Argument Tues., 11/7/06: The significance of “reasonable doubt”

By Lyle Denniston
on Nov 6, 2006 at 8:05 am

Six days ago, the Supreme Court weighed the constitutional importance of criminal trial procedures to implement the Confrontation Clause. On Tuesday, at 11 a.m., the Justices will make a similar inquiry – this time, about the “reasonable doubt” standard. This will come as the Court considers whether to make retroactive, to earlier cases, its 2004 decision in Blakely v. Washington. The new test case is Burton v. Stewart (05-9222). The case also has implications for potential retroactivity of two other major criminal procedure rulings — Apprendi v. New Jersey in 2000 and U.S. v. Booker in 2005.

Burton, likely Apprendi, Blakely and Booker, is about criminal sentencing. This provides the context for the Court to look at the retroactivity question. In deciding whether a new Supreme Court decision on criminal procedure is to be applied to habeas cases that arose before the decision emerged, the Court looks at the role that the procedure may play in assuring that a criminal trial is fair. If the procedural rule breaks new legal ground, it generally is applied retroactively only if it involved a “bedrock principle,” a “watershed” rule that helps to assure fair trials.

Apprendi began a series of rulings reinforcing the role of juries – rather than judges – in making the factual findings that can lead to enhanced criminal sentences. Blakely followed in 2004, applying the Apprendi principle to enhanced sentences under state guidelines systems, and a year later came Booker, extending the principle to the federal Sentencing Guidelines regime. The Court has not considered whether to make Apprendi and Booker retroactive, but that may ride on the outcome of the Burton case Blakely. Indeed, some of the briefs filed in the Burton case make the argument that all three should be made retroactive. Other briefs, of course, insist that no sentencing procedure ruling should qualify for retroactivity. (Last Tuesday, the Court, in Whorton v. Bochting, 05-595, confronted a similar dispute over potential retroactivity. That involved Crawford v. Washington in 2004, limiting the use of out-of-court statements not subjected to cross-examination and thus in violation of the Confrontation Clause.)

The Burton case involves Lonnie Lee Burton, a Washington state man who is serving a sentence of 562 months – 46 years and seven months – after being found guilty of raping a 15-year-old boy, and guilty of robbery and burglary. Burton got heavy sentences within state guideline ranges for each of the crimes, but the judge enhanced them into consecutive sentences based on facts found by the judge, not the jury. Burton, in a habeas case filed in early 2002, claimed, among other arguments, that his consecutive sentence as imposed by a judge violated the Apprendi principle.

While his case was pending on appeal, the Supreme Court decided Blakely. The Ninth Circuit ruled that he could not rely on Blakely, because his habeas case preceded it, and Blakely is not to be applied retroactively. The Supreme Court granted Burton’s test of the retroactivity issue last June 5, the briefs are now in, and oral argument is set.

The case will be argued for Burton by Stanford law professor Jeffrey L. Fisher. Arguing for the state, in opposing retroactivity of Blakely, will be state deputy solicitor general William Berggren Collins of Olympia, Wash., supported by Matthew D. Roberts, an assistant U.S. solicitor general arguing the federal government’s opposition to retroactivity.

The Court has agreed to decide two issues in Burton. The first question is whether Blakely broke new legal ground (as the Ninth Circuit ruled) or whether, as Burton argues, it was simply following Apprendi (which would make it retroactive). The second question is, if Blakely did lay down a new rule, does it qualify for retroactive application to prior habeas cases (the Ninth Circuit said no, Burton argues yes).

The Court has already ruled against retroactivity in one post-Apprendi sentencing decision. In Ring v. Arizona in 2002, the Court applied the Apprendi principle on jury fact-finding in sentencing enhancement to require that juries find the aggravating factors necessary to make a person convicted of murder eligible for the death penalty. But, in 2004, in Schriro v. Summerlin, the Court ruled that Ring was not to be applied retroactively in federal habeas cases.

The Ring decision, however, only dealt with the part of Apprendi that assigned the fact-finding role in enhancement to juries. It did not deal with the part of Apprendi – later applied in Blakely – that requires that any facts that lead to enhancing a sentence must be found by the jury “beyond a reasonable doubt.” It is the potential application of this reasonable doubt standard retroactively that is directly at issue in Burton.

Those who oppose making Blakely (and Apprendi and Booker) retroactive argue that the Schiro v. Summerlin decision should lead to a ruling that no part of those decisions on sentence enhancement are to be applied retroactively. They contend that Blakely is a new rule, not a followup to Apprendi, and as a new rule does not qualify as “bedrock” or “watershed” in significance. (Some of those opposing Burton’s appeal on this issue are also arguing that Burton should not have been allowed to pursue his habeas claim at all, because it was not properly filed. It is unclear whether the Court would get to that issue as a prelude.)

Burton – and amici supporting his side — counter that the Summerlin decision did not address whether the reasonable doubt requirement for sentence enhancement facts did meet the “bedrock principle” requirement for applying a new procedural rule retroactively in habeas cases. Burton’s brief argues: “This Court has never wavered from the proposition that the right to trial by jury…is fundamental to the American scheme of justice.” And, it goes on, the reasonable doubt standard is of overwhelming importance to the jury trial right. Thus, a good deal of the argument Tuesday may focus on just how vital the reasonable doubt standard is to guaranteeing fair criminal trials.