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Judges vs. juries, and the Supreme Court

http://articles.latimes.com/2013/jan/20/opinion/la-ed-sentencing-guns-suprem

e-court-20130120

Legal scholars long have struggled to determine the proper allocation of authority betweenjudges and juries. But you don't have to be an expert to recognize that Allen Ryan Alleyne was

treated unjustly by a federal court in Virginia.

The jury that convicted Alleyne for his role in the armed robbery of a convenience store

specifically looked at the question of whether a gun was "brandished" by Alleyne's accomplice,

a factor that would trigger a mandatory minimum sentence of seven years for any participant

in the crime. The jury concluded that it wasn't (although it did agree that a gun had been

"used or carried"). But when the judge sentenced Alleyne, he concluded that a gun had been

brandished and sentenced him to the mandatory minimum.

Last week, Alleyne's lawyers asked the Supreme Court to set aside that sentence, but theyacknowledged that to do so, the court must overturn its 2002 decision in Harris vs. U.S.,

which allowed judges to determine whether a weapon was brandished.

As a general rule, the court should be cautious about overturning its own precedents. But the

Harris decision, a 5-4 ruling, was logically at odds with a landmark ruling handed down two

years earlier, Apprendi vs. New Jersey. Overturning Harris would do more than provide relief

for Alleyne; it would also clarify that juries, not judges, are responsible for deciding whether a

defendant committed a crime.

The Apprendi case concerned a man who fired shots into the home of an African

American neighbor. A judge had added two years to Charles Apprendi Jr.'s maximum

sentence of 10 years after finding that the shooting was racially motivated. But the court ruledthat the question of motivation should have been presented to a jury. Despite that holding,

two years later in the Harris case the court said that a judge was free to determine on his own

that a defendant had brandished a gun and should therefore receive extra punishment.

The Obama administration argues that the Harris case and the punishment imposed

on Alleyne are consistent with the Apprendi ruling because they involve mandatory minimum

sentences that fall within a sentencing range that would be available to a judge even without

the brandishing finding. That's a distinction without a difference. Like Apprendi, Alleyne was

sentenced to more time than he otherwise would have served because a judge decided

unilaterally that he was guilty of a crime.

The Apprendi ruling didn't give juries total authority over what sentence a convicted

defendant receives. Judges may adjust sentences based on a range factors, including a

defendant's prior criminal record. In other words, they may decide whether a punishment fits

the criminal as well as the crime. But whether a crime was committed is for the jury, not the

judge, to determine.

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Chief Justice Roberts to Preside at Obama Swearing-In

By SHERYL GAY STOLBERG

http://thecaucus.blogs.nytimes.com/2013/01/04/justice-roberts-to-preside-at-obama-swearin

g-in/WASHINGTON President Obamas inaugural planning committee will announce Friday

morning that surprise! Chief Justice John G. Roberts Jr.will deliver the oath of office to

Mr. Obama when he is sworn in for a second term later this month.

Most Americans simply assume the chief justice always delivers the oath. In fact, the president

gets to choose who will swear him in, and Mr. Obama has selected the chief justice to deliver

not one, but two, oaths to him: first in a small official ceremony at the White House at noon

on Sunday, Jan. 20, the constitutionally mandated date and hour for the swearing-in, and

again as part of the public inaugural festivities scheduled for Monday, Jan. 21.

I will be honored to again stand on the inaugural platform and take part in this important

American tradition, Mr. Obama said in an announcement the planners will release laterFriday morning. I look forward to having Chief Justice John Roberts administer my oath of

office as we gather to celebrate not just a president or a vice president, but the strength and

determination of the American people.

The ceremonies will be the second time the chief justice has delivered back-to-back oaths to

the president. During Mr. Obamas 2009 inauguration, Chief Justice Roberts flubbed the

35-word oath, prompting the president to misstate it as well. The two later redid the

swearing-in privately at the White House, out of an abundance of caution, the White House

said then.

The tradition of chief justices administering the presidential oath began in 1797, when Oliver

Ellsworth swore in John Adams. But over time, there have been exceptions to the unwritten

rule. In 1923, President Calvin Coolidge took the oath from his father, a notary public, in the

wake of the death of PresidentWarren G. Harding. But when questions were raised about the

propriety of the ceremony, Mr. Coolidge retook the oath from a federal judge.

And on Nov. 22, 1963, the dayJohn F. Kennedywas assassinated, Lyndon Johnson was sworn

in aboardAir Force One at Love Field in Dallas by a federal judge, Sarah T. Hughes, who

became the first woman to deliver the oath of office to a president.