A big win for the nation's defense bar. But did it have to take so long?

Work as a defense attorney long enough and you will eventually see an argument that you believe in, that you raised numerous times, that you repeatedly got shot down on, ultimately prevail. It's always a little bittersweet. Sweet in that you can say, "See?! I told you!!!" Bitter because even as lots of clients will benefit, you can't help but think about all the other clients who are stuck even though they raised the exact same issue in their case. Once the direct appeal is done, there's not much chance a court will revisit that particular defendant's case, even if we all now acknowledge that his sentence is unconstitutional.

On Monday, while the rest of the nation was focusing on the United States Supreme Court's ruling on the Arizona voter registration law (a totally predictable result, btw, because, duh, federal law trumps state law), criminal defense attorneys were paying far more attention to another case, Alleyne v. United States. I haven't caught any major media outlets even noticing this case, but it's going to affect a lot of sentences around the nation. Defense attorneys around the country have been making this argument for 15 years, so even those of us who weren't involved in this particular case feel a little bit like we won.

To understand the issue in Alleyne, it's necessary to go back a decade or two. Back in the day, the standard approach to criminal sentencing was to have indeterminate sentences. For a crime, say robbery, the legislature would prescribe a sentencing range from 5-20 years in prison. The district court would have wide discretion to sentence the defendant to anything within that range. Parole boards would decide when the defendant would be released from prison, which could happen anytime after he served the minimum number of years set by the judge.

In the '80s and early '90s, a push was made to alter the way we did sentencing. Why? Because it was becoming apparent that with this broad amount of discretion afforded to judges at sentencing, some factors that shouldn't be considered might have been creeping in. There were racial and gender and economic status disparities showing up. As you might expect, poor black men convicted of robbery were getting the high number while middle class white women were getting lower sentences. As just a very rough example. So a lot of jurisdictions switched to guidelines sentencing, or grids as we call them.

Under grid sentencing (and I'll explain in Kansas terms because, obviously, that's what I'm most familiar with), the judge has very little discretion. The severity level of the offense determines the defendant's vertical placement on the grid while his criminal history determines the horizontal placement. This lands the defendant in a particular box with 3 numbers. The judge has full discretion to sentence the defendant to any one of those 3 numbers of months. The difference is usually a matter of a few months between levels. The mitigated number for a level 3 felony with no criminal history is 55, the standard is 59 months, and the aggravated is 61. Those numbers increase quite a lot if you have any prior felony on your record.

Now, before 2000, these sentencing grids did allow for some leeway in a very specific set of circumstances. A prosecutor could seek an upward durational departure, asking for up to double the top number of the defendant's grid box (so up to 122 months for a level 3 with no criminal history). The legislature set out about 8 or 9 specific facts that could "aggravate" the crime and be found by a judge as grounds for going beyond the grid and sentencing the defendant to a longer term.

In 2000, though, the United States Supreme Court issued its landmark decision, Apprendi v. New Jersey. (Landmark to criminal lawyers, anyway.) The defendant in that case challenged these upward departure sentences, arguing that it violated his Sixth Amendment right to a jury trial by allowing a judge to find additional facts that would increase the defendant's sentence. Using the numbers I set out above, the argument goes that the jury's fact-finding authorizes at most a sentence of 61 months. Any facts that would be found to increase the sentence from 61 months to 122 need to be found by a jury.

The prosecution argued that not all sentencing factors need to be found by a jury. In my favorite Scalia quote ever (from a case applying the Apprendi rationale to death penalty cases), he rejected this distinction between sentencing factors and elements of the crime by writing it doesn't matter "whether the statute calls them elements of the offense, sentencing factors, or Mary Jane," those facts that increase the possible sentence must be found by a jury after the prosecution proved them beyond a reasonable doubt.

The Apprendi court agreed with the defense and Scalia, finding that any fact that increases the defendant's sentence has to be found by a jury. The end result of this in Kansas was that defendants could not receive upward durational departure sentences for several years because we had no constitutional statutory mechanism for imposing them. It took the state legislature a year or two to amend the upward durational departure statute so that the trial jury would stick around after the guilty verdict to consider aggravating sentencing factors claimed by the state.

The next argument that intrepid defense attorneys (including this one) pushed was that juries should have to find facts that increase the mandatory minimum, too. In Kansas, the standard sentence for first-degree murder is a life sentence with parole eligibility after 25 years. We then also have what's known as the Hard-50. If the prosecution gives notice that they intend to seek it, they can argue that one of the 8 or 9 statutory aggravating factors exists in a particular case and can ask the judge to say the defendant will not be eligible for parole for 50 years instead of the standard 25. Our argument has long been that even though the authorized sentence of life in prison is the same, there is a very real, functional difference between parole eligibility after 25 years and parole eligibility after 50 years. The US Supreme Court rejected the mandatory minimum argument about 2 years after Apprendi, in Harris v. US. The Court said the sentence authorized by a jury's finding was the maximum amount, so in the Hard-50 example, life. Since all first-degree murder defendants are eligible to be sentenced to life, the judge altering the mandatory minimum is ok.

Defense attorneys can be stubborn, though. Hard-headed, you might say. Bulldogs who don't take no for an answer. Most of the issues we have ultimately prevailed on are issues that we as a collective pushed for 10 years or more. Gideon was not the first guy to argue he had the right to a state-provided attorney. Miranda was not the first case where defense attorneys argued defendants couldn't be said to waive a constitutional right if they were never informed of that right. So we didn't give up on the mandatory minimum thing, even after Harris. I personally filed multiple petitions for certiorari to SCOTUS on that issue.

Last year, we all perked up when the Allenye petition was granted. Was the court finally going to say Harris was wrong? Or was the court going to tell us to give it up already?

Yesterday we got our answer. And we all said, "Huzzah!" Because SCOTUS finally, FINALLY said, yes, making a man serve an extra 25 years in prison before a parole board can consider releasing him does functionally increase the sentence such that it's a violation of the Sixth Amendment right to jury trial to have that increase be based on facts found only by a judge, not by a jury." Which ought to mean in Kansas there won't be any more Hard-50 sentences for some time until the legislature can catch up, amend the statute, and we start seeing cases the new statute can apply to. I wouldn't be surprised to see a prosecutor argue they can just have the jury find the aggravating factor, but as we learned in the post-Apprendi days, all sentencing procedures need statutory authorization. A statute that authorizes a judge to find an aggravating factor for Hard-50 purposes cannot be read to authorize a jury to make that finding.

Just in the last week or so, a murder conviction in Kansas made some national headlines. The prosecution in that case intended to pursue a Hard-50 sentence. I bet Nancy Grace et al will be heartily disappointed to know that's not going happen (or at least it shouldn't!). I know that there are defendants both in Kansas and around the nation who should benefit from this ruling. Not that the Hard-50 defendants here will necessarily get out of prison before serving 50 years, but at least they'll have that chance, some slim hope which makes all the difference in prison.

But I can't stop thinking about all those guys I filed cert petitions for. It's no comfort to them to go back now and say, "Hey, we really were right on that issue. But you don't get a new sentencing hearing. Sorry." It's hard to explain to them how it can be that our statute authorizing their sentence can be declared unconstitutional and yet their sentences, imposed under that statute, are still in place. It doesn't make sense. But at least going forward, no more defendants will be sentenced this way.

And the defense bar can move on to the next issue.

The Man of Steel is my homeboy

Want to know why you should root for the Royals?

Because Superman does.

Any team that's good enough for the Man of Steel ought to be good enough for you.

The car buying blues

My first car that was really mine was a Saturn SL2. It was red, of course, and I named her Scarlett. She wasn't necessarily the car I wanted. I had also test-driven a Pontiac Sunfire that appealed to me for its sportiness and pick-up. But it was only a 2-door and I tended to be the driver among our circle of friends. I knew my friends Carl and Dan wouldn't fit in that back seat and Nick and Andres wouldn't be much happier, so I bought the Saturn. It was pretty and shiny and red, so I did love it. But it always had air conditioning issues, which made me hate it in July and August.

Somehow I finished paying that thing off while I was in law school. I kept it for a few years after graduation, too. But after two and a half years of full-time employment, I was ready to buy a new car. A brand new car. My first ever no-one-but-me-has-ever-driven-it car. I looked at websites and researched and compared the red paint colors. I settled on a 2003 Honda Civic Coupe. I could get a 2-door car this time as I had long since moved away from both Dan and Carl. It was cute and sporty and very, very me. I got a sunroof. And my favorite feature of all: the in-dash 6 cd changer (yes, only 10 years ago was pre-smart phone mp3 ubiquity). Most importantly, the air conditioning worked every time. While her name was never as well-known and used as Scarlett's, she did have a name. Frankie.

I expected to drive that car to death. I thought I would put 250,000 miles on it. But it didn't have a great spring. After some warning lights, some rough drives, and one very bad day, I took it in for a diagnosis. And it was bad. Blown head gasket. Oil seal leak. Belts. Brakes. Struts. Everything on that car decided to crap out all at once. But I was only at 164,000 miles! And it's a freakin' Honda, for crying out loud! I don't like to deal with things. The uglier, more difficult the situation, the more likely I am to shut down and not deal with it. This car situation, so totally unexpected, was exactly the sort of thing I want to pretend isn't happening.

My parents happened to be out of the country for a while, so I was able to borrow my mom's car for a few weeks while pondering what on earth to do, and crying if anyone asked me what I'd decided. Spend $2,000 to fix this car up and drive it for another several years? Or buy a new one? Or just drive my mom's car and bury my head in the sand for a few more weeks?

Well, Mom reclaimed her car yesterday, so I couldn't bury my head too much longer. I gingerly drove my car to the gym this morning, and then drove to a dealership just to check out my options. Which is how I found myself 3 1/2 hours later driving home without my pretty red coupe and having spent $20,000 of someone else's money. Man, they'll loan money to just about anyone, won't they? This morning, I owned a car free and clear and hadn't made a car payment in 5 years. This evening, I owe an astounding amount of money and will be expected to hand over $300 each month for the next 5 years.

And now while I should be working, all I can do is sit on my couch, stare out the window at the shiny new not-red car on my driveway, and think, "What the hell have I done?" On the one hand, I can now drive to work every day without worrying that my car will die (as long as I make the payments and it doesn't get repo-d). On the other hand, I will be eating ramen in the dark for the next decade.



(Funny side note: in the midst of all of this, I learned that according to CarFax, my 10 year-old Honda that I drove off the lot with 30 miles on it had 2 owners, the first of whom had the car before it existed and for the first 5 years I owned it... Based on this first interaction with CarFax, I don't have a whole lot of faith in the accuracy of their reports. Happily Autocheck, the title, and common sense verified that, no, I had always owned the car.)

I hate this woman so much

If I ever watch Nancy Grace, it's at the midnight re-airing. And it's because I'm either working or completely unable to sleep (as opposed to my usual largely unable to sleep). Tonight, it's a lot of both. I figured since the announcement came out that the prosecution would, in fact, pursue a second death penalty trial against Jodi Arias, Nancy would want to chat about it. That or she would be talking about some new missing "tot" so I could dwell on how much I hate her use of that word. Watching this woman gets me fired up and helps me make strong arguments. Or it just distracts me when I'm in full on denial and procrastination mode.

Tonight's topic is indeed Jodi Arias. She is reporting that Arias is being sent to a state mental hospital for a competency evaluation. This isn't a terribly uncommon or surprising development. Being in jail facing the death penalty is one of the more stressful situations most death penalty defendants face, so it's pretty normal for a defendant to suffer some breakdown in mental functioning. Or at least for defense attorneys to worry about it.

Nancy keeps talking about how outrageous it is that Arias will escape death row and instead go to a cushy mental health facility. This woman is so awful! First, Arias isn't under sentence of death, remember? So she doesn't belong on death row. She's certainly not "escaping" from it. Second, a state mental hospital should never, ever be considered "cushy" by any sane, rational person. I am confident Nancy wouldn't be comfortable staying in this "cushy" setting. The facility in Kansas that handles convicts and criminal defendants for competency evaluations is not a nice place to be. There's no mistaking that it's prison. Since we're talking about Maricopa County here, one of the most draconian counties in all the land, I have a hard time picturing the corresponding mental health facility as some delightful resort and spa type place.

Why, why, why do I keep subjecting myself to this woman's particularly awful brand of mean-spirited, fact-free infotainment?? And why does this awful, horrid woman have a television show and get speaking engagements and I don't??

I knew they would, but I still hoped they wouldn't

The Maricopa County Attorney does intend to pursue a second death penalty trial against Jodi Arias. What a great, thoughtful, well-reasoned decision. They should definitely spend hundreds of thousands of taxpayer dollars to try to empanel a second jury for a second penalty trial. They should definitely pay for the time of prospective jurors and the unlucky schmucks they find who claim they can put their pre-formed opinions aside. They should definitely pay witness fees. They should use up another several weeks of court time, keeping the judge and her court staff from attending to the hundreds of other matters they have pending. And, of course, they should condemn the state to paying millions of dollars in extra appeal costs that will only exist if Arias is sentenced to death.

I mean, they could have made the decision to save millions of dollars. They could have decided that a murder conviction and life sentence actually will do. They could have been grown-ups about it, just said, "We tried to get a death sentence. We didn't win. We can live with that."

But no. They can't live with it. They have to win. They have to do everything they possibly can to get a death sentence. To kill this woman. Why I bet that right now, they're working, thinking what they can do differently to be sure they get to kill this woman this time.

They do remember that premeditated, intentional killing is wrong, right?


- Posted using BlogPress from my iPad

Just a quick rant

SEO is a bad word. (Ok, so it's not technically a word, it's an acronym, but it's easier to call it a word.) A four-letter word in my view. Nothing has led to more bad writing on the internet than search engine optimization. I understand that blogs and websites want to get their pages at the top of search lists, but oh my goodness, repeating the same phrase or keywords over and over and over just doesn't read well.

I have got to stay away from online articles about the Aurora, CO theater shooting. At least, I have got to stay away from the comment sections. The complete lack of compassion, sympathy, or understanding for those suffering from profound mental illness is heart-breaking. And sickening.

Mental illness is no excuse.

People with profound mental illnesses are rabid dogs, animals who should be put down.

The fact that a person suffers from mental illness is more reason to put him/her to death, not less.

A murderer should die whether he knew what he was doing or not.


It makes my heart hurt. It makes me hate people. I can't stand being confronted by the fact that I have to live in a society where mean-spirited, thoughtless jerks like that get to have a say in making the rules.