A defendant has the right to a unanimous jury find beyond a reasonable doubt as to any fact that increases his exposure to punishment. P.S. -- that doesn't apply to Jan 6 cases as suggested.
I support open circulation in the "wild" of your analyses. As you said, way too many "incorrect" (nicely said) opinions out there. We need an informed public.
Ship, post for free whenever you want. I on the subscription to help Jan 6 defendants!
Between the gag order requested by Smith, your previous article mentions, and the gag order imposed by Merchan, can you comment on the constitutionality of these gag orders or write an article. They seem to be a new and inappropriate restraint on the rights of defendants.
Thanks for the 'quick' write up on this case. Hopefully, this prospective, defensive analyses, i.e. that done to head off a trend that seems to be developing, does the trick and slows down commentary to a more thoughtful pace.
It appears that in Ehrlicher, the need for a jury to be unanimous in the crime intended beyond a reasonable doubt will have an effect on the Trump verdict, reducing it to 34 misdemeanors.
Given a jury instruction which fails to adhere to Ehrlicher, it should result in a declared mistrial as the jury verdict violates the defendant's right. Bragg would then have the option to take another shot at $5 million USD of the people's money spent re-trying.
However given the NY response to Bruen, essentially doubling down on that which the court declared invalid, it wouldn't surprise me to see Merchan give the court a big up yours and proceed with a maximum sentence "due to the severity of the crime" (perhaps not a Max) and letting the appeals process drag out the ultimate conclusion.
I should note I've been wrong many times before, my wife tells me so.
This is a great explanation of why Erlinger could help the Trump sham trial, but not really the J6 cases.
I think a lot of commenters are missing the key part of the Erlinger decision that specifically refers to the need to prove to a jury crimes that either a) change the minimum sentencing or b) change the maximum sentencing. But the federal sentencing guidelines only affect the calculation of a sentence _in between_ the minimum and maximum sentences, so this Erlinger decision just won't apply.
In principle, that's not really fair. If someone is given a terrorism enhancement based on a judge's finding on a preponderance of the evidence without proving it to a jury beyond reasonable doubt, the punishment is _absolutely_ being increased by facts not proven to a jury.
That seems to violate Erlinger in principle, but to make it apply to federal sentencing guidelines would seem to require an entirely separate legal case based on that argument to be filed, and make its way through the courts before SCOTUS would even consider it. And even if it could be done, most J6 prisoners would have already served their term before then.
Still, I could see Erlinger potentially helping some individual J6ers under specific facts. Just not automatically, and not most of them.
This is why an analysis like yours is so important. Superficially, it seems like this decision would help J6ers, but it just doesn't. And it's important to understand why.
You get it. Erlinger involved mandatory sentence of 15 years rather than 10 years based on a "yes/no" fact determination. The Court said such determinations must be made by a jury.
Guideline enhancements are discretionary -- it has not only a "yes/no" component, but the Judge can also just decline or vary downward. The "yes/no" answer does not increase the maximum or impose a minimum that would otherwise not apply.
Booker was the chance for the Court to say "enhancement" facts -- like terrorism - must be part of the verdict. But that would have required jury verdicts to have potentially dozens of sub-components beyond the "guilty/not guilty" decision.
Instead they said "They are all discretionary. The Judge can decide to not apply them even if the "facts" support the application."
I think Jeff Clark is right that Erlinger could help some J6 attorneys, at least in some cases. (It certainly won't hurt.)
But to win such a case would require not only overcoming the argument that guidelines don't change the minimum or maximum sentence, but also the argument that the sentence enhancements are discretionary, not mandatory.
And frankly, there is very little a DC judge would find a J6 defendant guilty of that a DC jury would not rubber stamp.
Frustrating, though, since so many of these enhancements are based on a presumed state of mind by the J6 defendant, with both judge and jury simply believing the worst.
Certainly, the Oath Keeper cases never proved they had some sort of plan, even though the prosecution kept asserting that as fact, and both judge and jury accepted the claim.
What you propose, and your view on Jeff's comment, ignores Booker which is a Supreme Court case. So it is not an "argument" that can be overcome. SCOTUS settled it.
Granted, I think increasing a prison sentence on the basis of conduct unproved to a jury seems to violate the Sixth Amendment, just in a different way from Eringer. And the argument that it's ok as long as it's discretionary by the judge seems weak to me.
But yes, I take your point that SCOTUS settled it, and only SCOTUS can unsettle it.
Worse, in most J6 cases it would make no practical difference, because getting a DC jury to vote guilty on sentence-lengthening conduct is probably easier than getting the judge himself to decide that.
I support open circulation in the "wild" of your analyses. As you said, way too many "incorrect" (nicely said) opinions out there. We need an informed public.
Thank you Mr. Shipley
Ship, post for free whenever you want. I on the subscription to help Jan 6 defendants!
Between the gag order requested by Smith, your previous article mentions, and the gag order imposed by Merchan, can you comment on the constitutionality of these gag orders or write an article. They seem to be a new and inappropriate restraint on the rights of defendants.
I like this idea. I might start writing on this and see where it goes.
Thanks for the 'quick' write up on this case. Hopefully, this prospective, defensive analyses, i.e. that done to head off a trend that seems to be developing, does the trick and slows down commentary to a more thoughtful pace.
It appears that in Ehrlicher, the need for a jury to be unanimous in the crime intended beyond a reasonable doubt will have an effect on the Trump verdict, reducing it to 34 misdemeanors.
Given a jury instruction which fails to adhere to Ehrlicher, it should result in a declared mistrial as the jury verdict violates the defendant's right. Bragg would then have the option to take another shot at $5 million USD of the people's money spent re-trying.
However given the NY response to Bruen, essentially doubling down on that which the court declared invalid, it wouldn't surprise me to see Merchan give the court a big up yours and proceed with a maximum sentence "due to the severity of the crime" (perhaps not a Max) and letting the appeals process drag out the ultimate conclusion.
I should note I've been wrong many times before, my wife tells me so.
Thanks Ship
This is a great explanation of why Erlinger could help the Trump sham trial, but not really the J6 cases.
I think a lot of commenters are missing the key part of the Erlinger decision that specifically refers to the need to prove to a jury crimes that either a) change the minimum sentencing or b) change the maximum sentencing. But the federal sentencing guidelines only affect the calculation of a sentence _in between_ the minimum and maximum sentences, so this Erlinger decision just won't apply.
In principle, that's not really fair. If someone is given a terrorism enhancement based on a judge's finding on a preponderance of the evidence without proving it to a jury beyond reasonable doubt, the punishment is _absolutely_ being increased by facts not proven to a jury.
That seems to violate Erlinger in principle, but to make it apply to federal sentencing guidelines would seem to require an entirely separate legal case based on that argument to be filed, and make its way through the courts before SCOTUS would even consider it. And even if it could be done, most J6 prisoners would have already served their term before then.
Still, I could see Erlinger potentially helping some individual J6ers under specific facts. Just not automatically, and not most of them.
This is why an analysis like yours is so important. Superficially, it seems like this decision would help J6ers, but it just doesn't. And it's important to understand why.
You get it. Erlinger involved mandatory sentence of 15 years rather than 10 years based on a "yes/no" fact determination. The Court said such determinations must be made by a jury.
Guideline enhancements are discretionary -- it has not only a "yes/no" component, but the Judge can also just decline or vary downward. The "yes/no" answer does not increase the maximum or impose a minimum that would otherwise not apply.
Booker was the chance for the Court to say "enhancement" facts -- like terrorism - must be part of the verdict. But that would have required jury verdicts to have potentially dozens of sub-components beyond the "guilty/not guilty" decision.
Instead they said "They are all discretionary. The Judge can decide to not apply them even if the "facts" support the application."
I think Jeff Clark is right that Erlinger could help some J6 attorneys, at least in some cases. (It certainly won't hurt.)
But to win such a case would require not only overcoming the argument that guidelines don't change the minimum or maximum sentence, but also the argument that the sentence enhancements are discretionary, not mandatory.
And frankly, there is very little a DC judge would find a J6 defendant guilty of that a DC jury would not rubber stamp.
Frustrating, though, since so many of these enhancements are based on a presumed state of mind by the J6 defendant, with both judge and jury simply believing the worst.
Certainly, the Oath Keeper cases never proved they had some sort of plan, even though the prosecution kept asserting that as fact, and both judge and jury accepted the claim.
What you propose, and your view on Jeff's comment, ignores Booker which is a Supreme Court case. So it is not an "argument" that can be overcome. SCOTUS settled it.
Oh, I'm not ignoring what you said about Booker.
Granted, I think increasing a prison sentence on the basis of conduct unproved to a jury seems to violate the Sixth Amendment, just in a different way from Eringer. And the argument that it's ok as long as it's discretionary by the judge seems weak to me.
But yes, I take your point that SCOTUS settled it, and only SCOTUS can unsettle it.
Worse, in most J6 cases it would make no practical difference, because getting a DC jury to vote guilty on sentence-lengthening conduct is probably easier than getting the judge himself to decide that.
Bill, great post as always. And please check your Substack DMs regarding some AA FF miles.