Monge v. California Page 2

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Media for Monge v. California

Audio Transcription for Oral Argument - April 28, 1998 in Monge v. California

Clifford Gardner:

Well, for purposes of the distinction between an appellate court's finding and a jury verdict, the distinction that the Court was referring to in Burks, the question is, should those two be treated differently?

There may be other reasons why a sentence enhancement trial is not subject to double jeopardy and we're certainly going to talk about those, I--

William H. Rehnquist:

I hope you will, yes.

Clifford Gardner:

--I suspect, but for purposes of the distinction between a trial acquittal and an appellate acquittal, Burk suggests that there's no rational reason why there should be a difference.

In both situations the treatment should be the same, otherwise the petitioner or the appellant is arbitrarily deprived of some right simply because the trial level fact-finder made the wrong call.

Sandra Day O'Connor:

Well now, historically I guess we have not thought that sentencing aspects are covered by the Double Jeopardy Clause for most crimes, have we?

Clifford Gardner:

That's correct.

Sandra Day O'Connor:

And if there were a judge imposing a sentence in a case and imposes it and then the defendant who is sentenced appeals on the ground that the judge imposed a sentence not authorized by law and prevails, then I suppose it would be remanded for resentencing.

Clifford Gardner:

Yes, it... I agree.

Sandra Day O'Connor:

You wouldn't be arguing double jeopardy here.

Clifford Gardner:

I certainly wouldn't, or certainly not here.

That would not be... under the Court's precedents double jeopardy plainly does not apply to decisions made at traditional sentencing hearings.

Sandra Day O'Connor:

Right.

Clifford Gardner:

That's not what this case is all about.

Sandra Day O'Connor:

But you say that this is different because of the special procedures that California employs in the context of this sentencing.

Clifford Gardner:

Yes.

In all respects the sentencing in this case is identical to a trial on guilt or innocence... proof beyond a reasonable doubt, notice, the right to confrontation, the right to a jury verdict--

Antonin Scalia:

California was foolish to provide those protections.

You're saying California should have simply left it up to the judge to find those aggravating factors by a preponderance of the evidence, and in that case if the judge was reversed you'd be able to send it back and have it found again, right?

Clifford Gardner:

--Well, I don't agree with the predicate that California was foolish for doing it.

I think there were sound policy reasons that the legislature had for giving these rights.

Antonin Scalia:

But your argument is so counterintuitive, that the more protection the State gives to the defendant the worse shape the State is in as far as being able to resentence if it's overturned on appeal.

Why do you want to punish the State for being more concerned about the prisoner's rights, and instead of letting the judge find it by a preponderance, saying, we're going to insist that it be found by a jury beyond a reasonable doubt?

Clifford Gardner:

I don't view it as punishing the State.

This is the argument that's been made by some of the amicus, the so-called no good deed goes unpunished, which is certainly--

Antonin Scalia:

I didn't think of that.

[Laughter]

Clifford Gardner:

--Then I'm sorry I suggested it.

[Laughter]

Ruth Bader Ginsburg:

But are you accepting... you are accepting that California, unlike the death situation where there has to be a procedure to present the mitigators and the aggravators and... that for this kind of sentencing it isn't required to have a trial-type hearing at all?