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Friday, August 13, 2004 - Page updated at 09:40 A.M.
Seattle teens won't face exceptional sentences
By Jennifer Sullivan
The U.S. Supreme Court in June declared unconstitutional the common practice of allowing judges to solely determine whether a defendant should receive an exceptional sentence. So Snohomish County Deputy Prosecutor Ed Stemler changed his strategy.
Stemler decided to amend the first-degree-murder charges he filed against Joshua Goldman and Jenson Hankins so that they could still face exceptional sentences. He'd planned to prepare a special verdict form for jurors so they could decide whether each defendant should receive an exceptional sentence.
According to the motion, Stemler planned to have jurors determine whether Goldman "abused a position or relationship of trust" and "whether the defendant engaged in a high degree of planning to prepare for, carry out and conceal the crime, beyond basic premeditation."
Stemler didn't file a similar motion in Hankins' case but said yesterday, "the argument applies to both defendants."
Stemler declined to say whether he had sought a specific sentence. Hankins and Goldman each face between 22 and 28 years in prison.
According to the Supreme Court's decision, exceptional sentences are unconstitutional because judges make the decision independently. The justices said that juries must hear facts, which can increase the penalty for a crime.
University of Washington criminal-law professor John Junker said that if Stemler had presented the exceptional factors to a jury, the jury's verdict likely would be reversed on appeal.
Junker said the move would "accommodate the [U.S.] Constitution" but said that currently, the state's only method for handling exceptional sentences it to let judges decide whether they should be granted. "The question upon appeal is can he [Stemler] improvise a process that is not authorized under the criminal statute," Junker said.
Defense attorney Max Harrison, who is representing Goldman, wrote in his response to Stemler's motion that it is "the sole prerogative of the Legislature to enact sentencing schemes." Harrison said a trial court has "no independent or inherent authority to create a new procedure to impose sentences."
But Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, disagrees.
McBride said he's talked to several state lawmakers about the issue, and the consensus was that in an election year, it's nearly impossible to convene a special session to determine how to handle the Supreme Court's ruling.
McBride said interpretations of the ruling vary one judge in Pierce County allowed a prosecutor to submit the exceptional factors to a jury, and another judge in the same county didn't.
Jasmer's family said they were disappointed that exceptional sentences won't be sought.
"I disagree with the Supreme Court decision. We all have to abide by the law," said Mike White, the longtime partner of Jasmer's mother, Donna. "We don't want to jeopardize what we've got. Our goal is to get these kids tried, convicted and sentenced. We want to make sure it sticks."
Jury selection is set to begin in Goldman's case Aug. 27. Hankins' trial date has not been set.
Jennifer Sullivan: 425-783-0604 or firstname.lastname@example.org
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