Caspari v. Bohlen – Oral Argument – December 06, 1993

Media for Caspari v. Bohlen

Audio Transcription for Opinion Announcement – February 23, 1994 in Caspari v. Bohlen

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William H. Rehnquist:

We’ll hear argument next in No. 92-1500, Paul Caspari v. Christopher Bohlen.

Mr. Jung.

Is that how you pronounce it, Jung rather than Jung?

Frank A. Jung:

Jung, Your… Mr. Chief Justice.

William H. Rehnquist:

Jung, Mr. Jung.

Frank A. Jung:

Yes, Mr. Chief Justice.

Mr. Chief Justice, and may it please the Court:

The case before this Court involves whether the double jeopardy principles of Bullington should be extended to noncapital sentencing proceedings, whether doing so would be Teague-barred, and, indeed, whether Bullington should be overturned.

The purpose of sentencing is to assure that the punishment fits the offender, and not merely the offense.

Defendant’s status, and not his conduct, is the linchpin of sentencing.

The rehabilitation of a defendant is a factor that the sentencer should consider.

Because sentencing focuses on the proper punishment, the Double Jeopardy Clause has never prevented a sentencer from imposing a higher sentence upon resentencing.

In fact, in United States v. DiFrancesco, this Court stated that the task is to determine whether the criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal.

This Court stated:

“We conclude that neither the history of sentencing practices, nor the pertinent rulings of the court, not even consideration of double jeopardy policy, supports an equation. “

The procedures required for sentencing a defendant as a persistent offender in Missouri include pleading the prior convictions in the indictment, or information, introduction of evidence of the defendant’s prior convictions at a hearing conducted outside the presence of the jury and prior to submitting the case to the jury, and a finding by the judge that the defendant is a persistent offender.

The statute allows for the use of presentence investigation reports and commitments as proof of a prior conviction.

Case law in Missouri has established that introduction… introducing certified copies of prior convictions and commitment reports is prima facie proof that the defendant is the person named in the prior convictions for the purpose of the habitual offender statute.

Once a prima facie proof is made, the burden shifts to the defendant to disprove the prior convictions.

If the defendant fails to rebut the prima facie proof, the trial court may rely on that prior… those prior convictions for invoking the habitual offender statute.

Ruth Bader Ginsburg:

But, Mr. Jung, what… the consequences of habitual offender in Missouri, do I understand right that the only consequence is that the judge… that the jury will no longer recommend the sentence, but that the range would be identical?

Frank A. Jung:

In this case, Your Honor, it would be.

But if it… in… not in all cases.

In… if a individual was convicted of a class B felony, the range of punishment then would enhance, as an habitual offender, to a class A felony, the rule within–

Ruth Bader Ginsburg:

But in this case the only difference was that the… the jury would not have an opportunity to set the ceiling–

Frank A. Jung:

–Yes.

Ruth Bader Ginsburg:

–For the term of incarceration.

Frank A. Jung:

That’s correct, Your Honor.

And also would affect his eligibility for parole under the guide… Missouri statutes.

As a persistent offender, there are consequences of when you would be eligible for parole consideration also.

Ruth Bader Ginsburg:

But it’s not like the usual add-on enhancement of a sentence… Missouri… is this scheme unusual?

That is that habitual offender status doesn’t mean you get an increased… you go up to a higher range.

It’s the same range.

Frank A. Jung:

In this case, Your Honor, that is correct.

It is not a mandatory such as a mandatory life imprisonment if you’re an habitual offender.

It would just… since he was already a class A felony, and one of the sentences within the class A felony is life imprisonment, it was still within that range, that’s correct, Your Honor.

Ruth Bader Ginsburg:

Do you know if this scheme is unusual, or are there other States that have it too where the range is the same?

Frank A. Jung:

I… my investigation of that, Your Honor, is… basically found that States are split on that issue.

Some States have that an habitual offender is subject to a mandatory life imprisonment.

Certain States, such as Illinois, have… where they are is within a range of punishment that is imposed by the judge, an enhanced range of punishment.

Antonin Scalia:

Mr. Jung, if you claim that applying Bullington in this case would be wrong, it seems to me, a fortiori, you must claim that applying Bullington in this case would be new?

Frank A. Jung:

That’s… that’s correct, Your Honor.

Antonin Scalia:

And so why isn’t all of this Teague-barred?

Frank A. Jung:

That’s… Your Honor.

That’s correct, Your Honor.

We have raised that this issue is Teague-barred.

The court below found that it was not Teague-barred, because they said you could stretch Bullington into the application of non… noncapital sentencing proceedings.

And our position is that stretching Bullington alone would be Teague-barred, because it is not dictated by past precedents of this case… this Court.

Ruth Bader Ginsburg:

So it’s your view that our choice is essentially between two things; either we hold it Teague-barred or we overrule Bullington, but there’s no way to say that this… to rule on the merits of this question if we incline toward your view?

Frank A. Jung:

I think, Your Honor, the Court could state that double jeopardy doesn’t apply to noncapital sentencing proceedings in and or itself, and not have to reach whether it is a new rule.

If this Court were to apply that… that Bullington doesn’t apply to noncapital sentencing proceedings, we wouldn’t have the issue of whether it’s Teague-barred.

If it’s… if this Court were to interpret that Bullington does apply to noncapital sentencing proceedings, then we would argue that it is Teague-barred because it would be an application of a new rule on a collateral appeal.

Ruth Bader Ginsburg:

And back… are you saying that we would get to the Teague question only if we are inclined to rule against you?

Frank A. Jung:

I believe so, Your Honor, even though I… there are cases that say Teague is a threshold issue, so it seems like it could be, in some certain situations.

Some cases have said that Teague is a threshold issue, saying that we have to look for–

John Paul Stevens:

Teague said that, didn’t it?

Frank A. Jung:

–I believe your… in Saffle v. Parks, I believe, also stated that also, Your Honor.

John Paul Stevens:

But, I mean, in Teague itself they didn’t reach the merits.

Frank A. Jung:

So it would be… we… I would concede that if you determine that this could be Teague-barred, and not rule on the merits.

That’s correct, Your Honor.

David H. Souter:

And it would be new.

The distinction would be made because of the heightened degree or the more expansive degree of discretion that is involved in the sentencing proceeding here, as distinct from the degree of discretion in the… in the Bullington situation.

Frank A. Jung:

That’s correct, Your Honor.

I think that this Court has always recognized that in noncapital sentencing proceedings, that there is a more greater emphasis to allow the jury to make that finding within the broader range of punishment, and they have a more expanded range of punishment which they can impose, unlike situations where it’s either life or death in capital situations, Your Honor.

Also under the Missouri statute, Your Honors, the trial court may take judicial notice of testimony regarding the defendant’s habitual offenses.

So, needless to say, that in Missouri the court could just not have to have a prior offender hearing separate and distinct.

He could recognize the testimony at trial and hold, in and off itself, based on that testimony, that the defendant is an habitual offender.

The fact that the presentence investigation and commitment reports can be admitted into evidence, along with the fact that a certified copy of the judgement and sentence establishes a prima facie evidence of prior conviction, demonstrates that habitual offender statute is a ministerial act.

Because Missouri’s habitual offender statute is a ministerial act, the Double Jeopardy Clause does not apply.

William H. Rehnquist:

Is there any indication–

–Well, it might not be a ministerial act if the defendant wanted to challenge some prior conviction on the ground that he had not been afforded counsel, or something like that.

Frank A. Jung:

That’s correct.

If the defendant were to challenge it, this burden would shift back to the defendant to prove that it was uncounseled.

He could not challenge the conviction, in and of itself, but he could challenge a constitutionality, such as it was an uncounseled guilty plea.

Ruth Bader Ginsburg:

Is there any indication why, the first time around, there was nothing in the record to show the prior convictions?

Frank A. Jung:

No, Your Honor, there is nothing in the record.

The only thing that is in the record, Your Honor, is at the trial… the prosecutor on the morning of trial, at a pretrial conference, stated that he was willing to proceed.

He had the prior convictions and was ready to proceed and demonstrate the prior offender, the statute.

But why it never occurred, we don’t know, Your Honor.

One of the purposes of double jeopardy is to prevent a defendant from being retried and convicted, although innocent.

However, the possibility of innocence of a sentence cannot occur, because a sentence… second sentencing decision is as correct as a first jury sentencing decision.

Even if the trial court determines that the prosecutor failed to meet the statutory obligation for establishing defendant to be an habitual offender, the prosecutor failure is not an implied acquittal of the prior convictions.

Nothing would prohibit the use of those prior convictions in a subsequent proceeding.

Prior to Bullington, the protections afforded by the Double Jeopardy Clause had never been extended to sentencing.

And since Bullington, this Court has never extended the Double Jeopardy Clause to noncapital sentencing proceedings.

In declining to extend the Double Jeopardy Clause to noncapital sentencing proceedings, this Court noted that the noncapital sentencing proceedings allowed for a broader range of punishment, rather than the life and death limitation imposed by a jury in capital sentencing proceedings.

William H. Rehnquist:

Now, what case was that, Mr. Jung?

Frank A. Jung:

That was in United States v. DiFrancesco.

The Court noted that the broader range of punishment, Your Honor, Mr. Chief Justice, was that the judge had to impose once he made the finding that the defendant was a dangerous special offender in that… in that case.

William H. Rehnquist:

But that… that was decided before Bullington, wasn’t it?

Frank A. Jung:

That’s correct, Mr. Chief Justice.

William H. Rehnquist:

So you really can’t say that that case decided that Bullington didn’t extend to noncapital cases, if it came before Bullington.

Frank A. Jung:

That’s correct, Mr. Chief Justice.

I think that Lockhart v. Nelson, this Court specifically stated that the issue was not before it at that time, and stated that the Court… because all the parties assumed that it did apply, but they didn’t address that issue and specifically left it open.

In extending the Double Jeopardy Clause to capital sentencing proceedings, this Court determined that the capital sentencing proceedings are unique because they so resemble a trial, the so-called uniqueness found by this Court in Bullington, including opening statements, testimony, introduction of evidence, jury instructions, final arguments, and jury deliberations.

These facts, coupled with the prosecutor’s requirement to prove certain statutorily defined facts beyond a reasonable doubt, and the jury’s limitation of imposing either life or death, led this Court to believe the Double Jeopardy Clause applied to capital sentencing proceedings.

Unlike capital sentencing proceedings, noncapital sentencing proceedings do not require the same… do not require the same unique characteristics.

Although a separate proceeding is required to establish whether defendant is an habitual offender under Missouri statutes, this proceeding is conducted before a judge and not a jury, and is conducted prior to the jury’s determination of guilt or innocence.

The purpose of the hearing is to determine if the judge or jury will determine the defendant’s sentence.

There are no opening statements, closing arguments, nor is there any instructions or jury deliberation.

The only common characteristics between capital sentencing proceedings and non–

John Paul Stevens:

May I ask, just to be sure I understand your position, supposing all those things were true, supposing you decided in Missouri to have the multiple offender statute… I forget the name of it… apply only after a jury found all the facts that the judge now finds, prior convictions and… would it make any difference to you?

Frank A. Jung:

–I don’t think so, Your Honor.

I think if you looked at the Bullington decision, there were three basic factors that led this Court to that decision, and one was a trial… only one of them was a trial-like proceeding.

The second one was the proof beyond the reasonable doubt, and the third one was the choice between life and death.

John Paul Stevens:

What is the standard of proof in this proceeding before us today?

Frank A. Jung:

Beyond a reasonable doubt, Your Honor.

John Paul Stevens:

So that does apply.

Then what’s the third thing?

Frank A. Jung:

The limited choice between life and death.

John Paul Stevens:

You think that’s different from a limited choice… say that… say the multiple offender had to have a mandatory sentence longer, say it was a little more severe than it is here, would that be a distinguishing feature then?

Frank A. Jung:

I think that could be considered, Your Honor, if you looked at it and you saw all three factors.

John Paul Stevens:

Yeah.

Frank A. Jung:

Then you could probably say it looked more like Bullington.

However, I think that, in this situation, Your Honor, it does not look like Bullington because we don’t have the… such as in the Texas habitual offender statute, which requires a mandatory life imprisonment, if the finding of the habitual offender statutes.

John Paul Stevens:

Is the main point that this… that here the judge does the sentencing, and in Bullington it was the jury?

Frank A. Jung:

I… case law, Your Honor, I believe states that there is no distinction between judge sentencing and jury sentencing, so that wouldn’t be that relevant, whether the judge or jury did the sentencing.

John Paul Stevens:

So as soon as you… as soon as you’ve acknowledged that, then the absence of instructions to the jury, of course, is just because it’s a judge, not a jury.

Frank A. Jung:

That’s correct, Your Honor.

But there is no… the issue is, basically, whether this is a trial-like setting.

John Paul Stevens:

Right.

Frank A. Jung:

Is this an adversarial proceeding.

And, we argue that it’s not an adversarial–

John Paul Stevens:

Even though it requires proof beyond a reasonable doubt, it’s not a trial-like setting.

Frank A. Jung:

–That’s correct, Your Honor.

I think that is… just not that factor, in and of itself, makes it a trial-like setting.

Mr. Chief Justice, I’d like to save the rest of my time for rebuttal.

William H. Rehnquist:

Very well.

Mr. Kelley, we’ll hear from you.

And then we’ll hear from you next, Mr. Sindel.

William K. Kelley:

Thank you, Mr. Chief Justice, and may it please the Court:

I want to make two points this morning.

The first is that the Court’s decision in Bullington v. Missouri is distinguishable from this case and does not control the outcome here, and the second point is that the Court ought not to extend Bullington to cover this case.

On the first point, we submit that the persistent offender determination in Missouri is quite unlike the trial-like process that was at issue in Bullington.

In the penalty phase of a capital case like Bullington, the procedure is very much trial-like.

The Court relied on that factor heavily in Bullington, and in this case, and in persistent offender determinations generally, those features are not fully present.

In a capital case like Bullington, because it was like a trial with a verdict, quote, on the question of life or death, the Court thought, and was willing to treat the outcome of that proceeding as though it were analogous to be a conviction or a verdict on the question of guilt or innocence.

The persistent offenders determination in Missouri is far different.

Unlike the penalty phase of a capital case, that determination is made by the judge at a hearing, not a trial, outside the presence of a jury prior to the case’s submission to the jury.

Sandra Day O’Connor:

Well, was it Rum… Arizona against Rumsey where we had a life or death determination determined by the judge, not the jury, and we said Bullington applied?

William K. Kelley:

That’s correct, Your Honor.

My point here, however, is that the hearing in this case is unlike the hearing that was at issue in Bullington, and also in Rumsey, in that it was not trial-like.

It was merely a hearing.

It was not… it did not contain the full measure of trial-like aspects that is typically at issue and present in the penalty phase of a capital case.

For example, in… under this statute, the defendant is not entitled to the full panoply of constitutional trial rights, there are no opening and closing arguments.

In short, the judge hears evidence and decides the factual question whether the defendant is or is not a persistent offender, and then the trial resumes.

Let me emphasize that the persistent offender determination is merely a sentencing factor.

It is not the outcome of the sentencing process, like a verdict or a decision on life or death.

It is one factor out of many that lead to the ultimate imposition of sentence.

Sandra Day O’Connor:

Well, do you take the position that Bullington should just be limited to capital sentencing proceedings?

William K. Kelley:

Justice O’Connor, our position is that Bullington’s rationale, under current sentencing practices, really only applies in capital sentencing proceedings in this country.

It’s quite clear that the decision in Bullington did not rest explicitly on the life or death nature of the inquiry.

But our point is that in the United States, historically and today, the sentencing process is typically much more freewheeling and much more discretionary and much more unfettered than is true in the capital sentencing process.

Sandra Day O’Connor:

Now, you take no position on whether this is Teague-barred?

William K. Kelley:

Your Honor, we did not address that issue in our brief because the Federal interest in this case, we believe, is on the merits of the Bullington question.

Sandra Day O’Connor:

Well, the Federal interest might also turn on a Teague determination in some cases, I would think.

William K. Kelley:

That is quite true.

I don’t want to misstate our position.

Our position is that Bullington ought not to be extended outside the capital context; i.e. the context where life or death determinations are made after a full trial-like process.

We think it’s quite clear, and we agree with the State, that this is… this case should be Teague-barred, that extending Bullington to this case would be a new rule.

Our primary concern, frankly, in this case is to preserve the integrity of the Federal sentencing system as enacted by the Sentencing Reform Act.

Antonin Scalia:

If it’s a wrong rule, it’s got to be a new rule, doesn’t it?

William K. Kelley:

We think that’s quite clear, Your Honor.

In fact, the court of appeals, in discussing the issue and whether it was a short extension of Bullington or an… indicated itself that it was an extension of Bullington.

And in that sense it clearly is a new rule, in our position… in our view.

John Paul Stevens:

May I ask if your view… supposing a State that did not have capital punishment and instead had life imprisonment without possibility of parole as a very… for very, very serious crimes, decided to impose a sentencing procedure that’s analogous to those that are used in the death penalty States, to be… because it’s such a serious crime, and they had all the trial-like procedures there; do you think Bullington would apply or not?

William K. Kelley:

Well, Justice Stevens, I think that would be a hard question.

John Paul Stevens:

Well, I think it’s a hard question.

William K. Kelley:

The rationale of Bullington would, of course, be applicable in that situation, and you would have to decide whether all of the features that were present in Bullington were present in that system.

John Paul Stevens:

Suppose all… see, my hypothesis, all of them are present except it’s a different sentence.

William K. Kelley:

Well, I have two responses.

First, this Court’s subsequent decision in Poland v. Arizona emphasized quite heavily the life or death nature of the decision in Bullington and was willing to treat that as an implied acquittal type situation.

But more… more importantly, it seems to me that the States are under no constitutional compulsion, in the case that you described, to provide such procedures.

So in such a case, a State would have the argument that it ought not have to pay the price of not being able to correct errors if it provides defendants with more procedures to which… than they are constitutionally entitled.

So there would be an arguable distinction in that case.

That, of course, is not a question the Court has to reach in this case.

John Paul Stevens:

But you would not… you don’t rest… neither of your grounds, then, rests on the fact that death is different from a noncapital case?

William K. Kelley:

No.

No, it does not, Your Honor.

The decision in Bullington did not rest on that.

William K. Kelley:

But let me emphasize again that the rationale of Bullington was that because there was this full trial-like process and because it was a question of life or death, an up-down, yes-no question, then the Court was willing to treat the outcome of that proceeding as though it were a verdict on the question of life of death, i.e. innocent or guilty.

That analysis stands alone in this Court’s sentencing cases relating to double jeopardy.

We submit that it should not be extended any further.

In this country there has never been, under traditional sentencing practices, any impediment to the correction of errors on resentencing.

This Court, in Poland v. Arizona, declined to extend Bullington outside the context in which it arose, that is where there was a full trial-like procedure with an ultimate determination of life or death.

Ruth Bader Ginsburg:

Mr. Kelley, your position is clear that Bullington should not be extended to the circumstances of this case.

I wasn’t clear on your answer to the Teague question.

If we accept your position, is there any way we can decide that question, or does Teague mean that we must say if we’re inclined to think it’s a wrong rule, then it’s surely a new rule, so we have to stop with the new rule.

William K. Kelley:

I think it’s quite plain, Justice Ginsburg, under the Teague analysis, that the new rule inquiry is a threshold question, so the Court could not reach the merits and rule in favor of the respondent in this case if it thought that would be a new rule.

Whether the Court could overrule Bullington in this case, even if extending it would be a new rule, is a different question.

We think that there would be a reason… reasonable ground on which to reach that question.

We, of course, have not urged the Court to overrule Bullington in this case simply because we think it does not require the State to lose here.

Ruth Bader Ginsburg:

So the end result of your argument, then, is that we should hold this claim Teague-barred?

William K. Kelley:

We think, Your Honor, that under Teague–

Ruth Bader Ginsburg:

If Teague is a threshold question.

William K. Kelley:

–And its progeny, that the claim clearly is Teague-barred.

We discuss the merits of the case and participate in the case on the merits both to inform the Court’s analysis of whether this would be a new rule; i.e. what are the contours of the Bullington analysis.

And secondly, and as I’ve said more importantly from our perspective, to make sure that whatever the Court says here, it does not cast doubt on the integrity of the Federal sentencing system as enacted.

John Paul Stevens:

It’s interesting.

If I remember correctly, you don’t even mention Teague in your brief, do you?

William K. Kelley:

No, we do not, Justice Stevens.

As I said, our… the Federal interest, really, here was in–

John Paul Stevens:

You would like us to go ahead and decide the case because you think maybe you can win it.

William K. Kelley:

–Well, that is not… that is not at all our position, Justice Stevens.

We’re agnostic on the Teague question.

We think however, of course, that an analysis of Teague would lead to this claim being Teague-barred.

Unless the Court has further questions, we’d ask the Court to reverse.

Thank you.

William H. Rehnquist:

Very well, Mr. Kelley.

And, Mr. Sindel, we’ll hear from you.

Richard H. Sindel:

Mr. Chief Justice, and may it please the Court:

In Missouri it is the legislator that is… legislature that is responsible for enacting the laws that govern the procedures utilized in the trial of criminal cases.

It is the legislature that establishes what is a criminal act and what punishment the actor deserves.

It is up to the courts to interpret and to enforce these procedures.

As the Court said in Missouri v. Hunter, it is the legislature, not the courts, that prescribe the scope of punishments.

In this case, the legislature set out in clear, unambiguous terms the exact procedure that was to be followed if the State wishes to increase the punishment and the scope of punishment for a prior offender, and deprive that defendant of his valued right to a jury determination of sentence.

Ruth Bader Ginsburg:

By increasing the scope of punishment, is just… but here isn’t it just a question of who sets the ceiling?

We were told that there is no difference in the sentencing range.

There would be a difference in parole eligibility.

Richard H. Sindel:

That is correct, Your Honor.

In this particular situation, because of the crime that was changed as a class A felony, and there is no higher punishment other than the range of a class A penalty unless, of course, it’s a capital crime.

Ruth Bader Ginsburg:

And the range is rather large.

Richard H. Sindel:

The range is 10 years to 30 years or life imprisonment.

Ruth Bader Ginsburg:

And so the only consequence, as I understand it, is that this case would have to go back, if you’re right, for an entire new trial before a new jury; is that right?

Richard H. Sindel:

That is State law, Your Honor.

Ruth Bader Ginsburg:

Because you couldn’t have a jury just come in for the penalty, not having heard the evidence.

Richard H. Sindel:

That is correct.

There are no separate bifurcated proceedings, except in the capital context, in the State of Missouri.

Ruth Bader Ginsburg:

So there would be a whole new trial, but then the jury would be faced with that same 10 to 30 year range.

Richard H. Sindel:

The jury would be instructed as to the range of punishment, if they were, in fact, to find him guilty of the offense as charged, robbery, first degree.

Ruth Bader Ginsburg:

Right.

So you could end up with the identical sentence if… that would be within the jury’s prerogative.

Richard H. Sindel:

You could end up with a larger sentence as well.

Ruth Bader Ginsburg:

Right.

Richard H. Sindel:

But in this situation, the most valued right that was lost to this defendant was his right to have that jury determine his sentence.

Ruth Bader Ginsburg:

So that… so that within a Bullington frame of reference, how can one say that the defendant has been acquitted of any portion of this penalty if, as you just said, he could get the very same penalty… in fact, he could get an even higher penalty?

Richard H. Sindel:

Our position is not at all that he was acquitted of the penalty.

Our position is that he was acquitted of the status determination that he is a prior or persistent offender.

It is that yes-no, either-or, fact-driven determination.

The State must prove, under the legislative enactments, beyond a reasonable doubt that this particular defendant has committed a felony in the past.

Richard H. Sindel:

They must do so by filing with the information or indictment, the convictions, the nature of the charge, the sentence that was imposed.

They must bring to the Court evidence beyond a reasonable doubt.

I have stood here and heard counsel refer to this as a hearing or as a ministerial act.

I do not know of other ministerial acts that must be proven beyond a reasonable doubt.

In this particular situation it is true that they could submit to the court certified records of the conviction.

They could use, if the defendant had testified, his testimony to try and establish the necessity required by the statute.

Ruth Bader Ginsburg:

How did they, in fact, prove the prior convictions the second time around?

Richard H. Sindel:

The second time there were submitted certified copies of the records, and the statute allows for certified copies to be utilized by the Court in making a prima facie determination as to whether or not the State has proved their case.

Ruth Bader Ginsburg:

So to that extent, it’s quite different from the assessment of life versus death, where you take into account aggravating factors, mitigating factors.

Here either you had a conviction or you didn’t.

A prior conviction existed or it didn’t exist.

Richard H. Sindel:

Well, that is true.

However, if the conviction exists, they still have the option… necessity of proving it.

It is not enough… for example, the State could not have been in a position where after the trial had been concluded, they then went to the appellate court and determined… decided, well, we forgot or we failed or we have now recovered the certified documents necessary to prove our case, and we want now to be able to submit those cases to the court and have a determination that this individual is a persistent offender, and enhance the punishment.

The State has no right to such an appeal.

But, in fact, the ruling by the court of appeals in this case gave them exactly that right.

It gave them that second bite of the apple, that second crack that the Double Jeopardy Clause precludes.

And, in fact, it violated the very statutes enacted by the legislature, by the State of Missouri, in order to enforce these particular provisions.

The State of Missouri, by its statutes, demands that this determination be made prior to submission to the jury simply because that is the only way to make sure that that individual is not deprived of his valued right to a jury determination of sentence.

In this particular situation, the court of appeals abrogated that and basically end run around the provisions of the statute, ignored the legislative enactments.

William H. Rehnquist:

Are you referring to the Missouri Court of Appeals or the Eighth Circuit?

Richard H. Sindel:

I’m sorry, the Missouri Court… State court of appeals, correct.

John Paul Stevens:

May I–

Richard H. Sindel:

It is also our position… I’ve heard… it is referred to as a hearing, but there is the option and opportunity to present evidence, and in other State proceedings evidence is often presented, in the terms of testimony, and the defendant has all the rights that are available to him at the trial.

William H. Rehnquist:

–What sort of evidence would you present if you… the issue is persistent offender, habitual offender, and the State comes in with certified copies?

Richard H. Sindel:

Well, if they… let’s say if I represent the defendant and we could contend, A, the identity of an individual named in the certified copies is not the defendant.

We can contend that he was not properly represented by counsel.

We could contend that it was not a voluntary plea of guilty.

We can contend that the court had no jurisdiction.

There are a number of factual issues that may, in fact, develop.

Richard H. Sindel:

And it’s also important to remember that in the Bullington case, the only evidence that was presented in the penalty phase at that trial was two copies of the records of conviction.

There was no testimony, either in aggravation or mitigation.

So that trial was as short and concise and complete as the trial that occurred in this particular case.

And it is a trial that occurs in this particular case.

All the hallmarks of a trial proceeding are present, as well.

William H. Rehnquist:

The second time around, did you present any evidence challenging the prior convictions?

Richard H. Sindel:

I wasn’t the attorney at that particular time.

William H. Rehnquist:

Well did the respondent’s attorney?

Richard H. Sindel:

I understand.

He presented no evidence, but he did make a long, lengthy, and aggressive argument, a closing argument.

William H. Rehnquist:

Unsuccessful, I gather.

Richard H. Sindel:

Unsuccessful is correct, Your Honor.

Sandra Day O’Connor:

Mr. Sindel, I guess there are decisions of various courts going both ways on whether Bullington extends to this kind of a noncapital setting.

Isn’t that so?

Richard H. Sindel:

There are decisions from State courts that hold that it doesn’t extend to noncapital settings.

The decisions–

Sandra Day O’Connor:

And they were out there before this decision was handed down?

Some of them, certainly.

Richard H. Sindel:

–Yes, I believe that’s correct.

I can’t say for myself exactly what State courts had decided or when.

Sandra Day O’Connor:

And the State courts in Missouri had, in the Lee case, said that this persistent offender proceeding is different from the capital sentencing proceeding within Bullington.

Richard H. Sindel:

State v…. State v. Lee relied on… and in fact the court indicated it was constrained by the application of the Supreme Court of Missouri in three or four other State cases, all of which were decided before Bullington.

And–

Sandra Day O’Connor:

But, I guess, it did say that the persistent offender scheme bears no similarity to the capital sentencing scheme in Bullington.

Richard H. Sindel:

–And I don’t believe that is correct.

Sandra Day O’Connor:

At least that’s what they said.

Richard H. Sindel:

That is what they said.

Sandra Day O’Connor:

Okay.

Now, do you think that under all these circumstances we have a Teague-bar problem here?

Richard H. Sindel:

Well, I believe–

Sandra Day O’Connor:

Is it a new rule that’s been adopted here under our precedents?

Richard H. Sindel:

–Your Honor… excuse me.

I do not believe that this is a new rule.

It is simply, as the Eighth Circuit Court of Appeals indicated, a logical step from Bullington.

There’s basically two distinguishing factors from Bullington to this particular case.

One is the existence of jury sentencing, and clearly that makes no difference in terms of the application of Bullington, as this Court decided in Arizona v. Rumsey.

And that also impacts upon, as Justice Stevens noted, whether or not there are jury instructions or deliberations.

All those things may not occur, and they didn’t occur in Arizona v. Rumsey other than the deliberation that takes place in the judge’s mind.

But in terms of the Teague issue, besides the fact that there was jury sentencing, which Arizona v. Rumsey says is not important, the only other distinction is death is different, which this Court… at the time that Bullington was decided every Justice had at least indicated that in some opinion or another.

But the Bullington Court specifically did not rely on the death-is-different argument.

In fact, it relied… it indicated in a footnote that we are not deciding this case based on the Eighth and Fourteenth Amendment positions that were represented by the petitioner at that time, and decided only on the double jeopardy issue that was presented.

So we do not believe… it was not the court of appeals’ words that they stretched the holding in Bullington to a… in an application of this case.

They said they did not believe it was stretched.

Sandra Day O’Connor:

Well, this Court has at least reserved the question of the applicability of Bullington in proceedings–

Richard H. Sindel:

In a footnote–

Sandra Day O’Connor:

–like this, and there are lower-court decisions going the other way.

It seems to me that you have a real problem under Teague.

Richard H. Sindel:

–I don’t believe that the existence of lower-court opinions, in and of itself, is enough to preclude an examination of this particular issue under Teague.

For example, in Stringer v. Black the same situation occured.

This Court had determined the fact that the Fifth Circuit Court of Appeals, in concluding that the Maynard v. Cartwright and Clemons v. Mississippi did not apply to the particular situation, was incorrect.

And if… if, in fact, the distinguishing characteristics that are brought up by the Court when they determine whether or not Bullington is different from these situations… and those distinguishing characteristics uniformly are, one, that death is different, which is not a Bullington issue; and the fact that it is a judge rather than a jury determination, which is not a Bullington issue; and the fact that this is… there has been a history in this Court of not recognizing that sentencing procedures are covered in the Double Jeopardy Clause.

Now, it is important to understand that in terms of making this sentencing decision, what we are talking about is the yes-no answer to the question of the status of the individual involved.

It is not the line drawing along a continuous spectrum or gradient of decisions concerning what is the appropriate number of years.

It is not our position that there is a correct number of years that the court is required to determine beyond a reasonable doubt.

What the court is required to determine beyond a reasonable doubt is whether or not the State has brought before them convincing evidence to prove that this individual is, in fact, a prior or persistent offender under the statutes of the State of Missouri.

David H. Souter:

Well, if that were the only issue in the proceeding, you’d have a comparatively strong argument.

But that is not the only issue in the proceeding, and in that respect the… it is different from the Bullington situation, because the degree of discretion that’s left is a broader degree of discretion than was left in Bullington.

Is that a fair statement?

Richard H. Sindel:

The… in terms of deciding the sentence, you’re correct.

But we are not appealing the sentence that was imposed.

Richard H. Sindel:

We are appealing from the fact that a status determination was made without any evidence to support it, and the State was allowed a second opportunity to return the court after failing completely–

Ruth Bader Ginsburg:

How are you not appealing the sentence?

Because what you’re saying is this case has to go back and be retried on guilt or innocence, and then have a jury determine the sentence, which will fall within the same range, but could be anywhere from 10 years to 30 years.

Richard H. Sindel:

–Every case which is returned to the court for determination as to whether or not… or a new trial, is going to have the possibility or prospects of a new or different sentence.

Ruth Bader Ginsburg:

So you’re appealing from a judgment of conviction and a sentence, and you’re seeking to get the sentence set aside.

Indeed, the conviction, because you have to have a whole new trial, under your theory.

Richard H. Sindel:

Under State law, that is correct.

Ruth Bader Ginsburg:

So it’s rather technical to say that you’re not appealing from the sentence.

Richard H. Sindel:

Well I… what I am trying to emphasize to the Court, that it is not… we are not appealing from the determination that a 15-year sentence is appropriate, as opposed to a 17-year sentence, as opposed to a 30-year sentence, as opposed to a 10-year sentence.

All those decisions are clearly within the discretion of the court, or the sentencing body, whoever it may determine… be.

But we are appealing from the fact that not only did the defendant lose his right to a jury determination of the appropriate sentence, a valued right in the State of Missouri, obviously a value right for any particular defendant, but also that that determination was made without the evidence that the legislature demands, if you are to follow the Missouri statutes.

And this particular situation, the court abrogated its responsibility to make sure that those statues were followed.

Harry A. Blackmun:

Mr. Sindel, did you argue Bullington here?

Richard H. Sindel:

I did, Your Honor.

John Paul Stevens:

May I ask a question about your statute?

I notice the procedure applies to a prior offender, persistent offender, or dangerous offender.

What… does the statute define the term dangerous offender?

Richard H. Sindel:

It does, Your Honor.

John Paul Stevens:

Does it… is it defined in terms of prior convictions, or just general behavior?

Richard H. Sindel:

Prior convictions, as well as the elements of the underlying offense of conviction.

John Paul Stevens:

Are there… is it conceivable that there will be issues of fact in a… say the charge was dangerous offender rather than persistent offender, that might involve more conflicts in evidence than just whether or not there was a certified copy of a conviction?

Richard H. Sindel:

That is correct.

In terms of the amount of evidence that’s necessary, there are… there could be a number of criminal trials in which a determination of guilt or innocence and a sentence could be imposed where similar evidence was presented.

For example, as this Court recognizes, the Double Jeopardy Clause applied in the United States v. Dixon, an individual can be found in contempt of court and be sentenced based on conduct simply by admission and judicial notice of the record that the individual had been served with the decree of the court; and if he had pled guilty to the underlying offense that resulted in the contemptuous behavior, a document indicating that that particular plea of guilty had occurred.

And those two documents, in and of themselves, would be sufficient to prove beyond a reasonable doubt.

So I don’t believe it’s the amount of time or the amount of witnesses or the quality or the quantity of the evidence that’s presented.

It is the burden that the State places upon the prosecution in order to make… reach that determination and the fact that they accord the defendant various constitutional rights that are the equivalent of what he’s–

John Paul Stevens:

May I ask you another question about Missouri procedure?

Supposing the defendant pleads guilty to the crime, the underlying crime, does the… but then he disputes the persistent or dangerous offender status, would there then be a separate hearing on those issues?

Richard H. Sindel:

–Yes, Your Honor.

John Paul Stevens:

I see.

Richard H. Sindel:

Although I would… I would suggest that that very infrequently happens.

John Paul Stevens:

No, but I suppose it could happen, if, say, the indictment had failed to allege the prior fact, or something like that.

Richard H. Sindel:

If the indictment had failed to allege or–

John Paul Stevens:

That’d be the end of the game right there.

Richard H. Sindel:

–That would be the end of the game.

Just like in Bullington if the State had failed to give appropriate notice of their intention to, in fact, proceed, and the evidence that they intended to use at the penalty phase, that would be… that would be enough reason, and of itself, for the trial court to basically preclude the application.

John Paul Stevens:

But it’s not too unusual, is it, to have a guilty plea on the merits and then have a hearing on sentencing, on mitigation and aggravation, even in a noncapital case?

Richard H. Sindel:

The only reason I say it, Your Honor, is that… I like to think of myself as a trial lawyer, as opposed to an appellate lawyer; I’m a little unfamiliar up here.

But in terms of situations like that, oftentimes in… those are results from negotiations and the negotiations go through that.

John Paul Stevens:

Well, I understand, but the judge isn’t always bound by the negotiations.

Richard H. Sindel:

If the judge in Missouri indicates that he is not going to be bound by the negotiations, then he will probably tell the parties that, and the plea may then go forward, but obviously the defense counsel would probably be well advised to search for a more lenient tribunal.

In–

Ruth Bader Ginsburg:

Your answer to the Teague question that Justice O’Connor asked is simply that the contrary authority was, as the Eighth Circuit said… they used some adjective besides mistaken… seriously mistaken, is that… that’s it?

Richard H. Sindel:

–That’s the adjective, I believe, that’s in the opinion, that’s correct, Your Honor.

In terms of dealing with the Teague issue, as well there’s also the exceptions of Teague.

And it’s our position that the Double Jeopardy Clause has especial implications as far as the first exception to Teague, which requires that new rules that place an entire category of primary conduct beyond the reach of the criminal law, or that prohibit imposition of a certain time of punishment for a class of defendants because of their status or offense.

Which is the application that was used by this Court in Penry v. Lynough and joined by all the Justices in making the determination as to whether or not there is a particular category in which an individual may be insulated from the determination or the application of the Teague principles.

And it’s our position that the Double Jeopardy Clause, in fact, does this, and does provide this sort of insulating protection to this particular defendant and to other defendants.

It’s very difficult, in many ways, to apply the double jeopardy principles to the Teague analysis in some ways, and this has been recognized by this Court in Robinson v. Neil when it determined that the double jeopardy applications in Waller v. Florida were to be retroactive.

And Benton v. Maryland–

William H. Rehnquist:

But that was long before Teague, though, wasn’t it?

Richard H. Sindel:

–That is correct, Your Honor.

To the best of my knowledge, this situation is the first time that the Court has had to address the double jeopardy implications in a Teague… in light of Teague.

But the difficulty with Teague… for example, one of the exceptions in Teague talks about the accuracy of the proceedings and the fact-finding proceedings.

The difficulty with applying the double jeopardy principles is double jeopardy is not necessarily concerned with accuracy.

William H. Rehnquist:

You mean that it doesn’t come under that justification for accepting Teague?

Richard H. Sindel:

It… there are, obviously, in the cases throughout this Court’s opinion, that accuracy is one of the underlying concepts in the application of the Double Jeopardy Clause, for fear that the State use… with use of their resources over and over, will undermine the defendant and eventually be able to obtain a verdict, even though he may be innocent.

David H. Souter:

But you’re concerned… or we are concerned in this case with an entirely different accuracy concern, and that is the concern for adequate evidence before making a determination.

So that in point of fact, to apply… to allow the rehearing on this issue is going to enhance the possibility of accuracy, not undermine it.

Richard H. Sindel:

That… that is conceivably correct, Your Honor.

But in every situation in which the Double Jeopardy Clause, there is the possibility that the actual determination of the… that the offender is guilty or not guilty may be undermined or undervalued.

And, in fact, this Court in Ohio v. Johnson and United v. Scott… United States v. Scott, the Chief Justice indicated that that is not the determination, as to whether or not he is, in fact, innocent.

It’s whether or not there’s been a proceeding that has occurred in which the State has had that opportunity to present its evidence.

And in this particular situation, they had the opportunity.

David H. Souter:

Well, that’s good double jeopardy analysis, but I don’t think it gets you where you want to go under the second Teague exception.

Richard H. Sindel:

I do not believe that our position… I’d like to tell the Court that our position under the second Teague analysis is pristine and easily determined.

I don’t believe it is.

And that is because the double jeopardy precludes the trial from taking place so that there is no accuracy determination, there is no fact-finding process.

And as this Court recognized in Robinson v. Neil, in a trial, a second trial could be perfectly fair.

It could have… it could be the best trial in the world, but that isn’t the situation, and that’s why Robinson v. Neil held that double jeopardy application had to be retroactive, and that’s why Ashe v. Swenson said that Benton v. Maryland was retroactive, because the procedures there were to stop the second trial from taking place at all.

William H. Rehnquist:

Yes, but it wasn’t in the name of accuracy that they did it.

Richard H. Sindel:

In the Robinson case?

William H. Rehnquist:

Well either Robinson or Ashe against Swenson, I don’t think.

Richard H. Sindel:

Well, Ashe v. Swenson obviously had some concerns for accuracy because the individual was acquitted the first time around.

They said, you know, you basically had your shot.

William H. Rehnquist:

Yeah, but to say you basically had your shot is counter to accuracy, it seems to me.

If you say, well, the second time around we’ve got more evidence and, you know, both sides can marshal their resources better, that’s a good argument for accuracy.

But the argument of double jeopardy is you shouldn’t have a second chance, but that’s not an accuracy argument.

Richard H. Sindel:

In Ashe v. Swenson, however, the concern was, that as the State admitted at that… in that particular proceeding, was that we had used the first trial simply to hone our strategies as a dry run on the subsequent trial.

And the Court recognized clearly in that particular situation, that that was an accuracy determination.

I think, however, as far as the exceptions under Teague, our stronger argument is under the first exception under Teague.

Clearly, this is a situation in which this defendant would be insulated from any persistent offender status by the failure of the State to present adequate evidence at the first hearing.

Ruth Bader Ginsburg:

As far as that evidence is concerned… and I perhaps didn’t understand an answer you gave to Justice Stevens’ question.

As I understand this statute, the prior offenses, it’s just the existence of the felony.

There’s nothing in here that indicates that the circumstances of the felony are relevant.

A persistent offender is one who has pleaded guilty to or found… been found guilty of two or more felonies committed at different times.

It doesn’t say anything about the character of the felonies.

Richard H. Sindel:

The character of the felony is the felony itself.

In other words–

Ruth Bader Ginsburg:

The felony of indictment, but not the prior felonies.

In other words, to establish that someone is a persistent offender, you wouldn’t have to show anything about the character of the prior convictions except that they were convictions for felonies.

Richard H. Sindel:

–That is correct.

And–

John Paul Stevens:

Of course, that’s not true of the dangerous offender.

Richard H. Sindel:

–No, that is not true with the dangerous offender.

John Paul Stevens:

There is goes to the character.

Richard H. Sindel:

But it is true of the prior and persistent offender.

Ruth Bader Ginsburg:

Which is what we’re dealing with here, if it’s a persistent offender?

Richard H. Sindel:

That is correct.

That is the allegations that were made, and that was the proof that was accepted when the State got their second crack.

We believe that… in terms of the Teague analysis, that a persistent offender or someone who has been charged as a persistent offender is a category of defendants that would be insulated, then, from the possibility of prosecution, and the State would be precluded from, you know, relitigating the persistent offender status on that particular crime and that particular case.

I think it’s important to understand that in terms of the Bullington decision and what had occurred, I had heard it referred to that it did not have the hallmarks of the trial.

But I believe that, in particular, this proceeding required all the hallmarks of the trial.

The defendant was afforded his Fifth and Sixth Amendment rights, his right to counsel, his right to confront and cross-examine witnesses, and his right to present evidence on his own behalf.

The State was required to prove their burden beyond a reasonable doubt, and failing that, the judge was entitled or should have acquitted him.

And, in fact, if the judge had made the appropriate determination in this case and had said that, yes, you have failed in any way to bring before me any evidence… and I stress, as the Eighth Circuit did, they brought no evidence before the court to indicate that there was any prior convictions.

In that particular situation, then, the judge would have made the appropriate ruling and the case would have gone to the jury that would have been the end of the situation.

For some reason unbeknownst of the parties, the courts and the prosecutors failed to, in any way, indicate on the record what the situation was and why that occurred, even when requested to by the court of appeals, and the case was then sent back.

I would like very briefly to address the concerns that have been raised by the Government concerning the application of any decision in this case to the possible sentencing guidelines.

I think there are a number of distinctions that can be drawn from the case involving Mr. Bohlen and, in fact, the situation involving the sentencing guidelines.

First of all, the standard of proof is significantly different; the preponderance of the evidence that’s sufficient for the Government to carry the weight in the sentencing guidelines situations.

And also the Court… this Court recognized in Poland v. Arizona that they’re not going to break up that sentencing determination into several groups of minitrials.

But this is a situation, in this case, where there is one verdict that was reached, and that is whether or not this individual had been… should properly be classified as a persistent offender.

The State failed in their first opportunity to convince the court that that was appropriate.

They should not have been given a second opportunity.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Sindel.

Mr. Jung, you have 5 minutes remaining.

Frank A. Jung:

Thank you, Mr. Chief Justice.

John Paul Stevens:

Before you start, can I just ask you one question?

Frank A. Jung:

Yes, Your Honor.

John Paul Stevens:

Your questions presented do not mention the Teague issue.

Is that right… correct?

Frank A. Jung:

I believe it’s encompassed… fairly encompassed in the first question, Your Honor.

John Paul Stevens:

It doesn’t mention Teague.

And you just… at the end of the brief you did.

I thought it was sort of like our Izumi case, that it was discussed in the briefs but not in the question.

Frank A. Jung:

No, Your Honor.

Well, Your Honor, in the Izumi case this Court stated that the Teague was fairly included in the first question, and we feel that if we’re asking should it be extended, that fairly encompasses if it is extended–

John Paul Stevens:

Well, the first question doesn’t say anything about extending.

It just says should apply.

Frank A. Jung:

–Well, should apply.

Well–

John Paul Stevens:

That, you think, implicitly raises a Teague issue?

Frank A. Jung:

–We believe so, Your Honor.

In any event, this… the Court also noted that if it raises… decides an important question, even if it’s not raised in the question presented, you can still decide it.

So you can still decide it, since it does raise an important question.

Plus since it was not objected to–

Sandra Day O’Connor:

Well, that’s part of what Izumi was all about, wasn’t it?

Frank A. Jung:

–Pardon me, Your Honor, that it wasn’t an important question or it wasn’t–

Sandra Day O’Connor:

Well, the circumstances under which we will address things that aren’t raised in the Petition for Certiorari.

Frank A. Jung:

–That’s correct, Your Honor.

But it was also raised for the first time in the brief in Izumi.

And the Court noted that even if we decided the question, it wouldn’t be an important question.

It would only address this case and it wouldn’t help the general interest because they would have to decide whether the… they had standing, rather than whether the dismissal… the summary judgment dismissal, I believe it was, would–

Ruth Bader Ginsburg:

The intervention, whether the Federal circuit erred in refusing to allow Izumi to intervene was not a cosmic question.

Frank A. Jung:

–Correct, Your Honor.

They said to decide that wouldn’t be that important of a question.

Plus also in Izumi, we think, is distinguished because in Izumi it was objected to.

Frank A. Jung:

In the respondent’s brief there was no objected.

We would assert there’d be a waiver in that situation, to the issue.

The issue that I’d like to raise here on rebuttal, Your Honors, are that respondent seems to assert that we’re not looking at the double jeopardy applying to sentencing, we’re determining to the status.

Clearly, if they’re asking it to apply to a status, it would be a new rule implication, because this Court has never decided that it applies to the status of an habitual offender.

The status is no different from the factual question of sentencing, but it is a distinction that a court has made.

The issue of whether double jeopardy applies to noncapital cases is subject to debate, as Justice O’Connor has noted.

In a recent case in which… we informed respondent’s counsel, and was decided only a month ago in Illinois.

In People v. Levin, the Illinois Supreme Court declined to apply the Bullington to a not… their habitual offender statute.

And it shows that reasonable jurors can disagree.

In fact, in the Lee case, the Lee case did discuss the Bullington and distinguished… it said this is not Bullington.

We think that’s a good-faith analysis of the existing precedent at that time.

As to the exceptions, surely respondent is not stating that an habitual offender is a protected class which should be implied under the first exception under Teague.

Are we encouraging habitual offenders, to state that you are a protected class of individuals that obtain a right, that will not be punished because of the new… because of an enactment of a new rule?

I would disagree with that, Your Honors.

Lastly, as I think the Court noted, was there is a distinction regarding the accuracy.

As Justice Souter pointed out, this gives a more accurate consideration for the jury or for a sentencer to impose, knowing the background of a defendant.

Whether it be a judge or jury, they should have all rights of the facts… history of the defendant.

Even in capital cases, this Court has decided that juries should have the broadest spectrum of information of a defendant’s background before deciding his fate.

That would make it more accurate, the same way as this… this situation.

John Paul Stevens:

But would you make the same argument if there were a dangerous offender and the issue was whether or not the particular crime had all the aggravating circumstances attached to it that the State relied on?

Could you have a second trial on that kind of issue in the same way?

Frank A. Jung:

I think in that situation, Your Honor, it would be different.

I–

John Paul Stevens:

And this statute does cover that very situation, doesn’t it?

Frank A. Jung:

–That’s correct, Your Honor.

But that statute… that section of statute has not… is not in the law journal.

John Paul Stevens:

No, I understand, but your argument applies to it.

Frank A. Jung:

Thank you, Your Honors.

William H. Rehnquist:

Thank you, Mr. Jung.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.