College of William & Mary Law School William & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

2007 Section 6: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School

Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 6: Criminal Law" (2007). Supreme Court Preview. 222. https://scholarship.law.wm.edu/preview/222

Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VI. CRIMINAL

In This Section:

New Case: 06-6330 Kimbrough v. United States

Synopsis and Questions Presented p. 321

"Crack Sentences Questioned" p. 323 David G. Savage

"'Crack' vs. Powder Cocaine: The Sentencing Dilemma" p. 324 Lyle Denniston

"Commission Recommends Lighter Minimum Sentence for Crack Cocaine Conviction" p. 327 Kasie Hunt

"Lawmakers Consider Lessening Crack Penalties" p. 329 Donna Leinwand

"Report to Congress on Federal Cocaine Sentencing Policy p. 331 United States Sentencing Commission, 2007

"Justice Department Releases Report Analyzing Crack and Powder Cocaine Penalties" p. 335 United States Department of Justice, 2002

New Case: 06-7949 Gall v. United States

Synopsis and Questions Presented p. 337

"U.S. Supreme Court Picks Up Replacements for St. Louis Man" p. 343 Allison Retka

"A Possible Sentencing 'Safe Harbor' in New Rulings" p. 344 Marcia Coyle

New Case: 06-10119 Snyder v. Louisiana

Synopsis and Questions Presented p. 346

"Batson and the 'O.J. factor"' p. 360 Lyle Denniston

319 "Court Rejects Rehearing for Death Row Inmate" p. 363 Paul Pupura

"Racial Currents May Drag Verdict Under" p. 364 James Gill

"Court Ordered to Revisit Ruling" p. 366 Paul Purpura

"Killer Gets Death in Slashing" p. 368 Joe Darby

"Man Gets Death Penalty" p. 369 Joe Darby

New Case: 06-8273 Danforth v. Minnesota

Synopsis and Questions Presented p. 371

"Court Query on Teague Retroactivity" p. 378 Lyle Denniston

"Judge Raises Repeat Pedophile's Sentence Because of His History" p. 380 James Walsh

"Jury Ponders Sex Abuse Case Against Ex-Attorney" p. 381 David Peterson

"Former Attorney Practices Self-Defense in Child Sex Abuse Case" p. 383 John McIntyre

"Child Sex Abuser Given Prison Sentence" p. 385 Larry Oakes

320 Kimbrough v. United States

(06-6330)

Ruling Below: (U.S. v. Kimbrough, 174 Fed.Appx. 798 (4th Cir. 2006), cert granted, 127 S.Ct. 2933, 2007 WL 1660977 (U.S.), 75 U.S.L.W. 3661, 75 U.S.L.W. 3657).

Kimbrough plead guilty to distributing more than 50 grams of crack cocaine and possessing a firearm in connection with a drug-related crime. The sentencing guideline range was to be between 168 and 210 months for the drug charges and 60 months for the firearms charge. The district court sentenced Kimbrough to 120 months on each of the drug charges, served concurrently, and 60 months for the gun charges, serving consecutively. The Fourth Circuit Court of Appeals held that the sentence was per se unreasonable because it fell outside the guidelines range and was based on disagreements over disparities between crack and powder cocaine sentences. The Fourth Circuit stated it was bound by precedent to vacate the sentence.

Questions Presented: (1) In carrying out the mandate of §3553(a) to impose a sentence that is "sufficient but not greater than necessary" on a defendant, may a district court consider either the impact of the so-called "100:1 crack/powder ratio" implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding the ratio? (2) In carrying out the mandate of §3553(a) to impose a sentence that is "sufficient but not greater than necessary" upon a defendant, how is a district court to consider and balance the various factors spelled out in the statute, and in particular, subsection (a)(6), which addresses "the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct"?

UNITED STATES of America, Plaintiff-Appellant,

Derrick KIMBROUGH, Defendant-Appellee

United States Court of Appeals for the Fourth Circuit

UNPUBLISHED

Decided May 9, 2006

PER CURIAM: disagreement with the disparity between sentences for crack and powder cocaine The Government appeals the district court's violations. We have jurisdiction to review imposition of a sentence outside of the the sentence pursuant to 18 U.S.C.A. § 3742 United States Sentencing Guidelines range (West 2000). We review post-Booker based, in part. on the district court's sentences for reasonableness. United States

321 v. Hughes, 401 F.3d 540, 546-47 (4th Cir. According to our recent decision in United 2005). States v. Eura, 440 F.3d 625 (4th Cir. 2006), a sentence that is outside the guidelines Derrick Kimbrough pleaded guilty to range is per se unreasonable when it is based distributing fifty or more grams of crack on a disagreement with the sentencing cocaine, distributing cocaine, conspiring to disparity for crack and powder cocaine distribute fifty grams or more of crack offenses. Because the district court cocaine, and possessing a firearm in concluded that the crack to powder cocaine connection with a drug trafficking crime. disparity warranted a sentence below the The sentencing guideline range was 168 to applicable sentencing guideline range, we 210 months imprisonment for the drug are constrained to vacate Kimbrough's counts and 60 consecutive months for the sentence and to remand the case for firearm count. Based, in part, on the district resentencing. We dispense with oral court's disagreement with the sentencing argument because the facts and legal disparity for crack and powder cocaine contentions are adequately presented in the violations, the district court sentenced materials before the court and argument Kimbrough to 120 months on each of the would not aid in the decisional process. three drug violations, to be served concurrently, and sixty months on the VACATED AND REMANDED. firearms charge, to be served consecutively.

322 "Crack Sentences Questioned"

The Los Angeles Times June 12, 2007 David G. Savage

The Supreme Court agreed for the first time Department nor the courts have been willing Monday to reconsider the long prison terms to lessen the prison terms for crack dealers. meted out to the mostly black defendants who In a speech to the American Bar Association are convicted of selling crack cocaine. [The four years ago, Justice Anthony M. Kennedy case is Kinibrough v. United States.] called these mandatory minimum sentences "unwise and unjust." He urged the lawyers to At least 25,000 defendants per year are sent to lobby Congress to repeal the mandatory federal prison on crack-cocaine charges, and minimum sentences. their prison terms are usually 50 percent longer than drug dealers who sell powder Despite pleas from family members and legal cocaine. activists, the laws have remained unchanged.

This disparity, with its racial overtones, has For its part, the Supreme Court did not signal been controversial for two decades since Monday a willingness to say these sentences Congress ramped up the "war on drugs" in are unconstitutional. Instead, the justices response to a crack epidemic sweeping many agreed to decide whether trial judges should cities. Crack was targeted for stiffer penalties have more leeway to impose somewhat because it was viewed as more dangerous lighter sentences in crack-cocaine cases. than powder cocaine. In the fall, the justices will hear the case of a At the time, lawmakers set mandatory convicted drug dealer from Norfolk, Va., who minimum prison terms for drug sellers based was given a 15-year prison term for selling on the quantity of drugs sold. A sale of five both crack and powder cocaine. The trial grams of crack cocaine triggers the same five- judge noted the U.S. sentencing guidelines year prison term as selling 500 grams of called for a prison term of between 19 and 22 powder cocaine, even though they are the years, in part because the crack-cocaine sale same substance. raised the stakes. But he also noted the defendant, Derrick Kimbrough, had served Critics have said this 100-to-i disparity is honorably in the Army. unfair and racially biased because dealers in crack cocaine are more often black. while But the U.S. court of appeals in Richmond powder cocaine is said to be sold more often ruled the defendant must be given the 19- to to whites and by whites. 22-year prison term called for in the sentencing rules. But until now, neither lawmakers, the Justice

323 "'Crack' vs. Powder Cocaine: The Sentencing Dilemma"

SCOTUS Blog June 11, 2007 Lyle Denniston

The U.S. Sentencing Commission's latest opted to grant review of a clear-cut test case report to Congress on cocaine sentencing on the issue. It is Kimbrough v. U.S. (docket can be found at the Commission's website, 06-6330). The diligent efforts of a federal under "Report to Congress-Federal public defender in Alexandria. VA- Cocaine Sentencing Policy." It recommends Michael S. Nachmanoff-appeared to have that Congress alter the 100-to-1 crack-to- helped persuade the Court that the time had powder ratio, but, in the meantime, proposes come to take on the question. a reduction in the Sentencing Guideline range for cocaine offenses. That change in Because the case raises the question of a range will take effect Nov. 1 unless federal judge's power to set a sentence that Congress objects. (The report is 202 pages may fall below a Guideline range, the Court long.) seems to have concluded that it should expand its interest in below-range Congress in 1986 adopted a federal sentencing to include the basic controversy sentencing policy that those who commit over crack vs. powder sentencing in the new crimes involving "crack" cocaine are to be era of advisory rather than mandatory use of punished on a 100-to-1 ratio compared to the Guidelines. The Court had signaled its those whose crimes involve cocaine in interest in below-range sentencing by powder form. The U.S. Sentencing agreeing to hear this Term the case of Commission for years has asked Congress to Claiborne v. U.S. (06-5618), but that case narrow the difference, to no avail. Yet has been ordered vacated as moot because of Congress has never ordered the Commission the death of Mario Claiborne. On Monday, to put the ratio into the federal Sentencing the Court, along with granting review of the Guidelines. And federal trial judges in Kimbrough case, also announced that it will recent months have been experimenting with consider next Term another case on the core easing up, comparatively, on cocaine crime question of the "reasonableness" of below- sentences. That combination of conflicting range sentences. That new case is Gall v. circumstances may be sorted out by the U.S. (06-7949). (The Court also has Supreme Court, in the new Term that starts apparently decided to go ahead, this Term, on Oct. 1. with a decision in the Guidelines case of Rita v. U.S., 06-5754. testing whether a Here is an example of how the 100-to-1 ratio sentence within a Guideline range is to be works: an individual who deals five grams presumed on appeal to be reasonable.) of crack cocaine faces the same sentence as a defendant who deals 500 grams of powder Relying on the Court's 2005 decision in U.S. cocaine under the Guidelines. v. Booker turning the Guidelines regime into an advisory scheme only, the Kimbrough On Monday, the Court-long reluctant to petition asks the Court to cliarify how much review the 100-1 crack-to-powder ratio- authority-if any-sentencing judges have

324 to vary the 100-to-i ratio in order to ensure The judge, noting that the sentencing law that punishment for a cocaine conviction is directed the court not to impose a sentence "sufficient but not greater than necessary" greater than necessary to serve the and does not lead to "unwarranted disparity" sentencing factors, called a sentence of 19 to in sentencing. It asks two questions, 22 1/2 years "ridiculous." The judge said paraphrased here: that the 100-to-1 punishment disparity drove the offense level in the case higher than (1) may a District Court judge consider the necessary to do justice. Those statements Sentencing Commission's repeated reports were based on the Sentencing Commission's finding that the 100-to-i crack vs. powder views. Following the 100-to-1 factor, the disparity exaggerates the seriousness of judge concluded, would result in an crack crimes, and (2) how is a District Court inappropriately high sentence. The term was to balance the various factors that Congress set at 180 months-that is, 15 years. That, has told sentencing judges to consider, the judge said, was "clearly long enough especially avoidance of sentencing disparity, under the circumstances." under the Guidelines regime. The Fourth Circuit Court, in a brief opinion Nachmanoff's client is Derrick Kimbrough, reacting to the government's appeal of the a Gulf War veteran and construction worker, sentence, struck down the 180-month term. who was arrested by city police officers in Based on its basic ruling on the issue in U.S. Norfolk, Va., with another man and charged v. Eura (a case now pending in a petition in with conspiracy with intent to distribute the Supreme Court, 05-11569), the Circuit cocaine and possession with intent to Court ruled that a District Court may not distribute it. Prosecutors said that the two vary from the advisory sentencing range on were found with 56 grams of crack cocaine the basis of the 100-to-i ratio or on the and 92.1 grams of cocaine powder. views of the Sentencing Commission. "In Kimbrough had prior misdemeanor offenses. arriving at a reasonable sentencing," that but no prior felonies. Court had said in the Eura case, "the District Court simply must not rely on a fact that All things considered, including a firearm would result in sentencing disparity that offense, Kimbrough faced a sentence in a totally is at odds with the will of Congress." Guideline range of 228 to 270 months-that is, 19 to 22 1/2 years. His defense lawyer, The Justice Department has been opposing arguing that the Guidelines regime directs a Supreme Court review of the crack vs. judge to take in a variety of factors, urged powder question, and has done so, for the trial judge to set a total sentence of 180 example, in the Eura case. In response to months-or 15 years. On the crack vs. Kimbrough's appeal, the Department powder issue, the lawyer noted that suggested that the Court might want to hold Kimbrough actually had more powder than it until it had decided the Claiborne case, or crack when arrested (almost twice as much), perhaps even deny it outright because of the and called attention to the findings of the government view that judges cannot set a Sentencing Commission. in repeated reports, sentence below the range simply because that the ratio exaggerates the relative they disagree with a sentencing policy harmfulness of crack. adopted by Congress-that is, the 100-to-i

325 ratio. The government also had contended spectrum is the Third Circuit, joined by the that there is no split in the Circuit Courts on dissenting judges in the Eighth and Eleventh that question. Circuits, which would allow a district court to consider the 100:1 ratio. . . . Accordingly, But Kimbrough's petition and reply argues this Court should step in now to resolve the that, as of now, there is a definite split. "On issue." one end of the spectrum are the Fourth and Eighth Circuits, which have held that under The case was ready for the Court's no circumstances can a district court consideration in February, but it took no consider either the ratio or the [Sentencing action on it. Then, in March, public defender Commission] reports. . . . In the middle is Nachmanoff notified the Court that the split the dissenting judge in the Fourth Circuit, had deepened further, with the D.C. Circuit whose position has been adopted by the Court directing sentencing judges to Seventh and Eleventh Circuits, and possibly consider the 100-to-I ratio "and the by the Second Circuit, which would permit a problems it raises" in crack cases-thus district court to use the Sentencing aligning that Circuit with the Third Circuit's Commission reports in evaluating the case view.... before it. . . . Finally, on the other end of the

326 "Commission Recommends Lighter Minimum Sentence for Crack Cocaine Conviction"

The Associated Press April 28, 2007 Kasie Hunt

WASHINGTON-A first-time crack- Amendment right to a jury trial because they cocaine conviction should mean a lower call for judges to make factual decisions that federal minimum sentence than under could add to prison time, such as the amount current guidelines, according to a judicial of drugs involved in a crime. agency that has raised concerns about a disparity in punishment for people caught The commission planned to send its with crack or powder cocaine. recommendation to Congress before May 1. Lawmakers would have until Nov. I to The U.S. Sentencing Commission voted to reject the new guidelines before they would lower the recommended sentencing range become law. for those caught with 5 grams or more of crack cocaine from 63 months to 78 months Advocates for changing the law point to to a range of 51 months to 63 months. Those crime statistics that show crack is more of an with at least 50 grams should serve 97 urban and minority drug while cocaine months to 121 months in prison, not 121 powder is used more often by the affluent, months to 151 months, as the guidelines and that harsher penalties for crack cocaine now say, the commission said late Friday. unfairly punish blacks.

At issue is a 1986 law that includes what "This unjust policy is based on little more critics have called the 100-to-1 disparity: than politics and urban myths. yet it's been Trafficking in 5 grams of cocaine carries a allowed to stand for over 20 years, mandatory five-year prison sentence, but it devastating African-American communities takes 500 grams of cocaine powder to in the process," said Caroline Fredrickson, warrant the same sentence. director of the ACLU's legislative office in Washington. This is the fourth time the commission, an independent agency in the judicial branch. In November, U.S. District Judge Reggie B. has recommended that Congress narrow the Walton told the agency that federal laws sentencing gap. Previous recommendations. requiring dramatically longer sentences for which were not adopted, have included crack cocaine than for cocaine powder were raising the penalties for powder cocaine and "unconscionable" and contributed to the lowering them for crack. perception within minority communities that courts are unfair. The commission's guidelines are designed to ensure that federal sentences do not vary While Congress would have to overturn the widely from courtroom to courtroom. They 1986 law to erase minimum sentences, the were mandatory until 2005. That year, the commission's new rule "provides some Supreme Court said making the guidelines relief to crack cocaine offenders impacted mandatory violated a defendant's Sixth by the disparity created by federal cocaine

327 sentencing policy," the commission said in a Brian Roehrkasse said. statement. House Judiciary Committee Chairman Rep. But the Justice Department has urged the John Conyers, D-Mich., a longtime advocate commission to let Congress deal with the of equalizing penalties for crack and powder inconsistency. "While we are willing to cocaine, has said he will hold hearings to discuss addressing the disparity in the ratio address the issue. between crack and powder cocaine, we believe that it should be done in the broader [The court will address these issues in context of sentencing reform," spokesman Kim brough v. United States.]

328 "Lawmakers Consider Lessening Crack Penalties"

USA Today March 11, 2007 Donna Leinwand

Momentum is building in Congress to ease cocaine was associated with violent, open- crack cocaine sentencing guidelines, which air drug markets, he says. the American Civil Liberties Union and other critics say have filled prisons with "There was a lot of public concern about low-level drug dealers and addicts whose violence," Blumstein says. punishments were much worse than their cnmes. Jesselyn McCurdy with the ACLU says much of the violence associated with crack Federal prison sentences for possessing or stemmed from territorial disputes between selling crack have far exceeded those for dealers, not from those using the drug. She powder cocaine for two decades. House says the stricter sentences for crack have Crime Subcommittee chairman Robert filled prisons with low-level, primarily Scott, D-Va., a longtime critic of such African-American addicts rather than the sentencing policies, plans to hold hearings major drug traffickers Congress sought to on crack sentences this year. In the Senate, punish. An ACLU study in October 2006 Republican Jeff Sessions of Alabama is found that 80% of crack defendants were drawing bipartisan support for his proposal black. to ease crack sentences. "People have seen how it plays out in racial "I believe that as a matter of law disparities," McCurdy says. "The stumbling enforcement and good public policy that block on both sides of the aisle has been this crack cocaine sentences are too heavy and issue around appearing to be soft on crime. can't be justified," Sessions says. "People But this is about equalizing an injustice." don't want us to be soft on crime, but I think we ought to make the law more rational." Sessions' bill would lessen the sentencing disparity by increasing punishments for The mandatory federal sentencing guidelines powder cocaine and decreasing them for passed by Congress in 1986 require a judge crack. Crimes involving crack would still to impose the same sentence for possession draw stiffer sentences, but the difference of 5 grams of crack as for 500 grams of would not be as dramatic. The bill has powder cocaine: five years in prison. drawn support from Democratic Sen. Ken Salazar, a former state attorney general from Congress passed the sentencing laws just Colorado, Democratic Sen. Mark Pryor, a after the fatal crack overdose of University former state attorney general from Arkansas, of Maryland basketball star Len Bias on and Republican Sen. John Cornyn. a former June 19. 1986, and as crack was emerging in Texas Supreme Court justice and attorney urban areas, says Alfred Blumstein, a general. professor at Carnegie Mellon University in Pittsburgh who researches crime. Crack In the House of Representatives, two bills

329 calling for Congress to equalize the It spread very rapidly. Now we need to ask sentences for powder cocaine and crack ourselves, what is the right sentence for this were filed in January. bad drug. I think it's time to adjust. I think it's past time to do this." "We're going to address all the mandatory minimums," said Scott, chairman of the Scientists say there is no pharmaceutical House Judiciary Committee's Subcommittee justification for having different sentencing on Crime, Terrorism and Homeland rules for crack and powder cocaine. Security. "The crack cocaine is probably the most egregious because of its draconian The powder is cocaine hydrochloride salt, number of years for relatively small which can be snorted into the nose or amounts." dissolved in water and injected. Crack is cocaine mixed with water and ammonia or Opposition to weaker sentences has come baking soda then heated to remove the from police, prosecutors and law hydrochloride. The resulting pure cocaine enforcement agencies such as the Justice rock can be smoked. Department and the Drug Enforcement Administration. "Once the cocaine is in your bloodstream, there's absolutely no difference between "We believe the current federal sentencing powder cocaine and crack cocaine," says policy and guidelines for crack cocaine Bruce Goldberger, director of toxicology at offenses are reasonable," Justice spokesman the University of Florida College of Dean Boyd says. Medicine.

Higher penalties for crack offenses reflect its The quicker the drug enters the bloodstream, greater harm, he says, adding that crack the more intense its effects, he said. Two of traffickers are more likely to use weapons the quickest routes are smoking, which is and have more significant criminal histories done with crack, and injecting. which is than powder cocaine dealers. done by dissolving the powder and shooting it into the bloodstream. "Congress thought by having very harsh sentences. it would deter the spread of crack [The court will address these issues in into the inner cities and around the country," Kim brough v. United States.] Sessions says. "The truth is, it didn't stop it.

330 Report to Congress on Federal Cocaine Sentencing Policy

United States Sentencing Commission May 15, 2007 Executive Summary

... Since 1995 the Sentencing Commission (1) The current quantity-based has advocated for amendment of the 100:1 penalties overstate the relative statutory ratio that triggers penalties for harmfulness of crack cocaine crack and powder cocaine offenders. As compared to powder cocaine. part of its priorities for its 2006-2007 amendment cycle, the Sentencing (2) The current quantity-based Commission continued its work with the penalties sweep too broadly and congressional, executive, and judicial apply most often to lower level branches of the government and other offenders. interested parties on cocaine sentencing policy, including reevaluating its 2002 (3) The current quantity-based report to Congress, Cocaine and Federal penalties overstate the seriousness Sentencing Policy. of most crack cocaine offenses and fail to provide adequate The Commission held two hearings to proportionality. discuss federal cocaine sentencing during which the Commission received testimony (4) The current severity of crack from witnesses representing the Department cocaine penalties mostly impacts of Justice, Federal judiciary, defense bar, minorities. law enforcement, academics, treatment and medical experts, and interested community Accordingly, through its report, the activists, among others. The Commission Commission again unanimously and also received a number of letters from strongly urges Congress to act promptly on Members of Congress and the public about the following recommendations: this important issue. The Commission also conducted its own research and analyses of (1) the five-year and ten-year sentencing data and trends, reviewed the statutory mandatory minimum most recently available literature on the threshold quantities for crack issue, and conducted an exhaustive case law cocaine offenses to focus the review. This extensive research effort penalties more closely on serious culminated in the enclosed 2007 Report to and major traffickers as described the Congress: Cocaine and Federal generally in the legislative history Sentencing Policy. of the 1986 Act.

The 2007 Report (2) Repeal the mandatory minimum penalty provision for In this 2007 report, the Commission simple possession of crack cocaine concludes, as it did in 2002. that- under 21 U.S.C. § 844.

331 (3) Reject addressing the 100-to-i The Commission further recommends that drug quantity ratio by decreasing any legislation implementing these the five-year and ten-year recommendations include emergency statutory mandatory minimum amendment authority for the Commission to threshold quantities for powder incorporate the statutory changes in the cocaine offenses, as there is no Federal sentencing guidelines. Emergency evidence to justify such an amendment authority would enable the increase in quantity-based Commission to minimize the lag between penalties for powder cocaine any statutory and guideline modifications offenses. for cocaine offenders....

Sample Statistics and Other Information from the 2007 Report on Federal Cocaine Sentencing Policy

Number of Cocaine Offenders Across Time (See Fig. 2-1, 2007 Report)

Year Crack Powder 1992 2.301 6,671 2002 4.795 5.243 2006 5,397 5,744

FY2006 Average Sentence Length (See Fig. 2-2, 2007 Report)

Crack = 122 months Powder = 85 months

Difference in Sentences Across Time (See Fig. 2-3, 2007 Report)

1992 = 25.3% difference between powder and crack cocaine sentences 2006 = 43.5% difference between powder and crack cocaine sentences

Race and Demographics (See p. 1 5 -17, 2007 Report)

- Blacks still comprise the majority of 57.5% in 2006. White powder crack offenders, but that is cocaine defendants have declined decreasing from 91.4% in 1992 to from 32.3% in 1992 to 14.3% in 81.8% in 2006. White offenders 2006. now comprise 8.8% of crack defendants, up from 3.2% in 1992. In 2006, nearly all crack defendants were U.S. citizens, whereas only - Powder cocaine defendants are now 60.6% of powder cocaine defendants predominantly Hispanic, growing were U.S. citizens. from 39.8% of defenders in 1992 to

332 Offender Function (FY2005 Data Sample) (See Figs. 2-4 to 2-6, 2007 Report)

Crack [Cocaine] Powder [Cocaine]

- 55.4% of crack defendants were - 33.1% of powder defendants were categorized as street-level dealers categorized as couriers or mules receiving average sentences of 97 receiving average sentences of 60 months months

- 22.7% of crack defendants were - 24.1% of powder defendants were categorized as wholesalers receiving categorized as wholesalers receiving average sentences of 142 months average sentences of 78 months (but of these, almost 40% did not perform this function routinely)

Application of Role Adjustments for Each Offender Function FY 2005 Drug Sample (Figs. 2-23 and 2-24, 2007 Report)

Powder Cocaine Crack Cocaine Function Mitigating Aggravating Mitigating Aggravating Role Role Role Role Importer/High-Level Dealer 3.8% 16.0% 0.0% 4.4% Organizer/Leader/Grower/Manufacturer Financier/Money Launderer 2.8% 51.4% 0.0% 52.6% Wholesaler 2.7% 0.9% 2.7% 3.8% Manager Supervisor 3.8% 30.4% 8.7% 43.5% Pilot/Captain/Bodyguard/Chemist/Cook Broker/Steerer 24.6% 3.3% 9.5% 0.0% Street-level Dealer 8.9% 0.0% 7.0% 1.1% Courier/Mule 44.4% 0.0% 50.0% 0.0% Renter/Loader/Lookout/Enabler/ User/All Other 35.2% 1.1% 40.0% 0.0%

I ... I

Violence Involvement in Powder and Crack Cocaine Offenses (Fig 2-20, 2007 Report and Fig. 19, 2002 Report)

Powder Cocaine Crack Cocaine 2000 Drug 2005 Drug 2000 Drug 2005 Drug Sample Sample Sample Sample No Violence 91.0% 93.8% 88.4% 89.6% Death 3.4% 1.6% 3.4%0 2.2% Any Injury 1.4% 1.5% 4.5% 3.3% Threats 4.2% 3.2% 3.7% 4.9%

333 The reduction in violence associated with crack cocaine trafficking since 1992 is consistent with the aging of the crack cocaine traffickers and users.

Other Findings

- 500 grams of powder cocaine, the because of their different methods of quantity required to trigger the five- typical administration (typically year mandatory minimum yields crack cocaine is smoked and powder between 2,500 and 5,000 doses. cocaine is snorted). (See pp. 62-66, Five grams of crack cocaine, the 2007 Report) quantity required to trigger application of the five-year - The negative effects of prenatal mandatory minimum yields between exposure to crack cocaine are ten and 50 doses. (See p. 62 , 2007 identical to the effects of prenatal Report) exposure to powder cocaine and are significantly less severe than - Crack cocaine and powder cocaine previously believed. (See pp. 61, 67- are both powerful stimulants, and 70, 2007 Report) both forms of cocaine cause identical effects (See pp. 61-62, 64, 2007 - In 2002, fourteen states maintained Report) some form of distinction between crack cocaine and powder cocaine - Cocaine patients present at treatment offenses. Only one state, Iowa, having the same symptoms and maintained a 100:1 ratio between the receive the same treatment regardless two forms of the drug but that was of the drug ingested. (See p. 62, 66, only for purposes of the statutory 2007 Report) maximum penalties. (See p.73, 2002 Report) In 2007, only thirteen states - Although both forms of the drug are maintain such a distinction. (See pp. addictive, the risk of addiction may 98-106, 2007 Report for a discussion be greater for crack cocaine than of state cocaine sentencing policy) powder cocaine on the typical user

334 "Justice Department Releases Report Analyzing Crack and Powder Cocaine Penalties"

U.S. Department ofJustice March 19, 2002 Press Release

WASHINGTON, D.C.-The Justice average crack and powder sentences for Department's Office of Legal Policy today defendants convicted of trafficking in released an analysis of prison sentences for between 15 and 49.9 kilograms of cocaine is federal cocaine offenses. The report 2.4 to 1. concludes that, for comparable quantities of cocaine, the differential between prison For defendants who possessed weapons, the sentences for crack traffickers and powder ratio between average crack and powder traffickers is much smaller than commonly sentences for lower amounts of cocaine is 2.9 believed. to 1. For the highest amounts of cocaine, the ratio is 1.6 tol. "The public debate over the crack-powder disparity has proceeded on bad facts and For defendants with the highest criminal misconceptions. If this policy debate is to history levels, the average sentence for crack have any real meaning, it must be premised defendants ranged from 1.6 to 1.3 times on correct facts," said Viet D. Dinh, Assistant longer (depending on the amount of cocaine) Attorney General for Legal Policy. than the average sentence for defendants convicted of trafficking like quantities of Public debate over sentences for federal powder. cocaine offenses has focused on the 100 tol differential in the amounts of powder and For defendants with the lowest criminal crack cocaine that trigger the 5- and 10-year histories convicted of trafficking the lower mandatory minimum sentences. This quantities of cocaine, the average crack differential is commonly distorted to imply sentence is 8.3 times greater than the average that sentences for crack cocaine are vastly powder sentence-1,637 out of 22,896 (or 7 greater than sentences for powder cocaine. A percent) of crack defendants examined in this closer examination of the federal penalty study fall into this category. However. for structure for cocaine offenses reveals that the offenders convicted of trafficking in higher often-cited 100 to 1 differential is misleading. amounts of cocaine. the ratio of average crack The Office of Legal Policy's analysis, based to powder sentences is 2 to 1. on actual sentences imposed for 46,413 crack and powder defendants between 1996-2000, Crack cocaine is a dangerous drug that has a demonstrates that: devastating effect on its victims. For example. in one recent study, 86.7 percent of women Crack defendants convicted of trafficking in surveyed were not involved in prostitution in less than 25 grams of cocaine received an the year before starting crack use; fully one- average sentence that is 4.8 times longer than third became involved in prostitution in the the sentence received by a defendant year after they began use. Women who were convicted of trafficking the comparable already involved in prostitution dramatically quantity of powder. The ratio between increased their involvement. with rates nearly

335 four times higher than before beginning crack inconsistent with a rejuvenated national fight use. against illegal drug use. The recently released Attorney General's drug enforcement strategy Another recent study found that women who has two essential elements: modifying used crack cocaine had much higher than individual behavior to discourage and reduce average rates of victimization than women drug use and addiction, and disrupting the who did not. Among an Ohio sample of 171 market for illegal drugs. Lowering penalties adult female crack users, 62 percent had been for trafficking crack cocaine would be physically attacked since the onset of crack inconsistent with both objectives. use. Rape was reported by 32 percent of the women since they began using crack, and In his testimony today before the U.S. among these. 83 percent reported being high Sentencing Commission, Deputy Attorney on crack when the rape occurred, as were an General Lany D. Thompson expressed the estimated 57 percent of the perpetrators. Department's view that the current federal sentencing policy and guidelines for crack These and many other statistics and studies cocaine offenses are proper, and that it would tell the story of the devastation that cocaine, be more appropriate to address the differential and crack cocaine specifically, bring to the between crack and powder cocaine by nation-especially its minority communities. recommending that penalties for powder Lowering crack penalties would simply send cocaine be increased. The Department would the wrong message-that we care more about oppose any effort by the Commission to issue crack dealers then we do about the people and guidelines that do not adhere to the the communities victimized by crack. congressionally enacted statutes that define and prescribe penalties for federal cocaine Further, lowering crack penalties is offenses.

336 Gall v. United States

(06-7949)

Ruling Below: (U.S. v. Gall, 446 F.3d 884 (8th Cir. 2006), cert granted, 127 S. Ct. 2933, 168 L. Ed. 2d 261, 2007 U.S. LEXIS 7525).

In early 2000, Brian Gall entered into and participated in a conspiracy to distribute the drug "ecstasy" in Iowa. In August of that same year, Gall withdrew from the conspiracy after earning an estimated $30,000 through distribution of ecstasy. Four years later, Gall was indicted for involvement in the conspiracy and turned himself in. Gall pleaded guilty and was sentenced to probation, although his guideline range under the U.S. Sentencing Guidelines was 30-37 months imprisonment. The Government appealed, asserting that the sentence was unreasonable.

Questions Presented: Whether, when determining the "reasonableness" of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.

UNITED STATES of America, Appellant, B. Brian Michael GALL, Appellee.

United States Court of Appeals for the Eighth Circuit

Decided May 12. 2006

[Excerpt: Some footnotes and citations omitted.]

SMITH, Circuit Judge. Accordingly, we remand the case for resentencing. Brian Michael Gall pleaded guilty to I. Background conspiracy to distribute a mixture containing methylenedioxymethamphetamine In February or March 2000, Gall entered ("MDMA"), a Schedule I controlled into an agreement with Luke Rinderknect substance, in violation of 21 U.S.C. §§ and others to distribute MDMA, also known 841(b)(1)(C) and 846. The district court as ecstacy. Initially, Gall purchased 100 imposed a sentence of 36 months' probation ecstasy tablets from Rinderknect on six and a $100 special assessment. The occasions between February and May 2000. government appeals the sentence, arguing During this period, Gall traveled from Iowa that it is unreasonable. We conclude that City, Iowa, to Pell. Iowa., to purchase Gall's sentence is unreasonable. ecstasy from Rinderknect.

337 In May 2000, Rinderknect decided to move Iowa City and met with Gall. Gall told to Burbank, California. Before leaving Iowa, Rinderknect that he was getting out of the he arranged a meeting with Gall and drug business over concerns that Sauerberg Theodore Sauerberg to facilitate the ongoing was telling too many people about their distribution of ecstasy in his absence. ecstasy distribution business. Rinderknect During the meeting, the parties agreed that sold no more ecstasy to Gall as he requested. Sauerberg would accept delivery of ecstasy According to Gall. he stopped selling from Rinderknect and transfer the drugs to ecstasy in August 2000 when he moved in Gall. When Gall received the drugs from with a new roommate and started studying Sauerberg, he distributed them to other for his major at the University of Iowa. individuals, including Ross Harbison, Jason Goodding testified that Gall stopped selling Story, Brooks Robinson, Mark Goodding, ecstasy in August 2000 because he did not and Corey Coleman. After receiving like the trouble of having to deal with payment from his customers, Gall delivered people. Gall estimated that he made $30,000 the drug proceeds to Sauerberg. Sauerberg while a member of the ecstasy conspiracy. then delivered the cash to Rinderknect. After college graduation in 2002, Gall One month after the initial meeting in Iowa moved to Mesa, Arizona. Federal agents City, Rinderknect mailed a package approached Gall in Arizona, requesting to containing 5,000 tablets of ecstasy to speak with him about his involvement with Sauerberg in Iowa City. Sauerberg then ecstasy sales while living in Iowa. Unknown distributed the ecstasy to Gall in 1,000 tablet to Gall, law enforcement had already increments. Pursuant to the agreement, Gall arrested Rinderknect and Sauerberg, who distributed the ecstasy to other individuals, had implicated Gall. Gall admitted to the including Coleman who purchased a total of agents his involvement in the conspiracy. In 1.500 to 2.000 tablets. Gall knew his 2004, Gall was charged in an indictment customers were redistributing the drugs with conspiracy to distribute MDMA. Gall within the community. As the drugs were made arrangements to return to Iowa from distributed,. Gall paid Sauerberg for the his home in Winter Park, Colorado, when he ecstasy. After Sauerberg collected the learned there was a federal arrest warrant $85,000 purchase price from Gall, he issued for him. Upon his return to Iowa, he contacted Rinderknect who flew to Iowa and turned himself in to federal authorities. obtained the cash. Because Gall withdrew from the conspiracy Approximately one to two months later, in September 2000, the parties stipulated Rinderknect mailed a second package that the November 1, 1999 edition of the containing 5,000 tablets of ecstasy to United States Sentencing Guidelines applied Sauerberg in Iowa City. Again, Sauerberg to Gall's offense conduct. The presentence distributed the ecstasy to Gall in 1,000 tablet report ("PSR") assigned Gall responsibility increments. After distributing the ecstasy, for 10,000 tablets of ecstasy. The parties Gall remitted $85,000 to Sauerberg, who stipulated that for the purpose of calculating delivered the money to Rinderknect. a Guidelines sentence, Gall would be held accountable for 2.500 grams of ecstasy, or In September 2000, Gall decided to leave 10,000 tablets, which under the 1999 the drug conspiracy. Rinderknect traveled to Guidelines equals 87.5 kilograms of

338 marijuana. Pursuant to U.S.S.G. § 2D1.1, incarcerating someone who had already 87.5 kilograms of marijuana placed Gall at a made positive changes in his life. base offense level of 24. Because he qualified for the safety valve pursuant to Gall's counsel requested a sentence of U.S.S.G. § 5C1.2, Gall's offense level was probation, asserting that Gall was not in reduced by two levels to 22. An additional need of rehabilitation because he had three-level reduction for acceptance of already done an admirable job of responsibility resulted in a total offense level rehabilitating himself. His counsel noted of 19. letters of support sent to the district court sent by Gall's friends and family. In Gall's criminal history included a conviction addition, his counsel argued that a felony for failure to maintain control of his vehicle conviction is a severe consequence that and underage alcohol possession in March would follow Gall throughout his life. Gall's 1997. As part of his sentence, Gall was counsel distinguished Gall from the ordered to pay a fine and undergo treatment codefendants who received prison sentences for alcohol abuse. No criminal history points by noting Gall's withdrawal from the were assessed for this conviction pursuant to conspiracy and his assumption of a crime- U.S.S.G. § 4A1.2(c). Gall was also free lifestyle. Counsel concluded his convicted in December 1997 of improper remarks by reminding the court that Gall's storage of a firearm on a public highway. family, along with two contract employees, This conviction added one criminal history "work pretty much exclusively for Mr. Gall" point pursuant to U.S.S.G. § 4A1.1(c). and were depending on Gall. Finally, in March 2000, Gall was convicted of possession of marijuana for which he The government requested a sentence of 30 received a deferred judgment; no criminal months' imprisonment, a sentence at the low history points were assigned to this end of the advisory Guidelines range. The conviction. With a Category I criminal government argued this sentence was history, Gall's advisory Guidelines range appropriate, considering Gall already was 30 to 37 months' imprisonment. received a significant benefit by being sentenced under the 1999 Guidelines. In At Gall's sentencing hearing, his father, 1999, the Guidelines stated that 1 gram of Tom Gall, testified that he had observed a ecstasy equated to 35 grams of marijuana. change in his son's life and that his son had The current Guidelines equate 1 gram of started his own business and was doing well. ecstasy to 500 grams of marijuana, which is He added that contractors rely on his son for 14 times the conversion quantity that Gall expertise in installing windows. Finally, he faced. In addition, Gall's recommended commented that his family would be sentence only included drug quantities for devastated if his son went to jail. the period of his participation in the conspiracy not foreseeable drug quantities Gall's mother, Vicki Gall, testified that she during the entire conspiracy. Also, Gall believed her son realizes that he made a benefited from a two-level safety-valve "stupid mistake" and that he has really reduction. Finally, the government argued learned from it. She added that during the that a 30-month sentence was appropriate last year, her son has become more mature. because the other coconspirators also She concluded by questioning the value of received prison sentences.

339 Before announcing its sentence, the district offense level based solely upon drug court denied a defense request to depart quantity does not adequately reflect the from the advisory Guidelines range based offense conduct." upon aberrant behavior and extraordinary acceptance of responsibility. The court The government now appeals, arguing that concluded that departure requests for the sentence is unreasonable in light of all of remorse, post-offense rehabilitation, and the § 3553(a) factors because the district voluntary cessation of criminal activity were court (1) gave unreasonable weight to Gall's best considered within the confines of 18 withdrawal from the conspiracy; (2) U.S.C. § 3553(a). improperly relied on studies showing that adolescents are less culpable for their After considering the Guidelines, the district actions than adults; (3) gave unreasonable court stated, both at the hearing and in its weight to Gall's post-offense rehabilitation subsequent sentencing memorandum, that it and behavior while on pre-trial release; (4) was going to impose a sentence other than failed to acknowledge that Gall's lack of that contemplated by the Guidelines and criminal history was accounted for in the sentenced Gall to 36 months' probation. In Guidelines calculation; (5) incorrectly imposing the sentence of probation, the concluded that a sentence of probation court stated that it had considered the § reflects the seriousness of the offense; (6) 3553(a) factors. Particularly, the court stated did not consider whether a sentence of that it took into account "the defendant's probation affords adequate deterrence to voluntary and explicit withdrawal from the future criminal conduct; and (7) did not conspiracy in September of 2000; the consider whether a sentence of probation defendant's exemplary behavior while on creates unwarranted sentencing disparities bond; the support manifested by family and among defendants with similar records who friends who have attested to the defendant's committed similar crimes. character; the lack of criminal history, especially a complete lack of any violent II. Discussion criminal history; and the immaturity of the defendant." "Under Booker. the sentencing guidelines are no longer a mandatory regime. Instead. the district court must take the advisory guidelines into account together with other The district court sentenced Gall to a term of sentencing factors enumerated in 18 U.S.C. 36 months' probation as a reflection of "the § 3553(a)." United States v. Claiborne, 439 seriousness of joining a conspiracy to F.3d 479, 480 (8th Cir. 2006). To determine distribute MDMA or Ecstacy." Recognizing the proper sentence, "the district court must that probation is not recommended when the first calculate the applicable guidelines Guidelines range falls outside of Zone A, the sentencing range." Id. After calculating the district court concluded that probation was advisory Guidelines range, the district court nevertheless appropriate because Gall's "may then impose a sentence outside the offense level was based "solely on drug range in order to 'tailor the sentence in light quantity." The court stated, "While not of the other statutory concerns' in § denigrating the seriousness of the offense 3553(a)." Id. (quoting United States v. conduct in this case, the Court finds the Booker, 543 U.S. 220, 245-46, 125 S.Ct.

340 738, 160 L.Ed.2d 621 (2005)). the sentence imposed."' Claiborne, 439 F.3d. at 481 (quoting United States v. In the present case, neither party challenges Johnson, 427 F.3d 423, 426-27 (7th Cir. the district court's determination of the 2005)). Therefore, "the farther the district Guidelines sentencing range; therefore, "we court varies from the presumptively review the resulting sentence for reasonable guidelines range, the more reasonableness, a standard akin to our compelling the justification based on the § traditional review for abuse of discretion." 3553(a) factors must be." United States v. Id. at 481. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). "We have determined that a sentence imposed within the guidelines range is Here, the district court imposed a sentence presumptively reasonable." United States v. of probation when the bottom of Gall's Myers, 439 F.3d 415, 417 (8th Cir. 2006). advisory Guidelines range was 30 months' "While it does not follow that a sentence incarceration. In essence, this amounts to a outside the guidelines range is 100% downward variance, as Gall will not unreasonable," a sentence outside of the serve any prison time. Such a variance is Guidelines range "'may be unreasonable if a extraordinary. "An extraordinary reduction sentencing court fails to consider a relevant must be supported by extraordinary factor that should have received significant circumstances." United States v. Dalton, 404 weight, gives significant weight to an F.3d 1029, 1033 (8th Cir. 2005); see also improper factor or irrelevant factor, or Claiborne, 439 F.3d at 481 (holding that the considers only appropriate factors but district court's imposition of a 15-month nevertheless commits a clear error of sentence when the Guidelines range was 37 judgment by arriving at a sentence that lies to 46 months' imprisonment, a 60% outside the limited range of choice dictated downward variance, was unreasonable). We by the facts of the case."' Id. at 417-18 conclude that this extraordinary variance is (quoting United States v. Haack, 403 F.3d not supported by extraordinary 997, 1004 (8th Cir. 2005)). justifications.

The district court must clearly explain why First, the district court gave too much weight it imposed a sentence outside of the to Gall's withdrawal from the conspiracy Guidelines range. United States v. because the court failed to acknowledge the Gatewood, 438 F.3d 894, 896 (8th Cir. significant benefit Gall received from being 2006). While we do not require "a rote subject to the 1999 Guidelines. Gall was recitation of each § 3553(a) factor," the held responsible for 10,000 tablets of district court should explain why it varied MDMA at a conversion rate of 1 gram of from the Guidelines and the extent of the MDMA to 35 grams of marijuana, resulting variance. Id. "'Sentences varying from the in a base offense level of 24. Under the guidelines range . .. are reasonable so long current Guidelines, however, Gall's base as the judge offers appropriate justification offense level would have been 32 because 1 under the factors specified in 18 U.S.C. gram of MDMA equates to 500 grams of 3553(a). How compelling that justification marijuana. In addition, Gall was not held must be is proportional to the extent of the accountable for quantities of ecstasy difference between the advisory range and distributed by other members of the

341 conspiracy subsequent to his withdrawal. www.nida.nih.gov/infofax/ecstasy.html (last Under U.S.S.G. § 1B1.3. Gall could have visited March 31, 2006). Gall sold 10,000 been held responsible for other members' ecstasy pills during the time he participated reasonably foreseeable acts. United States v. in the drug conspiracy. The potential harm Smith, 240 F.3d 732, 737 (8th Cir. 2001) posed by this quantity of illegal drugs ("A defendant convicted of conspiracy is should not be lightly discounted. properly held accountable for all reasonably foreseeable acts and omissions of any co- Fourth, the record does not show that the conspirator taken in furtherance of the district court considered whether a sentence conspiracy."). of probation would result in unwarranted sentencing disparities. See 18 U.S.C. § Second, the district court gave significant 3553(a)(6). "Congress has made avoiding weight to an improper factor when it relied unwarranted disparity a legislative priority." on general studies showing persons under United States v. Lazenby, 439 F.3d 928, 933 the age of 18 display a lack of maturity, (8th Cir. 2006). Therefore, we find that the which often results in impetuous and ill- district court failed to consider a relevant considered actions. This general study, factor that should have received significant however, does not explain how Gall's weight. specific behavior in the instant case was impetuous or ill-considered. Furthermore, Finally, the district court placed too much Gall sold ecstacy as a 21-year-old adult, not emphasis on Gall's post-offense as an adolescent. rehabilitation. Even if Gall's rehabilitation "is dramatic and hopefully permanent," a Third, the district court did not properly sentence of probation for participating as a weigh the seriousness of Gall's offense. middleman in a conspiracy distributing While the district court observed that Gall's 10,000 tablets of ecstasy with a personal offense level did not adequately reflect the profit of $30,000 "'lies outside the limited offense conduct because it was based "solely range of choice dictated by the facts of the on drug quantity." the district court ignored case."' Id. (quoting Haack, 403 F.3d at the serious health risks ecstasy poses. 1004). Ecstasy causes increased body temperature, which can lead to liver, kidney, and III. Conclusion cardiovascular system failure; increases in heart rate and blood pressure; and severe Accordingly, the judgment of the district anxiety and depression, which can occur court is REVERSED and the case is days or weeks after taking ecstasy. National REMANDED to the district court for Institute on Drug Abuse. (2003), at resentencing.

342 "U.S. Supreme Court Picks Up Replacements for St. Louis Man"

Daily Record (St. Louis, MO.) June 12, 2007 Allison Retka

The U.S. Supreme Court has taken up kind of circumstances do you have to have another Eighth Circuit case[, Gall i. U.S.,] to justify extraordinary discrepancies from on federal sentencing guidelines after the contemplated guidelines range." While a dropping a St. Louis-based appeal when the decision on Claiborne's case was expected petitioner was shot and killed last month in sometime this month, neither Gall nor an attempted car theft. This new case, first Kimbrough will be considered by the filed in the federal court in Des Moines, Supreme Court until the next term, which Iowa, addresses a lenient sentence issued to starts Oct. 1. Prosecutors and criminal an Iowa university student who sold $30,000 defense attorneys took note of Claiborne's in Ecstasy tablets as part of a statewide drug appeal because the case addressed the ability ring. After considering his age-21 years of a district judge to issue a substantially old-and his limited criminal history, the lower sentence than federal sentencing district court gave Brian Michael Gall 38 guidelines prescribe. The 8th U.S. Circuit months probation when federal guidelines Court of Appeals disagreed with U.S. Judge mandated a 30-month prison sentence. Also Carol E. Jackson when in 2005 she on Monday, the nation's highest court took sentenced Claiborne to 15 months in prison up another case, Kimbrough vs. U.S., which for possession and intent to sell crack deals with the discrepancies in punishing cocaine, a sentence less than half the three- crack cocaine crimes under federal year minimum of federal guidelines. sentencing guidelines. That these two cases According to police reports, Claiborne was were taken up just a week after the court shot at a BP gas station on South Grand dismissed a pending appeals case from Boulevard after one of his companions left Mario Claiborne, a St. Louis man who was his vehicle and drove off in a nearby truck fatally shot May 29 near Grand Boulevard, that had been left empty and idling. As the is no accident, said Matthew Shors, a companion fled in the truck and Claiborne Washington, D.C., attorney for the followed after in his own car, the truck's American Civil Liberties Union. "Clearly owner opened fire on Claiborne's vehicle, what happened . .. was the court decided in striking him in the back. Claiborne managed light of Claiborne being dismissed to grant to drive himself to Saint Louis University both these cases," said Shors, who drafted Hospital, where he was pronounced dead at an amicus brief in Claiborne's case on 3:15 a.m. on May 30. The U.S. Supreme behalf of the ACLU. "They sound familiar Court dismissed his case June 4. in a lot of ways. It's the question of what

343 "A Possible Sentencing 'Safe Harbor' in New Rulings"

The National Law Journal June 25, 2007 Marcia Coyle

WASHINGTON-If federal appeals courts necessary to justify a sentence outside the may now presume that a criminal sentence Guidelines range." falling within the advisory Federal Sentencing Guidelines is reasonable, will The Rita case, in which Victor Rita district judges abandon new-found challenged his 33-month guideline sentence sentencing discretion for the safe harbor of for perjury and obstruction of justice, the guidelines? presented a question that had divided the circuits since the justices' major sentencing The U.S. Supreme Court on June 21 held ruling in U.S. v. Booker, 543 U.S. 220 that federal appellate courts may apply a (2005). rebuttable presumption of reasonableness to a district court sentence within the In Booker, the high court held that the guidelines. Rita v. U.S., No. 06-5754. mandatory federal guidelines violated the Sixth Amendment right to jury trial and The important question now, according to ruled the guidelines to be only advisory. It sentencing scholars and practitioners, is how also held that appellate courts should review district judges will view the decision when sentences under a standard of imposing sentences. reasonableness.

The presumption is an appellate court After Booker, a number of circuits began to presumption, not a sentencing court apply a rigid presumption of reasonableness presumption, emphasized Justice Stephen G. to any sentence that fell within the guideline Breyer, who was writing for the 8-1 range for that crime. majority. Sentencing judges don't lose discretion and should continue subjecting a The Bush administration had argued that defendant's sentence to the "thorough seven circuits applied a presumption of adversarial testing" demanded by federal reasonableness, but none had ever held that sentencing laws. he added. the presumption was a per se one requiring adherence to the guidelines in every case. But a dissenting Justice David H. Souter The administration argued, and the high countered, "What works on appeal court agreed, that there may be cases where determines what works at trial." If the U.S. reliance on the guidelines is not reasonable. Sentencing Commission's views are as weighty as the majority says they are, he Besides emphasizing that the presumption is added, "A trial judge will find it far easier to for appellate courts alone and is not a make the appropriate findings and sentence binding presumption, Breyer also stressed within the appropriate Guideline, than to go that there is no presumption of through the unorthodox factfinding unreasonableness for sentences falling

344 outside of the guideline range. is suggested by the guidelines or other reasons," said Fisher. "The decision confirms, by my light, that the If a court wants to give a lower sentence, he guidelines provide a relatively safe harbor added, five justices suggest appellate courts for [district judges]," said Douglas Berman "better not mess with that unless they have of Ohio State University Michael E. Moritz extremely good reason to do so." The College of Law. decision was "not the best we would have hoped for," said Carmen Hernandez, But although the decision offers a safe president-elect of the National Association harbor, it also suggests "the waters outside of Criminal Defense Lawyers, "but it does of port are relatively calm for judges as allow for the judge who wants to be a judge well," said Jeffrey Fisher of Stanford Law and exercise judicial discretion to do the School. right thing."

"The lesson today is that after Booker it's OK if district courts want to give people heavy sentences, and there's going to be [The court will address these issues in Gall some deference to that whether the sentence v. United States.]

345 Snyder v. Louisiana

(06-10119)

Ruling Below: State v. Snyder, No. 1998-KA-1078 (Supreme Court of Louisiana), cert granted, Snyder v. Louisiana, 2007 U.S. LEXIS 8326, June 25, 2007.

Petitioner Allen Snyder, a black man, was convicted and sentenced to death by an all-white jury for the fatal stabbing of his wife's male companion. Prior to trial, the prosecutor reported to the media that this was his "0. J. Simpson case." At trial, the prosecutor peremptorily struck all five African-Americans who had survived cause challenges and then, over objection, urged the resulting all-white jury to impose death because this case was like the 0. J. Simpson case, where the defendant "got away with it." On initial review, a majority of the Louisiana Supreme Court ignored probative evidence of discriminatory intent, including the prosecutor's 0. J. Simpson remarks, denying Snyder's Batson claims. On remand, a bare majority adhered to its prior holding, again disregarding substantial evidence establishing discriminatory intent, including the prosecutor's references to the 0. J. Simpson case, the totality of strikes against African- American jurors, and evidence showing a pattern of practice of race-based peremptory challenges by the prosecutor's office. In addition, the majority imposed a new and higher burden on Snyder, asserting that Rice v. Collins, 546 U.S. 333 (2006), permitted reversal only if "a reasonable fact-finder [would] necessarily conclude the prosecutor lied" about the reasons for his strikes.

Questions Presented: (1) Did the majority below ignore the plain import of Miller-El by failing to consider highly probative evidence of discriminatory intent, including the prosecutor's repeated comparisons of this case to the 0. J. Simpson case, the prosecutor's use of peremptory challenges to purge all African Americans from the jury, the prosecutor's disparate questioning of white and black prospective jurors, and documented evidence of a pattern of practice by the prosecutor's office to dilute minority presence in petit juries? (2) Did the majority err when it imported into a direct appeal case the standard of review this Court applied in Rice v. Collins, an AEDPA habeas case? (3) Did the majority err in refusing to consider the prosecutor's first two suspicious strikes on the ground that defense counsel's failure to object could not constitute ineffective assistance of counsel because Batson error does not render the trial unfair or the verdict suspect?

STATE of Louisiana V. Allen SNYDER

Supreme Court of Louisiana

Decided September 6, 2006

[Excerpt: Some footnotes and citations omitted.]

346 WEIMER, J. Defendant was convicted of widely held belief that peremptory challenge first degree murder and sentenced to death. is a necessary part of trial by jury." The On direct appeal. this court ultimately majority of the Court sought to affirmed defendant's conviction and accommodate both the prosecutor's sentence. Currently, the case is on remand historical privilege of peremptory challenge from the United States Supreme Court, free of judicial control and the constitutional which directed that we again review prohibition on exclusion of persons from defendant's Batson claims, this time in light jury service on account of race. Because the of Miller-El v. Dretke, 545 U.S. 231. 125 S. State may not exercise its challenges in Ct. 2317, 162 L. Ed. 2d 196 (2005). After contravention of the Equal Protection reviewing defendant's Batson complaints Clause, the Court held it was impermissible cumulatively in light of the entire record as for a prosecutor to use challenges to exclude directed by Miller-El, we find the trial court African-Americans from the jury "for did not err in determining the venire persons reasons wholly unrelated to the outcome of were not excused by the State in a racially the particular case on trial" or to deny to discriminatory manner. Therefore, for the them "the same right and opportunity to reasons that follow, the judgment affirming participate in the administration of justice defendant's conviction and sentence is enjoyed by the white population." Thus, reinstated. . . . proof by a defendant that members of his race were struck from his jury was . . . The Equal Protection Clause of the insufficient; a defendant's burden was to United States Constitution prohibits show the circumstances under which engaging in purposeful discrimination on the prosecutors were responsible for striking grounds of race in the exercise of minority jurors beyond the facts of a peremptory challenges. Batson. The Miller- particular case. Proof of repeated striking of El decision that forms the basis for this African-Americans over a number of cases remand was the third in a trilogy of Supreme was necessary to establish a violation of the Court opinions related to the allegedly Equal Protection Clause. discriminatory exercise of peremptory challenges in criminal trials. The trilogy Twenty-one years after Swain, the Court presents a pendulous treatment by the Court swung the pendulum in the opposite of the issue of the evidentiary burden placed direction, finding that the evidentiary on a criminal defendant who claims that formulation of Swain was inconsistent with equal protection has been denied through the standards that had developed during those State's use of peremptory challenges to years for assessing a prima facie case under exclude individuals from the petit jury on the Equal Protection Clause. In Batson v. the basis of race. Kentucky, the Court called the Swain requirement "a crippling burden of proof' In Swain v. Alabama. the Supreme Court that had made prosecutors' peremptory recognized that a State's purposeful or challenges "largely immune from deliberate denial of participation as jurors on constitutional scrutiny." The Court held that account of race violates the Equal Protection a defendant could establish a prima facie Clause. Reviewing the "very old case of purposeful discrimination in the credentials" of the peremptory challenge selection of the petit jury solely on evidence system, the Court noted the "long and concerning the prosecutor's exercise of

347 peremptory challenges at the defendant's examination of the juror. Such trial. Evidence of a pre-existing pattern of demand and disclosure, if required discrimination in previous cases was no by the court, shall be made outside longer required. of the hearing of any juror or prospective juror. Another 19 years later, in Miller-El, the Supreme Court moved the pendulum back The race-neutral explanation need not be toward middle ground. Stating that although persuasive or even plausible. Collins. It will the move from Swain to Batson left a be deemed race-neutral unless a defendant free to challenge the prosecution discriminatory intent is inherent in the without having to cast Swain's "wide net," explanation. The ultimate burden of the Court noted the net should not have been persuasion as to racial motivation rests with, consigned to history; Batson's and never shifts from, the opponent of the individualized focus had an inherent peremptory challenge. State v. Tyler The weakness of its own caused by its very trial court's findings with regard to a Batson emphasis on the particular reasons a challenge are entitled to great deference on prosecutor might give. "If any facially appeal. When a defendant voices a Batson neutral reason sufficed to answer a Batson objection to the State's exercise of a challenge, then Batson would not amount to peremptory challenge, the finding of the much more than Swain." Miller-El. Thus, absence of discriminatory intent depends the Court reiterated-this time in a habeas upon whether the trial court finds the proceeding-Batson's explanation that a prosecutor's race-neutral explanations to be defendant may rely on "all relevant credible. "Credibility can be measured by, circumstances" to raise an inference of among other factors, the prosecutor's purposeful discrimination. Id. demeanor; by how reasonable, or how improbable, the explanations are; and by Nevertheless, the Court left the Batson test whether the proffered rationale has some intact in Miller-El and reaffirmed that basis in accepted trial strategy." Miller-El v. position in Rice v. Collins. Louisiana law Cockrell. codifies the Batson ruling in LSA-C.Cr.P. art. 795(C), which provides: The three-step Batson process which guides the courts' examination of peremptory No peremptory challenge made by challenges for constitutional infirmities has the state or the defendant shall be recently been described again by the based solely upon the race of the Supreme Court as follows: juror. If an objection is made that the state or defense has excluded a A defendant's Batson challenge to juror solely on the basis of race, a peremptory strike requires a and a prima facie case supporting three-step inquiry. First, the trial that objection is made by the court must determine whether the objecting party, the court may defendant has made a prima facie demand a satisfactory racially showing that the prosecutor neutral reason for the exercise of exercised a peremptory challenge the challenge, unless the court is on the basis of race. Second, if the satisfied that such reason is showing is made, the burden shifts apparent from the voir dire to the prosecutor to present a race-

348 neutral explanation for striking the that a defendant may rely on 'all relevant juror in question. Although the circumstances' to raise an inference of prosecutor must present a purposeful discrimination," Id., and to the comprehensible reason, the second trial judge's duty under Batson "to assess step of this process does not the plausibility" of the prosecutor's demand an explanation that is proffered reason for striking a potential juror persuasive, or even plausible; so "in light of all evidence with a bearing on long as the reason is not inherently it." (Emphasis supplied.) Id. discriminatory, it suffices. Third, the court must then determine . . . After a detailed discussion of all the whether the defendant has carried evidence presented in support of defendant's his burden of proving purposeful Batson challenge, the Court concluded that discrimination. This final step the totality of the evidence showed the trial involves evaluating the court was unreasonable and erroneous in persuasiveness of the justification determining the prosecutor's strikes of two proffered by the prosecutor, but potential jurors were not racially motivated. the ultimate burden of persuasion The Court summarized the myriad pieces of regarding racial motivation rests evidence that together yielded its decision. with, and never shifts from, the The Court found the existence of several opponent of the strike. [Internal disturbing factors that together indicated the quotations and citations omitted.] prosecution's proffered race-neutral reasons were mere pretext for discriminatory intent: The Court's decision in Miller-El v. Dretke, (1) the "bare statistics," which showed that a multifaceted and fact-bound opinion on the out of 20 black members of the 108-person merits of defendant's claim to habeas relief. venire panel, only 1 served, Id.; (2) a further clarifies the analysis to be used in "comparative juror analysis," or a side-by- Batson's third and final step. Although the side comparison, of some African-American case is a federal habeas case, it nevertheless panelists who were struck and white indicates the type of evidence to be panelists who were allowed to serve, Id.; (3) considered and the appropriate scope of an the "broader patterns of practice" that evaluation of the prosecutor's reasons to be occurred during jury selection, which applied by the trial court at the time a included inexplicable jury shuffling and Batson challenge is raised, which are later disparate questioning of African-American pertinent to direct review by the appellate and non-African-American panelists, Id.; courts. and (4) historical evidence that the particular District Attorney's office involved in the The Miller-El opinion begins by recognizing case had for decades followed a known, Batson's weakness is its "very emphasis on formal, and specific policy of systematically the particular reasons a prosecutor might excluding African-Americans from juries. give." Miller-El. The Court continued, The Court readily acknowledged that the "Some stated reasons are false, and although significance of some of the evidence of some false reasons are shown up within the discriminatory intent was "open to judgment four corners of a given case, sometimes a calls," but reasoned that when the evidence court may not be sure unless it looks beyond was viewed cumulatively, it was "too the case at hand." Id. Miller-El, therefore, powerful to conclude anything but redirects attention to "Batson's explanation discrimination.'

349 . . . [T]he Court's next Batson-third-step evidence that the State's strikes were made case, Collins, illustrates the difficulties on the impermissible basis of race. courts face in attempting to review a trial court's resolution of a Batson challenge. In Considering this argument, this court's that case, a Batson challenge was made after current task is eased by an initial winnowing the prosecution struck a young, African- out of some of the challenged jurors. American female panelist, and the challenge Currently, defense counsel makes no was rejected by the state courts and the argument with regard to Loretta Walker, federal district court. However, when almost certainly because the record offers defendant sought collateral habeas corpus ample affirmative support for the relief in the federal courts, the Ninth Circuit prosecutor's challenge. Court of Appeals reversed on grounds that the trial court had acted unreasonably by With respect to two other prospective jurors, crediting the prosecutor's race-neutral Greg Scott and Thomas Hawkins, Jr., this reasons for striking the juror. Collins v. Rice. court previously found that the defendant waived any Batson claim on appeal by The Supreme Court reversed, finding the failing to object when the prosecutor struck Court of Appeals had "improperly the jurors, although defense counsel noted substituted its evaluation of the record for their race for the record. More importantly, that of the state trial court." Collins. The defense counsel did not ask the prosecutor to Court found the record did not demonstrate articulate his race-neutral reasons for that a reasonable fact finder must necessarily excusing Greg Scott and Hawkins when the conclude the prosecutor lied about his Batson challenge was posed after the State reasons for striking the panelist. Id. struck Elaine Scott from the third panel of at 975. ... prospective jurors. Snyder. There is nothing in Miller-El or Collins that casts doubt on Application of Principles the correctness of this portion of Snyder I.

Miller-El and Collins necessarily shape this Despite defense counsel's reiteration of the court's response to the Supreme Court's argument concerning the remaining two present remand order and our potential jurors, we turn to our previous reconsideration of the Batson issue, but do decision regarding these persons: not require a detailed reconsideration of the voir dire of the five African-American Defense counsel did ... lodge the prospective jurors peremptorily struck by proper Batson objections to the the State. As we stated in Snyder I, the State's use of peremptory State's use of five of its peremptory challenges against potential jurors challenges to strike African-American Jeffrey Brooks [and] Elaine Scott. prospective jurors who survived challenges . . . The State originally accepted for cause resulted in defendant's being tried Brooks as a juror, but later by an all-white jury. Now defendant re- backstruck him. The prosecutor's argues that the State's use of "close to half' reasons for striking Brooks were of its peremptory strikes to "exclude an that he appeared "very nervous" entire group comprising only fourteen throughout questioning and that he percent of the qualified pool" is compelling would be missing class, as a

350 student teacher, if chosen to serve The trial court entertained the State s race on the jury. The prosecutor stated, neutral reasons for the exclusions without "He's a student teacher. My main making a finding as to whether defendant concern is for that reason, that had made a prima facie showing of being that he might, to go home purposeful racial discrimination. A trial quickly, come back with guilty of court's "demand that a prosecutor justify his a lesser verdict so there wouldn't use of peremptory strikes is tantamount to a be a penalty phase." Defense finding that the defense has produced counsel responded by stating: enough evidence to support an inference of discriminatory purpose." State of Louisiana His main problem yesterday was v. Green. Nevertheless, the issue of whether the fact that he didn't know if he the defense established a prima facie case of would miss some teaching time as discrimination is moot once the prosecutor a student teacher. The clerk called has offered a race-neutral explanation for the the school and whoever it was and peremptory challenge and the trial court has the Dean said that wouldn't be a ruled on the ultimate question of intentional problem. He was told that this discrimination. Id. would go through the weekend, and he expressed that that was his Here, the trial court did not find that only concern, that he didn't have defendant had established purposeful any other problems. discrimination and overruled the Batson objections. These rulings appear correct. As far as him looking nervous, Although not required by the case law, the hell, everybody out here looks State's proffered reasons were plausible, nervous. I'm nervous. supported by the record and race-neutral. [Citations omitted.] The prosecutor's The court allowed the State to exercise a reasons constituted "legitimate" grounds for peremptory challenge on Brooks. the exercise of a peremptory strike. [Citation omitted.] None of the reasons articulated by With respect to prospective juror Elaine the State are readily associated with the Scott, the district attorney excused her. suspect class that is alleged to be the object stating, "I observed she was very weak on of the State's discriminatory use of her ability to consider the imposition of the peremptory challenges. Defendant, the death penalty. Her words. exactly-I wrote opponent of the strikes, offered no facts or it down. that she thinks she could, and that's circumstances supporting an inference that the reason for our challenge." However, the State exercised its strikes in a racially when asked again by the prosecution if she discriminatory manner. Therefore, the could impose the death penalty. she defendant's proof, when weighed against the responded. "I could." She also responded prosecutor's offered race-neutral reasons, affirmatively when asked if she could listen was not sufficient to prove the existence of to the evidence and consider whether to discriminatory intent. accept or reject the insanity defense and hold the defense to its burden of proof. After carefully reviewing the entire record Nevertheless, the trial court accepted the of voir dire, we find no abuse of discretion State's explanation as race neutral and or error by the trial court in its denial of excused Elaine Scott. defendant's Batson claims. The trial court

351 heard the prospective jurors and concluded Later, when the State exercised a there were reasonable bases for the peremptory challenge to backstrike Brooks, challenges in question. The record does not the race-neutral reason given was the show that the State employed a tactic of prosecutor's reservations about this student purposeful discrimination in its exercise of teacher's ability to consider the issues peremptory challenges. [Record references without being distracted by his concerns and footnote omitted.] about school. This reason was consistent with the concern voiced in the questioning . . . At the beginning of the voir dire, the of other potential jurors during the pre-voir trial court gave a brief explanation of the dire process mentioned above. jury selection process. The court announced the eligibility requirements for jury service Further, acknowledging that the peremptory and then asked the members of the venire challenge of Brooks requires a more detailed who had any basis for disqualification or a discussion than the challenge of Scott, we significant reason that would warrant note defense counsel's comparison of the excusal to approach the bench. Each venire State's challenge of Brooks with the State's member approached the bench individually acceptance of Yeager and Sandras, both and provided his or her reason for white males on the fifth panel. Yeager ineligibility or for excusal. Some persons expressed concern with jury service because were questioned further by the State or the he had a commitment to an event scheduled defense as to their reasons, and then the for Sunday that he had been an integral part court either excused them or denied their of for many years. Sandras reported he requests. taught at the University of New Orleans, had just begun the semester, and would have a During this preliminary voir dire process, problem with any "prolonged absence." We the State consistently inquired of a potential note that both of these men were employed juror whether or not his or her particular and apparently already had established problem would prevent concentration on the careers; Brooks, on the other hand, was evidence so as to impair the juror's decision- attempting to complete his college courses making task. For example, when speaking to in order to begin a career in teaching. potential juror Chauffe, a single-mother of a school-aged child who claimed The fact that Brooks actually approached the transportation problems, the prosecutor bench on his own volition and raised his asked: "If you got selected on this jury teaching obligations as a hardship excuse anyway, despite what you're telling us, do indicates he was truly concerned, more so you think that you would be able to pay than Sandras and Yeager. When Brooks attention to the evidence in the case, and approached the bench to raise a hardship listen to the Judge, and be a good juror? Or concern at the beginning of the jury do you feel you would be worrying too selection proceeding. Brooks stated to the much and not be able to listen to the court that "there is something I'm missing evidence?" When Chauffe answered the right now that will better me towards my second question affirmatively, the court teaching career." On the other hand, Sandras excused her. The prosecutor asked the same and Yeager merely responded to defense type of question of prospective jurors counsel questioning posed to their panel Pickett, Nguyen, Laws, Perkins, and Miller. regarding any jurors' personal reasons or

352 pre-existing obligations which would make Parish 0. J. Simpson . . . case." I it difficult to concentrate or serve on the have no intentions of doing that. I jury. Thus, Brooks initiated the concern have no-perhaps in argument, I about the trial being a hardship, while don't know.... Sandras and Yeager merely responded to questions. I have given the Court my word that I will not, at any time during . . . There was no indication that race was the course of the taking of the underlying reason for backstriking evidence or before the jury in this Brooks any more than race was a case, mention the 0. J. Simpson consideration in the prosecutor's questions case. . . . I just ask [the court] not to the other potential jurors... to grant this motion.

The final part of our analysis is based on a After the hearing, the trial court denied review of the record as a whole as instructed defendant's motion based on the by the Supreme Court in Miller-El ("[A]ll prosecutor's representations. relevant circumstances" and "all evidence with a bearing" on the Batson issue must be Voir dire began against this backdrop on considered.) First, we consider the August 27, 1996. proceeding at which the issue of racial prejudice was raised prior to the beginning Next, we note that the State did, in fact, of voir dire. make an indirect reference to the 0. J. Simpson case during its rebuttal argument at At a July 29, 1996 hearing to determine the penalty phase of the trial. ... whether the State would be permitted to introduce at trial evidence of five incidents The portion of the State's rebuttal argument of domestic violence allegedly committed that the defendant now complains about was by defendant against his estranged wife to in direct response to the above quoted show defendant's motive and intent, the argument. Specifically, the prosecutor State made reference to "another case that stated: was on television everyday for the last couple of years . . . where this very thing It's been very clear, and this is the happened." Thereafter, on August 16, 1996, last thing I'm going to say about defense counsel filed a motion in limine Allen Snyder, that the kind of specifically requesting the State be person he is, as Mr. Olinde precluded at trial from referring to or described him in his opening making comparisons with 0. J. Simpson or statement, he's egocentric, and he his trial, as such references would serve no has shown no remorse. More than purpose other than to confuse and prejudice that, as he stabbed his wife 15 the jury. The prosecutor responded: times, put her through what Dr. Harkness described as a near- I think [the defense motion is] death experience, as she lay there premature. . . . I can assure the gushing blood, as Mary Snyder sat Court that I'm not going to get up in that seat right there, he left her in my opening voir dire and say there. He left her there to die. And [that] "we're here for the Jefferson when Detective Labat took the

353 statement from him 12 hours later, reviewed, the record shows that the . . . not a word at any time where prosecution's stated reasons for striking you would have heard him, how's Scott and Brooks were not pretextual. A my wife? Is she okay? Not a word. review of this record compels a conclusion Is that because he's depressed or that race did not play an impermissible role because he's got a far deeper in the exercise of these strikes. problem? . . . When we view the totality of the evidence . . . However, other than suggesting discussed herein, as Miller-El directs, inferences to be drawn from the bare facts of despite the lack of the trial court's active the prosecutor's remarks both prior to and participation in voir dire and its failure to subsequent to the voir dire, defense counsel articulate particularized reasons for its points to no evidence in the record to determination that the State's proffered substantiate defendant's claim of reasons were not pretextual, we find the trial discriminatory use of the peremptory court's decision to allow the strikes of Scott challenges. The inferences defense counsel and Brooks was not clearly erroneous. suggests are no more compelling than other Considering the evidence in the record race neutral inferences to be drawn when before us, a contrary conclusion would be an one considers the prosecutor's remarks in improper substitution of this court's context. The remark at the motion in limini evaluation for that of the trial court similar referred to the fact that the Simpson trial to that struck down in Collins. The record involved alleged domestic violence; the before us simply does not demonstrate that a remark during rebuttal referred to the fact reasonable fact finder must necessarily that Simpson feigned suicidal intent. Neither conclude the prosecutor lied about his remark referred to Simpson's or Snyder's reasons for striking Scott or Brooks. race. Counsel's citations to authorities Applying Miller-El and Collins, the concerning the Simpson trial never were, prosecutor's demeanor was evaluated by the and are not now, part of the record before trial court which found no discriminatory this court for review. intent. The explanations were reasonable and the proffered rationale had some basis in Miller-El directs that we cumulate all accepted trial strategy. relevant items tending to point to racial discrimination and view them together when We conclude defendant did not carry his considering whether the trial court's ultimate burden of persuasion that the State determination of the existence of exercised peremptory challenges in a discrimination is clearly erroneous. purposefully discriminatory manner. We Nevertheless, Miller-El directs that this reiterate that Snyder's "proof, when weighed court examine the precise reasons given by against the prosecutor's offered race-neutral the State for its strike of Scott and Brooks. reasons, was not sufficient to prove the This court cannot attempt to hypothesize existence of discriminatory intent." Snyder. another reason that the State may have had Accordingly, we reinstate the following for its strikes. As stated by the Court. the decree. State must "stand or fall on the plausibility of the reasons he gives." Miller-El. DECREE Consequently, we find that when the entirety of the record of defendant's case is In accordance with the above reasons

354 assigned by this court, we unconditionally The State used five of its peremptory affirm the judgment of the trial court and the challenges to strike 100 percent of the sentence of death. In the event this judgment African-American prospective jurors who becomes final on direct review when either: survived challenges for cause. This resulted (1) the defendant fails to petition timely the in defendant being tried by an all-white jury. United States Supreme Court for certiorari; Defendant argues that the State's use of or (2) that court denies his petition for "close to half' of its peremptory strikes to certiorari; and either (a) the defendant, "exclude an entire group comprising only having filed for or and been denied fourteen percent of the qualified pool" is certiorari, fails to petition the United States compelling evidence that the State's strikes Supreme Court timely, under its prevailing were made on the impermissible basis of rules, for rehearing of denial of certiorari; or race. While the fact that prosecutors used (b) that court denies his petition for their peremptory strikes to exclude 100 rehearing, the trial judge shall, upon percent of the eligible African-American receiving notice from this court under LSA- panelists does not prove intentional racial C.Cr.P. art. 923 of finality of direct appeal, discrimination, Miller-El cautions that and before signing the warrant of execution "'[h]appenstance is unlikely to produce this as provided by LSA-R.S. 15:567(B), disparity."' immediately notify the Louisiana Indigent Defense Assistance Board and provide the . . . Considering this injection of racial Board with reasonable time in which: (1) to issues, and the fact that the prejudicial enroll counsel to represent the defendant in arguments were made to an all-white jury, I any state post-conviction proceedings, if believe it is only reasonable to conclude that appropriate, pursuant to its authority under Mr. Brooks was peremptorily challenged by LSA-R.S. 15:149.1; and (2) to litigate the State on the basis of his race when the expeditiously the claims raised in that entirety of the facts is considered. This is original application, if filed in the state especially true in light of the fact that the courts. trial court did not articulate its reasons for overruling the Batson challenge. While one AFFIRMED. may infer that the trial court found the State's reasons credible, this court, on KIMBALL, J. dissenting: appellate review, is not privy to the reasons for this credibility detennination. One I believe that a review of the entirety of this simply cannot tell whether it was something record performed using the vigorous in the demeanor of the prosecution or in the analysis directed by the Miller-El Court behavior or attitude of Mr. Brooks that reveals the trial court erred in allowing the caused the trial court to believe the State's State to peremptorily challenge Mr. Brooks. race-neutral reasons were not pretextual. Consequently. I dissent from the majority's The backstrike of Mr. Brooks followed the conclusion that defendant did not prove the Batson-challenged peremptory strike of Ms. State exercised peremptory challenges in a Scott, which had excluded the third of four purposefully discriminatory manner. African-American panelists to be examined. The State's backstrike of Mr. Brooks then At the outset, the raw numbers removed the only African-American juror characterizing the selection of defendant's the State had accepted for service. With jury must be noted as they were in Miller-El. these circumstances as a backdrop, which

355 Miller-El teaches are clearly relevant to the total lack of interest prosecutors exhibited in Batson analysis, the State's exercise of a the admitted time concerns of Mr. Brooks, peremptory challenge is suspicious. Mr. Sandras and Mr. Yaeger until it needed to justify with race-neutral reasons its strike . . . It is possible the State had genuine of Mr. Brooks. concern about Mr. Brooks's state of mind despite his apparent acceptance of Dean Miller-El directs that appellate courts Tillman's assurances to the trial court. cumulate all relevant items tending to point Collins. However, there was no pre-strike to purposeful discrimination and view them foreshadowing of genuine State concern together when considering whether the trial over the possibility of Mr. Brooks having court's determination of the existence of time-schedule anxieties. No attempt was purposeful discrimination is clearly made by the State to verify its hypothesis erroneous. The record shows that issues of and develop an objective basis for its strike. racial prejudice existed at the outset of this See Miller-El. case when defendant attempted to foreclose the possibility of the State mentioning the . . . In my view, the acknowledged time 0. J. Simpson trial during his own trial. concerns of Mr. Sandras and Mr. Yaeger Defendant was tried by an all-white jury seem equally significant as the time after the State used five of its peremptory concerns attributed to Mr. Brooks. The strikes to challenge 100 percent of the majority discounts the similarities among eligible African-American panelists. In the these potential jurors by pointing out that absence of the trial court's independent and Mr. Brooks initiated the discussions objective assessment on the record of Mr. regarding his concerns about missing his Brooks's demeanor and attitude, the record obligations, while Mr. Sandras and Mr. tends to belie the prosecutor's stated race- Yeager merely responded to questions. neutral reasons for striking him. Rather than However, in no instance did the State seeming uncertain and nervous, Mr. Brooks question Mr. Sandras or Mr. Yeager about appears from a reading of the cold transcript their admitted concern regarding the time to be engaged, forthcoming and they would spend in court, and away from communicative. Additionally, although the their personal activities, if selected to serve State offered the fact that Mr. Brooks might on the jury. The State chose to strike only want to manipulate his deliberation to cut Mr. Brooks. in part because of his stated the trial short because of his stated concerns concerns about missing a portion of his about missing his student teacher duties as a student teaching duties. The similarities race-neutral reason for its strike, the State among Mr. Brooks, Mr. Sandras, and Mr. did not ask Mr. Brooks one question Yaeger, and the State's uneven treatment of regarding this concern. Moreover, the State these panelists does not make the State's accepted without question on the issue at proffered reasons for striking Mr. Brooks least two panelists who voiced similar per se pretextual. Both Mr. Sandras and Mr. concerns and might conceivably have the Yaeger may have exhibited legitimate traits same motivation for cutting the trial short. and qualities that made the State believe Finally, we note that the State injected race they would make more desirable jurors than into the proceedings directly when it did, in Mr. Brooks. The factor that calls the State's fact, mention the 0. J. Simpson case during strike of Mr. Brooks into question is the its penalty phase argument over the

356 defendant's objection. selection process offends the Equal Protection Clause of the Fourteenth When viewed in isolation, perhaps none of Amendment and a pattern of strikes against the factors above would constitute enough African American jurors still gives rise to an evidence to overturn the trial court's inference of discrimination. Once the determination in light of the great deference inference of discrimination is present, the afforded its factual determinations. prosecutor then has the burden of However, the totality of the evidence articulating a race-neutral explanation for discussed herein, combined with the lack of striking the African American jurors. The the trial court's active participation in voir trial judge serves as the gatekeeper, ensuring dire and its failure to articulate that racial prejudice, which impedes the particularized reasons for its determination securing of equal justice, does not invade that the State's proffered reasons were not our judicial system. As the gatekeeper, the pretextual, leads to the conclusion that the trial judge must decide whether the trial court's decision to allow the strike of prosecutor has articulated a genuine Mr. Brooks was clearly erroneous. In my concern, or whether the reason articulated is view, the cumulative evidence of pretext is merely a guise to accomplish his/her compelling and too powerful to conclude discriminatory purpose. Verbalized facially anything but intentional racial neutral reasons can be a pretext for discrimination motivated the State's strike conscious or unconscious racism. of Mr. Brooks. Consequently, I would reverse defendant's conviction and sentence. In the present case, the prosecutor's action in accepting the first African-American juror JOHNSON, J. dissenting.: seems to have been a tactic to keep defense counsel from raising Batson challenges to When this case was first before this court on the subsequent exclusions. Nonetheless, original review in Snyder I I stated: defense counsel noted in the record which excluded jurors were African-American. I would have more confidence in the fair- The Batson challenges to the remaining mindedness of this jury and the jury's three African-American jurors, including the pronouncement of the death sentence, had one juror who was accepted and later the state not used its peremptory challenges backstruck, were overruled by the trial court. to exclude every African American juror, The trial court accepted the prosecutor's resulting in an all white jury for this black "race-neutral" explanations and the majority defendant. In my view. this violation of found them to be "plausible, supported by Batson v. Kentucky, coupled with the the record and race neutral." prosecutor's inflammatory and prejudicial comparison of this case to the 0. J. Simpson The prosecutor's discriminatory intent in trial, require that we set aside the death excluding all African-Americans from the sentence and remand the case for re- jury was evidenced by his reference to the sentencing. 0. J. Simpson trial during closing arguments. In State v. Green, we recognized The Sixth Amendment to the United States that "for a Batson challenge to succeed, it is Constitution gives a criminal defendant the not enough that a racially discriminatory right to a trial by a jury of his peers. I still result be evidenced; rather, that result 'must believe that racial discrimination in the jury ultimately be traced to a racially

357 discriminatory purpose."' Here we have a The United States Supreme Court granted racially discriminatory result. An all-white defendant's writ of habeas corpus, vacated jury selected by peremptorily excluding the the judgment of this court and remanded the five African-Americans from the venire, and case to the Court to reconsider defendant's the prosecutor's racially discriminatory Batson claims in light of its recent opinion purpose of inflaming the jury by referring to in Miller-El v. Dretke. In Miller-El, the 0. J. Simpson getting away with murder in Supreme Court reaffirmed its position that California. racial discrimination by any state in jury selection offends the Equal Protection Because of the nationwide media focus on Clause of the 14th Amendment to the United 0. J. Simpson, the defense made a pre-trial States Constitution. This rule is meant to motion to exclude any references to the 0. J. ferret out discrimination from our judicial Simpson case. This motion was denied by system. In this case, the majority's opinion the trial judge based on the prosecutor's concludes that although the prosecution is assurance that he would not, at any time required by Batson to give race neutral during the course of taking evidence or reasons for a peremptory challenge, the race before the jury, mention the 0. J. Simpson neutral reasons need not be persuasive or case. It is blatantly clear that the prosecutor even plausible. The trial court need only did not intend to keep his word. The find the prosecution's race neutral prosecutor had no need to make reference to explanations to be credible. They conclude this defendant not getting away with murder that the burden of proof never shifts from during the penalty phase of the trial. At this the defendant who must prove the State's point, the defendant had already been discriminatory intent. convicted of the crime, so there was nothing for him to "get away with." The prosecutor ... In this case, the State used its seventh utilized the 0. J. Simpson verdict to racially peremptory challenge to back strike Jeffery inflame the jury's passion to sentence this Brooks, who had initially been accepted in defendant to death. Such tactics leave no the first panel of prospective jurors called doubt in my mind that the prosecutor had a for examination. Upon the defense's racially discriminatory purpose for Batson's challenge to the State's later excluding the Aflican-American jurors. backstrike of Mr. Brooks, the State responded that Mr. Brooks was very . . . The defendant's own confession, plus uncertain, and "looked nervous to me the testimony of his ex-wife, Mary Snyder throughout the questioning," and that Mr. who survived this brutal attack, along with Brooks's concern about missing class as a that of Gwen Williams, the witness who student teacher might lead him "to go home came to the aid of Ms. Snyder during the quickly, come back with guilty of a lesser attack, support the defendant's conviction of verdict so there would not be a penalty first-degree murder. The prosecutor's phase." The trial court allowed the improper and clearly inflammatory peremptory challenges without a ruling as to comments did, however, create a substantial whether the State's explanation was race- risk that the death penalty would be neutral or credible. imposed. In my opinion, the defendant's death sentence should be set aside and this The Batson violations herein resulted in the matter remanded for re-sentencing. defendant being denied his right to be tried

358 by a jury of his peers. In Snyder I, I was of set aside, and the case remanded for a new the opinion that these Batson violations trial. The defendant in a capital case is required a setting aside of the death penalty, entitled under the Sixth and Fourteenth but not the conviction (guilt phase), since Amendments to an impartial jury in both the the evidence seemed to be persuasive. Now, guilt and the penalty phase. I am of the opinion that these flagrant Batson violations -require that the For the aforementioned reasons, I defendant's conviction and sentence must be respectfully, dissent.

359 "Batson and the '0. J. factor'

SCOTUSBiog.com June 23, 2007 Lyle Denniston

WASHINGTON-For the second time in kept the police off of him, and you know two years, the Supreme Court is pondering what, he got away with it. Ladies and what to do about this scenario: gentlemen, is it outside the realm of possibility that that's not what that man [in A black man is convicted of murder. His this case] was thinking about when he called trial is before an all-white jury, composed in and claimed that he was going to kill that way in part because prosecutors struck himself?" all potential black jurors. That is what the defense lawyer for Allen In the penalty phase of the trial, the defense Snyder, on death row in Louisiana, has counsel seeks to head off a death sentence called "the 0. J. card," suggesting that it was by discussing "mitigating circumstances." a calculated maneuver by the prosecutor to When police arrived at the home of the use 0. J. Simpson's controversial acquittal convicted man some 12 hours after the for murder to get an all-white jury in murder, counsel said, the man "was curled Louisiana to give Snyder the death penalty. up in a fetal position. He was suicidal. He kept saying 'They're coming to get me. Now, the Snyder case is back before the They're coming to get me.' . . . Doors were Supreme Court, with the prospect that the being barricaded. The furniture was being Court may act on his appeal as early as used as a barricade. . . . I'll ask you if that is Monday. The case, Snyder i. Louisiana not suggestive of some sort of disturbance" (06-10119). was considered by the Justices (apparently, meaning mental disturbance). at their Conference on Thursday. It reached The prosecutor's rebuttal then includes the the Court in the context of a claim that the following: jury that convicted Snyder of the stabbing murder of his estranged wife s boyfriend ". . . it was 12 hours later when he called was all-white because prosecutors intended [police], huddled up, claiming that he was it to be that way, and used their automatic suicidal, barricaded himself in his house. ("peremptory") challenges to achieve that That made me think of something. Made me end. Once having such a jury assembled, the think of another case, the most famous appeal argues. a prosecutor-who had murder case in the last, in probably recorded referred before trial to the case as his "0. J. history, that all of you all are aware of .... Simpson case"-knew the jury was open to a racial plea for death. At that point, the defense counsel objected. After a bench conference, the prosecutor The jury process, the appeal contends, continued: "The most famous murder violated the Supreme Court's 1986 ruling in case . . happened in California very, very Batson v. Kentucky, barring the use of race- very similar to this case. The perpetrator in based peremptory challenges in jury that case claimed that he was going to kill selection. It also asserts that the Louisiana himself as he drove in a Ford Bronco and Supreme Court did not follow the Supreme

360 Court's post-Batson decision, Miller-El v. One of the dissenting state judges Dretke in 2005. mandating a full analysis of complained of "the prosecutor's the circumstances of jury selection to detect inflammatory and prejudicial comparison of Batson violations. this case to the 0. J. Simpson trial." Two others found prosecutors had injected "racial But the case also raises, implicitly, the larger issues" into the case, noting that the question of whether prosecutors' references prosecutor, before trial, had made a to the 0. J. Simpson case, in trials involving reference to Simpson case, said when charges against blacks, are a form of jury challenged that he would not do so during contamination that puts a vivid emphasis on the trial, but then did so in rebuttal at the race in jury selection and in other phases of penalty phase. the trial and sentencing. Snyder's new appeal to the Supreme Court, State prosecutors, though, have urged the filed by Marcia A. Widder of the Capital Supreme Court to bypass the case, saying Appeals Project in New Orleans, does not that Snyder's lawyer did not preserve many rely solely on "the 0. J. card" question, of the claims about a Batson violation, and although it does put strong emphasis on that. did not show that prosecutors in the case Other factors in claiming a Batson violation were exploiting the race issue with the jury. were the facts of striking all five blacks on The state court, Louisiana's attorneys the jury panel, different lines of questioning contend, faithfully applied Batson and white and blacks on the panel, and evidence Miller-El. "showing a pattern or practice of race-based peremptory challenges by the prosecutor's The case was before the Supreme Court in office." the 2004-5 Term (docket 04-6530). On June 27. 2005, two weeks after the Court had There were a total of nine blacks in the 85- decided Miller-El, it vacated a prior (2004) member jury pool from which the 12 ruling against Snyder by the Louisiana members of the jury were chosen. Four were Supreme Court and told the state court to removed for cause on prosecution motions, apply the Miller-El ruling. and the remaining five were removed with peremptory challenges. (After the jury of 12 On reconsideration, the Louisiana court, had been selected, the state did not strike a dividing 4-3 last September, applied Miller- black woman who was chosen as an El and once more upheld the conviction and alternate; the alternates were never used at death sentence. As to "the 0. J. card" the trial.) allegation by defense counsel, the state court said that "defense counsel points to no On a Batson-related issue, the appeal evidence in the record to substantiate contends that the state court imported into defendant's claim of discriminatory use of its review of this case-a case on direct the peremptory challenges. . . . The remark appeal-a deferential standard that the during rebuttal referred to the fact that Supreme Court had laid down only in cases Simpson feigned suicidal intent," but did not involving federal habeas review of state refer "to Simpson's or Snyder s race... A court decisions. The Louisiana court said it reviewx of this record compels a conclusion could overturn the trial judge's findings of that race did not play an impermissible role no Batson violation based on the in the exercise of these strikes." prosecutor's race-neutral reasons for striking

361 black jurors only by finding that the The Cornell brief argues that there is an prosecutor had lied about those reasons. ''ugly specter of racially motivated That would be improper second-guessing of resistance" by lower courts to the Supreme the trial court, the state supreme court said, Court's Miller-El decision. It accused the relying on the strong deference the Supreme Louisiana court of "recalcitrance," and Court had commanded for habeas review in suggests it is "particularly shameful in light Rice v. Collins in 2006. of the prosecutor's deliberate and premeditated racial purge of the jury, a Finally, the appeal challenges the state purge aimed at securing a receptive audience court's refusal to consider in its Batson and for his racially inflammatory closing Miller-El analysis the prosecution's first two argument." strikes of black members of the pool because the defense did not object at the The brief of the state criminal defense group time. This failure, the appeal asserts, showed complains that the state's Supreme Court that Snyder's trial lawyer was ineffective of has refused to find a Batson violation unless failing to raise an objection, but the state a prosecutor concedes that the reason for court said such a failure to object on Batson striking a juror was that he was a single grounds is never prejudicial to the accused. black male. "Nothing else has been sufficient," it argues. In Jefferson Parish, The appeal is supported by the Cornell Law where the Snyder case originated, School Death Penalty Project and by the "prosecutors strike black jurors at more than Louisiana Association of Criminal Defense three times the rate they strike white jurors," Lawyers. the defense group contends.

362 "Court Rejects Rehearing for Death Row Inmate"

Times-Picayune (New Orleans) December 16, 2006 Paul Purpura

NEW ORLEANS-The state Supreme to revisit the case and reconsider the role Court. which has twice upheld a 1996 first- race played during jury selection. degree murder conviction that sent a Kenner man to death row, declined Friday to rehear The nation's high court took the stance in the case. [The U.S. Supreme Court later light of its ordering a new trial for Thomas agreed to hear the case, Snyder v. Miller-El, a black man who was convicted Louisiana.] and sentenced to die for killing a motel clerk during a 1985 robbery in Texas. Black Allen Snyder, 44, who is black, was potential jurors in Dallas County were convicted by an all-white Jefferson Parish improperly kept off the trial jury in Miller- jury of killing Harold Wilson, 29, of St. El's case, the court found. Rose. Wilson was a companion of Snyder's estranged wife, Mary Snyder, who was Considering the Miller-El decision, the state slashed in the attack outside her mother's Supreme Court in September again upheld River Ridge home in 1995. the conviction by a 4-3 margin, finding there was no error during jury selection. Chief In appeals, Snyder's attorneys argue that Justice Pascal Calogero and Associate Judge Kernan "Skip" Hand of the 24th Justices Bernette Johnson and Catherine Judicial District Court in Gretna erred in Kimball dissented, saying Snyder deserves a allowing then-prosecutor Jim Williams to new trial. strike five black people from serving on the jury. Those same justices, ruling on a request by Snyder's attorneys, on Friday said Snyder That, Snyder's attorneys argued, meant he should get a rehearing. didn't get a fair trial. Jelpi Picou Jr., executive director of the Racial discrimination has no place in jury Louisiana Capital Appeals Project. which is selection. according to a 1986 U.S. Supreme guiding Snyder's appeal, said they will now Court ruling. Batson vs. Kentucky. consider taking the case to the U.S. Supreme Court. The state Supreme Court upheld the conviction in 1999. But the U.S. Supreme "We're certainly disappointed that the court Court last year ordered the state's high court didn't grant a rehearing," Picou said.

363 "Racial Currents May Drag Verdict Under"

Times-Picayune (New Orleans) September 15, 2006 James Gill

NEW ORLEANS-Having engineered an was white must have been living an all-white jury for the murder trial of a black extremely sheltered life for decades. man, then-Jefferson Parish assistant district attorney Jim Williams drew an analogy with After 11 years as a star running back in the the 0. J. Simpson case in his closing NFL, Simpson remained in the public eye as remarks. a sports announcer and movie star. He was constantly seen on television running It was 1996, a year after a California jury through airports promoting rental cars and nullified Simpson out of the hoosegow. even hosted Saturday Night Live. Simpson "got away with it," Williams declared, but Allen Snyder should be Television news cameras followed executed. The jury voted as Williams urged. Simpson's slow progress along the interstate after the killing of his wife and her friend. The state Supreme Court last week and for The arrest was covered by every media the second time decided that the prosecution outlet in Christendom, and millions watched had no racial motive in rejecting all five the trial live on television. black members of the jury pool and then dragging in Simpson as a bugaboo. By 1996, there can't have been many people in the white 'burbs who thought Simpson Kitty Kimball, Bernette Johnson and Chief innocent, and there can't have been any who Justice Pascal Calogero came down thought he was Caucasian. The furious emphatically in favor of giving Snyder a debate that followed his acquittal was new trial, but their four brethren ruled that framed largely in racial terms. Williams had "race-neutral" reasons for comparing the two cases, since both In his career as a prosecutor-he has since Simpson and Snyder were accused of wife gone over to the defense side-Williams did battering and both had purportedly not pussyfoot around in seeking to put entertained suicidal thoughts as the cops defendants on death row and might not have closed in. scrupled to mention race if he thought it would help held his cause. But it wasn't Williams had not "referred to Simpson's or necessary, because the implication was Snyder's race," the majority noted. You obvious, except to a majority of the state don't often find a line as funny as that in Supreme Court. Supreme Court opinions. Counsel in a criminal case can bump any A jury would not have needed to be potential juror by way of "peremptory" particularly alert to identify the race of the challenge so long as the motive is not to defendant sitting a few yards away. And exclude a racial group. That prosecutors anyone who thought Orenthal J. Simpson gave the heave-ho to all available blacks in

364 this case does not prove an improper motive, Snyder and decided that the Texas case was but it is bound to raise suspicions. not sufficiently analogous to warrant a change of heart. Barring a rehearing at the As the U.S. Supreme Court noted when state level, which would seem unlikely to considering a racially skewed jury in a produce a different result, Snyder's Texas case, "Happenstance is unlikely to attorneys will hope the big suprernes see produce this disparity." The court things their way. overturned the conviction in that case, and later ordered the Louisiana Supreme Court If that happens, prosecutors so many years to apply its reasoning to the Snyder appeal. later will have a harder job proving their [The U.S. Supreme Court agreed to hear the case. If Snyder did indeed injure his wife cases, Snyder v. Louisiana.] and kill her companion, as the evidence would appear to suggest, a retrial will serve The state supremes did not take this as a as a reminder that playing by the rules is repudiation of their 1999 ruling against ultimately in everyone's interest.

365 "Court Ordered to Revisit Ruling"

Times-Picayune (New Orleans) July 2, 2005 Paul Purpura

NEW ORLEANS-The U.S. Supreme which do not require a reason for removing Court has ordered Louisiana's high court to the person from the jury pool. revisit its 1999 decision to uphold a murder conviction that sent a black Kenner man to But under a 1986 U.S. Supreme Court death row, saying the state's justices should ruling, Batson v. Kentucky, lawyers are not reconsider their finding that race had no role allowed to exclude people from a jury during jury selection. because of their race.

In light of the U.S. Supreme Court's June 13 Two weeks ago, the U.S. Supreme Court decision that overturned a black Texas restated its Batson ruling in deciding that man's murder conviction and death sentence Thomas Miller-El should get a new trial on because prosecutors struck nearly all grounds that Dallas County, Texas, African-Americans from the jury, justices prosecutors improperly excluded black Monday ordered the Louisiana court to people from the jury that convicted him of reconsider Allen Snyder's case. [The U.S. murdering a hotel clerk during a robbery in Supreme Court later agreed to hear the case. 1985. Miller-El was sent to death row. Snyder v. Louisiana.] Conn Regan, chief of trials for the Jefferson Snyder, 43, was convicted of first-degree Parish district attorney's office, declined to murder in August 1996 by an all-white comment. "We haven't seen the opinion," he Jefferson Parish jury that also recommended said. the death penalty. He was found guilty of repeatedly slashing his estranged wife, Mary Although the cases are different, the timing Snyder. and another man, Harold Wilson, of the high court's ruling in the Miller-El with a knife when he found them in a car case boded well for Snyder. said his outside her mother's River Ridge home in attorney, Marcia Widder of the Capital August 1995. His wife survived, but Wilson Appeals Project in New Orleans. died. "In Miller-El, the United States Supreme Snyder's attorneys since his trial have Court explained that Batson claims must be sought to have the conviction overturned, in closely scrutinized by both the trial court part because they claim Jefferson Parish and the appeal courts," Widder said. "That prosecutors were racially driven during jury was not done in Mr. Snyder's case." selection, court records show. The nation's high court wants the Louisiana Attorneys are allowed to remove potential Supreme Court to reconsider Snyder's case jurors "for cause," such as a juror knowing a on the Batson issues, Widder said. "The witness in the case. The attorneys also are Louisiana Supreme Court in turn may either allowed peremptory challenges, or strikes, decide the issue itself or send the case back

366 to the trial court for further proceedings," opposed to the death penalty. she said. In Snyder's case, his lawyers have said The ruling does not remove Snyder from prosecutors used peremptory challenges to death row, Widder said. But Snyder should strike all five black people who were not cut get a new trial if a court rules that the Batson for cause. ruling was violated, she said. In its 1999 majority opinion, the Louisiana It is unclear when the state Supreme Court Supreme Court said Hand's rulings on will revisit the case. Batson issues during jury selection "appear correct" and that Snyder's attorney at trial This would be the third time the state's high did not challenge all of Williams' strikes on court has dealt with Snyder's case and the whether they were racially neutral. second time it has wrangled with Batson allegations. Recently, the high court rejected But Justice Bemette Johnson and former a defense appeal claiming Snyder was not Justice Harry Lemmon dissented. mentally competent to stand trial. Johnson said Snyder's death sentence should But the Louisiana Supreme Court's action in have been set aside because of the jury question this week is based on its April 1999 selection issue and because Williams, during ruling in which a majority of justices the trial, compared the Snyder case to 0. J. rejected the defense argument that 24th Simpson's murder acquittal and urged the Judicial District Judge Keman "Skip" Hand jury to not let Snyder "get away with it." erred in allowing then-prosecutor Jim Johnson called Williams' words Williams to strike African-Americans from "inflammatory and prejudicial." the jury. Simpson was acquitted in October 1995 of The Jefferson Parish district attorney's murdering his wife and another man. office two years ago was accused of systematically excluding blacks from juries Lemmon wrote in his dissenting opinion that by the Louisiana Crisis Assistance Center, a the "racial bias overtones of the entirety of charge that District Attorney Paul Connick this rather simple trial require reversal of the Jr. refuted as a politically motivated attack conviction and sentence of a black defendant on his office by a defense lawyers group tried by an all-white jury."

367 "Killer Gets Death in Slashing"

Times-Picayne (New Orleans) August 23, 1997 Joe Darby

Nearly a year after a Jefferson Parish jury Snyder in martial arts outfits, inflamed ordered Allen Snyder sentenced to death for jurors. first-degree murder, his sentence was imposed Friday. Farmer also said that prosecutors excluded all black people from the jury, resulting in Snyder was convicted and condemned to an all-white jury that would likely be more death Aug. 30 for the slashing death of prejudicial against Snyder, who is black. Harold Wilson, 29, of St. Rose, a companion of Snyder's estranged wife. He said the jury was unnecessarily inflamed again when prosecutor Jim Williams Snyder, 35, of Kenner, was represented by compared Snyder's case to that of 0. J. public defenders during his trial, but after Simpson. his conviction he hired Marion Farmer, a former St. Tammany Parish district attorney, Evidence showed that on Aug. 16, 1995, to represent him. Farmer filed a motion for a Snyder lurked in the bushes outside the new trial, but the hearing had been put off Metairie home of the mother of Mary 10 times at the defense's request. Snyder, his estranged wife. He waited until Wilson and Snyder drove up, then charged After hearing Farmer's motions for a new the car, slashing Wilson to death and trial Friday, Judge Kernan "Skip" Hand of severely cutting his wife, testimony showed. the 24th Judicial District Court denied his request and sentenced Snyder to die by Prosecutor Donnie Rowan said that the lethal injection. Snyder made no statement defense had time to prepare its case, that before sentencing. several doctors had found that Snyder was mentally able to stand trial and that the state Farmer said he will appeal Hand's decision has a right to show graphic photos that to the state Supreme Court. Additionally, all depict the defendant's intent to kill. death penalty cases are automatically put on appeal. Rowan also said there were legitimate comparisons between Snyder's case and that Farmer claimed that in his 30 years of law of Simpson. practice, he had never seen so many reversible errors in a murder case. Hand ruled that the prosecution had given sufficiently racially neutral reasons for Among his contentions were claims that the excluding black potential jurors. In selecting indigent-defender attorneys had not had a jury, attorneys strike jurors who they feel sufficient time to prepare their case, that the may not be favorable to their side, in question of Snyder's mental state was not confidential conferences at the judge's sufficiently raised at trial, and that a bloody bench. photo of the victim, as well as old photos of

368 "Man Gets Death Penalty"

Times-Picayune (New Orleans) August 31, 1996 Joe Darby

NEW ORLEANS-The Jefferson Parish pleaded guilty to two counts of distribution jury that convicted Allen Snyder of first- of cocaine in St. Charles Parish in 1989. degree murder decided Friday that he should die for the slashing death of a 29-year-old Prosecutors also provided testimony that St. Rose man. Snyder had severely abused his estranged wife for several months prior to the Harold Wilson was stabbed numerous times stabbings, after he had found out that she as he sat with Snyder's estranged wife in his was seeing someone else, a man who later car on Wicker Neal Street in River Ridge on moved to Houston. Aug. 16, 1995. Snyder also badly cut his wife, Mary Snyder, in the attack. Mary Snyder had gone out with Wilson for the first time on the night of the killing, she Judge Kernan "Skip" Hand will sentence said, but was not romantically involved with Snyder Sept. 16. him. Snyder, who an eyewitness said had been lying in wait with his knife outside Wilson's wife, Dorena Wilson, told jurors Mary Snyder's mother's house, rushed upon her husband was a good man, a loving father Wilson and Mary Snyder after they drove up and a hard worker who built up his own and parked some time after midnight, business, a flooring company. evidence showed.

"My son still asks for his daddy every day," Dr. Sara Deland, a forensic psychiatrist she said of her 4-year-old boy. "I tell him his testifying for the defense, said Snyder was daddy is in heaven, but he asks me when suffering from a major depression in the daddy will come down and play with him." weeks before the killing, but under cross examination said there is no direct link Howard Moore, Wilson's father, said he between depression and criminal acts of could not describe the pain that his son's violence. murder has brought to his family. "Our family is like one," he said. "Howard was Expert witnesses for the state, psychologist not just a son, he was my best friend." Thomas Hannie Jr. and Dr. Robert Davis, a forensic psychiatrist, both testified that Defense attorney Cesar Vasquez put on the Snyder has refused to accept responsibility stand relatives, friends and a former for his actions and blames others for his employer of Snyder's who testified that until troubles. the defendant lost control of his life because of his wife's alleged infidelity, he had been Vasquez asked the jury to recommend a a good family man who cherished his sentence of life in prison. saying that would children. be sufficient punishment because he would wake up every day in Angola thinking about However, evidence showed that Snyder had the consequences of his actions. Vasquez

369 said Snyder had cracked because he was serving a life sentence. "They will wake up working 12 hours a night to support his every day knowing that their son, their family while his wife was having an affair. brother, their husband, was brutally murdered. Instead of worrying about his Prosecutor Jim Williams countered that the killer, look at what his actions did to the members of Wilson's family are the ones lives of other people."

370 Danforth v. Minnesota

(06-8273)

Ruling Below: Danforth v. State, No. A04-1993 (Supreme Court of Minnesota), cert granted, Danforth v. Minnesota, 2006 Minn. LEXIS 506, May 21, 2007.

Danforth, in jail for sexually abusing a child, filed multiple petitions for postconviction relief, alleging he was entitled to relief based on the rules established by subsequent cases. Danforth seeks to retroactively apply those rules to the case at point.

Questions Presented: (1) Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law- or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague? (2) Did Crawford v. Washington, 541 U.S. 36 (2004), announce a "new rule of constitutional criminal procedure," as Teague defines that phrase and, if it did, was it a watershed rule of procedure subject to full retroactive application?

Stephen DANFORTH, Petitioner-Appellant V. STATE of Minnesota, Respondent

Supreme Court of Minnesota

Decided July 17, 2006

[Excerpt: Some footnotes and citations omitted.]

Heard, considered, and decided by the court On appeal, the court of appeals affirmed en banc. Danforth's conviction but remanded for resentencing. State v. Danforth, 573 N.W.2d ANDERSON, G. Barry, Justice: 369, 371 (Minn. App. 1997) (Danforth1), rev. denied (Minn. Feb. 19, 1998). On remand, Stephen Danforth was convicted of first- Danforth was sentenced to imprisonment for degree criminal sexual conduct, Minn. Stat. § 316 months. The court of appeals affirmed 609.342. subd. 1(a) (2004). on March 6, 1996. this sentence on appeal. State v. Danforth, This conviction arose out of the sexual abuse 1999 Minn. App. LEXIS 462, No. C5-98- of J.S., a 6-year-old boy. J.S. was found 2054, 1999 WL 262143, at *1 (Minn. App. incompetent to testify at trial, but a May 4. 1999) (Danforth II). rev. denied videotaped interview of J.S. conducted at a (Minn. July 28, 1999). Alleging various trial non-profit center was admitted into evidence. errors, Danforth filed a petition for

371 postconviction relief The postconviction principles of Teague control when court denied the petition and the court of determining the retroactive effect of a federal appeals affirmed. Danforth v. State, 2001 constitutional rule of criminal procedure. Minn. LEXIS 95. No. C6-00-699, 2000 WL Houston, 702 N.W.2d at 270. Under Teague, 1780244, at *1 (Minn. App. Dec. 5, 2000) a new rule is usually not retroactively (Danforth 11), rev. denied (Minn. Feb. 13, applicable to a defendant's case once the 2001). defendant's case has become final. Teague, 489 U.S. at 310 (plurality opinion). It is After the Supreme Court's decisions in undisputed that Danforth's case was final Crawford v. Washington, 541 U.S. 36, 124 S. before Craisfordwas decided. Ct. 1354, 158 L. Ed. 2d 177 (2004). and Blakely v. Washington, 542 U.S. 296, 124 S. For the first time in his brief to this court, Ct. 2531, 159 L. Ed. 2d 403 (2004), Danforth Danforth argues that this court is free to apply filed a second petition for postconviction a broader retroactivity standard than that in relief alleging he was entitled to relief based Teague and that he is entitled to the benefit of on the rules established by those cases. The Crawford under state retroactivity principles. postconviction court denied Danforth relief, We choose to address this issue in the finding that neither Crawford nor Blakely interests of justice. applied retroactively to Danforth's case; the court of appeals affirmed. Danforth v. State. We have stated that, when dealing with a new 700 N.W.2d 530, 532 (Minn. App. 2005) rule of federal constitutional criminal (Danforth IV). We granted review of the procedure, we are "compelled to follow the Craisford issue only and requested that the lead of the Supreme Court in determining Office of the State Public Defender represent when a decision is to be afforded retroactive Danforth on this appeal. treatment." O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). This conclusion is Danforth argues that this court is free to apply based on American Trucking Associations, a broader retroactivity standard than that of Inc. v. Smith, in which a plurality of the Teague v. Lane. 489 U.S. 288, 109 S. Ct. Supreme Court stated that the retroactive 1060, 103 L. Ed. 2d 334 (1989). and that he is effect of its federal constitutional decisions is entitled to the benefit of Crawford under state a question of federal law and that the Court retroactivity principles. He also argues that, has "consistently required that state courts even using the framework of Teague, adhere to [the Court's] retroactivity Crawford should be retroactively applied to decisions." 496 U.S. 167, 177-78, 110 S. Ct. his case. We reaffirm our holding in State v. 2323. 110 L. Ed. 2d 148 (1990) (plurality Houston. 702 N.W.2d 268, 270 (Minn. 2005), opinion); see also Ashland Oil, Inc. v. Caryl, that we are required to apply Teague's 497 U.S. 916, 918. 110 S. Ct. 3202, 111 L. principles when analyzing the retroactivity of Ed. 2d 734 (1990). In Houston, we applied a rule of federal constitutional criminal O'Meara's principles to hold that we must procedure. Because we conclude that, under follow the Teague framework when Teague, Crawiford does not apply determining whether a postconviction retroactively to Danforth's case, we affirm. petitioner is entitled to have a new rule of federal constitutional criminal procedure I. applied retroactively to his or her case. Houston, 702 N.W.2d at 270. Minnesota is We recently held that the retroactivity not the only state to have determined that a

372 Teague analysis is required when determining As to convictions that are already final, whether a new rule of federal constitutional however, the rule applies only in limited criminal procedure can be applied circumstances." (citation omitted) (emphasis retroactively to cases on state postconviction added)). Once a case is "final," a new rule of review. See Page v. Palmateer,336 Ore. 379, federal constitutional criminal procedure can 84 P.3d 133, 134-38 (Or. 2004). be retroactively applied to the case only if retroactive application is warranted under the Danforth argues that Teague dictates the Teague framework. Schriro, 542 U.S. at 351- limits of retroactive application of new rules 52. The Court, therefore, has created a only in federal habeas corpus proceedings and retroactivity framework with only two does not limit the retroactive application of procedural categories of cases: (1) those on new rules in state postconviction proceedings. direct review and (2) those that are final. Danforth is incorrect when he asserts that Since we have already concluded that a state courts are free to give a Supreme Court petition for postconviction relief does not decision of federal constitutional criminal constitute "direct review," see Houston, 702 procedure broader retroactive application than N.W.2d at 270, and it is undisputed that that given by the Supreme Court. In American Danforth's case was final at the time of the Trucking Associations, the plurality rested its Crawford decision, we must apply Teague retroactivity analysis in part on Michigan v. when determining whether Crawford can be Payne, 412 U.S. 47, 93 S. Ct. 1966, 36 L. Ed. retroactively applied to Danforth's case. 2d 736 (1973). Am. Trucking Ass'ns, Inc., 496 U.S. at 178. In Payne, the Court reversed the We are aware that other states have declined decision of the Michigan Supreme Court, to apply Teague or have emphasized that they which had applied North Carolina v. Pearce, apply Teague as a matter of choice when 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d determining the retroactivity of new rules of 656 (1969). retroactively to Payne's case, and federal constitutional criminal procedure in held that Pearce would not apply to errors state postconviction proceedings. See Daniels occurring before Pearce was decided. Payne, v. State, 561 N.E.2d 487, 489 (Ind. 1990); 412 U.S. 49, 57, 36 L. Ed. 2d 736. State ex rel. Taylor v. Whitley. 606 So. 2d 1292, 1296-97 (La. 1992); State v. Whitfield, In light of Payne and American Trucking 107 S.W.3d 253, 266-68 (Mo. 2003); Colwell Associations, we cannot apply state v. State. 118 Nev. 807, 59 P.3d 463, 470-71 retroactivity principles when determining the (Nev. 2002); Cowell v. Leapley, 458 N.W.2d retroactivity of a new rule of federal 514. 517-18 (S.D. 1990). The principal constitutional criminal procedure if the rationales given in these decisions are: (1) a Supreme Court has already provided relevant state may give a new rule of federal federal principles. While the Supreme Court constitutional criminal procedure greater has not explicitly addressed retroactivity retroactive effect than that given by the principles in state postconviction proceedings, Supreme Court and (2) state postconviction the Court has drawn a line between cases that proceedings involve different interests than are "pending on direct review," and cases that federal habeas proceedings. See Whitfield. are "final." See Schriro v. Sunimerlin, 542 107 S.W.3d at 267-68; Colwell, 59 P.3d at U.S. 348, 351, 124 S. Ct. 2519, 159 L. Ed. 2d 470-71: Cowell. 458 N.W.2d at 517-18. 442 (2004) ("When a decision of this Court Teague's framework is based, in part, on results in a 'new rule,' that rule applies to all concerns unique to federal habeas corpus criminal cases still pending on direct review. decisions. See Teague. 489 U.S. at 308

373 ("[W]e have recognized that interests of argues that holding that Crawford established comity and finality must also be considered in a new rule is the better-reasoned position. determining the proper scope of habeas review." (emphasis added)). Notwithstanding Crawford's "holding constitutes a 'new rule' these different policy concerns, in light of within the meaning of Teague if it 'breaks Payne, American Trucking Associations, and new ground,' 'imposes a new obligation on the dichotomy drawn by Teague between the States or the Federal Government,' or was cases on "direct review" and "final" cases, we not 'dictated by precedent existing at the time reaffirm our decision in Houston and the defendant's conviction became final."' conclude that we are not free to fashion our See Graham v. Collins, 506 U.S. 461, 467, own standard of retroactivity for Crawford. 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993) Therefore, the retroactivity of Crawford to (quoting Teague, 489 U.S. at 301). Teague's Danforth's case must be analyzed under limit on the retroactivity of new rules of Teague. constitutional procedure "validates reasonable, good-faith interpretations of II. existing precedents made by state courts even though they are shown to be contrary to later Danforth argues that, even using a Teague decisions." Butler v. McKellar, 494 U.S. 407, analysis, Crawford applies retroactively to his 414, 110 S. Ct. 1212, 108 L. Ed. 2d 347 case because: (1) Craw~ford did not announce (1990). As we have stated, the test to a "new" rule and, alternatively, (2) Crawford determine whether a rule of procedure is established a "watershed rule" of criminal "new" for Teague purposes is not whether the procedure and therefore is fully retroactive rule "is logically an extension of some under an exception to Teague's general rule. precedent," but rather "whether 'reasonable Whether Crawford applies retroactively to jurists hearing petitioner's claim at the time cases final at the time Crawiford was decided his conviction became final would have felt is a purely legal issue reviewed de novo. See compelled by existing precedent to rule in his Houston, 702 N.W.2d at 270. We address favor."' Houston, 702 N.W.2d at 271 (quoting each of Danforth's arguments in turn. Graham, 506 U.S. at 467) (emphasis added) (internal quotation omitted)). This test is A. meant "to ensure that gradual developments in the law over which reasonable jurists may Under Teague, we inquire "whether the rule disagree are not later used to upset the finality of federal constitutional criminal procedure is of state convictions valid when entered." new, or whether it is merely a predictable Sawyer v. Smith, 497 U.S. 227. 234, 110 S. extension of a pre-existing doctrine." Ct. 2822, 111 L. Ed. 2d 193 (1990). Houston, 702 N.W.2d at 270. If the rule is "new." it generally will not be applicable to Applying these principles to this case, we cases that became final before the rule was examine the change Crawford worked on the announced. Teague. 489 U.S. at 310. legal landscape. As we have stated, prior to Danforth argues that Cratford did not Cra4ford, the admissibility of an out-of-court announce a new rule of constitutional statement under the Confrontation Clause was procedure but that Craiford's decision was guided by Ohio v.Roberts, 448 U.S. 56, 100 "dictated by precedent dating back to the S. Ct. 2531, 65 L. Ed. 2d 597 (1980), 1800s." The state, citing the decisions of abrogated by Crawford, 541 U.S. 36, 124 S. several federal circuit courts on this issue, Ct. 1354, 158 L. Ed. 2d 177 See State v.

374 Bobadilla, 709 N.W.2d 243, 248 (Minn. and the Court's statement that "the results of 2006). Under Roberts, a hearsay statement our [prior] decisions have generally been could be admitted without violating a faithful to the original meaning of the defendant's rights under the Confrontation Confrontation Clause," id. at 60. Clause if: (1) the declarant was unavailable at trial and (2) the statement bore "adequate Danforth's argument is flawed because it 'indicia of reliability."' 448 U.S. at 66. misconstrues the test governing whether a Sufficient reliability was inferred when the rule is new for Teague purposes. We do not evidence fell "within a finmly rooted hearsay ask whether Crawford's rule is faithful to the exception." Id. If the evidence did not fall original meaning of the Confrontation Clause within such an exception, it was only or whether the results of relevant Supreme admissible upon "a showing of particularized Court precedent are consistent with the rule in guarantees of trustworthiness." Id. Crawford. Instead, we ask "whether 'reasonable jurists hearing petitioner's claim Cravwford "significantly altered the rules at the time his conviction became final would governing the admissibility of testimonial out- have felt compelled by existing precedent to of-court statements against criminal rule in his favor."' Houston, 702 N.W.2d at defendants at trial." Wright, 701 N.W.2d 802 271 (quoting Graham, 506 'U.S. at 467 at 808. Stating that the Roberts test had a (emphasis added) (internal quotation "demonstrated capacity" to admit statements omitted)). As noted earlier, prior to Cra-oford. in contravention of the Confrontation Clause, Roberts guided a court's inquiry concerning the Supreme Court held that "testimonial" whether the admission of an out-of-court evidence is inadmissible unless the. witness is statement violated the Confrontation Clause. unavailable and the defendant had a prior Bobadilla, 709 N.W.2d at 248; see also State opportunity to cross-examine the witness. See v. King, 622 N.W.2d 800, 807 (Minn. 2001). Crawford, 541 U.S. at 53-54, 63. 68. The Put another way, Danforth's argument Court declined to provide a complete requires "reasonable jurists" to have foreseen definition of "testimonial," but stated that the Crawford's significant modification-if not term covered, "at a minimum, prior testimony outright overruling-of Roberts. When at a preliminary hearing, before a grand jury, conducting an analysis under Teague, the or at a former trial [,] and police Supreme Court has never required such interrogations." Id. at 68. prescience of lower courts. Furthermore. such a requirement would not "validate[] The rule in Crawford. therefore. was not reasonable, good-faith interpretations of compelled by Roberts-Crawford replaced existing precedents made by state courts even the more flexible reliability inquiry of Roberts though they are shown to be contrary to later with a bright-line rule for a certain class of decisions." Butler, 494 U.S. at 414. hearsay statements. Nonetheless, Danforth Consequently. Crawford established a new argues that Crawford did not announce a new rule of federal constitutional criminal rule because "the Supreme Court has always procedure for the purposes of Teague. held that testimonial statements made without cross-examination were inadmissible under B. the Confrontation Clause." This argument rests on the fact that Crawford based its rule There are two exceptions to Teague's general on the "Framers' understanding" of the rule that new rules of federal constitutional Confrontation Clause, see 541 U.S. at 59, 68, criminal procedure are not retroactively

375 applicable to cases that were final when that U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 new rule was announced. Teague, 489 U.S. at (1963). Beard, 542 U.S. at 417. These rules 311. The first exception establishes that are extremely rare, and the Supreme Court Teague's "bar does not apply to rules recently stated that it is unlikely any forbidding punishment 'of certain primary watershed rules have yet to be announced. conduct [or to] rules prohibiting a certain Schriro, 542 U.S. at 352. category of punishment for a class of defendants because of their status or The rule announced in Craviford cannot meet offense."' Beard v. Banks, 542 U.S. 406, 416, the stringent requirements of this exception. 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004) First, Crawford imposed a bright line rule of (quoting Peny v. Lynaugh, 492 U.S. 302, exclusion for a certain class of hearsay 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 statements based on the original intent of the (1989)). The second exception, which is Confrontation Clause. See 541 U.S. at 59, 68. "known as the 'watershed rule' exception, Even when dealing with a fundamental right, applies when the new rule 'requires the the appropriate inquiry under Teague is not observance of those procedures that are whether the new rule reflects the framers' implicit in the concept of ordered liberty' or intent, but whether jurisprudence under the 'alter our understanding of the bedrock "old rule" seriously diminished the accuracy procedural elements that must be found to of a criminal proceeding. See Schriro, 542 vitiate the fairness of any particular U.S. at 355-56. Given that, prior to Crawford, conviction."' Houston, 702 N.W.2d at 270-71 Confrontation Clause jurisprudence focused (quoting Teague, 489 U.S. at 311). Danforth on the reliability of out-of-court statements, argues that, if Crawford established a new see Roberts, 448 U.S. at 66, the likelihood of rule for Teague purposes, the rule is a obtaining an accurate conviction is not "watershed rule" within Teague's second seriously diminished in the absence of the rule exception. The state argues, and the court of established by Crawford. Indeed, the Supreme appeals held, that the rule established by Court has indicated that some new rules of Craviford does not fall within this narrow criminal procedure, though constitutionally exception. Danforth IV, 700 N.W.2d at 531- based, may actually decrease the likelihood of 32. an accurate determination of guilt or innocence. See Butler, 494 U.S. at 411, 416 Since the Supreme Court adopted the Teague (stating that a violation of the procedural rule framework, it has yet to find a new rule of in Arizona v. Roberson, 486 U.S. 675. 108 S. federal constitutional criminal procedure that Ct. 2093, 100 L. Ed. 2d 704 (1988). may qualifies as a "watershed rule."* Such a rule increase the likelihood of an accurate "must be one without which 'the likelihood of determination of guilt or innocence). The an accurate conviction is seriously same argument could be made here, for while diminished."' Houston, 702 N.W.2d at 273 in some cases a Craviford violation would (quoting Teague, 489 U.S. at 313). A decrease the likelihood of an accurate watershed rule must do more than simply determination of guilt or innocence (i.e., improve the accuracy of a proceeding; it must admitting an unreliable statement), in other be "essential to fundamental fairness of a cases statements admissible under the Roberts proceeding." Id. The only rule that the test but excluded under the Cravwford test Supreme Court has stated would fall within would be highly reliable and helpful to the this exception is the right to trial counsel jury's determination. While the additional established by Gideon v. Wainwright, 372 protections of Craiford effectuate the

376 original meaning of the Sixth Amendment, the fundamental fairness of a proceeding." the absence of Craw"ford's bright line rule Houston, 702 N.W.2d at 273. would not "seriously diminish the likelihood of obtaining an accurate determination" of For all of the above reasons, the rule innocence or guilt. See Butler, 494 U.S. at established by Crawford does not qualify as a 416. "watershed rule" for the purposes of Teague's second exception. Therefore, Crawford Similarly, the Supreme Court has also looked established a new rule of federal at pre-existing protections for defendants constitutional criminal procedure that is not when examining whether a new procedural within one of Teague's exceptions and, given rule is an "'absolute prerequisite to that Danforth's case was final at the time of fundamental fairness' as required by the Crawford decision, Danforth cannot Teague's second exception. See Sawyer, 497 receive the retroactive application of U.S. at 243-44 (quoting Teague, 489 U.S. at Crawford to his case. 314). Given the pre-existing Confrontation Clause protections for defendants under AFFIRMED. Roberts, Crawford's rule is not "essential to

377 "Court Query on Teague Retroactivity"

SCOTUSBlog.com March 21, 2007 Lyle Denniston

The Supreme Court indicated on Tuesday We cannot apply state retroactivity that at least some Justices are interested in principles when determining the claims by state prisoners that they should be retroactivity of a new rule of federal able to get more retroactive benefit out of constitutional criminal procedure if the U.S. Supreme Court decisions that lay down Supreme Court has already provided new rules of criminal procedure. The relevant federal principles" (emphasis in Court's electronic docket shows an order original). asking the state of Minnesota to discuss that question. The Minnesota court, though, noted that other state courts have declined to apply Here is the inquiry the Court posed in the Teague's retroactivity principles or have pending case of Danforth v. Minnesota (06- found they could apply those principles as a 8273): "Are state supreme courts required to matter of choice only. It cited decisions in use the standard announced in Teague v. Indiana, Louisiana, Missouri, Nevada and Lane, 489 U.S. 288 (1989), to determine South Dakota. whether United States Supreme Court decisions apply retroactively to state-court In Danforth's case, the Supreme Court criminal cases, or may a state court apply decision that he wanted to apply state-law or state-constitution-based retroactively to his criminal case was retroactivity tests that afford application of Crawford v. Washington, a 2004 ruling Supreme Court decisions to a broader class limiting use at trial of out-of-court of criminal defendants than the class defined "testimonial statements" that had not been by Teague?." subject to cross-examination.. The Minnesota court, applying Teague, ruled A number of state courts have divided on that Crawiford was not to be applied that question. retroactively in state cases. In that regard, the state court anticipated what the Supreme In the case of Stephen Danforth, who filed Court itself would decide in Whorton v. the petition in 06-8273, the Minnesota Bockting (05-595) on Feb. 28. Supreme Court declared: "Danforth argues that Teague dictates the limits of retroactive But, Danforth's public defender lawyers application of new rules only in federal have argued that, if the retroactivity question habeas corpus proceedings and does not is governed not by Teague but by Minnesota limit the retroactive application of new rules law, Danforth would be able to take in state post-conviction proceedings. advantage of the Crawford ruling in his Danforth is incorrect when he asserts that criminal sexual conduct case involving a state courts are free to give a Supreme Court six-year-old boy; his conviction became decision of federal constitutional criminal final no later than 1999. procedure broader retroactive application than that given by the Supreme Court. . . . Under Teague v. Lane. a criminal law

378 decision by the U.S. Supreme Court is that the state had acted as if the second generally not applicable to state cases where question were the only one raised. The the conviction had become final and the retroactivity issue, the reply said, is of "vital prisoner is making a post-conviction importance to state courts, state-court challenge. But a new rule does apply practitioners, state-court judges, state-court retroactively if the rule is "a watershed rule prosecutors, and state-court defendants. This of criminal procedure implicating the Court should grant certiorari of this case to fundamental fairness and accuracy of the answer it." criminal proceeding." The Court has never found a new procedure ruling that qualifies The case had been set for Conference on for retroactivity under Teague. March 16. but the Court took no action on it then. The case obviously had been held Danforth's lawyer filed his Supreme Court pending the ruling in Whorton. After the appeal on Dec. 6, and the state of Minnesota petition was set for Conference this week, opted not to respond. The petition raised two the Court on Tuesday asked the state for a issues-the first was the question about further response, dealing with the Teague federal vs. state retroactivity principles, and question as Danforth's lawyer had phrased the second was specifically about Crawiford it. It is unclear how many Justices concurred retroactivity. The Court in January asked for in asking the question. a response. The state filed a brief opposing review on Feb. 12, but only responded to the By raising it, however, the Court put off second question. arguing that Crawsford consideration. The state's response on the should not be applied retroactively. Teague point is due April 19. Danforth's lawyer will be able to file a reply. Danforth's defender replied to that, arguing

379 "Judge Raises Repeat Pedophile's Sentence Because of His History"

Star-TribuneNewspaper of the Twin Cities Mpls.-St. Paul August 5, 1998 James Walsh

Stephen Danforth, a former lawyer and Danforth resumed talking about how the repeat pedophile, was sentenced Tuesday to charges were false. Mabley told Danforth more than 26 years in prison for molesting a that enough was enough. 6-year-old boy nearly three years ago. Finding that Danforth met the criteria for the Danforth was convicted of first-degree repeat-offender statute-and that he needs criminal sexual conduct, and sentenced by long-term treatment or supervision beyond Hennepin County District Judge Richard the presumptive sentence and supervised Solum to 18 years in prison, more than two release-Mabley sentenced Danforth to 26 years ago. But the state Court of Appeals years. ruled in December that Danforth, who has a history of molesting boys, had to be re- Mabley said he believes a psychiatrist's sentenced to a longer term. report that Danforth is a pattern sex offender. Mabley, who said he thinks Solum's sentence was five years longer than Danforth has little chance of completing sex recommended by state guidelines for offender treatment, also sentenced him to at someone with no history of sex offenses. least 10 years of supervised probation "if But the repeat sex offender statute requires you are ever released." at least double the guidelines sentence. Danforth was convicted of sexually touching District Judge Dan Mabley, took the case and penetrating the 6-year-old boy, the son after Solum retired in June. of a friend, at a swimming pool in Richfield in July 1995. The boy's 4-year-old sister After Mabley asked Danforth, 47, whether saw the molestation when she walked into a he wished to make a statement before changing room. sentencing. Danforth began reading a letter he had intended to send to Solum. As he did The law school graduate said the boy's two years ago while defending himself, family pressured him to make up the Danforth proclaimed his innocence while accusations. He said at trial that he striking out at the "vicious prosecutors who sometimes fooled around in his underwear have conspired to stamp out child abuse." with the boy and kissed him once. But, Danforth claimed, he never abused him. Mabley listened for several minutes, then interrupted: "Mr. Danforth, I can't undo Danforth said he resolved to turn to looking what the jury did. Even Judge Solum can't at pictures of children for his sexual undo what the jury did. The question is, gratification after a 1988 conviction for what is the appropriate sentence?" having sex with several boys. [The Supreme Court is set to hear the case, Danforth v. After promising to limit his remarks, Minnesota, this term.]

380 "Jury Ponders Sex Abuse Case Against Ex-Attorney"

Star-TribuneNewspaper of the Twin Cities Mpls.-St. Paul March 5, 1996 David Peterson

A former attorney told a jury in Minneapolis criminal record for sexual abuse and kept an on Monday that although he is guilty of a eye on him for that reason. He became an multitude of "petty insanities and strange uncle figure for the younger children in the practices," he did not sexually molest a 6- family. year-old boy last summer. Danforth said he sometimes fooled around In closing arguments after two weeks of in his underwear with the boy who later testimony, 45-year-old Stephen Danforth accused him, and kissed him once. "Was looked and sounded like an exasperated that silly? Yeah. Foolish? Yeah." But the college professor trying to deliver a four- criminal accusation resulted from the hour lecture in half an hour. parents' paranoia, their "long and growing, smoldering dislike" for him, and coaching of The defendant, who represented himself the children, he said. during the trial, asked jurors to acquit him of one count of first-degree criminal sexual A gray-haired, balding man in a gray suit, conduct despite his history of child sexual his glasses halfway down his nose, Danforth abuse and despite the sexually explicit delivered arguments laced with literary material found in his possession. allusions-he referred at one point to his own "Pervert's Progress"-and spoke so "Call me a voyeur, fine," he said, "but don't rapidly that the judge and the court reporter find me guilty of this heinous thing." asked him to slow down.

The boy accused him of abusing him in the After a prison term for child molestation, he men's changing room at a swimming pool in said. he resolved to turn to pictures of Richfield in July. His 4-year-old sister said children for sexual gratification. "I've she saw it happen. although she was unable become a voyeur," he said. "That's what I to identify the defendant in the courtroom. do . . . but if you think for one second that for some infinitesimal thrill" he would During closing arguments, one juror left the molest a child, that's wrong. courtroom twice to vomit. She admitted to Judge Richard Solum that she'd drunk too Judge Solum started by reminding Danforth much the previous night. Solum dismissed that he'd been found in contempt twice her from the jury. Said prosecutor Kathryn during the trial, and ended by advising him Quaintance, out of the jury's earshot: "This repeatedly to wrap it up. Danforth concluded case could make anyone go on a bender." his arguments by saying, "I wish I had more time to tell you the whole story." Both sides in the case agreed that Danforth had developed a strange relationship with a In her arguments, prosecutor Quaintance troubled family whose members knew of his said the child witness failed to identify the

381 defendant because his appearance has The camera then followed him and focused changed greatly. She said that nothing about in on his naked genitals. As the tape the children's demeanor indicated any continued she stood beside the TV monitor coaching. They liked Danforth, she said, and and kept saying that contrary to Danforth's it was painful for them to reveal the truth. claim, "This wasn't accidental." [The Supreme Court is set to hear the case, She showed a videotape she said Danforth Danforth i. Minnesota, this term.] had taken of a young boy using the toilet.

382 "Former Attorney Practices Self-Defense in Child Sex Abuse Case"

Star-TribuneNewspaper of the Twin Cities Mpls.-St. Paul February 16, 1996 John McIntyre

A former attorney stepped before a jury in a places Danforth and the two children in the Hennepin County courtroom Thursday and changing room together. gave the opening statement in his own defense at his trial on charges of sexually In his opening statement Danforth told the assaulting a child. jury that although he'd been to law school he hadn't worked in a courtroom for 20 Stephen Danforth, 45, was charged with years. His statement, he said, would not be first-degree criminal sexual conduct last the "slick, professional presentation of Mrs. summer after a 6-year-old boy told Quaintance's." investigators that he had sexually assaulted him in the men's changing room at a More than two hours and three dozen swimming pool in Richfield in July. prosecution objections later, it was clear that Danforth wasn't being modest. "Those are false accusations," Danforth told the jury Thursday. "At no time did I abuse His wandering monologue was often him.... I'm innocent." repetitious and interrupted by prosecution objections-nearly three dozen, most Kathryn Quaintance, the assistant county sustained-and admonishments from attorney who is prosecuting the case, quietly District Judge Richard Solum to discuss the but bluntly explained the charge during her evidence and avoid arguing the case. brief opening statement: Criminal sexual conduct in the first degree is sexual conduct Still, several threads of Danforth's defense with penetration. emerged.

She told the jury that it would learn how He acknowledged that he'd been in trouble Danforth "worked himself into the family. before. According to police reports, he was How he gained trust . . . especially the convicted of three counts of criminal sexual boy's." conduct in the first degree for having sexual contact with several juveniles. She said he took the family, which was troubled, on trips and bought presents. He told the jury he'd become almost an "uncle" to the boy. But family members But during a trip to the pool, Danforth were aware of Danforth s record and were sexually abused the boy, she said. The boy's worried that he might assault their son. "It 4-year-old sister wandered into the changing rose to a hair-trigger state of apprehension room and saw the assault, Quaintance said. built on the imagination or dreams of a little boy," Danforth said. When an allegation She said jurors will see a videotape that arose, they were ready to believe it, he said.

383 He said that despite the claims of sexual review the questions Danforth would ask on penetration, medical reports showed no sign cross-examination. of pain or injury to the boy. Moreover, he said, witnesses would testify that the boy "It's clear he has no idea what parameters of remained affectionate toward Danforth in proper cross-examination are," Quaintance the days that followed the alleged assault. said. "Clearly, a proven pedophile's right to The boy's account of the assault parrots a defend himself isn't a right to go free-for-all story provided by parents and therapists, on children." Danforth said. Danforth replied that it was unheard of for a "His testimony will leave you with the judge to review a lawyer's "script" for impression of a child whose mind was worn cross-examination. Furthermore, he said, he down, who surrendered," Danforth said. won't know what questions he'll ask until the case unfolds. "They are accusers," he After he finished, and the jury was released said of the children. "It's up to the jury to for lunch, Quaintance angrily told Solum decide if they're victims." that Danforth extended his opening statement from a planned 25 minutes to Solum set limits on how much Danforth manipulate the system and tire out the two could ask about previous sexual assaults young witnesses who were waiting to against the children. [The Supreme Court is testify. They did not testify Thursday. The set to hear the case, Danforth v. Minnesota, issue of the children's welfare arose earlier this term.] Thursday when Quaintance asked Solum to

384 "Child Sex Abuser Given Prison Sentence"

Star-Tribune Newspaper of the Twin Cities Mpls.-St. Paul February 25, 1988 Larry Oakes

A Twin Cities man described .by court Judy Johnston, an assistant Hennepin officials as one of the most cunning County attorney, said Danforth, who ran a pedophiles to be prosecuted locally in recent legal research firm in Minneapolis, preyed years was sentenced Tuesday in Hennepin upon children who had no meaningful County District Court to almost seven years relationships with their fathers, and often in prison. saw the children with the approval of their mothers. Stephen Danforth, 36, who police say previously lived in Wisconsin, had pleaded "They thought he was just a friendly guy guilty to having sex with four boys at his who cared about their kids," Johnston said. Minneapolis apartment, and paying them to pose nude for photographs. Danforth's hold on the children was so strong that none initially would talk to Danforth, also known as Stephen Danforth police and some still have mixed feelings, Rabideau, also has pleaded guilty in Ramsey officials said. County to having sex with some of the same victims while living in St. Paul. At Danforth's sentencing, Hennepin County District Judge Henry W. McCarr said that His sentencing on those counts was based on a pre-sentence evaluation, scheduled for May 3. A Ramsey County Danforth would be "an ongoing danger to judge ruled Wednesday that Danforth's society" if his sentence was limited to his sentencing could be delayed until that date requested probation and treatment. to give time for a psychiatric profile requested by the defense. Johnston said that in preparing for trial against Danforth on the local cases, the Danforth's attorney, Marilyn Knudsen, prosecution located six alleged victims from declined to comment on his behalf. Wisconsin who were prepared to testify that Danforth engaged in the same conduct with Authorities said they have evidence that them in Madison in the mid-1970s. during the past decade in both Wisconsin and Minnesota, Danforth lured at least 10 Danforth was charged in connection with children-eight boys and two girls-into some of those incidents, but the charges sexual relationships by being friendly to were dropped when he agreed to treatment, them and offering them money, gifts and Johnston said. trips. The alleged victims' testimony would have St. Paul police have said that Danforth took been introduced not as additional charges, boys to Wisconsin and Disney World in but as supporting evidence of the Florida, among other places. defendant's criminal behavior.

385 Johnston, a member of a county attorney's the length of victimization, the fact that he team formed to prosecute child sex cases, continued even after he knew he said was being Danforth is "one of the more investigated, and his strong verbal and serious offenders we've prosecuted for this manipulative skills." crime . .. because of the number of victims,

386