Wednesday, June 18, 2008
Three Strikes And They're Out: Ninth Circuit Finds That Rule 609(b) Applies To Old Convictions Used To Enhance A Subsequent Sentence
The Ninth Circuit's recent opinion in Simpson v. Thomas, 2008 WL 2357376 (9th Cir. 2008), dealt with an issue of first impression: whether prior convictions more than ten years old may be used for impeachment purposes under Federal Rule of Evidence 609(b) if those prior convictions were used to enhance a sentence for a separate conviction that falls within the ten-year time limit of Rule 609(b). The Ninth Circuit answered, "No," and I agree with its decision.
In Thomas, inmate Gary Simpson filed suit under 42 U.S.C. Section 1983 alleging that Sergeant Jeffrey Thomas, a corrections officer at a state prison, used excessive force after Simpson did not comply with Thomas' orders. The allegations stemmed from an altercation between the two men; Simpson claimed that Thomas wantonly attacked him while Thomas claimed that he was merely attempting to restrain the aggressive Simpson.
In deciding whose story to believe, the jury was, over defense counsel's objection, able to consider the impeachment value of three of Simpson's prior conviction:
-a 1986 felony conviction for burglary;
-a 1989 felony conviction for illegal possession of narcotics; and
-a 1993 felony conviction for possession of marijuana with intent to distribute.
Simpson was release from incarceration for all three of these convictions more than ten years prior to trial, arguably triggering Federal Rule of Evidence 609(b), which states in relevant part that "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
The district court, however, admitted the prior convictions in spite of Rule 609(b)'s ten-year time limit because under California's Three Strikes Law, the prior convictions were subsequently utilized by a sentencing court in sentencing Simpson for a subsequent conviction for second degree armed robbery in 1996. Specifically, according to the district court, the prior convictions were "utilized by the sentencing court when they made the determination to give him [the sentence being served at the time of trial]" and thus "those prior strikes were not and do not wash out...regardless of the fact that they may be older than ten years." Moreover, the district court found that "one of the things that's utilized by the institution to determine the level of security, classification, location...is all based on the plaintiff's prior felony convictions." In other words, according to the district court, the Three Strikes law made it so that 10 years had not elapsed since Simpson had been released from the confinement imposed from his 1986, 1989, and 1993 convictions; instead, he was still confined in part due to those convictions.
On appeal, however, the Ninth Circuit reversed. It noted that it had previously concluded that the Federal Three Strikes Provision did not violate the Double Jeopardy Clause because, under the Provision, "the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest offense." The Ninth Circuit then found that the same reasoning applied to California's Three Strikes Provision. In other words, Simpson was not still confined due to his 1986, 1989, and 1993 convictions; instead, he was released from his confinement for those convictions more than 10 years before trial, and he was now serving a stiffened penalty based on the 1996 conviction. The Ninth Circuit thus found that Federal Rule of Evidence 609(b) applied to the earlier convictions, that the District Court failed to find that the probative value of these convictions substantially outweighed their prejudicial effect, and that the erroneous admission of these convictions more likely affected the verdict. The court thus reversed and remanded, a decision with which I agree based upon the plain language of Federal Rule of Evidence 609(b) and the Double Jeopardy-avoiding interpretation of the Three Strikes Provision.