Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Gonzalez was thus afflicted. By sliding in beneath the jury’s high standard of proof, Judge Alsup accepted his confession—nothing else linked him to the crime—and found the arson established by “clear and convincing evidence,” which is lower than the “beyond reasonable doubt” required of the jury but one notch above the “preponderance” considered acceptable for sentencing. Having created an alternative reality, Alsup then logically found that the alibi witness could not have testified truthfully, and that the defendant must have suborned his perjury, earning Gonzalez an increase of two offense levels for obstructing justice. The judge gave him ninety-six months. Lewis Carroll could not have written it more acutely.

  A repair would be quite straightforward: either Congress or the Sentencing Commission could simply bar courts from considering acquitted conduct in sentencing. This fix was suggested by none other than Judge Brett M. Kavanaugh, an extreme conservative named by President George W. Bush to the D.C. Circuit. Given precedent, Kavanaugh and his two colleagues did not feel free to overturn the enhanced prison term of Tarik Settles, who was sentenced for carrying a gun during a drug deal, although he’d been convicted of only gun possession, not selling drugs. Kavanaugh quoted from the sentencing hearing, when Settles made the point directly: “I just feel as though, you know, that that’s not right. That I should get punished for something that the jury and my peers, they found me not guilty.”26

  To arrive at a fair sentence, a judge needs to know a good deal about the convicted man or woman standing before him, a picture sketched largely by the probation department that presents a presentencing report and recommendation. The portrait’s ingredients, called “relevant conduct” in legal parlance, may be accurate—or may be salted with unproven allegations immune to effective rebuttal at a sentencing hearing. The strict rules of evidence used in trials would hamper the wider inquiry allowed at sentencing, filtering out elements of background and character that might guide the judge. But the very flexibility to probe into the defendant’s behavior also raises troubling questions of due process that have been repeatedly litigated up to the Supreme Court.

  On balance and within limits, the Supreme Court has entrusted the judge with the burden of determining sentence. In a 1949 homicide case, the justices ruled that a judge could override a jury’s recommendation of life imprisonment and impose the death penalty based on unproven reports that the murderer had committed some thirty burglaries (none of which had brought convictions) and on a probation officer’s assertion that his “morbid sexuality” made him “a menace to society.” The Court held that while the determination of guilt or innocence at trial should not be influenced “by evidence that the defendant had habitually engaged in other misconduct,” it is precisely such misconduct that needs to be known to the sentencing judge. “Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics,” wrote Justice Hugo Black for the majority, so “that the punishment should fit the offender and not merely the crime.”27

  The question, however, is how to test the allegations for accuracy. The Court has answered this with the preponderance standard, interpreted as meaning more chance than not that a given incident took place, as little as 51 percent. It is a subjective test susceptible to various judges’ disparate interpretations. It is embedded in precedent, however. In 1986, a Pennsylvania law was upheld imposing a minimum five-year prison term for carrying a firearm during certain crimes, where the gun possession had been determined by the sentencing judge, not the jury, and on the basis of preponderance, not beyond reasonable doubt. The sentence was permitted because the penalty with the gun did not exceed the statutory maximum without the gun: the five-year minimum fell within the range of sentences that the law provided for an unarmed criminal.28

  But when the judge finds facts by a preponderance that takes the sentence above the statutory maximum for the crime of conviction, he violates the right to have a jury consider the charge, the Court has ruled.29 In Apprendi v. New Jersey, now considered a defining opinion, the justices set down the requirement that juries, not judges, rule on additional facts that make the convicted crime eligible for a sentence above what would otherwise be the statutory maximum. Charles Apprendi, who shot several times into an African-American family’s home, pleaded guilty to gun possession for an unlawful purpose, which carried a prison term of five to ten years. The prosecutor then moved to lengthen the sentence because of the shooting’s racial motivation, putting it into the category of a hate crime. After a full evidentiary hearing in which the defense called a psychologist and seven character witnesses, plus Apprendi himself, the judge agreed that bias had been demonstrated by a preponderance of evidence and imposed a twelve-year sentence, two years above the maximum allowed by law for the gun possession charge alone. The Court overturned it, 5–4, ruling that the hate-crime component had to be proven to a jury beyond a reasonable doubt.30

  As long as prosecutors and judges stay within the broad ranges in the law, however, “enhancements,” as they’re pleasantly called, can factor into sentences all kinds of untrustworthy or questionable elements, even evidence suppressed because of an unconstitutional search.

  So it was for Clemente Zavaleta, a.k.a. Oliver Espanol, who was sitting at curbside in his Cadillac when the “gang violence suppression patrol” of Oakland, California, drove along in two cars looking for suspicious vehicles, people, and behavior. Zavaleta fit a few profiles, apparently. He spun out from the curb and nearly collided with a van, the police said, then sped through two stop signs.

  When the cops pulled him over, they thought he seemed nervous and unsure about where he lived—Oakland or Seattle—and couldn’t produce a valid license, although one from Washington was later found in his wallet during a pat-down. He was placed under arrest for driving recklessly and without a license, and was asked for permission to search the vehicle. He consented, the officers claimed (Zavaleta denied it), and their search of the trunk turned up a kilo of cocaine inside a gray metal tackle box, “wrapped in black electrical tape and laundry detergent,” according to the police report. “That’s not my cocaine,” the report quoted Zavaleta as saying. “I’m just bringing it to a bar.”31

  Without a warrant, the squad then went to his house nearby and asked his wife, Irene Felix, for permission to search. Granting consent would have waived her Fourth Amendment right “to be secure” against a search unless a judge had signed a warrant. A Spanish-speaking officer, E. Ayala, testified under oath that he had made the request politely, telling her that he worried that items dangerous to children might be inside.

  Her account, also given under oath, was quite different: She asked if he had a search warrant, and when he said no, she insisted that she would not let him in without one. He grew angry, raised his voice, told her that she was probably in the United States illegally, could be jailed, might lose her house, and could see her children taken away. Preying on a mother’s elemental attachment to her children is an effective tactic by agents of some oppressive regimes. Yet Felix was in America. She stood steadfast for ten or fifteen minutes, keeping the screen door closed and not allowing Ayala inside. The argument continued until her fears overcame her rights, and she signed a consent form. The police found six more kilos of cocaine in the attic and a nine-millimeter pistol in the bedroom closet. Then Ayala threatened her again with arrest and the loss of her children to get her signature on a statement that she had not been threatened.

  The federal judge accepted her version, not the cop’s. “Her testimony was generally consistent, forthright, and believable,” Judge Saundra Brown Armstrong wrote. “Officer Ayala improperly threatened Ms. Felix in order to gain entry into the residence,” rendering the consent involuntary and the evidence from the house inadmissible. The exclusionary rule applies to evidence seized in violation of the Fourth Amendment during searches, as it does to information obtained in violation of the Fifth
Amendment during interrogations; it is the main deterrent to unconstitutional behavior by law enforcement. So, once Judge Armstrong excluded the cocaine and the gun from the house, the prosecution was left with only the kilo of cocaine from the car, which carried a sentence of up to five years. Zavaleta pleaded guilty to the lesser charge.

  Then things got strange. The prosecutor, Assistant U.S. Attorney Lewis A. Davis, urged the judge to include the suppressed drugs and gun from the house as “relevant conduct” in calculating the sentence. “If the court were to rely solely on the one kilogram,” Davis said at the sentencing hearing, “it has a picture of the defendant as one type of narcotics trafficker. When it considers seven kilograms of cocaine, the court must have a different view of this cocaine trafficker.… It changes the whole complexion of his offense and the nature of his conduct. And it seems to me that conduct is important for the court to consider in toto in fashioning the appropriate sentence.”

  Zavaleta’s lawyer, Jerome Matthews, cited precedent for ignoring evidence at sentencing when it was obtained in “egregious” circumstances. Judge Armstrong, who had been the first African-American policewoman in Oakland, seemed torn at first. But in the end, speaking of Officer Ayala, she declared, “I have to say I did not find his behavior to be egregious.” So a federal court determined that threatening to take a mother’s children away if she didn’t consent to a search of her home was not egregious.

  “Your argument has visceral appeal,” Armstrong told Matthews, “but I, unfortunately, don’t sentence based upon my visceral reaction.”

  Matthews urged her to see that considering wrongly seized evidence would undermine the exclusionary rule’s deterrent effect; if police could enhance a sentence by bullying their way over the Fourth Amendment, he argued, they’d have nothing to lose by trying coercion. Armstrong disagreed. Suppressing the evidence in trial was sufficient deterrent, she said; it could be removed from sentencing if the illegal search had been designed deliberately to increase the drug amounts as a scheme to lengthen jail time, but she saw no such motive.

  It was a close call, she conceded, but she doubled Zavaleta’s sentence to ten years, the most that the law would have allowed if the house had been searched under the purity of a warrant.

  An appeals court had to set things right by sending him back to Judge Armstrong for resentencing. “It was plain error to expose Zavaleta to a higher statutory maximum sentence than would otherwise apply on the basis of this uncharged and unproven drug quantity,” a panel of the Ninth Circuit declared. The judges added, however, that they would not explicitly rule out considering the suppressed evidence—the six kilos and the gun—in fashioning a sentence up to the statutory maximum for the one kilo found in his car. This left intact the principle that the fruits of an illegal search could enhance a sentence, to a point. Armstrong had to reduce the penalty and chose the most she could give for the single kilo of cocaine. Zavaleta was released after five years.

  REVOKING PROBATION AND FORFEITING ASSETS

  The protections of liberty are most clearly visible when they are gone. Into their absence flow the police and prosecutors with unproven suspicions, flimsy evidence, and life-altering decisions. Without enough to gain criminal convictions, they can still imprison certain people and seize certain property by operating legally behind a facade of due process, making a kind of Potemkin justice.

  The bad results come from penalties enacted for good reason: the forfeiture of assets used in or derived from crime, and the forfeiture of freedom by a released convict who violates the rules of probation. The trouble is, neither allegation has to be proved beyond reasonable doubt, only by a preponderance of the evidence, the hunch that something is more likely to have happened than not. This has given truth a casual quality.

  The good reasons are compelling. The narcotics trade flourishes on money, and terrorism plots need financing, so the power to confiscate property can be a quick, supple weapon, effective if employed with judicious precision. The targets can include a car or a boat believed to have transported drugs, a house thought to be a place of storage or sale, and funds that seem to have come from the trafficking. Yet they can be seized before any judgment on whether they meet the criteria of the law. In everyday practice, cash is taken from black and Latino drivers pulled over on rural Southern highways, whole bank accounts are emptied, real estate is frozen long before trials are held. In asset forfeiture, the punishment precedes the verdict.

  Similarly, monitoring inmates who are out on probation following their prison terms is wise and often helpful; in the federal system, probation is aptly called “supervisory release.”32 But accusations too weak to stand up at trial are routinely referred by prosecutors to probation officials who use lower standards of evidence to send people back to jail.

  Neale Jenkins went through exactly this experience when prosecutors didn’t think they had a case strong enough to convict him for rape, so they used the probation system to lock him up for a year before he was finally exonerated.

  He had been doing well during the four months since his release after serving a five-year sentence for narcotics and guns, according to one of his lawyers, Tony Miles. He lived with his mother, kept his probation appointments, tested clean for drugs every time, and held a decent job at a restaurant in Bowie, Maryland. He also partied with old friends in Washington, D.C., with unhappy results one night.

  In the wee hours of a January morning, his former girlfriend, Sabrina Knott, then engaged to another man, returned to the apartment where she lived with her fiancé. When he heard her story, he called 911.33

  With her fiancé present, she told a detective that as she had left a friend’s house about 3:30 a.m. (after drinking alcohol, smoking pot, and taking Ecstasy, she later admitted), she was accosted by Jenkins, who held a gun to her head as a masked accomplice grabbed her keys and drove her car away. Jenkins forced her into a red car and, from behind the wheel, beat her with a belt, she charged. He took her into the corridor of an apartment on Sheriff Road, brandished a knife, pulled down her pants, and raped her anally and vaginally, she claimed, then took her to a 7-Eleven, where the masked man gave her back her keys and her car. She drove home and was taken to a hospital, where a nurse found tears in her anus but no sign of trauma or bruising elsewhere.

  The police arrested Jenkins the same day, and Knott began amending her account as the detective drove her to a “showup,” which is like a lineup with only one person (the suspect) available for identification. On the way, she told the cop that the rape had actually occurred in a Travelodge on New York Avenue, not an apartment. She’d made up the apartment detail, she explained, so her fiancé wouldn’t be angry that she’d gone to a motel with her old boyfriend, even under duress. But everything else was true, she insisted.

  Poised to bring a criminal indictment against Jenkins, the assistant U.S. attorney on the case put Knott before a grand jury, where she repeated what a federal judge later called “version one,” altered by the switch from the apartment to the motel. Worried by her lack of credibility, the detective challenged her with his doubts, and she changed her story again: no accomplice, no gun, no red car, no beating, she now said, but threats nonetheless; in this version she had to drive her car as he directed her to the motel, where she was forced inside at knifepoint, grabbed by the hair, thrown down, and raped. The 7-Eleven disappeared from her story, and she drove herself home from the Travelodge.

  As the government shifted its narrative of the crime to match Knott’s revisions, the detective and the prosecutor, Elana Tyrangiel, realized that their one and only witness might not get them a guilty verdict, so they decided to go the easier probation route instead. Asked why by the federal magistrate judge John M. Facciola, Tyrangiel said frankly, “Your Honor, there’s a difference, clearly, in the burden about what we must prove, and beyond a reasonable doubt is a very difficult standard. The preponderance of the evidence standard is much slimmer. It’s not nothing, but it’s a significant difference.”34
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  Shopping around for the least exacting forum and the lightest burden of proof should be closed as an option, Tony Miles believed, and he saw a clear solution to such practices: prohibit reincarceration for alleged probation violations that cannot be proven beyond a reasonable doubt. Courts have ruled otherwise, however, leaving the lesser standard in place, and leaving Jenkins in an unusually uncomfortable spot.

  He was jeopardized doubly, you could say, because he fell under the jurisdiction of both the federal supervisory release program and the District of Columbia parole system. In a complicated plea bargain five years earlier, he had admitted guilt to both a federal and a local crime, which meant that he now had to convince two entirely separate authorities that he should not be returned to prison.35 In effect, he had to prove his innocence both to Magistrate Facciola, who would make a recommendation to a federal district judge, and to an officer of the U.S. Parole Commission handling D.C. cases.

  On the federal side, Facciola conducted a long hearing, at which Knott again changed her account: in this version, Jenkins asked her for a ride as she left her friend’s house, Knott agreed and took him into her car, he told her where to turn at each intersection, then compelled her to enter the Travelodge and, once in a room, poked at her with a knife, then raped her anally and vaginally and called her a “bitch” for breaking up with him when he went to prison.

  She had insisted all along that she had not seen much of him since his release, but Miles found pieces of evidence that undermined her credibility further: Jenkins’s cell phone, which showed incoming calls from the house where Knott was staying; two neighbors who saw them together earlier that evening; and a jerky video from a Travelodge surveillance camera showing her walking into the motel not like a captive but ten feet behind Jenkins, carrying his sweater as a willing companion. Contrary to her contention, “the videotape displays no such fear,” Facciola found. She accompanied Jenkins when he checked in, showed his true ID, and got the key to a room.