Norman L. Sirak
Case # 3:01CV7436
Progress Report

Progress Report for January 14, 2005
To : Clients and Sponsors                                                                  

In my Progress Report for July 23,2003, I discussed a very important U.S. Supreme Court decision relating to sentencing called Blakely v. Washington. Blakely held that all facts bearing upon the duration of a sentence must be submitted to a jury and found to exist beyond a reasonable doubt, or acknowledged in a plea, before a criminal defendant could be sentenced for this time. Further, if a criminal defendant qualified for a guideline range narrower than the statutory range (for example, guideline 9 of 7 to 10 years as opposed to 5 to 25 years), then the narrower guideline range applied and defined the maximum time that could be issued for this crime. Blakely involved the exercise of discretion by a state judge.

In our case, discretion is exercised by administrators (i.e. a Parole Board). If a judge lacks discretion, it is would appear obvious that administrators cannot assign additional. However, back in July, we knew that we would not have to wonder long about this question. The 2nd Circuit certified a question to the U.S. Supreme Court asking if Blakely invalidated the Federal Sentencing Guidelines, a product of administrators. These cases were placed on a fast track. They were the first cases argued and they are the first cases decided. The results were reported on Wednesday, January 12th. Once again, we have been blessed with very good news.

New Supreme Court Decisions - Striking down Federal Sentencing Guidelines

I read the syllabus for U.S. v. Booker and U.S. v. Fanfan from the Supreme Court website, but I have not yet read the decisions and dissents in their entirety. This is my reading of these decisions, based upon the Court's holdings.

The decision is broken into two parts authored by two different Justices, which is very, very rare. Justice Stevens wrote the first part, which is clearly the most important part. Justice Stevens' opinion construes the 6th Amendment and its impact upon sentencing. Joining Justice Stevens is the same group that decided Blakely, Scalia, Thomas, Souter and Ginsberg. Yes Virginia, the most conservative judges have joined the most liberal members. Justice Breyer's second part merely discusses the continuing validity of the Sentencing Guidelines. Joining Breyer is the Blakely minority group - Rehnquist, O'Connor and Kennedy - with one break away justice from the majority - Ginsberg.

Stevens' opinion is by far the most important part, and states that the Sixth Amendment requires any fact that can have a bearing upon the duration of a sentence to be submitted to a jury and found to be true beyond a reasonable doubt, or to be acknowledged as true by the criminal defendant in a plea. 

Breyer's part affects the continuing validity of the Federal Sentencing Guideines. The Stevens faction was probably in favor of striking down these guidelines or, if not striking them down in their entirely, striking down even the suggestion of a guideline that differed from facts found to exist by a jury or in a plea. Breyer's group adopted a surgical approach to the problem. They struck down only portions of the Sentencing Guidelines which make these rules mandatory. The guidelines themselves remain on the books as advisory. 

The liberal knee-jerk reaction would be to look at Breyer's decision as a set-back and favor deleting all mention of guidelines. On further reflection, I believe Breyer's decision will be more beneficial to our cause, and this is why. If the Court had struck the guidelines down entirely or taken a broader stroke and deleted the suggestion of guidelines, these acts would probably trigger a reaction from the legislature. Congress might to try to restore the advisory guidelines and add new angles that could create new headaches. By taking this surgical approach, Congress will not be as inclined to pass new legislation, because the legislation passed might not look much different from the Act surviving this decision. [I suspect that Ginsberg, a former ACLU chief counsel, viewed it in this light - namely that this route stands the best chance of dodging any backlash from Congress - and if I am right, it explains why she switched sides.] 

The conservative block in Congress can also not take much comfort in the view that another Supreme Court justice could tip the scales and reverse these decisions, because the two most conservative Justices, Scalia and Thomas, are in the majority. For these reasons, I think the Breyer decision is actually the wiser route. Breyer's decision anticipates and frustrates congressional reaction by leaving current sentencing guidelines in a form roughly similar to any new legislation. 

I also think the Breyer decision will work out better in a practical sense. While a judge still has the latitude to impose a sentence incorporating a fact that has not been found beyond a reasonable doubt by a jury or acknowledged in a plea, making this decision would invite an appeal, standing a good to excellent chance of getting reversed. I know for a fact that judges hate to see their decisions reversed and take these matters seriously, sometimes personally. Instead, I see the whole area of jury instructions changing. Every fact that can affect the duration of a sentence will be submitted to a jury. A plea will reflect the same phenomenon. Judges will issue sentences that agree with the plea or the jury verdict, which is completely consistent with what the Stevens's decision requires. In due course, I see these guidelines finding their way into pleas and jury instructions. Ten years from now when this new procedure becomes fully integrated into the texture of criminal practice, students will wonder why this decision ever raised such a ruckus. 

Wilkinson v. Dotson Argument on December 6, 2003 

We were not invited to participate, so we had to wait like everyone else to find out what transpired. Recently, we discovered a transcript of this argument on the web site for the U.S. Supreme Court. We are now seeking permission to post this transcript on our website.

I had to read this transcript three times before I picked up the drift of what took place. At least in my mind, I imagined nothing but eloquent wisdom coming from justices, particularly justices I respect. Reading the transcript, you find them talking just like us. At times, they struggle to express themselves. Their speech is peppered with hanging sentence fragments. I also recognized by the third reading, that this was just another day at the office for them. These justices have been working together for ten years. Imagine working with seven other people for ten years. As a consequence, they are very comfortable with one another. 

The transcript begins very choppy. You read statements coming from a justice that is totally at odds with their published prior decisions. Eventually, it dawned on me that these were devil advocate questions. In a few cases, their comments take the discussion completely off track. Justice Breyer brings up two cases found by his law clerk which were about prison conditions, but occurred in habeas corpus, where only immediate release is to be decided. This little detour did not help anyone. Johnson's attorney did a very good job of reacting to this and other comments from far left field. 

After this inauspicious (i.e. ill-omened, or unlucky) beginning, the Justices finally began cornering the key issue around page 35 (of 50 pages in total). At his point, Justice Souter is on our side. Justice Kennedy favors the state's position. Justice Breyer begins this passage by asking a rhetorical question, what harm would be done if we forced all of these cases to go the route of habeas? 

It was obvious to me that the Justices had not read even the merit briefs closely, let alone the amici briefs, because questions are asked that would not come up if briefs had been studied. All of these briefs will be thoroughly studied before any decision is issued. Our brief clearly spells out the harm. Every inmate in the country subject to parole owes a debt to you, because Ohio inmates have spelled out the harm in detail and directly answered Justice Breyer's critical question. 

Johnson's attorney answers that such a rule would significantly expand Habeas jurisdiction and provide the state with a license to violate civil rights. Breyer responds that we'll just catch them in habeas. Johnson's attorney responds that the state exhaustion requirement would make it much tougher to bring these violations to a Federal Court's attention. At this point, a light bulb seems to light up in Breyer. He understands for the first time why the state wants this to be routed to habeas. Taking this long to see this key fact is a further reflection of how Justice Breyer had not done his homework. Other justices choosing to remain quiet were also probably unprepared and, no doubt, found the point equally enlightening. 

Now, Justice Souter steps in. Souter notes that habeas jurisdiction would be greatly expanded because no matter what, there cannot be an immediate release. Even if the inmate wins, he cannot show the court anything entitling him to be released. Justice Kenney is still not convinced. To paraphrase Justice Kenney, "Perhaps the judge orders the inmate released in six months unless he receives a parole hearing within that time under terms that I dictate. What is
wrong with this?" Justice Souter shreds his argument. "Regardless of what he's asking for, if he got what he wanted, he still would not be entitled to any immediate relief." 

Justice Kennedy makes one more stab, "he might shorten his sentence." Johnson's attorney counters, "might but not necessarily. .. A challenge to parole is much different because you're not affecting the sentence if you win your case. And the term necessary is completely necessary to the Heck analysis,..." Justice Souter summed everything up. "That's the nub of it, I guess. The fact that he may be granted parole has no implication for the validity of the sentence." 

There were no more probing questions from Justice Kennedy or anyone else after this comment. It has been my experience that when judges stop asking tough questions, they have seen the light and know how they are going to rule. 

There is good reason to feel very good about how this will turn out. I believe we will win both Johnson and Dotson's cases. The justices drew no significant distinction between a challenge to eligibility and suitability. That was a surprise. I expected them to separate over this difference. Here again, our brief should help. We describe how these problems merge, becoming one and the same. 

How This Impacts Our Case 

The Layne decision is also about sentencing. An inmate must be assigned to the guideline matching their conviction. These federal decisions build on the foundation begun by Layne. We argued in our brief - before any of these federal decisions were decided - that the guideline range sets forth the maximum amount of time that an inmate can be held for their crime. Now, this is no longer just our theory. Thanks to these federal decisions, the Sixth Amendment of the Federal Constitution requires only the maximum amount of time set forth in the guideline. The Constitutional right of every inmate held beyond their maximum guideline matching their crime has been clearly violated. Of course, if you received an upward departure, compelling you to serve time for a crime never sanctioned by a trial court, your rights under the Ohio and Federal Constitution have been violated. 

With state and federal law leaning - actually collapsing - our way, we are virtually assured of carrying our burden under the Civil Rights statute. Once this has been done, we have a further burden to carry for monetary damages. The general rule is that a trial is typically required to prove bad faith, because intent must be proven. Only a trial and the rigors of cross examination are strong enough to produce evidence sufficient to carry the burden of proving what a party thought. 

In a litigation context, bad faith can be proven if there is a decision favoring one party, the party knows about this decision and, nevertheless, chooses to ignore or circumvent the court's order. In our case, we have an affidavit from the state which properly interprets the Layne
decision. This was submitted in March, 2003 when it furthered their purpose of getting several
of our claims dismissed. Like evidence produced at a trial, this is a statement given voluntarily
and under oath.

Next, the Cleveland Plain Dealer website carried a list of 5,300 eligible Layne candidates, followed 30 days later by an amended list slimmed down to 2,100 names. This is evidence developed through a disinterested and reliable third party source, which first supports their affidavit, and then provides evidence of circumventing the spirit and purpose of this decision. Finally, we have assembled charts which outline specifically how the Layne decision has been frustrated and sabotaged. We plan to add additional charts with more cases upon filing our Reply. 

On top of this evidence, we now have two federal decisions which point out how the Sixth Amendment has been violated. We also have an Ohio trial court decision, Ankrom, which repudiates the current parole board guidelines. Even a blind man would know that the Parole Board's guidelines violate the law and need to be retired. While the Parole Board continues to apply these current guidelines, the case for Bad Faith continues to get stronger with every passing month. 


The Ankrom decision was recently argued before the Appellate Court in Franklin County. Contrary to what you would expect, they are not deliberating the merits of Judge Cain's decision. Instead, the state has framed the narrow issue of whether the trial court had enough evidence to go forward and make a decision on the merits through Dispository Motions (referring to motions for summary judgment). The state is arguing that the case needs to return to the trial court because only a trial can support these findings. The Public Defender is arguing that the record is sufficient to uphold Judge Cain's decision. Once again, we see the time worn strategy of the state, challenging a technicality instead of engaging the merits. The state must prove an abuse of discretion by the trial court, which is a very difficult hurdle to overcome. One person present at the argument stated that you could not really tell how the Ohio appellate court judges were drifting. There is one thing in common with Ankrom and Dotson in our lawsuit. The state is avoiding an engagement on the merits, working instead on buying time. 

I would be surprised to see this challenge raised against us. Frankly, it would look a little ridiculous. There are 70 thick books of evidence backing up our findings, with only five affidavits opposing us. 

We are receiving mail asking for receipts for payments and other matters. We have sharply
reduced our staff since the Stay went into effect, so we are no longer able to provide these
services. We do apologize. This stay has been very difficult for us, but it is almost over.


       Norman Sirak

Back to Sirak    Back to IIAO

©2005 IIAO Inc.