[GCFL-discuss] Scalia/Pollard

[gcfl-discuss at gcfl.net]

There is a possibility that Jonathan Pollard has a good cause for appeal
-- and I do remember who he is. I hope he does, partly because I don't
believe ANYONE should go more than 25 years without at least a serious
consideration for parole, and that's for the most brutal rapes or
murders; assuming what he was charged with needs to be discouraged, five
years should have been plenty. Didn't they essentially break up his
marriage also? Most people don't realize that friendly governments almost
always spy on each other -- the U.S. certainly spies on the British
government, much less the French and German governments, and every major
power spies on the highest levels of the UN. (I also believe Mordecai
Vanunu should have been released years ago.)

There is still a good deal of uncertainty as to how retroactive this
decision will be. Some Supreme Court decisions are applied retroactively
to any case where someone should have received consideration they were
denied. Others are applied only to cases still on direct appeal (the
first round of appeals). A few are applied only prospectively, which
means if you are already convicted and sentenced, and you are not the
party that won the case, you get nothing out of it.

I frankly can't follow all the legal citations that define the
differences. So I don't know if Pollard will benefit, but it is certainly
worth looking into.

As far as plea bargaining goes, the man who appealed the Washington state
case DID plea bargain. The court's decision was precisely that he was
entitled to be sentenced for no more than what he pleaded to. If the
state wanted him to get a higher sentence, they should either have
offered him a plea to a more serious offense, or gone to trial, and if he
didn't want to plead to the more serious offense, he should have stood on
his right to jury trial. But either a jury verdict or acceptance of a
guilty plea binds the judge to the maximum sentence allowed by law for
the offense.

(Another reason this MIGHT not help Pollard: if he pleaded to an offense
with a maximum sentence as high or higher than what he got, then the fact
that the judge went higher than what the prosecution agreed to recommend
does not save him. Apprendi and Blakely are all about the judge staying
within the maximum sentence authorized by law for a given crime. If the
judge had to find an additional fact to be true, in order to have
authority to impose a higher sentence, then Blakely does apply. That
seems to include application of sentencing guidelines.)

If the judge accepted a guilty plea to an offense, and the sentencing
range for that offense was LESS than the sentence imposed, and if the
higher sentence was imposed for a factual finding by the judge that went
beyond the guilty plea... then there is a violation of the 6th Amendment
right to trial by jury.

Hope this is clear, as the law is always a bit muddled, even when a
decision like this clarifies it. Scalia is always very clear and very
direct in his opinions, both those where I appreciate the result and
those where I believe his interpretation is wrong.

By all means, forward any of it to anyone you think would be interested.
I never liked Caspar Weinberger myself. He and Rumsfeld were pals during
the Reagan years, and he gutted HEW under Nixon.

Siarlys

P.S. Two 7th circuit cases, US v. Ohlinger and US v. Booker applied this
latest Supreme Court decision to federal sentencing guidelines, so they
might be a useful reference too, although they could be set aside,
clarified, or modified by the Supreme Court in some future case.

P.P.S. The deer tick joke just came out on GCFL. I think sometimes in a
GCFL discussion group, its good to set aside all our other opinions, and
discuss the humor in a GCFL joke.


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