Friday, September 23, 2011

U.S. v. Fitch (9th Cir. - Sept. 23, 2011)

On the one hand, it seems crazy to sentence David Fitch for killing his wife.  Since he hasn't even been charged with that crime.  And we're not even sure that she's even dead.

Sure, he was convicted of taking some money from her ATM without permission.  But the guidelines range for that is around 4 years.  The district court, however, sentenced him to over twenty years in prison.  Adding the extra seventeen years because he killed his wife.  A crime, again, for which he's never been charged or convicted.

That facially seems crazy.  Which the Ninth Circuit opinion notes, and yet affirms because this result is permissible under current precedent.

On the other hand, I'm confident that Fitch did, indeed, kill his wife.  It's one of those "mysterious trips to the wilderness in which only one spouse returns" scenarios.  Plus a plethora of other circumstantial evidence that strongly suggests that, yep, Fitch whacked his spouse.  Sure, no body.  'Cause the guy's no idiot.  But we can still figure it out.  If he did indeed kill his wife and then steal her money, that seems wrong, and I don't particularly want him to get away with it.

On the third hand -- let's call it the left leg -- Judge Goodwin has a decent point in his dissent.  The trial judge departed upward because he thought it was a premeditated first-degree murder.  How do we know?  Maybe they had an argument on the trip and he killed her in the heat of passion.  Maybe she fell off a cliff by accident (or a spontaneous nudge from her husband) and he was only too-happy to take advantage of it.  Is there really "clear and convincing" evidence to support a finding of first-degree murder?  When we totally have no idea -- not even the presence of a body -- about how she died?

But, finally, on the right leg, remember:  All of this is just an artificial construct anyway.  Fifty years ago, judges sentenced people however they wanted.  The statutory maximum is 30 years.  It was totally okay, in the old days, to sentence a guy committed of Fitch's crimes to one year, four years, twenty years, or whatever based totally on the judge's gut reaction to the defendant.  Think he's a pretty decent guy?  Four years.  Think he's scum (which would include, say, a guy who killed his wife)?  Twenty-plus years is fine.  No evidence.  No factual findings.  No appellate review.  Nothing.  That's the way we did it for almost our entire history.  It's still the way we do it in tons of states.  Totally proper.  So why this crazy reaction to it here?

So choose the most persuasive arm or leg.  There are lots of options -- and perspectives -- here.