Thursday, February 21, 2008
The New York Court of Appeals on Tuesday decided People v. Leon, a case raising interesting issues at the intersection of Apprendi and Crawford. At the outset, I should reveal that the defendant was represented by the Center for Appellate Litigation, where I was appellate counsel for five years before entering academia, and also that counsel for defendant, Jonathan Kirshbaum, is a close personal friend of mine. Suffice it to say that my knowledge of the case, and therefore the information contained herein, is limited to what is revealed by the court's decision.
After conviction, the prosecutor sought to prove that Leon was a "persistent violent felon," meaning that he had been convicted of two prior violent felonies. At the persistent felony offender hearing, he contested one of the two prior felony convictions, claiming that it pertained to a different person altogether. In response, the prosecutor put into evidence a report by someone claiming to have compared the fingerprint cards for each of the persons with the two previous convictions, and concluding they were from the same person. Since Leon admitted the earlier conviction, then, the later conviction must be his as well.
This raises an obvious Crawford issue: did the report contain testimonial evidence? In a companion case, the Court of Appeals held that such a fingerprint analysis, when admitted at trial, constitutes testimonial evidence. Ah, but there's the rub. Here, it was admitted only in a sentencing proceeding. It appears to be an open question whether Crawford applies at a sentencing proceeding at which the defendant is entitled to jury findings made beyond a reasonable doubt, a la Apprendi, though I think the better view is that Crawford does apply in that a context.
But the New York Court of Appeals did not need to address that issue, holding that, here, the only contested issue of fact at the hearing pertained to "the fact of a prior conviction," falling within the Almendarez-Torres exception to Apprendi. Which raises the second interesting issue: does the "fact of a prior conviction" exception include the fact that it was the defendant who has that prior conviction? The court said that it does, which makes some sense in isolation: what else could "the fact of a prior conviction" mean other than that this defendant is the one with the prior conviction?
But in a larger sense, this case demonstrates what is wrong with Almendarez-Torres. The "fact of a prior conviction" carve-out is based largely on the notion that, pursuant to that prior adjudication, the defendant has already enjoyed the procedural protections of a jury finding of guilt beyond a reasonable doubt. But this logic breaks down as soon as the question becomes -- and it usually does, if there is ever a dispute -- is this defendant, currently before the court, the same one who previously enjoyed those procedural protections? No jury has ever made that critical finding, and none ever will because of Almendarez-Torres.
This, in addition to the fact that at least five sitting Justices believe the case was wrongly decided, is reason enough for Almendarez-Torres to be overruled [Mike Mannheimer]