Evidence and Discretion in Booker

I have not yet studied the opinions in Booker v. United States, 2005 LEXIS 628 (Jan. 12, 2005), but based on the holding in Booker as I now understand it (i.e., before actually reading the opinions), I already know that this Evidence person will have one nagging question in his brain as he tries to decipher Booker.

Although Booker arguably strikes a blow for liberty (see my post of January 12, 2005), second-hand accounts (and my quick skim of small portions) of Booker suggest that Court embraced a proposition that strikes me as extraordinarily odd:

A trial judge violates the constitution (the Sixth Amendment right to trial by jury) if she enhances the sentence of a criminal defendant beyond the normal statutory maximum if a jury has not found that the evidence presented to it shows beyond a reasonable doubt that the factor or factors justifying such enhancement do in fact exist; but a trial judge can impose a harsher than normal sentence (i.e., enhance a sentence beyond the normal statutory maximum) without jury adjudication of the existence or nonexistence of factors that the trial judge believes warrant the imposition of a harsher than normal sentence -- as long as the trial judge is not required by a legislative command to impose a harsher than normal sentence under specified circumstances.

If this is the Court's conclusion, the conclusion is odd. Does the Court's conclusion rest on the proposition that evidence is immaterial if a trial judge (or the judiciary) is free to decide which circumstances warrant the imposition of a harsher than normal sentence? Why should the decision to enhance a sentence be free from the constitutional requirement of proof beyond a reasonable doubt merely because the trial judge (or the judiciary) is left with the freedom to decide which circumstances warrant a harsher than normal sentence? Does the Court's position rest on the fallacy that evidence is immaterial if decision involves discretion? See P. Tillers, The Value of Evidence in Law (1988).

A Coalition for Liberty?

Federal Sentencing Rules Are Wrongly Applied, Court Rules by The Associated Press in NYTimes Online (January 12, 2005):

The high court's vote to require more jury participation was 5-4 and included the same odd right-left combination of justices as those who had held sway in June. Justices Antonin Scalia and Clarence Thomas are the court's most conservative members. Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg are in the liberal wing.

Refreshing! -- on a number of counts.

Footnote: Perhaps the UK will reconsider its current skepticism about the value of lay participation in ajudication?

How Long Did the Typical English Criminal Trial before the Lawyers Last?

In a recent book review, "Though the Heavens May Fall'" and "Bury the Chains": Freed, NYTimes Sunday Book Review (Jan. 9, 2005), Marilynne Robinson wrote:

More insight into the actual operations of the law would have been useful -- some discussion, for example, of the yawning gulf between the principle of the right to trial and the fact that in early-19th-century England, an average felony trial lasted less than nine minutes, sometimes ending so quickly that the accused did not know he had been tried.

Does someone in cyberland have documentation for this point, please? I am interested in the point because I am skeptical of the praises that Prof. John Langbein sings for the English criminal trial before lawyers began representing defendants in felony cases.

Thank you!

Evidence Exam: Try Your Hand?

Question

Peter Plaintiff is a prison inmate. Della Defendant is a prison guard. Peter brings a civil action against Della in the State of Blackacre. The action is for assault and sexual assault. The first count of Peter’s complaint avers that at 2:00 a.m. on June 1, 2002, Della shot Peter in the leg with a revolver as he lay sleeping on his bed in his cell. The second count of the complaint avers that Della climbed into bed with Peter after shooting him and attempted to have sexual intercourse with him. Della’s responsive pleading to the complaint contains an answer and a counterclaim. The answer avers that Della shot Peter to ward off Peter’s attempt to rape her. The counterclaim states a claim against Peter for assault.

The case proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At the trial Peter testifies that Della assaulted and sexually assaulted him in the manner described in the complaint. On cross-examination Peter states, “I have never belonged to a gang.”

Della’s counsel then offers to have Buddy Cellman testify that he (Buddy) and Peter were cellmates and that on September 1, 2004, Peter said to him:

You know, I belong to Prison Misprision. That’s a prison gang. It’s got a chapter right here in our joint. It’s got chapters in lots of joints. Prison Misprision has got lots of mumbo-jumbo. When people are initiated into Misprision, they swear to maim prison guards and rape women. That’s done in candlelight. That’s the way it’s done in all of the gang’s chapters. Buddy, you should consider joining Misprision. If you don’t join a gang, the guards will get you even if your fellow inmates don’t. I know what I’m talking about. In this joint ya gotta get your enemies before they get you.

Peter’s counsel objects to this proposed testimony.

Judge Wisdom responds, “We need to adjourn the trial for a day so that I can consider the admissibility of Mr. Cellman’s testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if Buddy’s testimony about his conversation with Peter is admissible or inadmissible. Consider and evaluate all plausible objections to Buddy’s testimony. Hit the books!”

Write the memorandum and submit it within 24 hours.