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‘Juror No. 6’ stirs debate on sentencing

- 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.

Unique perspective

Mr. Caron brought a unique perspective about life in the nation's capital into the jury box. He knew both sides: the "official Washington" with its government buildings and tourist attractions, as well as the city neighborhoods hit hard by drug dealing and violence.

For more than two decades, Mr. Caron worked as an economist in downtown Washington at the U.S. Department of Agriculture. He helped figure out the logistics of getting U.S. food aid to foreign countries.

He also saw another side of the nation's capital. In 1979, he bought a home within blocks of where Rayful Edmond III - perhaps the most notorious drug dealer in city history - operated in the Northeast section of Washington.

"The first time I came over we were making spaghetti and I heard these pop, pop, pop sounds outside," Ms. Brennan recalled. "I said, 'How strange that people are setting off fireworks.'

"He said, 'Yeah, that's right, sure, they're fireworks.' "

In fact, the sounds of gunshots became routine in parts of the District in the mid-1980s, when crack cocaine spawned unprecedented gang violence. On a few occasions, Mr. Caron's front windows were hit by stray bullets. He was robbed twice. Police investigated a murder that happened near the couple's front yard.

After the Ball trial, he told his wife about a particularly testy moment in deliberations. Another juror dismissed something he said, telling him he was just a white man from Capitol Hill.

"He could have said something but he let it go," she said.

There were other things he would not let go.

"Can this be true?"

For 10 months - eight months of trial and two months of deliberations - Mr. Caron and his fellow jurors heard testimony about drugs, guns and violence in the Congress Park neighborhood of Southeast.

Ms. Brennan said she was naturally interested in how her husband was spending all of his time, but he never talked about the case until after the trial. Still, she got a clue once when the couple went food shopping.

"There wasn't any baking soda and I said, 'Why don't they have any baking soda? Who's buying all this baking soda?' " she recalled. Her economist husband replied matter of factly, "Oh, you need that to make crack cocaine."

After 10 months, the jury returned convictions against several of Ball's co-defendants, including murder charges against cohort David Wilson. Ball was acquitted on all but one charge, and none of the defendants were found guilty of taking part in a criminal conspiracy.

In his letter, Mr. Caron referred to a press release by the U.S. Attorney's Office last year, which was posted online, that said Ball and two co-defendants faced up to 40 years in prison.

"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.

"One of the reasons this juror's letter is so powerful, and seems likely to be continued to be used by those troubled by acquitted conduct, is that people view these issues in terms of defendants' rights versus government interests," said Douglas A. Berman, a sentencing expert and professor at Ohio State University.

"But what the juror's letter reminds us of is that there are a lot of other persons in our justice system who have an interest in the integrity of the process."