).

The Second Amendment to the Constitution provides: "the right of the people to keep and bear Arms, shall not be infringed." Yet, every day judges throw people into prison for peaceably keeping and bearing arms, with the full approval of the Supreme Court.

Therefore, can it really be so surprising that the Supreme Court in United States v. Watts would rule that a jury verdict of "not guilty" does not prevent a judge from saying you really are guilty, and sentencing you accordingly?

How the guidelines apply to real-life situations

Let's take the example of Mr. A. Mr. A was selling drugs on a street corner. He was provided the drugs by Mr. B, who got them from Mr. C. Normally, the sentence of Mr. A would depend on how much drugs he sold. For example, if he sold 5 grams of crack cocaine (.011 pounds, or 1/90 of a pound), and had no criminal record, his sentence under the guidelines would be 63 to 78 months, or in the vicinity of 6 years.

The jury that convicts Mr. A thinks they are convicting him for drugs, and nothing more.

But let us say that Mr. D, a friend of Mr. C's, once killed someone unknown to Mr. A. Let us further say that Mr. A has never met Mr. D, or indeed, ever met Mr. C. Under the law, the judge, sitting without a jury, and basing his decision on "reports" issued by the Government, could find that Mr. A conspired not only with Mr. B, but with Mr. C and Mr. D as well. The judge could therefore find Mr. A responsible for any crime committed by Mr. D, including murder. Mr. A's sentence would then be 40 years in prison.

I should point out that the courts have repeatedly ruled that a person can be found guilty or responsible for conspiracy with people he does not know, has never met, and has never even heard of.

The jury is not permitted to know what punishment would be imposed for the drug involvement. The jury is not permitted to decide the amount of drugs for which Mr. A is responsible. The jury is not told that a person could get 6 years for an amount of drugs smaller than your pinky finger. The jury is not told that the actual sentence could be up to 40 years, because their drug verdict could allow the judge to hold the defendant responsible for murder.

The decision on whether Mr. A should be held accountable for a murder of someone he never met, committed by someone he never met, is an important one, making the difference between 6 years in prison and 40 years in prison. You would think that such a major decision would fall within the Sixth Amendment right to jury trial. You would be wrong. The judge, all by himself, decides the matter, without a single witness ever being called or questioned. The hapless Mr. A gets a jury trial on drugs, but none on murder. If Mr. A had two ounces of crack, the murder would get him sentenced to prison for life, again without a jury trial on whether he was involved in murder.

This way of doing things is working so well for prosecutors that we can predict more and more things being taken out of the hands of jurors and placed in the hands of judges.

What the future holds

Here's an example. In the future, there will be a crime known as "stealing." If convicted, you can be sentenced anywhere from probation to life in prison. If the judge finds that the amount was large, or that violence was used, or that drugs were involved, he would impose life, but if he did not find those things, the penalty would be less. Jurors would never decide whether there was just a theft (larceny), or a theft by force (robbery), or a forceful theft while armed (armed robbery). Those distinctions could now be in the hands of a judge.

Here's another example. In the future, there will be a crime known as "violence." If convicted, you can be sentenced anywhere from probation to life in prison or death. If the judge finds that someone died from the violence, he could impose death. If he found that a gun was used, or that the purpose was rape, he could impose life, but if he did not find those things, the penalty would be less. Jurors would never decide whether there was just an ordinary assault and battery, or a rape, or a murder. Those distinctions could now be in the hands of a judge.

The underlying theory behind all this is that jurors simply do not follow the Government line closely enough to be trusted with major decisions. The Government now has a potent tool in its hands that allows it to avoid unpredictable things like witnesses, cross-examination and juries, and base everything strictly on Government allegation.

The shocking thing is that your Supreme Court, which is supposed to uphold the Constitution, lets this go on. Whether they are appointed by Republicans like Reagan, or Democrats like Clinton, they all seem to think that juries are a big waste of time. Think of all the people a judge could sentence to prison in the time a lawyer would spend cross-examining a witness! This big time-waster is now being done away with. The Supreme Court believes that liberty is a small price to pay for more efficient allocation of court resources. Do you?

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