Public Defender Argues that Only Juries – Not Judges --
Can Be Finder of Facts in Criminal Jury Trials

TRENTON, NJ – The New Jersey Office of the Public Defender argued before the state Supreme Court today that in criminal trials, judges cannot increase sentences based on facts that have not been first determined by the jury.

In a trio of cases argued before the state’s highest court, the Office of the Public Defender maintained that it is a violation of a defendant’s Sixth Amendment right to trial by jury to permit the judge – rather than the jury – to lengthen a sentence without a finding of fact by the jury.

Linda Mehling, an Assistant Deputy Public Defender, argued that the presumptive term of sentence is the fixed penalty above which a judge cannot go without a finding of aggravating factors by the jury.

To permit judges to engage in discretionary sentencing without being constrained by a finding of facts by the jury in a trial is to lead to a disparity in sentencing, Ms. Mehling said. The goal should be statewide consistency, reliability and uniformity in sentencing for the same offense.

Under current practice, according to the Public Defender, aggravating and mitigating factors are not determined by the jury. They are determined by the judge upon conviction. Currently, it is the judge – not the jury -- who determines as fact the applicable aggravating and mitigating factors. If the judge determines that aggravating factors outweigh mitigating factors, the judge can move up the punishment up the scale to the maximum sentence.

Ms. Mehling and Ms. Blum both argued that this sentencing framework is not constitutional because the jury – and not the judge – should be the finder of fact in our jury trial system. For example, in a second degree crime, punishment ranges between five and ten years in prison, with the presumptive sentence for the offense set at seven years. In a constitutional system, if aggravating factors found by the jury outweigh mitigating factors, then the judge would be permitted to weigh those aggravating factors and increase the penalty up to a maximum of ten years.

If the jury finds no mitigating or aggravating factors, or if the jury determines they cancel each other out, then the judge can only impose the presumptive sentence, argued Marcia Blum, also an Assistant Deputy Public Defender.

“The judge’s sentence flows from the jury finding,” Ms. Blum argued. “The maximum sentence is the presumptive sentence without a jury finding” of aggravating and mitigating factors.

The cases stem from a U.S. Supreme Court decision last year in Blakely v. Washington that struck down part of the State of Washington’s sentencing statute as unconstitutional because it allowed the judge – rather than the jury – to find a fact that increases a defendant’s sentence beyond the presumptive sentence for the crime. Since that decision, several other states have struck down their sentencing statutes.

Last November, a New Jersey Appellate Court ruled the New Jersey statute – which is similar to the statute in Washington State – is unconstitutional under Blakely because "it permits the trial judge to increase the presumptive sentence in the absence of jury fact-finding, based on proof beyond a reasonable doubt, of the aggravating factors on a basis other than relating to a prior conviction."

The third sentencing case heard today focused on the judicial discretion in a Graves Act offense, which enables a judge to increase the sentence of a defendant found guilty of committing a crime with a firearm.

Assistant Deputy Public Defender James Smith argued that a judge erred in doubling the sentence of a defendant convicted of manslaughter – although the jury acquitted the defendant of all weapons’ charges. The judge extended the term because of judicial fact finding in contradiction of the jury’s determination.

The cases heard today were State v Natale, State v. Abdullah, and State v. Franklin.