Plea-Bargaining Analysis in Dissenting Opinion in State of West Virginia v. Rummer

First Published in Website: 5/20/02; Latest Revision: 5/26/02 08:00

State of West Virginia v. Rummer, 189 W. Va. 369; 432 S.E.2d 39; 1993 W. Va. LEXIS 71 (1993)

Case History: Defendant Rummer appealed from sentence of two concurrent terms of imprisonment for conviction of two counts of sexual abuse. Defendant had argued that the two sentences arose from the same act and amounted to unconstitutional double jeopardy. The conviction was affirmed by the Supreme Court of Appeals of West Decision (by two of the three-judge panel), with Justice Neely dissenting.

[Note: All of the majority opinion by Justice Miller and about 50% of a concurring opinion by Chief Justice Workman have been omitted.]

Concurring Opinion

[**53] [*383]

Workman, C. J., concurring:

I concur with the majority opinion because it is totally [***48] consistent with the law enunciated in many other cases by this Court as well as by the United States Supreme Court.

Because only about one-third of the dissenter's fifty-page diatribe actually relates to the majority opinion (the other two-thirds of which touches upon everything but the kitchen sink, is full of incredible stereotypes, n1 and which of course attributes almost all of society's ills to working women), I address only part II.

[Start of Footnote]

n1 The dissent sets forth these stereotypes, among others: most public defenders are "simply hacks"; assistant prosecutors are there for the "government coffee suck in lieu of more arduous, stress-laden and challenging work"; violent criminals are almost always poor and stupid; police officers almost always lie; most family-related pathologies are due in large part to a 73% female working population; parents who both work outside the home are self-absorbed and negligent; and the entire drug industry is fueled by sociopathic reckless youth from single-parent homes. (Archie Bunker lives again!)

[End of Footnote] [***49]

The dissent fails to recognize, much less discuss, the recent United States Supreme Court cases that have fashioned the Double Jeopardy Clause relating to multiple punishments for the same criminal act as an inquiry into legislative intent.

* * * [deleted part of dissent]

The most astounding thing about the dissent is the gross inconsistency of the dissenter's position on the double jeopardy issue in this sexual abuse case with his position on the same issue in numerous other contexts. In all of the cases cited from this Court, the dissenter joined the majority without comment. Why is the dissenter such a blazing civil libertarian only in the context of a sexual offense? (Generally, he is ready to uphold the maximum sentence for the pettiest of petit larcenists.)

Reading his dissent against the backdrop of his position in other criminal cases, one reaches the inescapable conclusion that he believes different principles should apply to sexual offenses than to other criminal offenses.

* * * [deleted part of dissent]

Justice Neely dissented in none of these opinions. Why, one may ponder, is the principle of multiple offenses arising from transactions close in time so objectionable to Justice Neely in the context of sexual offenses when he has concurred with the majority on similar criminal matters not involving sexual offenses? [***53]

One must also conclude that the dissenter puts his civil libertarian clothes on in a chameleon-like fashion because he essentially believes that a "grope" (as he so crudely describes it) is really a de minimis act. (One can almost hear him saying, "Just a grope . . . what's the big deal?").

* * * [deleted part of dissent]

Perhaps a clue to why the writer of the dissent adopts such inconsistent positions can be found in his sweeping statement that "when a defendant is accused of the current crime of fashion (any crime with the word 'sexual' in it), his constitutional rights cease to exist.

Such a statement is not only irresponsibly inaccurate, but the whole tenor of the dissent (which suggests that conviction in sexual assault/abuse cases is a foregone conclusion) reveals an abysmal lack of knowledge of the difficulty of [***54] these cases on the trial level. Lastly, the dissent's characterization of the other members of this Court as engaging in Gestapo-like tactics is a gross disservice to the whole appellate process in West Virginia. The true civil libertarian on this Court is the writer of the majority opinion.

Index and Quick Links to Rummer Dissent

  1. Part III of Judge Neely's Dissent in Rummer

Dissenting Opinion:

Neely, J., dissenting:

I dissent to the majority's holding in this case because it is contrary to the general law on double jeopardy and has led to an unjust result for future cases. Thus, I take the time to write this dissent in a case where no harm is done to the defendant (he is to serve his two sentences concurrently) because I believe that the majority's opinion is aiding and abetting a growing trend in American law to abolish civil rights and destroy citizens' right to trial by jury. Although this sounds like an hysterical overstatement, n1 I hope through this opinion to sound a warning about what has been happening in federal courts-- models to which the states have long looked as paradigms of judicial competence-- and what is likely to follow in state courts.

[Start of Footnote]

n1 See Part II, note 2 discussing the majority's cynical manipulation of the facts.

[End of Footnote] [***55]

Accordingly, this dissent is divided into three parts: Part I is my brief historical overview to show how the outrages I shall catalogue were allowed to occur. Part II is simply an analysis of how the majority in this case acquiesced in Gestapo techniques to achieve a "politically correct" result. Part III is an analysis of how such techniques as overcharging in both state and federal courts, and the federal sentencing guidelines, have virtually abolished criminal defendants' right to trial by jury. Innocent people now regularly must plead guilty because the system is so rigged [**55] [*385] against them that they can't take the chance of a verdict by a jury of their peers!

Part I

The History

Violent crime is almost always committed by the poor, the uneducated, or the stupid. Crimes of passion are committed by everyone, of course, but a trial involving a middle-class man meticulously planning the murder of his wife, so he can collect the insurance and run off with his secretary, is sensational precisely because it is so rare. Traveling salesmen who spend their off-hours robbing all-night grocery stores, married schoolteachers who take nights off to rape sixteen-year-old girls, [***56] and prosperous farmers who eliminate market competition in the neighborhood by setting fire to their neighbors' barns are real oddities. Consequently, the entire criminal law system most often boils down to the powerful state with all its weapons-- police, prosecutors, courts, prisons, and probation officers-- going after poor, uneducated, stupid folks. (That is not to say, however, that the poor, uneducated, stupid folks did not commit the crimes.) This lower class of criminal suspects is not exactly possessed of enormous political power to protect their rights, particularly because when they are not on the receiving end of the whole system geared up to get it, they are the group in society crying most loudly for more law and order because it is the poor, the weak and the helpless who are disproportionately the victims of crime.

In the early 1960s, the average criminal defendant was treated like a piece of meat on its way to dressing and processing. A person was arrested, brought in for interrogation (seldom conducted in a gentlemanly manner), threatened with the many dire consequences that awaited him if he did not cooperate (such as a thirty-year sentence for simple burglary), [***57] and encouraged to plead guilty. Of course a lawyer could do wonders for him, but ordinarily there was not any lawyer and would not be any lawyer unless he came up with the money to hire one or was accused of a capital crime. For those who knew enough to make a scene and demand to have a court-appointed lawyer, a lawyer might be appointed, but it was frequently the case with overworked courts that the judge indicated either outright, in open court but off the record, or through hints delivered informally by third parties that things would go a lot easier for the defendant if he would plead guilty rather than make a lot of trouble asking for a lawyer and demanding a jury trial. If a person pleaded guilty, that was it--off he went to prison, having waived all grounds for appeal except the jurisdiction of the court, and he just sat in prison until the sentence expired or the parole board released him. Often this process ran an entirely innocent man through its machine-- a man so frightened of the circumstantial evidence against him that he would agree to plead guilty to a lesser offense or to confess to a crime he did not commit in the hope of receiving more lenient treatment from [***58] a system that was going to get him anyway.

It usually happened that in any small town or city where this particular form of expedited due process occurred all the participants were friends, buddies, and colleagues. The sheriff, prosecutor, and judge were probably all members of the same political party who exchanged fishing stories together over lunch down at the jail, while the prisoners served them a subsidized meal, and because each official in any county courthouse has some power over other officials in the courthouse, the tradition in my childhood was live-and-let-live because: "You've got to go along to get along!" Almost everywhere prosecutors, sheriffs, and judges were elected and their staffs were not civil service, so that they presented no counterbalance to the alliances of party politics. Furthermore, criminal trials were expensive and a lot of work for everyone concerned, and because the judge, the prosecutor and the sheriff were not paid by the case, real due process took money away from payrolls for relatives and a lot of time away from the farm and the trout stream.

Not only was the system a fiasco at the interrogation, pretrial confinement, and guilty plea stages [***59] of the process; it resembled [**56] [*386] some of the more unpleasant features of Nazi Germany or Communist Russia in the investigative stages. Men were routinely picked up off the street without a warrant, brought down to the police station, left to sit on hard benches without access to water, food, or sometimes even a working restroom for hours at a time before "questioning," which frequently involved humiliating insults and a good bit of slapping around. In many cases, the police had nothing more to direct them to their particular suspect than a prior criminal record, the "suspicious behavior" of the arrested person, or personal animosity. The entire "questioning" process went on without any regard for the person's need to be at his job, his school, his wife's side in the hospital, or anywhere else. The convenience of the authorities organized the lives of those without power who came to the authorities' attention. And who was available to give redress? The political process, where most aspirants for office run on a "crack down on crime" platform? The local judge, who would need to dress down the local sheriff or police chief in the morning before they all went out for lunch together? [***60] The executive authority, whose very henchmen all these rights violators were? Not very likely.

However, the parade of horrors did not end there, for there was the entire area of search and seizure to be abused. It often happened that when the police came to search a house in the 1960s, their routine procedure involved turning out dresser or desk drawers, making holes in the wall, ripping apart all the beds, tearing up the pillows, kicking down the doors of locked closets and cabinets, and rousting people from their night's slumber. Again, what recourse did a victim have? The political process? See above. A damage suit? Only if the victim could afford a lawyer and could find one willing to take on the incumbent local political machine with which the lawyer was compelled to work every day. Furthermore, given the generally high regard that the middle class accords the police, the likelihood of a substantial jury award (which then had to be the unanimous judgment of twelve persons) being recovered against the police by a group of suspicious-looking and unsavory people involved in criminal activities was remote. Of four damage actions filed in Marion County, West Virginia, [***61] in 1970 against a group of Caligulaesque state troopers who routinely beat the patrons of local beer joints, none resulted in a damage award by a jury. Police officers routinely lie, particularly to save their own skins, and when they do, they make enormously credible witnesses.

The institutional abuses of the criminal justice system that I have just described created substantial unnecessary and unmerited suffering, seriously reduced the degree of personal liberty among people of particular socioeconomic and racial backgrounds, and generally got worse rather than better as society became more urbanized and people were increasingly without the financial, emotional, and political support of an extended family. The U. S. Supreme Court and other federal and state courts, consequently, began the widespread development of "constitutional" principles to correct these institutional abuses. The Supreme Court recognized that the traditional damage award against responsible officials, which for over a hundred years had been the mythical remedy for invasions of personal rights, simply did not work and that some other remedy was necessary that could be automatically applied by the courts without [***62] jury intervention to hurt the system enough to force it to change its ways.

And so it came to pass in the early 1960's that the Supreme Court of the United States, led by Chief Justice Earl Warren, began its wholesale revision and "nationalization" of the rules of criminal procedure using vague clauses of the Bill of Rights as the lever. Enter, then, the "exclusionary rule"-- a new, judge-made, constitutional remedy unknown to many state courts. According to this ingenious doctrine, if the police failed to comply with any of the new rules concerning procedure, any evidence gathered during a period when the rules were being violated was to be excluded from all court proceedings. For example, [**57] [*387] evidence could be excluded that the suspect himself gave the police if the police failed to warn the suspect of his right to remain silent, his right to retain counsel of his choice before he was asked any questions, and his right to court-appointed counsel if he could not afford to hire a lawyer on his own. Usually the evidence excluded because the police failed to give the proper warnings or otherwise observe the suspect's rights made the difference between a conviction and an acquittal, [***63] and the defendant went free. The exclusionary rule also applied to questions of search and seizure: If the police entered a person's house without a proper warrant and discovered exactly what they thought would be there, none of the evidence could ever be used in court, because all the evidence was tainted by the violation of the suspect's "constitutional" rights.

The streets began to swarm with released criminals. All the agents of the criminal justice system concluded that the courts had finally gone stark, raving mad and envisaged a world of wall-to-wall felons. At first, police officers and prosecutors did not believe that the U.S. Supreme Court meant what it said, so they continued to do business as usual, and the Supreme Court itself was forced to reverse hundreds of convictions, release the accuseds, and over a span of ten years indicate that it was serious about individual rights.

Meanwhile, what was going on back at the station house? The police and prosecutors were sitting around saying, "Son of a b-----!" (policemen are known to say this on occasion) and feeling very insecure about their jobs. Many criminals were on the streets because of criminal procedure violations, [***64] which was leading irate citizens to talk about "changes of administration" and "department reform." Oddly enough, jury damage suits, constitutional mandates, the elective political process, and general notions about unmerited suffering and consideration for one's fellowman could not clean up the system, but the fear of unemployment managed it very neatly. Suddenly police departments sponsored training programs to instruct their members where and when a warrant was necessary to make a lawful arrest or what extraordinary circumstances-- such as a felony committed in the presence of an officer-- justified an arrest without a warrant. Officers began carrying cards with the official warning (known as the "Miranda warning" from the Miranda v. Arizona case in 1966), so they would not make an error in informing defendants of their rights to remain silent and to have a lawyer appointed if they were indigent. At the same time, lower state courts instituted systems to appoint lawyers for criminals in all prosecutions, both felony and misdemeanor, where there was any possibility of a jail sentence, and state legislatures appropriated money to pay private lawyers to serve as court appointees [***65] or to pay for public defender systems. The courts not only required that those being prosecuted be represented by counsel, but also that they be represented by "competent" counsel, which meant that appointing some hack who, but for court appointments, was such a dud that he would not otherwise find work no longer was supposed to pass muster.

Since it was no longer permissible to obtain confessions by intimidating a suspect, keeping him all night without an opportunity to use the bathroom, depriving him of food for long periods of questioning, or subjecting him to dire threats for failure to testify against himself, the police had to think of new ways to solve crimes. It dawned on them that investigation, regular patrols, and scientific laboratory analysis of clues a la Sherlock Homes might substitute for some of their cruder techniques, so they inaugurated training programs in these areas as well. When they were unable to finance necessary new equipment, the federal government came to the rescue with cash grants and other help from the Law Enforcement Assistance Administration (LEAA).

As the U.S. Supreme Court ruled that there must be no substantial delay between an arrest [***66] and appearance before a magistrate for the setting of bond, along with formal court-administered instructions concerning appointment of counsel, states began reorganizing their judiciaries so that [**58] [*388] the tobacco-chewing, one-gallused, illiterate justice of the peace who refused to hold court during squirrel season, deer season, after 5 p.m., or on weekends became a thing of the past. In his place appeared a professional lay or lawyer magistrate with extensive state-sponsored training, who was part of a pool of minor judicial officials available at a moment's notice around the clock to set bond, issue warrants, and otherwise mete out justice according to a modern concept of individual rights. Furthermore, since everyone feared that the nature and conditions of pretrial confinement would be raised in court, the more inhumane aspects of local incarceration facilities were eliminated, and a nationwide program of upgrading criminal detention facilities was promoted.

So far I have catalogued the positive side, but there was a negative side as well. The negative side was that lots and lots and lots of dangerous, brutal, violent sociopaths were released back into society through the operation [***67] of the exclusionary rule, and no sooner did they depart custody but that they robbed, murdered, raped and burned again and again and again. Although the ordinary citizen favored the expansion of civil liberties in general, he or she became outraged over the specifics when truly evil defendants were released on mere "technicalities."

And here, since I am talking for the historical record, I shall admit that I have always applied the exclusionary rule with surpassing reluctance and sought every possible technicality to avoid applying technicalities. My first question has always been: "Is the guy guilty?" Therefore, if the judges who administered the system crafted in the 1960's and early 1970's by the Warren Court were ambiguous about the legitimacy of the system that had been designed to protect civil liberties at the expense of citizen safety, how much more ambiguous or, as frequently, outright hostile were ordinary citizens?

By 1980 three separate historical developments converged: First, the general public turned against a system of criminal law that appeared to look last to the question of whether the defendant was guilty and appeared more interested in "coddling criminals" [***68] than it did in protecting innocent, hard working citizens. Second, illegitimacy rates were soaring, divorce was soaring, and the number of families with self-absorbed, negligent parents who both worked outside the home was soaring; consequently, family-structure-related pathologies were creating a rapidly expanding underclass of increasingly savage people. And, third, the drug problem entirely changed the face of American crime.

Because of drugs, gangs are no longer groups of bored teenagers engaged in petty crime; teenage gangs are now the distribution network of a state-of-the-art, billion dollar industry. A typical Los Angeles street gang may have two hundred members between thirteen and twenty-six years old, and each gang will typically move between twenty-five and forty kilos of crack or cocaine a month. In Los Angeles County there are roughly 600 such gangs, accounting for over 70,000 active members. Although most gangs are either black or Hispanic, there are Asian, Samoan and white gangs as well. Even now, as urban markets become saturated, our small cities, suburbs and rural towns are being invaded by big-city dealers who are much more violent than the local criminals [***69] the police have been accustomed to handling.

In Martinsburg, West Virginia, for example-- a town an hour and a half away from Washington by car, state and federal police arrested forty-six suspected drug dealers in 1986. All along the rural corridor that parallels Interstate 95 from Florida to New York, the Jamaicans have cornered the crack cocaine network. Small Town, U.S.A., offers easy profits to drug dealers at low initial risk because rural communities lack the drug awareness of big cities and are even less prepared than their urban counterparts to cope with naked savagery. Local police forces can be easily overpowered and even more easily corrupted.

The unusual violence associated with all aspects of the drug business arises from a sinister combination of money, readily [**59] [*389] available hi-tech weapons and an utterly savage underclass willing to use both without scruple. The entire drug industry reflects the sociopathic recklessness of teenagers and young adults largely from single-parent families whose poverty and deprivation have immunized them to both hope and fear; they exhibit a casual acceptance of-- and sometimes enthusiasm for-- torture, murder, "drive-by" shootings and [***70] public mayhem. In Florida the multi-billion dollar drug industry dwarfs all other industries, including agriculture and tourism.

This type of activity is not unique to South Florida. In February 1989, the Detroit News published a copyrighted story showing that Detroit police officers were alleged to have committed 151 crimes each year for every 1,000 officers. Allegations, of course, are cheap, but the Detroit News, availing itself of the Michigan Freedom of Information Act, found out that there were 7.2 substantiated allegations against officers in Detroit for every 1000 officers.

Other cities surveyed for police corruption were New York, with 112.7 allegations per 1,000 officers; Los Angeles, 109.5; Dallas, 65.6; Houston, 42.7; Philadelphia, 20.7; Chicago, 13.6; and Phoenix, 10.7. Houston finished first in substantiated allegations, with 12.7 per 1,000 officers; then followed Dallas, with 10; Los Angeles, 9.5; and New York, 7.5. Crimes by police a few years ago usually involved using excessive force. Now Detroit officers have been accused of rape, hiring an arsonist to set fire to an occupied apartment building, car theft, insurance fraud, cocaine and heroine possession, [***71] armed robbery, selling gun permits, concealing stolen property and hiring a contract killer.

It is probably fair to say that for every substantiated instance of police misconduct, there are likely to be five to ten more that were either not reported or not satisfactorily substantiated. The police are notorious for protecting one another, and notwithstanding the dedicated efforts of police internal affairs departments, investigating police corruption still presents the problem of goats guarding cabbages.

Increased instances of police corruption, of course, are directly related to the drug industry. Being a corrupt policeman has perils that must be offset for an officer to risk his career, pension, and a term in prison. Unlike profits from ordinary crime, however, drug profits are big enough to turn the head of all but the most honest officers. And there is more than enough drug money to go around: Most of an officer's friends and associates will be sufficiently involved that no one is inclined to blow the whistle. Involvement may not include selling drugs or tipping off dealers; just protecting a friend's bar where drugs are sold is sufficient involvement to discourage an officer's [***72] moral outrage. In such an atmosphere the lone whistle-blower is likely to have a fatal accident.

People who sell drugs are usually involved in other criminal activities. Consequently, once an officer becomes involved with drug dealers-- perhaps justifying his conduct on the theory that the dealers are engaged only in "victimless" crime-- it is an easy step to collaborating in other criminal enterprises.

Drugs, then, have made prosecutors popular and civil liberties unpopular, and our family-related pathologies-- widespread illegitimacy, a fifty percent divorce rate, men living with two or three generations of women to whom they are not married, and a female labor force participation rate nationwide of seventy-three percent (so that most neighborhoods today are devoid of any adult presence during all the weekday hours children are home from school)-- have made child abuse, sexual abuse, rape, incest, and related crimes extraordinarily fashionable to prosecute. Thus, in the case before us, we see what has become a traditional prosecutorial tool to avoid jury trials and coerce suspects, namely wildly excessive overcharging, accepted and even applauded by this court, as shown [***73] by the majority's opinion.

Part II

The Bending of the Law for Fashionable Ends

On 21 June 1990, C.D. was walking along Seventh Street in Parkersburg when she [**60] [*390] was accosted by the appellant, Ronald Dean Rummer. A few moments earlier, Ms. D. had spotted Mr. Rummer following her slowly in his car while she walked. After circling the block, Mr. Rummer parked his car, got out and chased Ms. D. until he caught up with her. Appellant then stuck one hand between the victim's legs and his other hand up the victim's blouse and said "Baby, I want to screw you." In the process, the victim tripped and both the victim and Mr. Rummer tumbled to the ground. The victim then broke free, ran down the street, and called the police. n2

[Start of Footnote]

n2 I note that the majority, in its recital of the facts, interpreted the facts to include a second sexual incident when Mr. Rummer fell on top of the victim and he "again roughly fondled her breasts through her shirt with both hands." Slip op. 2. However, the majority's description of an alleged second sexual incident is not based on the testimony of the victim who testified to the following description of the entire incident: Q Now, you -- what did he first do to you? A Well, like I was saying, whenever I went to turn the next time he grabbed me. And he had -- just kind of like -- he put his arm up in between my legs. And, you know, I was telling him to stop and, you know, I was telling him to get away from me and yelling at him and all. And --

A Well, he grabbed me and he started like hunching up against my body. And ---

He was saying, you know -- he was trying to get up my shirt and stuff. And he didn't get up my shirt because I was pushing his arms away. But he was saying like -- he, you know, he --

. . .

A And like I had said, whenever he grabbed me from behind, you know, he was rubbing in between my legs real hard. And I was trying to get away from him. And so that's when he started hunching and saying, you know, "Baby, I want to screw you." And he said it a couple times. And --

Q Did you stay standing up or what happened?

A No. Somehow we got -- I -- it was like we got tripped to the ground. I can't recall exactly how it happened, if I tripped him or he tripped me. But we fell, and he --

Q Were you on the sidewalk or the ground or where?

A Yes, the side -- it was on the sidewalk on the ground.

Q How did you land? Who was on top?

A He was.

Q Were you face to face, back to back or side to side or what?

A No, like face to face because -- but --

Q Did you look up in his face at that point?

A Yes.

Q And how long did you stay in that position when you were looking up to his face?

A Not very long because I was just trying to get him off of me. I was -- you know, I was just wanting him off of me so I could go because I wanted to get away. I kept yelling at him to stop. I didn't want him, you know -- telling him -- I said -- I just come right out and said to stop, you know, quit doing it.

Q How long were you face to face like that?

A A few seconds.

[End of Footnote] [***74]

Appellant was charged with two counts of first-degree sexual abuse under W. Va. Code 61-8B-7 [1984]; one count for touching Ms. D.'s breasts, and one count for touching her sex organ. The jury convicted him on both counts, and the circuit court sentenced him to concurrent terms of one to five years in prison. I dissent because the conviction on both counts of first-degree sexual abuse violates double jeopardy provisions of both the West Virginia and United States Constitutions.

A.

Appellant's main assignment of error is that his conviction on two counts of first-degree sexual abuse under W. Va. Code 61-8B-7 [1984] violates constitutional protections against double jeopardy. n3 The fact [**61] [*391] that the multiple convictions resulted in concurrent sentences does not render the double jeopardy issue moot. n4

[Start of Footnotes]

n3 Article III, 5 of the West Virginia Constitution provides, in part: "No person shall be . . . twice put in jeopardy of life or liberty for the same offense."

Amendment V of the U.S. Constitution provides, in part: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ."

The Fifth Amendment double jeopardy clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [Footnotes omitted.]" North Carolina v. Pearce, 395 U.S. 711, 717 (1969); accord, Brown v. Ohio, 432 U.S. 161 (1977);

We have held that the West Virginia Constitution provides identical protection:

The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.

Syl. pt. 1, Connor v. Griffith, 160 W. Va. 680, 288 S.E.2d 529 (1977). [***75]

n4 See State v. Fortner, 182 W. Va. 345, 360, 387 S.E.2d 812, 827, n. 12 (1989) ("The fact that these convictions resulted in concurrent sentences does not render the double jeopardy issue moot").

[End of Footnotes]

W. Va. Code 61-8B-7 [1984] provides, in part: (a) A person is guilty of sexual abuse in the first degree when:

(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion.

The Legislature defined "sexual contact" in W. Va. Code 61-8B-1(6) [1986]: "Sexual contact" means any intentional touching, either directly or through clothing, of the anus or any part of the sex organs of another person, or the breasts of a female or intentional touching of any part of another person's body by the actor's sex organs, where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party. In Syl. pt. 8 of State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983), [***76] we adopted the Blockburger test n5 for determining whether multiple convictions arising from the same transaction violate double jeopardy protections: Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact the other does not.

[Start of Footnote]

n5 Blockburger v. United States, 284 U.S. 299, 304 (1932).

[End of Footnote]

However, this test is not necessarily dispositive of the issue of multiple punishments for the same offense. In State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985), we noted that even though the Blockburger test is technically met by separate convictions for kidnapping and first-degree sexual assault (each requires proof of a different fact), if the kidnapping is merely incidental to the sexual assault, then double jeopardy would [***77] bar conviction and punishment for both offenses. As we held in Syl. pt. 4, State v. Reed, 166 W. Va. 558, 276 S.E.2d 313 (1981): Double jeopardy prohibits multiple punishment for the same offense, therefore under our criminal sexual conduct statute, W. Va. Code, 61-8B-1, et seq. [1986], a single sexual act cannot result in multiple criminal convictions.

We held similarly in Fortner, 182 W. Va. at 363, 387 S.E.2d at 830: Where the evidence shows only one continuing sexual offense culminating in a single act of sexual intercourse, conviction and punishment of the accused for unlawful sexual behavior entirely ancillary to such sexual intercourse violates double jeopardy. A comparison of Fortner and Reed shows the intricacies of double jeopardy protections that the Blockburger test cannot adequately handle. In Fortner, the defendant was charged with ten counts of second-degree sexual assault, ten counts of first-degree sexual abuse, two counts of conspiracy, and one count each of kidnapping and abduction with intent to defile; Reed involved a situation [***78] where the defendant was charged with separate counts of sexual assault, sexual abuse and sexual misconduct. Although the circumstances in both Reed and Fortner passed the Blockburger test, we found a double jeopardy violation for the convictions for acts incident to the sexual assault, but we did not find any error in Fortner for separate convictions involving separate acts in different locations at different times. We dealt with our unease at the lack of guidance we received from the Blockburger test by limiting the rule of Reed to ancillary acts relating to single acts of penetration:

[**62] [*392] It is important to explain that this holding is limited to the facts of this case. Here the sexual contact demonstrated at trial was ancillary to one act of sexual intercourse. We are not confronted with two acts of sexual intercourse, nor are we confronted with an act of sexual intercourse and then an act of sexual contact separated by some period of time. It would appear to the court that unlawful sexual intercourse could not possibly occur without a certain amount of sexual contact and it seems unreasonable to us that the Legislature contemplated the division of [***79] one act of rape into its component elements for the purposes of punishment. [Footnote omitted.] Reed, 166 W. Va. at 568-569, 276 S.E.2d at 320.

Such ad hoc departures from the Blockburger test show that in the area of sexually assaultive behavior, the test fails to clarify when a conviction on multiple counts for essentially the same offense violates double jeopardy protections. It has become easier for courts to cite the Blockburger test and then use it as a pretext for their decisions than to determine whether multiple convictions in a given instance violate double jeopardy principles. Reliance on this type of jurisprudence gives us only anecdotal comparisons to prior cases; it does not give us a framework with which to determine whether the double jeopardy protections have been violated in this case. Many courts in other jurisdictions that have grappled with these issues have come to the same conclusion. The New Mexico Supreme Court, in Swafford v. State, 112 N.M. 3, 9, 810 P.2d 1223, 1229 (1991), identified the limited utility of Blockburger:

While early manifestations [***80] of the Blockburger test indicated that the test may well have been a constitutional test for determining the sameness of two offenses, later decisions by the [United States Supreme] Court have retreated substantially from that position. Beginning with Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) (examining legislative history of Federal Bank Robbery Act for indicia of intent to permit multiple punishment), the Court repeatedly has stated that the question of whether punishments are unconstitutionally multiple depends on whether the legislature has authorized multiple punishment. See, e.g., Whalen v. United States, 445 U.S. 684, 688-89, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980). Indeed, where the legislature has explicitly authorized multiple punishment the judicial inquiry is at an end, multiple punishment is authorized and proper, and the Blockburger test is irrelevant. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). After [***81] examining the limitations of the Blockburger test, the court went on to develop a more comprehensive two-part test for determining the validity of multiple punishments for the same conduct:

The first part of our inquiry asks the question that Supreme Court precedents assume to be true: whether the conduct underlying the offenses is unitary. . . . The second part focuses on the statutes at issue to determine whether the legislature intended to create separately punishable offenses. Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.

Swafford, 112 N.M. at 13, 810 P.2d at 1233. Because the two-part Swafford test examining the nature of the conduct and the legislative intent to create separate punishable offenses is more comprehensive, this test should have been adopted by the majority. n6

[Start of Footnote]

n6 The majority notes that the Swafford "approach is entirely consistent with" their approach; however, their "politically correct" result can only be reached by ignoring Swafford. Slip op. 19.

[End of Footnote] [***82]

The Wisconsin Court of Appeals in Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462 (1979), after analyzing the factors that courts have used to decide similar cases, developed a more specific framework that is useful in analyzing the unitary conduct question:

[**63] [*393] In our analysis of reported cases, we have been able to identify the following: (1) nature of the act; (2) time; (3) place; (4) intent; (5) cumulative punishment; (6) muscular contraction; and (7) number of victims. The presence or absence of a single factor or a combination of factors other than the nature of the act is not conclusive of the issue.

Harrell, 88 Wis.2d at 572, 277 N.W.2d at 472-473. We have applied many of these factors in deciding cases such as Reed, Fortner, and Miller, and the majority should have adopted this framework to determine when conduct is unitary. n7

[Start of Footnote]

n7 Although the majority mentions several of the Harrell factors in their application of the Blockburger test, their piecemeal approach fails to provide a systemic framework that would guide both prosecutors and lower courts in future cases.

[End of Footnote] [***83]

When the factors listed in Harrell are applied to the circumstances of this case, they conclusively prove that the conduct was in fact unitary.

B.

1.

NATURE OF THE ACT

It is clear that in cases where there are multiple penetrations the victim's different orifices, whether of mouth, vagina, or anus, a separate conviction is valid for each penetration. As the Oregon Court of Appeals held in State v. Steele, 33 Or. App. 491, 499, 577 P.2d 524, 528 (1978), review denied 285 Or. 195 (1979) (quoted in Harrell v. State, 88 Wis.2d 546, 567-568, 277 N.W.2d 462, 470-471 (Wis. Ct. App. 1979)):

We do not believe that the convictions for oral and anal sodomy in the first degree merge as constituting but one crime. The victim was exposed to additional fear, humiliation and danger during the second sodomy. We see no reason why we should hold that a man who commits one sodomy may do so again and again to the same victim with impunity. [Citations omitted.]

We agree with that reasoning and have previously made the same holding:

Where a defendant commits [***84] separate acts of our statutorily defined term "sexual intercourse" in different ways, each act may be prosecuted and punished as a separate offense.

Syl. pt. 2, State v. Carter, 168 W. Va. 90, 282 S.E.2d 277 (1981). Accord, Johnson v. State, 762 P.2d 493, 495 (Alaska App. 1988) ("Separate convictions for multiple acts of penetration involving different openings of the victim's or the defendant's body are permissible"); People v. Johnson, 406 Mich. 320, 279 N.W.2d 534 (1979).

However, a close examination of the act in this case shows us that the analysis used in the penetration cases (such as Reed and Carter) does not fit. Appellant committed one grope in which he made contact with victim's breast and sex organ, but he did not repeatedly choose to violate the victim's body at different identifiable times. Indeed, first-degree sexual abuse is an aggravated form of battery that has heightened penalties due to the sexual overlay. This case is more akin to battery cases than to penetration cases. See People v. Berner, 42 Colo. App. 520, 522, 600 P.2d 112, 113 (1979) [***85] (holding that two blows struck in a ten minute fight "were not separate transactions but were part of a single criminal transaction arising from a single impulse"); People v. Wilson, 93 Ill.App.3d 395, 397, 48 Ill.Dec. 744, 417 N.E.2d 146, 141 (1981) (finding "inane" the argument that each blow constituted a separate crime of aggravated battery and attempted murder). Accord, Weatherly v. State, 733 P.2d 1331, 1336-1337 (Okla. Crim. App. 1987). The double jeopardy limitations on multiple battery convictions is clear: Each blow by a single defendant upon a single victim in one contemporaneous transaction cannot serve as a basis for multiple convictions for battery.

When examining the nature of the act here-- one grope that was over in a few seconds-- the appellant's conduct is much closer to battery than penetration. Accordingly, the unitary nature of the appellant's act militates against multiple convictions of first-degree sexual abuse. Although the nature of the act is perhaps the strongest factor for determining unitary conduct, this [**64] [*394] factor is not necessarily dispositive and, therefore, [***86] I examine the next most important factors, time and place.

2.

TIME AND PLACE

In Harrell, the court described the appropriate method for evaluating the time element of sexually assaultive behavior: The greater the interval of time between acts constituting an episode of sexually assaultive behavior, the greater the likelihood of separate offenses. That the interval is merely minutes or even seconds, as with the other elements and factors discussed, cannot be a solely determinative factor. . . . An episode of sexually assaultive behavior can and usually does involve multiple invasions of the intimate parts of the victim's body. Whether such invasions are a single offense or separate offenses can sometimes be placed in perspective by the time interval between specific acts. Harrell, 88 Wis.2d at 572-573, 277 N.W.2d at 473.

The place element is strongly related to time. If a defendant grabs a woman in a parking garage by the breasts and says "Baby, I want to screw you," drags her into a nearby stairwell and puts his hand between her legs and rubs before she can run away, then the different places (garage for one contact [***87] and stairwell for the other contact) would be a significant factor that would support two separate convictions. An interruption in contact, either in time or space, followed by a resumption indicates the occurrence of two offenses.

However, no such interruption of either time or space occurred here. The entire episode lasted, according to the victim's testimony, only "a few seconds." n8 Furthermore, contact with both the victim's breasts and sex organ happened simultaneously. Similarly, all contact took place in one place, on Seventh Street in Parkersburg. No interruption in either time or place occurred (even under the majority's statement of facts), further indicating that only one conviction for first-degree sexual abuse is appropriate.

[Start of Footnote]

n8 Although the majority cites State v. Williams, 105 N.M. 214, 730 P.2d 1196 (1986) as presenting "facts almost identical to those presented here", Williams concerned two "distinctly separate touchings" that occurred "during a time span of less that 5 minutes." Slip op. 18.

[End of Footnote] [***88]

3.

INTENT, MUSCULAR CONTRACTION AND NUMBER OF VICTIMS

"The defendant's intent, as evidenced by his conduct and utterances, to sexually abuse or obtain sexual gratification from his victim may demonstrate his desire for differing and separate means or acts of abuse or gratification." Harrell, 88 Wis.2d at 574, 277 N.W.2d at 473. Obviously the passing of time between events may be an indication of intent; the moving of a victim and renewal of an assault may also indicate intent. Furthermore, a defendant by his statements or separate concentration (e.g., starting his contact on the breasts and after a time shifting focus to the sex organ) may show that he intends to commit multiple offenses. This is why the multiple penetration cases are treated differently from battery cases: each penetration is prima facie evidence of a new intent to invade the victim's body. See Carter, supra;

Another way of viewing the multiple penetration distinction from battery is on the "muscular contraction" principle: If a defendant consciously chooses [***89] to commit a separate act (e.g., pulling the trigger on a gun twice) he must have intended to commit two acts. In penetration cases, the fact that a defendant consciously moved his sex organ to insert it into a second or third orifice is further evidence of intent to commit two crimes. n9

[Start of Footnote]

n9 Similarly, if a defendant attacks two or more victims, he has indicated an intent to harm each person and therefore, multiple convictions for multiple victims do not violate double jeopardy protections. See, Syl. pt. 2, State ex rel. Watson v. Ferguson, 166 W. Va. 337, 274 S.E.2d 440 (1980) ("Where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single violative act of the defendant, they may be tried and punished separately under the Double Jeopardy Clause of Article II, Section 5 of the West Virginia Constitution.")

[End of Footnote]

[**65] [*395] However, the appellant did not separately attack different parts of Ms. D.'s body; he did not express [***90] any intent separately to abuse various parts of Ms. D.'s body; rather, he committed one "few second" grope that simultaneously made contact with the victim's breasts and sex organ. Although the appellant intended to cause "sexual contact" with the victim, he did not intend to cause multiple contacts. This lack of intent makes the appellant's dual convictions for sexual abuse violate his constitutional protections against double jeopardy.

4.

CUMULATIVE PUNISHMENT

Because the appellant was sentenced to concurrent terms, the factor of cumulative punishment is minor in this case. However, it is possible that the two convictions might influence the decision of the parole board. If the punishments imposed were severely disproportionate to the crime it should weigh more heavily as a double jeopardy concern or even as a disproportionate punishment under Article III, Section 5 of the West Virginia Constitution. See, State v. Glover, 177 W. Va. 650, 355 S.E.2d 631 (1987); (limiting the application of the proportionality protection [***91] to gross disproportions).

5.

CONCLUSION OF UNITARY CONDUCT ANALYSIS

After applying the Harrell framework to this case, the conclusion should be inescapable that appellant committed a unitary act and, therefore, I next examine the legislative intent, to see whether the Legislature intended to allow multiple punishments for this unitary conduct.

C.

Until today this Court had not squarely addressed the issue of whether conviction on multiple counts of sexual abuse stemming from one incident that lasted a few seconds violates double jeopardy. Unfortunately, in deciding this issue, the majority forgot its obligation to read statutes "with the saving grace of common sense." Bell v. United States, 349 U.S. 81, 83 (1955). n10 In Reed, supra, we found it unreasonable to divide one act of rape into its component elements; it seems even more unreasonable that the Legislature wanted the courts to stand as a referee in a wrestling match counting the number of contacts to various body parts in a single incident that lasts a few seconds.

[Start of Footnote]

n10 In Bell, the U.S. Supreme Court also created the "rule of lenity":

When Congress has the will it has no difficulty in expressing it -- when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. Bell, 349 U.S. at 83. The majority seems to have forgotten that we have adopted this rule of lenity as well. Reed, 166 W. Va. at 568, 276 S.E.2d at 320.

[End of Footnote] [***92]

The State maintains (and the majority agrees) that the convictions in this case are not multiple convictions for the same offense, but rather that the statutory definition of "sexual contact" in W. Va. Code 61-8B-1(6) [1986] actually defines three different offenses: unwanted contact with the anus, unwanted contact with the breasts, and unwanted contact with the sex organ. As support, the State points to our rule permitting two convictions in situations where a defendant penetrated both the mouth and anus of the victim. The majority ignored the "saving grace of common sense" by not noticing the difference between this case and the penetration cases. The majority has yielded to popular blood lust for those who commit a crime of fashion: If a crime has "sexual" in its title, defendants automatically lose all rights. As I pointed out above, the multiple convictions upheld in the penetration cases rested on the fact that each penetration was a separate and independent act, not that the definition of "sexual intercourse" in W. Va. [**66] Code [*396] 61-8B-1(7) [1986] allows conviction for penetration of either the vagina, mouth or anus.

Not only does the majority's reliance on legislative [***93] intent to justify its decision lack "common sense", it lacks coherence as well. The majority begins by stating that it will rely on legislative intent to aggregate sentences only if "the legislature has made a clear expression of its intention." Slip op. 11 (quoting Syl. pt. 8, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992)). The majority quickly abandons this requirement of legislative clarity for a murky, divorced-from-reality analysis of the word "or." A brief review of this "analysis" will clearly reveal its absurdity.

The majority's "analysis" starts with a quote from State v. Carter saying that the use of the word "or" makes it "apparent that the Legislature chose to broadly define the term 'sexual intercourse' so that it would cover a variety of sexual encounters." Slip op. 13. The majority goes on to state that the use of "or" is "clearly designed to separate the various acts that may constitute 'sexual contact.'" Slip op. 17. That makes sense: The Legislature wanted broadly to define the conduct that would violate the statute. But then, the majority loses all coherence by concluding that the Legislature's [***94] intent to define the crime broadly led the Legislature in fact to define three different crimes, rather than three different ways of committing the same crime.

This Court rejected the majority's argument in this very regard in Pyles v. Boles, 148 W. Va. 465, 135 S.E.2d 692 (1964). In Pyles, the question was whether W. Va. Code 61-2-14a [1933] n11 defined several discrete offenses or one offense of kidnapping. In Pyles, this Court held that "it is clear that the statute . . . creates a single capital offense and not . . . three separate and distinct offenses." Pyles, 148 W. Va. at 476, 135 S.E.2d at 699. What would the majority be holding today if the defendant were appealing his conviction because the indictment charged him with "sexual contact" without picking either the breasts, anus or sex organ? Would they be freeing the defendant, or would they be concluding that the code defines one offense? I believe that Mr. Rummer would remain convicted! The majority is being disingenuous in its reliance on the argument that the Legislature's use of "or" defines separate offenses. [***95] n12

[Start of Footnote]

n11 W. Va. Code 61-2-14a [1933] provided, in part: If any person, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this State or within this State, or otherwise kidnap any other person, for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself or others from bodily harm or of evading capture or arrest after he or they have committed a crime, he shall be guilty of a felony. [Emphasis added.]

n12 Footnote 16 of the majority's opinion reveals the absurdity of their analysis of the statute. The majority acknowledges that a battery analysis might be appropriate in a situation where "the defendant touched both of the victims breasts at the same time." Slip op. 23 n. 16. The majority would then have the courts and the prosecutors looking to the offense as a whole if there is contact with breasts, but to counting the number of contacts (and convicting the defendant of a separate crime for each touch) if contact is made with the breasts and the sex organ. It doesn't take a lawyer to realize the absurdity of the majority's analysis; unfortunately, only a lawyer could come up with such a scheme. This is not the basis for a rational criminal justice system; the majority should not go out of its way to create an irrational legislative scheme where the plain reading of the code produces a rational offense-based scheme.

[End of Footnote] [***96]

In Sisson v. State, 528 So.2d 1159 (Ala. 1988) the Alabama Supreme Court addressed a similar statutory constitution question involving their driving under the influence code provisions. The Alabama Code 1975 32-5A-191 stated that "(a) A person shall not drive or be in actual physical control of any vehicle while: (1) There is 0.10 percent or more by weight of alcohol in his blood; [or] (2) Under the influence of alcohol." Sisson, 528 So.2d at 1161. The court held that subsections (a)(1) and (a)(2) [**67] [*397] are "merely alternative methods of proving the same crime, and, therefore, [do] not constitute separate offenses." Sisson, 528 So.2d at 1162. Accord Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770, cert. denied (1986).

The reasoning of Pyles and Sisson is far more persuasive and applicable to the present case than the majority's tortured abuse of the word "or". Appellant was convicted of two charges of sexual abuse under W. Va. Code 61-8B-7(a)(1) [1984], which consists of subjecting "another person to sexual contact without [***97] their consent, and the lack of consent results from forcible compulsion." The fact that "sexual contact" may arise from contact with either the breasts, the anus or the sex organ does not mean that a defendant has committed three offenses if he happens to have touched all three. The definition of "sexual contact" in W. Va. Code 61-8B-1(6) [1986] gives the State three ways of proving first-degree sexual assault; it does not define three different offenses.

The legislative intent analysis, therefore, leads to the same conclusion as did the conduct analysis: Appellant in this case may properly be convicted of only one count of first-degree sexual abuse. Both prongs of the Swafford test being satisfied, I must conclude that the circuit court erred in convicting appellant on two counts of first-degree sexual abuse.

PART III

REPERCUSSIONS OF THE MAJORITY'S DECISION ON CIVIL RIGHTS

The majority, with its decision today, has joined in the national trend of arming prosecutors with tools that will obtain more convictions, but the increase in convictions will come with total disregard for whether the accused actually committed the crime. Although the "war on drugs" has become [***98] fashionable, the "war" has done little to stop drugs and the violence associated with them! Indeed, the main casualties of this "war" have been justice and civil liberties. In this Court, it seems to me that when a defendant is accused of the current crime of fashion (any crime with the word "sexual" in it), his constitutional rights cease to exist. This trend toward the erosion of civil rights has been set by the federal courts, but recently state supreme courts have been issuing decisions that are eroding basic constitutional protections as well. I hope today's decision is an aberration; however, I fear that the majority's opinion is indicative of a trend towards the erosion of civil liberties in West Virginia.

Some of these assaults on civil liberties have been well-documented. As part of the "war on drugs" Congress has armed federal prosecutors with the ability to confiscate any property that could be tangentially related to a drug crime, thus depriving property owners who may know nothing about the crime of their property without due process. n13 Similarly, despite the apparent [**68] [*398] violation of the Sixth Amendment, the federal prosecutors have prevented accused people from hiring [***99] counsel by seizing all assets of an accused, including fees already paid to the accused's lawyer. n14 As John Henry Hingson III, president-elect of the National Association of Criminal Defense Lawyers, noted:

The federal criminal defense bar had the wind knocked out of it when the United States Supreme Court declared that pre-conviction attorney fee forfeiture did not deny the federal rights to counsel and due process of law. States were quick to follow suit, enacting forfeiture legislation that mirrored the federal model. Prosecutors would have it much easier now, in both the state and federal courts. Depriving citizens accused of their chosen champions makes obtaining the one word verdict so much easier. Public defenders already toiling under backbreaking conditions will be awash in a sea of complicated criminal cases. John Henry Hingson III, "Fee at Last! State Constitutions and Attorney Fee Forfeiture," The Champion, April 1993, 31.

[Start of Footnote]

n13 See, Steven Wisotsky, A Society of Suspects: The War on Drugs and Civil Liberties, Cato Institute Policy Analysis No. 180 (October 2, 1992); Terrance G. Reed, American Forfeiture Law: Property Owners Meet the Prosecutor, Cato Institute Policy Analysis No. 179 (September 29, 1992).

There are two types of forfeitures used by the federal government: criminal and civil. Criminal forfeitures occur only after a defendant is found guilty. The civil forfeitures, however, are used by the government to intimidate people and to deny them use of their property in violation of the Constitution. As E.E. Edwards III testified in front of the House Committee on Government Operations Legislation and National Security Subcommittee (September 30, 1992):

It is civil forfeiture, however, which concerns us the most due to the lack of constitutional safeguards and the unfair procedural advantages afforded the government over ordinary citizens. Civil forfeitures are in rem proceedings. The government proceeds against property, and, by resort to a legal fiction, the property is held guilty and condemned. Because the property itself is the defendant, the guilt or innocence of the property owner is irrelevant. The "use" made of the property becomes the central issue. It is the legal fiction which allows many extremely harsh and unwarranted repercussions to flow from the use of civil forfeiture. Moreover, the police are usually authorized to keep at least some of the profits realized in the seizure. This provides the police with incentives to seize everything they can, rather than resorting to seizures as a last resort. Moreover, the police do not even need probable cause to seize, although they must return the property if they later cannot show probable cause. [***100]

n14 Caplin & Drysdale v. United States, 491 U.S. 617 (1989); [End of Footnote]

Although seizures of assets and preventing the retention of counsel are the more obvious methods being used by prosecutors to raise their conviction rates without regard to the innocence of the accused, the more subtle methods are perhaps the most insidious. The most damaging of these subtle methods is the implementation of the federal sentencing guidelines, a process somewhat akin to what the majority has done today in the case before us.

Congress enacted the system that created the federal sentencing guidelines with an eye towards replacing the allegedly haphazard approach to sentencing in federal courts with a new system that "scientifically" assigned prison terms based on the charges and other conduct. The measure was enacted with strong bipartisan support (Sen. Strom Thurmond and Sen. Edward M. Kennedy were co-sponsors). The goal was to make criminals who commit similar crimes serve similar sentences. However:

[***101] The sentencing reforms of the last fifteen years have pointed in some useful directions, but in their current form they are bankrupt. These reforms have had consequences that few of their proponents anticipated. Some things are worse than sentencing disparity, and we have found them.

[Emphasis added.]

Albert Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. Chi. L. Rev. 901, 902 (1991). This result is just one more example of the natural law that you cannot bureaucratize excellence, you can only bureaucratize mediocrity. We have seen it in our public school system and in the way the Department of Motor Vehicles clerks provide service; now we have injected it into the federal courts.

Judge Jose A. Cabranes of the U.S. District Court of Connecticut n15 observed that despite the lofty goals set for the federal sentencing guidelines, the guidelines do not:

even come close to achieving the asserted objectives of confining discretion and eliminating the bogeyman of disparity. Indeed, disparity is not only alive and well, it is now probably more common than before and certainly more hidden than before. This [***102] is true in part because the Guidelines have sub silentio moved the locus of discretion from the judge to the prosecutor. It is largely the prosecutor, for example, who determines the quantity of drugs that will be charged or urged as the appropriate measure in calculating the Guidelines score; it is the prosecutor who will press or ignore the Probation Officer's calculation of the defendant's criminal [**69] [*399] history score; it is the prosecutor who will choose whether to stipulate facts dramatically increasing or decreasing the defendant's Guidelines range. [Emphasis added.]

Cabranes, speech to University of Chicago Law School, 15 January 1992. Moveover, federal judges note that even the theoretically objective probation officers, who compile the "factual" reports upon which the judges are supposed to base their sentencing calculations, are, "after all, usually Pinocchios in the hands of Prosecutorial Gepettos." Jack Weinstein, A Trial Judge's Second Impression of the Federal Sentencing Guidelines, 66 Southern Cal. L. Rev. 357, 360 (1992).

[Start of Footnote]

n15 Judge Cabranes was appointed by Chief Justice Rehnquist to represent the federal judiciary on the Federal Courts Study Committee (1988-1990) to examine the problems with the Federal judiciary and to recommend changes. He has seen the problems with the guidelines at both an individual level as a trial judge, and at the system-wide level through his work on the study commission.

[End of Footnote] [***103]

Just as the federal sentencing guidelines were implemented with bi-partisan support, the call for elimination of the guidelines is now strident among people who actually must work under the system. Judge Richard Posner described the effects of the guidelines as "crazy" and "loony"; so much so that the use of the guidelines in the case that employed those words deprived the defendants of their equal protection rights. United States v. Marshall, 908 F.2d 1312, 1332 (7th Cir. 1990) (Posner, J., dissenting), aff'd sub nom. Chapman v. United States, U.S. , 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Judge Weinstein of the Eastern District of New York cites one of his colleagues as saying "The Guidelines . . . have made charlatans and dissemblers of us all. We spend our time plotting and scheming, bending and twisting, distorting and ignoring the law in an effort to achieve a just result. All under the banner of 'truth in sentencing'!" Weinstein, supra, at 365. Judge Weinstein goes on to note:

Use of the guidelines does tend to deaden the sense that a judge must treat each defendant [***104] as a unique human being. The present system contributes to the bureaucratic mentality described by Hannah Arendt in her analysis of the "banality of evil." [Footnote omitted.] While it is not conceivable that federal judges will slide down the slippery slope to the utter inhumanity of their judicial counterparts in Nazi, fascist, and communist regimes, it is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that ought to characterize our office. Hysteria over crime has poisoned much of our society, including the justice system. [Emphasis added.]

Id. at 366. Our own majority's hysteria over crimes with the word "sexual" in them have poisoned their view of the civil rights of accused persons in exactly the same way that the federal courts have been poisoned by drug prosecutions. They are setting a very bad precedent with their decision today.

Another horrible effect of the federal sentencing guidelines on the federal judicial system is the way in which noncharged conduct (or indeed conduct of which the defendant has been actually acquitted) is still held against the defendant under the sentencing guidelines, [***105] thus requiring judges to sentence defendants for crimes of which they were either acquitted or never tried. As Judge Jon O. Newman of the Second Circuit stated in his 25 March 1993 dissent to the denial of en banc review of the decision in United States v. Concepcion, 983 F.2d 369, 395-396 (2d Cir. 1992) reh'g denied sub nom. United States v. Frias (Newman, J. dissenting):

One of the bizarre aspects of the current Sentencing Guidelines regime is that a defendant can receive the same sentence whether he is convicted or acquitted. That phenomenon occurs when a defendant is charged with multiple counts. The pending case of Nelson Frias illustrates the problem.

Frias was convicted of two counts of firearms violations and acquitted of a drug conspiracy violation. His applicable guideline range based solely on the convicted conduct would have been 12 to 18 months. His actual guideline range, based in part on the drug conspiracy of which he was acquitted, was 210 to 262 months. This is the same range that would have been applicable had he been convicted of the drug conspiracy. [Emphasis added.] [**70] [*400] The net effect of the guidelines [***106] works to remove discretion from judges and to put it in the hands of prosecutors. This leads me to the inescapable conclusion that our federal judges have lost what Joe Cabranes might call their cajones.

Indeed, the commission that created the Guidelines expressed concern that one of the major drawbacks of the guidelines is the "potential to turn over to the prosecutor the power to determine the sentence by increasing or decreasing the number (or content) of the counts in an indictment." Federal Sentencing Guideline Manual, October 1987, Chapter 1, Part A, Policy Statement 4-- The Guidelines Resolution of Major Issues. As Albert Alschuler describes it:

[A] system of sentencing guidelines that on its face prescribes severe sentences but leaves plea bargaining unconstrained is a prosecutor's paradise. Sentencing guidelines masquerade as the sentencing commission's determination of appropriate penalties. In reality, the guidelines are bargaining weapons-- armaments that enable prosecutors, not the sentencing commission, to determine sentences in most cases. In operation, the guidelines do not set sentences; they simply augment the power of prosecutors to do so. Alschuler, [***107] supra, at 926. I believe that today's majority opinion, by condoning "over-charging" on the indictment side, has exactly the same effect in state court that some of the more obscene abuses of guideline sentencing have in federal court.

Today, prosecutors have more power and less judicial supervision than ever before. Today's prosecutors are like the sheriffs of the old wild west: they are the law. They participate in (and often lead) the investigations, they prepare the case, and now, increasingly, they set the sentences. n16 The main reason for the shift has been the creation of the "war" on crime and drugs. Our criminal justice system has shifted "from a due process-oriented criminal justice model to a model that has placed increasing emphasis on crime control and crime prevention." Bennett Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, (1992). Prosecutors have become the generals in the "war", armed with statutes like RICO, Drug Enterprise, Forfeiture, and the Sentencing Guidelines. Prosecutors have become crime fighters, not just advocates for the state. But because prosecutors are so closely tied to the detection and capture of [***108] the suspects, they cannot review the case objectively: In the prosecutor's view, there is no such thing as an innocent suspect or defendant.

[Start of Footnote]

n16 In 1989, 86% of all federal criminal cases were disposed of without a trial. See U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 502 tbl. 5.25 (Kathleen Maguire & Timothy J. Flanagan, eds., 1990). The same phenomenon occurs in state cases: in 1988, 91% of all felony convictions in the 75 most populous counties in the United States were obtained through guilty pleas. Id. at 526 tbl. 5.51." Robert E. Scott and William J. Stunts, Plea Bargaining as Contract, 101 Yale L. J. 1909, n.1 (1992). Although in most jurisdictions the sentence in a plea bargain is technically set by a judge, the prosecutor's deal is virtually always implemented. If that were not the case (that is, if prosecutors had no credibility), then defendants would not make deals with the Prosecutors.

[End of Footnote]

As a result, today's prosecutors (especially federal prosecutors) [***109] do not act fairly towards defendants. In Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. . . . 'The United States wins its point whenever justice is done its citizens in the courts.'" However, today's Justice Department does not share that view: Today's goal is simply to maximize convictions. This need to convict has driven prosecutors to rely on the plea bargain as a quick and easy way to maximize the number of convictions. A prosecutor can dispose of several plea bargains in an afternoon, but preparing for and holding a trial might take weeks or even months. n17 Even then, [**71] [*401] after all that time and effort the prosecutor might not get the precious conviction: the jury might acquit! What's a prosecutor to do? n18

[Start of Footnotes]

n17 As Judge Frank Easterbrook of the Seventh Circuit describes the demands on the prosecutor:

[Plea bargains] also benefit prosecutors and society at large. In purchasing procedural entitlements with lower sentences, prosecutors buy that most valuable commodity, time. With time they can prosecute more criminals. When eighty percent of defendants plead guilty, a given prosecutorial staff obtains five times the number of convictions it could achieve if all went to trial. Frank Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969, 1975 (1992). However, this is an optimistic view of what prosecutors do with their freed up time. Prof. Stephen J. Schulhofer provides a more realistic view: Both the chief prosecutor . . . and her assistants have numerous incentives that diverge from the public's interest in optimal deterrence. The [prosecutor] is usually an elected official [in the state system] and whether elected or appointed, her goal is to enhance her reputation and political standing. An effective crime control strategy could contribute to that goal, but deterrence effects at the margin . . . are likely to be imperceptible to the general public, especially over the short run. Several other factors (such as a high conviction rate, a good relationship with influential private attorneys, and an absence of high-profile trial losses) contribute more directly and more effectively to the [prosecutor's] political standing. . . .

Front-line prosecutors who actually negotiate plea agreements may or may not share the [chief prosecutor's] desire to enhance the office's political stature. . . . The assistant's immediate goal is not necessarily to find the optimal strategy for controlling crime or even for reelecting his superior. Rather, his goal (in an economic model) is to maximize his own welfare, which is defined by some combination of career advancement, job satisfaction, and leisure. Pursuing and optimal crime control strategy may help advance the prosecutor's career, but other factors are likely to do so more effectively.

Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L. J. 1979, 1987-1988 (1992). Note that precious little in the incentives for the prosecutor involve doing justice. That is the role for the judge, to ensure a just result. [***110]

n18 Indeed, the jury may be the only remaining check on the prosecutor. As Professor Gershman points out, "The heightened imbalance in the adversary system makes the prosecutor less accountable to his peers or to the courts than ever before. Sanctions for misconduct or overzealous advocacy are either nonexistent or not effective. It may be that the only effective check on prosecutorial power lies in the jury system. To be sure, only a fraction of cases go to trial, and most of those cases result in convictions. However, in those instances where juries have decisively rejected the prosecutor's case --particularly in several recent high-profile cases involving celebrities, public officials and major organized crime figures-- constitute perhaps the most significant check on charging and adversarial abuse by the prosecutors." Gershman, supra, at 395, n.14.

It is because the prosecutors have everything to lose and nothing to gain by going before a jury that they have incredible incentives to obtain a plea bargain, often at true bargain prices. However, an innocent defendant often will not (and should not have to) plead guilty to a crime that he did not commit. Yet an innocent defendant must often face the wrath of a politically motivated prosecutor and a significant potential extra punishment for making the prosecutor go to trial. Although it is true that the innocent defendant may be acquitted, it is also true that the prosecutors and police pull out all stops (including lying under oath) to get convictions. Obviously there must be some reasonable discount for pleading guilty, but a penalty of 300 to 1,000 percent sentence enhancement for not pleading guilty strains due process notions to the breaking point.

[End of Footnotes] [***111]

The Justice Department, in its Prosecutor's Handbook on Sentencing Guidelines (1 November 1987), endorsed the position that federal prosecutors must take maximum advantage of the opportunities to use the guidelines to maximize convictions:

The Handbook instructs federal prosecutors that it is 'imperative' for them to consult the Guidelines before choosing what offenses or counts to charge, particularly in multi-count cases, in order to obtain the 'best' (i.e., most substantial sentence) down the road. . . . [Especially] problematic . . . is the Handbook's express endorsement of sentence enhancement by 'splitting counts' between two indictments or between federal and state prosecutions. [Emphasis added.] Stephen H. Glickman and Steven M. Salky, Criminal Defense in the Era of Sentencing Guidelines, 150 PLI/Crim 807 (1989) (PLI Order No. C4-4185). In the case before us the majority have basically enhanced bargaining power by "splitting counts."

The main way that federal prosecutors obtain the "best results" of maximum prosecutions is by encouraging defendants to [**72] [*402] plead guilty regardless of whether the defendants are guilty. Indeed:

The Guidelines may [***112] actually penalize the unsuccessful presentation of a defense at trial. Guideline 3C1.1 provides for a two-level sentence increase if the defendant's [sic] 'attempts to impede or obstruct the administration of justice during the . . . prosecution of the instant offense.' On its face this may look relatively innocuous, but the official commentary says the sentence enhancement applies if, for instance, the defendant testifies untruthfully at trial. [Footnote omitted.] If courts routinely apply 3C1.1 in sentencing defendants who testify to their innocence at trial-- and perhaps also to defendants who present any unsuccessful defense on the merits-- it will be a significant disincentive to going to trial. To make the point another way, there is potentially a four-level sentencing difference between presenting a vigorous but unsuccessful defense at trial and pleading guilty with an appropriate acceptance of personal responsibility.

Glickman, and Salky, supra (WL *4).

The Guidelines have given federal prosecutors the ability to create extremely high potential sentences in order to coerce defendants into pleading guilty instead of going to trial. The majority's decision in [***113] the case before us gives West Virginia prosecutors a similar power. When it comes to a sexual abuse case, the majority has given the prosecutor carte blanche to charge as many counts of that abuse as he would like. An innocent defendant facing a potential of consecutive sentences adding up to 50 or 60 years will feel strong pressure to plead guilty to a lesser charge and be sentenced to one to five years with probation. Moreover, if the prosecutor offers the same deal to the actual criminal in exchange for his testimony against an innocent alleged defendant, the true criminal would jump at the chance, while the innocent co-defendant would now face prosecution and a potential 60 year sentence instead of serving probation simply because he is innocent and demands to go to trial.

The majority should recall the recent case of Glenn Dale Woodall, and the way that the police and prosecutors manufactured the case against him, to realize that prosecutors do not behave as if they are seeking justice, but try to maximize convictions. See State v. Woodall, 182 W. Va. 15, 385 S.E.2d 253 (1989) (Neely, J., affirming in part, reversing [***114] in part the initial conviction due to errors at trial. Subsequent DNA evidence revealed that the prosecution and police manufactured a large part of their case against Mr. Woodall, and the State settled Mr. Woodall's lawsuit for wrongful imprisonment for $ 1 million). Moreover, the Woodall case stands out not because it is rare, but because the prosecutor and the police got caught manufacturing a case against an innocent defendant.

Often we see a situation where the prosecutor offers a group of suspects a deal: Turn in the others, and you'll receive a light sentence. So who accepts the deal? The truly guilty accept the deal, knowing it's the best they can do. However, the innocent in the group will not plead, because they did not commit a crime. At that point, the prosecutor turns full bore against the innocent defendants; then the combination of the other testimony and the prosecutor's quest for conviction are often difficult to overcome. The prosecutor does not need any more leverage to coerce innocents to plead guilty; however, the majority's opinion today gives the prosecutor the ability to bring a virtually unlimited number of counts against a defendant without violating [***115] the Double Jeopardy clause.

It is true that in this case the circuit court had the good judgment to sentence appellant to concurrent sentences. Although no significant injury befell appellant ex post, that does not cure the problem caused by the violation of appellant's double jeopardy rights. There is no way ex ante that appellant could have known that the circuit court would sentence him that way. If, before the trial, he was presented with a plea offer by the prosecution, the prosecutor surely would have impressed the defendant with the potential for consecutive sentences if he did not plead guilty. [**73] [*403] With today's opinion, the majority is falling into the same trap that the federal sentencing guidelines have created for the federal judiciary: increased charging discretion for the prosecutor necessarily leads to decreased justice being provided by the courts.

Finally, I would add one last observation: Specialization in the law has now relegated criminal law to the ministrations of a small group of lawyers at the top of the profession, and to an incalculably larger group of lawyers at the bottom. There is little in between. Because criminal law involves almost [***116] exclusively the processing of impecunious members of the underclass, insufficient money is at stake in any criminal case to attract prominent, well-connected lawyers. Although a few white collar criminals and a few drug dealers have enough money to hire good lawyers, almost all criminal defendants are represented by overworked, underpaid public defenders or court-appointed lawyers. Sometimes public defenders are young, ambitious, intelligent, idealistic advocates; most of the time, however, public defenders are simply hacks. Court-appointed lawyers are often good, but lawyers who find that they can make vastly more money in civil practice seek to avoid court appointments. In West Virginia, not only does court-appointed criminal work pay badly, with adequate funds never being appropriated by the legislature, court-appointed criminal work often does not pay at all. Thus, the legislature, the bar, and now the courts are coming to treat the whole field of criminal law as just another part of the waste management industry.

The staffs of prosecuting attorneys are largely composed of bureaucratized government lawyers whose interest in being on the cutting edge of the law is vanishingly [***117] small. Assistant prosecutors, in general, are folks who have accepted the regular hours and fair job security of the government coffee suck in lieu of more arduous, stress-laden and challenging work. On the federal side, with the advent of secure, reasonably well paid, lifetime jobs as civil service prosecutors (unlike yesteryear when the U.S. Attorney's office was a training ground for great lawyers), professional federal prosecutors now have little sense of common humanity and see defense counsel not as adversaries but as personal enemies.

Although, perhaps, this description is a bit of a caricature, like all caricatures, it is but an exaggeration of the God-given truth. Unlike the days of my youth when most high quality lawyers at least from time to time found themselves in criminal court, today the lawyers with political connections, high-powered intellectual equipment, and good supporting staffs have no knowledge of nor interest in anything that has to do with criminal justice. Furthermore, this tendency to have criminal law practiced by an extraordinarily narrow group of specialists is even more pronounced in the federal courts where, as I indicated earlier, arduous efforts [***118] have been made by lifetime, civil service prosecutors to keep high quality, expensive lawyers who might beat them out of the system. Part of our problem, then, is that the great majority of lawyers in this country-- particularly those working in the enormous corporate and defense firms-- have absolutely no idea what a joke custom crafted, individualized justice has become in the federal court system and what a joke custom crafted, individualized justice is in danger of becoming in the state court systems.

It is time, then, for us to take a stand on this frontal assault on our civil liberties; it is time for the courts to reassert their proper role in the administration of justice. I regret that the majority, in its yielding to hysteria over a crime that has the word "sexual" attached to it, has failed to see the consequences of it's [sic] ruling today.

[End of Judge Neely's Dissenting Opinion]

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Copyright 2002 by Carl E. Person [no copyright claimed as to text of opinions