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Judges may not punish for challenging the drug chemist

May 25, 2012 Judges may not punish for challenging the drug chemist

Yesterday, the District of Columbia Court of Appeals took the unusual step of granting a summary/immediate reversal of an unlawfully-based 180-day maximum drug possession sentence, lest the defendant be detained any further on that sentence. Thorne v. U.S., ___ A.2d ___ (May 24, 2012). Thorne orders a resentencing before a different trial judge.

Here are the main grounds for the Thorne summary reversal:

In brief, the trial judge initially discouraged appellant from exercising [his Sixth Amendment right to cross-examine the chemist], and thereafter stated that she would "take into account" appellant’s insistence on cross-examining the chemist and that this decision "will have consequences" for appellant. After several such comments, to which appellant made timely objection [excellently done, defense trial counsel], the judge sentenced appellant to 180 days in prison, the maximum term of imprisonment authorized by law. This was a substantially longer period of incarceration than the government had sought…

In view of the judge’s comments, there is a reasonable likelihood that she punished appellant for invoking his Sixth Amendment right of confrontation. "[P]enalizing those who choose to exercise their constitutional rights [is] patently unconstitutional," North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (internal quotation marks omitted), and therefore "[t]he augmentation of sentence based on defendant’s decision to stand on his right to put the Government to it proof rather than plead guilty is clearly improper."

Thorne (final citation omitted).

Despite Thorne, the federal sentencing system repeatedly inflicts harsher sentences to those who get convicted at trial than those who plead guilty, with the judicial assertion that those who plead guilty are being rewarded for "accepting responsibility" rather than saying that those who assert their right to trial are being punished for doing so.

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