- The Washington Times - Sunday, May 3, 2009

Jim Caron spent 10 months on a federal jury in Washington in 2007 that voted to acquit a D.C. man accused of racketeering, murder and dozens of other charges, convicting him solely on a $600 drug deal.

Months after the verdict, Mr. Caron learned prosecutors still wanted to send the defendant, Antwuan Ball, to prison for 40 years. “He was furious, he was absolutely furious,” recalled Mr. Caron’s wife, Mary Brennan. “He told me, ‘I’m going to write a letter to the judge.’”

Signing his letter “Juror No. 6,” Mr. Caron wrote, “It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.” Mr. Caron, 60, died unexpectedly a few weeks later from an apparent heart-related illness, but his letter has found a life of its own.

Quoting a person they know only as “Juror No. 6,” a handful of senior federal appeals judges and attorneys across the country are citing Mr. Caron’s letter - including in a recent brief sent to the U.S. Supreme Court - in railing against a little-known practice called acquitted conduct sentencing.

The policy lets federal judges mete out tougher sentences based on what lawyers call “acquitted conduct,” or the criminal charges for which a defendant has been acquitted in court.

Read Jim Caron’s letter by clicking here.

Gilbert S. Merritt Jr., senior judge on the 6th Circuit U.S. Court of Appeals, recently quoted Juror No. 6 in a dissenting opinion he filed with five other judges in a case in Kentucky.

“The juror’s reaction is the same, I believe, as the reaction that the drafters of the Declaration of Independence, the Constitution and the Sentencing Reform Act of 1984 …” the judge wrote of Mr. Caron.

“It undermines public respect for the law when a judge overrides a jury acquittal,” Judge Merritt said in a phone interview. “And this letter that this fellow wrote is a good example of why.”

Not everyone agrees. Many judges hold that acquitted conduct sentencing is widely accepted and note the policy has been upheld by the courts. Indeed, they point out that judges can take all sorts of conduct into account when sentencing a defendant, just so long as the sentence falls within the minimum and maximum terms allowed under the law.

The question at the heart of the debate about acquitted conduct is whether a defendant should get a longer sentence based on charges on which the jury didn’t convict him.

While Ball’s attorneys say he should be released within a few years under federal sentencing guidelines, prosecutors point out those guidelines are advisory, not mandatory. They say the maximum sentence for Ball’s crime is 40 years in prison. His sentencing is pending.

Either way, Mr. Caron’s letter has captured the attention of judges and lawyers alike. Ms. Brennan said her husband would have “gotten a kick” out of the attention, though he never would have imagined his letter would be commented upon by federal judges in other parts of the country. She said he wrote it simply because he was upset.

“That was Jim,” she said.

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