Via Doug Berman, this story of how Baltimore federal prosecutors are trying to bootstrap a first offender drug conviction into a murder sentence.  The Baltimore Sun article about Gary “Fat Boy” Williams Jr., explains:

Federal prosecutors are mounting what is essentially a trial within a trial in hopes of winning a stiffer sentence. Federal sentencing law allows a judge to consider alleged crimes that have been refuted at trial or which a defendant has never been charged with, a provision that critics say flouts the constitutional protections of the trial-by-jury system.

Williams’ lawyer, Christine Needleman, said, “It’s supposed to be a sentencing for my client’s first [federal] drug conviction. … Instead, they’re trying to tack on a murder that can’t be proven to send him to prison for life without parole, without any of the procedures.”

Rod J. Rosenstein, the U.S. attorney for Maryland, said Williams is accused of ordering the killing of a 35-year-old Harford County woman in February 2006 to obstruct the drug investigation, making it “relevant conduct” to the drug dealing. Prosecutors must prove his involvement by only a “preponderance of evidence.” In a criminal trial, a defendant must be proven guilty “beyond a reasonable doubt,” a higher threshold.

The use of uncharged crimes as relevant conduct is neither new nor shocking.  At least not to lawyers.  It is, and remains, one of the most offensive abuses in federal sentencing.  Turley is quoted in the Sun article as saying, “It’s a practice that is obviously ripe for abuse.”  I disagree.  It is not ripe.  It is facially abusive.

The more usual scenario is that a defendant is tried for one crime, and then the government tries to throw in all the allegations it can muster as to additional similar crimes in order to smear the defendant for sentencing purposes. 

Why didn’t it just indict and try him for the additional crimes?  Because they don’t have the evidence, and when raised only at sentencing, the standard of proof is different.  Rather than “beyond a reasonable doubt,” the standard is only preponderance of the evidence.  The government hopes that the defendant will not fight the relevant conduct enhancement and open the door to a Fatico hearing where they can smear him further.  It allows the government to throw as much as they have against the wall and see what sticks.

But this case is special.  Here, the defendant is charged with drug dealing, but the relevant conduct crime is murder.  The nature of the offense upon which the government wants the defendant sentenced dwarfs the offense for which he was tried.  It’s a scenario that smacks one in the face with a harsh dose of how wrong it is to sentence a defendant for “relevant conduct.”

It may be the “Fat Boy” (an alias that no doubt endears the defendant to whoever named him that) is a bad dude, who has done very evil things.  So get the evidence and put him on trial for it.  There is no aspect of federal criminal law that is so offensive to every notion of justice as this, and there are few cases where it is more apparent than this.  Simply put, a person should not be sentenced for murder unless he’s been convicted of murder.  Is there really any doubt?