Judicial do over

Criminal procedure can be incredibly harsh and unforgiving for defendants and their lawyers.  If a defense lawyer makes the smallest misstep, or fails to do or say just the right thing at just the right time, he can inadvertently “waive” his client’s rights and protections, often with disastrous outcomes.  But, when it comes to judges, the law is much more forgiving.  In State v. Robinson the judge sentenced the defendant to a multi-year term of confinement.  The defendant was hauled out of the courtroom and straight to jail to begin serving her time.  But the judge slept on it, had second thoughts, and decided that he wanted a “do over.”  So the next day he had the deputies haul the defendant out of jail and back into court, where he re-sentenced her and gave her an additional nine months. 

The defendant appealed, of course, because of the well-established legal principle that “A sentencing court violates double jeopardy when it increases a previously imposed sentence if the defendant had a legitimate expectation of finality in the original sentence.”  But as you’ve likely guessed by now, the appellate court upheld the trial judge’s “do over,” finding no double jeopardy violation.  How could it have done this?  By using two simple legal tricks.

First, the law is written in the judge’s favor to begin with.  The law should read that “A sentencing court violates double jeopardy when it increases a previously imposed sentence,” period.  This would make sense, would be clean and simple, and would avoid a whole lot of unnecessary and costly litigation.  But such a law would put some responsibility on judges to do their jobs.  So, the law is qualified by adding that a double jeopardy violation only occurs “if the defendant had a legitimate expectation of finality in the original sentence.” 

This determination, in turn, is made by using a multi-factor test that judges can bend any which way they wish.  Judges call this an “analytical touchstone,” which sounds either more scholarly, or Harry Potter-esque, depending on your point of view.  And in this case, the court analyzed some of the factors and held that even though the judge's sentencing decision was, in some sense, final—after all, the defendant was hauled off to jail and actually started serving the sentence—it wasn’t too final.  Therefore, the re-sentencing did not violate double jeopardy.

But a close read of the case reveals a second trick as well: the use of the double negative.  In upholding the trial judge’s “do over,” the court conceded that the defendant’s “expectation of the finality of her sentence was not illegitimate[.]”  Now, with rare exceptions (none of which apply here), double negatives are not allowed in legal writing.  In fact, legal writing professors would mark off points if a law student wrote “not illegitimate” instead of, simply, “legitimate.”  But look at what happens to the court’s decision if we take away its use of the double negative.  The opinion then reads that the defendant’s “expectation of the finality of her sentence was legitimate.”  And, as we already know, “if the defendant had a legitimate expectation of finality in the original sentence,” then the re-sentencing “violates double jeopardy.”  The court, obviously, didn’t want this.

I think this court opinion should come with a disclaimer for any law student who reads it.  The disclaimer would be similar to those in car commercials that read: “this car was driven by a professional driver on closed track; do not try this at home.” 

Here’s what the legal disclaimer might look like: “this double negative was written by a pro-state appellate court hell-bent on upholding the trial judge; do not try this in your own legal writing or you will risk a failing grade.”