Continued from page 2

“Can this be true?” he asked in his letter to U.S. District Judge Richard W. Roberts, noting the jury acquitted the men of conspiracy and racketeering charges accusing them of running a gang called the Congress Park Crew.

“Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it,” Mr. Caron wrote in his letter. “Racketeering? We dismissed that even more quickly.”

But in a sentencing memo, prosecutors called for a 40-year sentence for Ball on the basis of, among other things, “ample evidence” that Ball was the leader of a criminal conspiracy.

Other “acts of violence, witness intimidation and other obstructive acts,” prosecutors argued, “show what a true danger Ball is.” The prosecutors also said they were asking for a tougher sentence for Ball not on the basis of acquitted conduct, but uncharged conduct - or actions the jurors were never asked to consider.

By contrast, defense attorneys called the jury verdict a “virtually total rejection” of the case against Ball.

Policy debate

Mr. Caron authorized the publication of his “Juror No. 6” letter in The Washington Times as part of a story on the Ball case last year. Weeks after his unexpected death in July, his letter continued to circulate among legal Web sites and soon found its way into a federal appeals court ruling.

Last summer, Myron H. Bright, senior judge for the 8th U.S. Circuit Court of Appeals in St. Louis, cited the words of “Juror No. 6” in asking the Supreme Court to reconsider the use of acquitted conduct sentencing.

Mr. Caron’s letter also was cited in a recent appeal sent to the Supreme Court in the case of Roger Clayton White, a bank robber serving more than 20 years in prison. His sentence was increased on the basis of gun charges on which he was found not guilty, according to his attorneys. The Supreme Court turned down the case in April.

There remains sharp disagreement about whether the high court ever will revisit the issue. And unwittingly, perhaps, Mr. Caron has put himself in the middle of that debate.

William Otis, a former assistant U.S. attorney for the Eastern District of Virginia and former member of the Attorney General’s Advisory Committee on sentencing guidelines, said courts have long allowed acquitted conduct sentencing.

“Judges decide what the sentence should be, based on a variety of factors that are never charged much less proven …,” he said.

“An acquittal doesn’t mean a defendant didn’t do it,” he said, citing the O.J. Simpson murder case as an example. “It means the government did not prove beyond a reasonable doubt to the unanimous satisfaction of a jury that the defendant did it.”

In 2005, Mr. Otis noted, the Supreme Court ruled in U.S. v. Booker that sentencing facts did not have to be proved beyond a reasonable doubt, but judges can take into account facts shown by a preponderance of the evidence, too.

But others say the use of acquitted conduct sentencing undermines the important work of jurors such as Mr. Caron.

Story Continues →