Thorne v. U.S.: You Can’t Penalize the Defendant for Exercising His Constitutional Rights

It is a challenge for every criminal defense attorney. You want to do everything you can to put the government’s case to the test. At the same time, recognizing that you still might not win, you don’t want to antagonize the judge such that the judge decides to penalize your client at sentencing. Because, after all, you need to take the big picture. It doesn’t help your client that you carefully prepared the case and argued it persuasively at trial if in the end he is worse off for that defense.

This was apparently the challenge faced by defense counsel in a judgment issued recently by the D.C. Court of Appeals in connection with Bobby Darryl Thorne v. United States, 46 A.3d 1085 (DC 2012). Because the court issued the judgment pending a more detailed opinion to follow, there are few details available.  What is apparent – both from public court records and the limited information that is provided in the judgment – is this.

Bobby Darryl Thorne was charged in September 2011 with three misdemeanor offenses:  possession of a controlled substance, possession of drug paraphernalia, and public intoxication. Defense counsel Cassandra Snyder seems to have put on an aggressive defense. For example, she filed at least four different pre-trial motions, including a motion to suppress, a motion to dismiss for failure to preserve material evidence, a motion to compel narcotics-related discovery, and a motion to suppress identification.

Going to trial on January 17, 2012, defense counsel apparently refused to waive the appearance of the government chemist who analyzed the controlled substance to determine its identity. After all, the defendant has a right to confront the witnesses against him.

You can just imagine the governmental eye-rolling that accompanied this refusal. The judge too was annoyed. You mean we are going to have to sit here for a couple of hours until the chemist gets here?  More often that not, the court’s frustration is not with the government for having failed to have the chemist ready for trial but with the defendant for insisting that he be there in the first place.

The judgment in Thorne notes that the judge initially discouraged the defendant from exercising his right to confrontation. The judge also promised that the refusal to waive this right “would have consequences.” After finding the defendant guilty, the judge then sentenced the defendant to 180 days in jail. This was the maximum term of imprisonment authorized by the statute. It was also substantially longer than the period of incarceration that the government had sought.

Overturning this sentence, and remanding the case back to a different judge for re-sentencing, the Court concluded that there was a “reasonable likelihood” that the judge was punishing the defendant for invoking his Sixth Amendment right of confrontation. Citing North Carolina v. Pearce, 395 U.S. 711, 724 (1969), the court noted that “[p]enalizing those who choose  to exercise constitutional rights is patently unconstitutional.”

I am always surprised – each time anew – by the expectation that the defendant should cooperate with the government in the bringing of charges against him. Due process takes time. Nobody ever said it should be easy. Or, as Erich Segal might have put it, having constitutional rights means never having to say you’re sorry.