8 years

In answer to the post below and the poll to the left, the real-life Becky was sentenced as an adult after her assault conviction, and is currently serving an 8-year prison sentence.  As the New York Times notes in an article up today (here), by the end of the year New York will probably be one of only two states in the nation that still allow 16-year-olds to be sentenced as adults.  The article cites "studies that concluded that older adolescents differed significantly from adults in their capacity to make sound decisions, and benefited more from systems focused on treatment rather than on incarceration."

It is hard to know what the judge was thinking in Becky's case.  The probation department, after reviewing all of the facts and interviewing both Becky and the victim, concluded that a probation sentence with youthful offender treatment was appropriate.  But the probation folks don't wear black robes, and the department's recommendation was ignored in Becky's case. 

I'm working on the appeal for "Becky," and will be arguing it later this year.  Hopefully we'll have better luck with the judges down on East Avenue than we did at the Hall of Justice.    

Guess that sentence

Consider the following facts, and pay attention:  there is a quiz (of sorts) at the end.  It is about 8:30pm on a Saturday night.  A 16-year old girl--we'll call her Becky--is at an all-ages event at a downtown Rochester night club.  No alcohol, no drugs, just a bunch of local high school kids listening to DJs and dancing.  Becky is with one of her friends.  Let's call the friend Kate.  For the first half-hour or so the night is uneventful.  Becky and Kate dance and have a good time.  

Then, Kate sees a girl from her school--we'll call this other girl Jane.  Kate has issues with Jane.  Just a few weeks ago, Kate was suspended for fighting with Jane in school.

Kate and Jane start talking trash to each other.  Jane advances toward Kate, and then, well, all hell breaks loose.  Piecing the exact sequence of events together after the fact is all but impossible; Becky's friends say one thing, Jane's friends say another.  But everyone agrees that when the dust settles, Jane is bleeding from her right eye.  Jane is taken to the hospital, and later that night loses her sight in that eye.  She never gets it back.

According to Jane, Becky hit her in the face with a stiletto heel.  Jane's eye injury is consistent with a thin heel penetrating the space between the eye and the orbital bone, right near the bridge of the nose.  Jane's optic nerve was crushed, causing the loss of vision.  

Becky is arrested and charged with felony assault.  A jury hears from Jane and her friends, and ultimately believes Jane's version of events.  Becky is convicted of felony assault.

Now the question:  what is a fair punishment for Becky?  She has no criminal record.  She has never been arrested and has no history of violence.  She was 16 years old at the time of the fight.  She was out of jail while the trial was pending, and did all the right things:  continued her education, went to counseling.  On the other hand, Jane is blind in one eye, and Becky has been convicted of causing her injury.  

So you are the judge:  what sentence do you impose?  

You could adjudicate Becky a youthful offender.  If you do that, Becky will not have a felony on her record.  The YO sentence can be anything from probation to 1 1/3 to 4 years in prison.

Or, you can sentence Becky as an adult.  The felony will stay on her record.  The minimum prison sentence is 5 years; the max is 25.  

You can vote in the poll over to the left.  The fact pattern is based on a real case.  I'll reveal the sentence the real-life Becky is currently serving next week.      

SCOTUS: Dying victim's ID of shooter not testimonial; Scalia goes appropriately crazy in dissent

Michigan v Bryant, __ US ___, 09-150 [available here]

In a 6-2 decision, the Supreme Court yesterday held that a dying shooting victim's identification of his shooter, in response to direct police questioning, is not "testimonial" under Crawford and its progeny, and therefore the officer's testimony about the identification did not violate the Confrontation Clause.  The majority (in a decision written by Justice Sotomayor) holds that the primary purpose of the officer's questioning was not to elicit testimony or develop evidence that could be used to prosecute the shooter, but rather to meet an ongoing emergency, i.e. to apprehend the shooter and to protect the public from a gun-toting fugitive.

Justice Scalia--proud poppa of Crawford and chief architect of the recent Confrontation Clause jurisprudence-- calls shenanigans in a blistering dissent.  He calls the majority's interpretation of the facts "so transparently false that professing to believe it demeans this institution . . . In its vain attempt to make the incredible plausible, today's opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles."

The New York times has an article up about the decision here.