Supreme Court - Seismic Shift in Legal System

Supreme Court creates seismic shift in legal system 
Justices upend rules on sentencing, hearsay testimony 
- Bob Egelko, Chronicle Staff Writer
Sunday, July 18, 2004 

In a pair of new rulings, the U.S. Supreme Court has lobbed a hand grenade into the lap of the criminal justice system. 

One case, Crawford vs. Washington, limited prosecution evidence of statements made outside court. The other, Blakely vs. Washington, expanded the right to a jury trial on sentencing issues. Together, they are shaking the nation's criminal courts like few rulings in recent years. 

The March 8 Crawford ruling has already been used by an appellate court to overturn a California law on evidence in elder-abuse cases, and could narrow or undo other state laws on domestic violence and child sexual abuse. 

The June 24 Blakely decision will almost certainly require an overhaul of sentencing rules in the federal system and many states; the California Supreme Court, acting with unusual speed, agreed Wednesday to decide how Blakely affects the state's sentencing laws. 

"These are revolutionary cases,'' said Loyola Law School Professor Laurie Levenson. "They turned a bit of the criminal justice system upside down.'' 

The long-range effects of the rulings are uncertain and could include a revamped sentencing system with longer terms. But both decisions were at least short-term victories for defendants, and both were written by Justice Antonin Scalia -- who, besides being one of the most conservative justices in the court's modern history, is a stickler for enforcing the rights he finds in the Constitution. 

One of those is the right under the Sixth Amendment to confront one's accusers at trial. It acts as a constitutional limit on prosecutors' use of hearsay, a second-hand account of an out-of-court statement. Hearsay statements usually take the form of a police officer conveying the words of a witness who was unable or unwilling to testify in court. 

In the Supreme Court case, jurors in Michael Crawford's assault trial heard a tape recording of a statement to police by his wife, Sylvia, that conflicted with Crawford's claim of self-defense in stabbing a man. She was prevented from testifying by Washington state's marital privilege law, which prohibits one spouse from testifying against another without the latter's consent. 

State courts upheld Crawford's conviction, relying on the Supreme Court's 1980 ruling that allowed prosecutors to use hearsay evidence if the circumstances showed that the statement of the witness was trustworthy. But in a 7-2 decision March 8, the high court overturned the 1980 ruling and said the Sixth Amendment prohibits hearsay evidence of a witness' "testimonial'' statement -- no matter how trustworthy -- unless the defense has had a chance to cross-examine the witness. 

Scalia refused to define "testimonial'' hearsay but said it includes, at least, testimony at a previous legal proceeding and statements made during police interrogation -- like those in the Crawford case -- that could be expected to be used in a trial. 

The impact was immediate. Since 1980, judges and legislatures had been relying on Supreme Court authority to allow police to tell juries what witnesses had told them, when those witnesses were unavailable. 

In California, crime victims' groups sponsored a series of laws in the 1990s allowing traumatized victims to avoid testifying in court by letting police convey their accounts to juries. 

The laws covered witnesses in cases of elder abuse, childhood sexual abuse and domestic violence, the latter a response to the exclusion of spousal abuse evidence in the O.J. Simpson murder case. 

Last month, a state appeals court in San Jose struck down the 1999 elder- abuse law, which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who later became unable to testify. Other appeals courts have overturned convictions under the child-abuse and domestic violence laws, without having to decide whether those laws were constitutional under the Crawford ruling. Because of the Supreme Court decision, "you have to put victims on the stand,'' said Chuck Gillingham, a Santa Clara County prosecutor who led a seminar on the Crawford case for the California District Attorneys Association. 

"If they're unavailable,'' Gillingham said, "we simply can't use those statements.'' 

Courts across the nation are pondering the boundaries of the ruling -- for example, whether it applies to tesstimony by doctors who treat victims, by social workers who counsel them, or by 911 operators who hear their telephoned pleas for help. One or more of those issues could be back before the Supreme Court within a year. 

Judges and lawyers are even more anxious for Supreme Court clarification of the sentencing issues raised by the Blakely case. One federal appeals court has already posed a series of questions to the high court, and two other appeals courts have responded to the June 24 ruling by declaring the federal sentencing guidelines unconstitutional. 

The case also comes from Washington state, where Ralph Blakely pleaded guilty to kidnapping his estranged wife, a crime punishable by about 4 1/2 years in prison under the state's sentencing guidelines. 

But after a hearing, the trial judge found that Blakely had acted with deliberate cruelty and sentenced him to 7 1/2 years. 

In a 5-4 ruling overturning the Blakely sentence, the Supreme Court said a defendant has a constitutional right to a jury trial on all of the facts that could increase a sentence above the guideline range. 

Four years earlier, the court had required jury findings for any sentence above the maximum provided by state law. But that ruling did not address sentencing guidelines, instituted by a number of states and the federal government over the last two decades to make sentences more uniform by prescribing standard terms based on the crime and the criminal's record. 

"Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy,'' said Justice Sandra Day O'Connor in a dissent from the Blakely ruling. 

The guidelines that govern sentences for federal crimes are virtually identical to Washington's guidelines, establishing standard terms but allowing judges to add or subtract time based on factors -- for example, the defendant's parole status, leadership role in the crime and cooperation with authorities -- that were never presented to the jury.. 

Scalia, in last month's ruling, said the court wasn't addressing the federal guidelines. 

But the Justice Department got the message and told its lawyers to change the way that they prosecute cases -- submitting more factual issues to juries -- and to insist that defendants who plead guilty agree to let judges continue to make sentencing decisions. 

California does not have guidelines, but its sentencing system, established by a 1977 law, works in roughly the same way. Each crime is assigned a lower, middle and upper term, and judges must choose the middle term unless they find facts that justify the lower or upper term. 

The issue that the state Supreme Court has quickly taken up is whether the Blakely ruling prohibits California judges from choosing the upper term because of facts that were never presented to the jury. If so, trial procedures will have to change. 

The California District Attorneys Association believes the state law will be affected and is contemplating changes like those ordered by the U.S. Justice Department, said David LaBahn, the association's executive director. 

Charges would be filed in greater detail, and jurors would be asked to decide such sentencing-related issues as whether the defendant was on probation at the time of the crime and whether the victim was especially vulnerable. 

Defense lawyers prefer to keep such evidence away from the jury that determines guilt or innocence and would favor a two-stage trial, with the jury first voting on guilt and the same jury or a different one then considering sentencing issues, said Erwin Chemerinsky, a constitutional law professor at Duke University and part-time defense lawyer. 

Another possibility is a new set of sentencing laws that would comply with the ruling -- and favor prosecutors -- by ratcheting sentences upward and limiting, or eliminating, judges' authority to change them. 

Regardless of the response, Chemerinsky said, the Blakely ruling portends "a radical change in criminal cases.'' 

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