[GCFL-discuss] Scalia

[gcfl-discuss at gcfl.net]

Thank you, Siarlys.  Clear and crisp.

Do I understand correctly that for the judge to find for a higher sentence
after a plea bargain is agreed to, is like a judge basing his sentence on
evidence not presented to the jury?  After all, there was no jury.

But this is exactly what happened to Jonathan Pollard.  His plea bargain
stipulated a maximum sentence.  Based on a letter from Casper Weinberger
(expletive deleted) the judge threw book at him and threw the key away.
According to this decision, that was unconstitutional. 

Do you mind if I forward this?

greenBubble

PS  sorry if my emails are so short.  My draft folder has a dozen emails
that were longer, but I never finished or decided not to send for one reason
or another.

PPS what deer tick joke were you referring to? I missed it.



Subject: Re: [GCFL-discuss] Scalia


Dear greenBubble,

Unauthorized review, forwarding, printing, copying, distributing, or
using information about the case and Justice Scalia's reasoning is
strictly prohibited and may be unlawful.

Just kidding. The disclaimer your office system puts on email often is
longer than your own remarks.

I'm sorry if I didn't make the issues of the case clear.

In 2000, the Supreme Court decided a case called Apprendi v. New Jersey.
The court ruled that the defendant in the case, convicted of one crime by
a jury, could only be sentenced by a judge for that crime. State law
allowed the judge to make an independent finding of an aggravating
circumstance justifying a higher sentence. The court said that if the
Sixth Amendment guarantee of trial by jury means anything, it means that
a criminal sentence must be authorized by a jury verdict as to what crime
a person has committed.

In this case, New Jersey law authorized a 20 year sentence, for a crime
otherwise subject to only a 10 year sentence, if the crime was committed
with a purpose to intimidate because of race, color, gender, handicap,
religoin, sexual orientation or ethnicity. No problem with that, but New
Jersey law assigned to the judge to make that determination at
sentencing. The Supreme Court said that finding had to be made by a jury
in order to impose the higher sentence.

Blakely v. Washington concerned a man with severe psychological
disorders, including paranoid schizophrenia, who kidnapped his wife of 25
years after she filed for divorce. The state offered a plea bargain to
second degree kidnapping involving domestic violence and use of a
firearm, which carried a maximum sentence of 53 months (no parole). The
judge decided there was an aggravating factor, acting with deliberate
cruelty, and imposed a 90 month sentence.

The court's decision, written by Scalia, again said, any fact which
authorizes an increased sentence must be decided by a jury, not by the
judge after the jury brings in its verdict.

Scalia, and the court majority, based this ruling on two long established
principles of the common law: the truth of every accusation against a
defendant should afterwards be confrimed by the unanimous suffrage of
twelceof his equals and neighbors, and, an accusation which lacks any
particular fact which the law makes essential to the punishment is no
accusation at all.

What has been ruled unacceptable is for "a defendant, with no warning in
either his indictment of plea" to "routinely see his maximum otential
sentence balloon from as little as five years to as much as life
imprisonment, based not on facts proved to his peers beyond a reasonable
doubt, but on facts extracted after trial from a report compiled by a
probation officer who the judge thinks more likely got it right than got
it wrong."

But I don't want to run on too long. I really recommend reading the
decision if you find this interesting. If more Americans read the
decisions of our courts, instead of taking the word of inevitably biased
media presentations, plus the outraged or exultant cries of the losers
and winners on each side, we would be a lot better off. It is all easily
accessible on the internet to day, no need to rummage around a law
library.

Siarlys


________________________________________________________________
The best thing to hit the Internet in years - Juno SpeedBand!
Surf the Web up to FIVE TIMES FASTER!
Only $14.95/ month - visit www.juno.com to sign up today!
_______________________________________________
GCFL-discuss mailing list
GCFL-discuss at gcfl.net
http://gcfl.net/mailman/listinfo/gcfl-discuss

-------------------------------------------------------------------------------
This message and any included attachments are from Siemens Medical Solutions 
USA, Inc. and are intended only for the addressee(s).  
The information contained herein may include trade secrets or privileged or 
otherwise confidential information.  Unauthorized review, forwarding, printing, 
copying, distributing, or using such information is strictly prohibited and may 
be unlawful.  If you received this message in error, or have reason to believe 
you are not authorized to receive it, please promptly delete this message and 
notify the sender by e-mail with a copy to Central.SecurityOffice at shs.siemens.com 

Thank you