Why No Murder Charges? Some thoughts on sentencing
November 19, 2020
Hello friends. I’ve heard from many of you that you’re frustrated with the outward lack of progress on the case and the delay in scheduling trials. I want to comment on those issues. First, prosecuting a complex murder case is a huge undertaking. Prosecuting a murder with what may be six victims in two states is Herculean. Rexburg is a small jurisdiction that doesn’t have infinite resources. Toxicology isn’t an exact or straightforward science. The scientists must methodically search for each possible toxin, one at a time, beginning with the most common and working up to the more rare compounds. It is painstaking, needle-in-a-haystack work. Law enforcement shows like CSI condition the general public to expect a neat resolution in an hour, with a few commercial breaks. Does anyone remember a 1995 movie called Outbreak? If you do, you’ll remember how CDC scientists formulated a vaccine for a pandemic virus in a matter of hours. Now compare that with the many months it’s taken the fastest trials in history to produce a COVID-19 vaccine.
And then there’s the court schedule. What’s up with all the delays? There are so many factors that come into play. First, delaying may put the trial out far enough that a COVID-19 vaccine might be widely available. Second, setting the trial dates in July leaves plenty of time to decide all the preliminary motions, pending,g, and those that may be filed. If the court grants the change of venue motion, the cases will have to be scheduled in the new venue, and those dates will likely change. They could be moved up if either or both defense attorneys don’t object. More likely, the dates will be delayed.
During these lulls, I thought I would write about some of the law’s more nuanced facets. Today, I want to talk about determinate and indeterminate sentencing. Criminal sentencing is very complex, and understanding how it works is imperative for defense attorneys.
For years, most states had an indeterminate sentencing structure. It’s a sentencing scheme that gives judges great discretion. The legislature sets sentences in a range rather than a specific term, and the judge then decided the actual sentence within the range. In the late 1980s and the 1990s, victims’ rights groups began lobbying for longer and more certain sentences, especially for violent crimes. Many states adopted some form of determinate sentencing. For instance, in my home state of Oregon, voters adopted a ballot measure that instituted determinate sentencing, including mandatory minimum sentences in violent crimes. The scheme completely removes judicial discretion and leads to some strange and often unfair outcomes. For example, there is a famous case in Oregon, where two teenaged boys were street racing with two teenaged girls.
The race resulted in an accident where the two girls were killed. Both young men were charged as adults with negligent homicide. Both opted for trial, but one of the two settled for an offered plea just after the trial began. The agreement allowed him to plead guilty to a crime that was not subject to the mandatory sentence. He served about six months in jail and was on lengthy probation. The other teen decided to complete his trial, and the jury found him guilty. Because the charge was for a crime that fell within the mandatory sentencing scheme, the judge had no discretion to alter the sentence. He was required to sentence the young man to six years in prison. As you can see, mandatory sentencing schemes can lead to some very inequitable outcomes. They also place more power in the hands of prosecutors than of judges. The popularity of mandatory sentencing schemes appears to be waning, and more states are attempting to build discretion back into sentencing.
Idaho does not have determinate sentencing, but Arizona does. In Idaho, the judge determines the minimum time before a person can apply for parole unless the statute defines a specific time before parole can be considered. In Arizona, sentences are set by statute and can’t be altered by the judge. During the minimum time, the convict can’t earn time off for good behavior, be paroled, or participate in any program that offers an early release in exchange for participation, such as drug programs that allow for a furlough to sober halfway houses upon completion. For example, if Lori were convicted of First Degree Conspiracy to Commit Murder in Arizona, the sentence would be life, with the possibility of parole after 25 years. If the charge were for Second Degree Conspiracy to Commit Murder, the sentence would be life, with a minimum of ten years before parole.
The differences in the state’s approaches to sentencing could allow Rob Wood to leverage a confession from Lori. If the state of Arizona has a good case for First Degree Conspiracy to Commit Murder, they may offer Lori a plea to second degree if she will give up information on the rest of the deaths. Arizona’s determinate sentence makes it easier to use as a bargaining tool because, unlike Idaho, Lori will know the minimum sentence before parole is certain and specific. That is the kind of plea offer that could induce Lori to give up details on Tammy’s Murder, including the specific toxin used. That would make the toxicology work quicker and more targeted.
