When Jason “J. Rock” Austin’s lawyer, Richard Kling, prepared for sentence, the charges for which the defendant stood convicted were for drug dealing.  But this is America, and he stood in a federal court, which opened Austin up to sentence for “related conduct,” an innocuous way of saying that the murders of Chicago Detective Robert Soto and Kathryn Romberg were also on the table.

When the State sought to prosecute Austin for the murders in 2008, the case fell apart.  He was arrested, and then released after witnesses against him recanted and claimed they were coerced into pointing at J. Rock.  But that case would have required a jury to be convinced of his guilt beyond a reasonable doubt.  This was a federal court in America, so it was no longer necessary.

Holding hands and crying softly in a packed federal courtroom, the victims’ relatives listened as U.S. District Judge Joan Lefkow found Austin accountable for the slayings while sentencing him to 35 years in prison on the drug charges.

“I do believe it is very likely you committed these murders,” Lefkow told Austin. “You destroyed two innocent lives…You deprived families of their loved ones, deprived children of their parents.”

It’s unclear how those 35 years are explained.  Was it because of the drugs?  How much was added for the murder of Romberg? How much for Soto’s killing?  In the scheme of federal sentencing, 35 years isn’t a really big number.  After all, Bernie Madoff got 150 years, and he never murdered anyone.

But Judge Lefkow’s pronouncement of culpability, not quite guilt but responsibility, may have been more about bringing peace to the families of the deceased than adding years to a sentence.  Even so, it raises the most inexplicable, unjustifiable, loophole in the criminal process.  Even if it didn’t produce extra time for Austin (though it may well have, even if it doesn’t appear to reflect an additional period of imprisonment appropriate for a couple of murders on top of a drug conspiracy), it produced a killer.

Austin was convicted last year by a jury of running an $8,000-a-day heroin and crack cocaine operation at the corner of Kedzie Avenue and Ohio Street. Although he was never charged in federal court with the slayings, prosecutors used evidence from the homicide investigation to try to boost his sentence to life behind bars. The back-door move meant the government only had to show that Austin was more likely guilty than not — not the higher threshold of guilty beyond a reasonable doubt. However, with seven felony convictions in his background, including an unrelated shooting, Austin was already facing up to life in prison under federal sentencing guidelines.

He was convicted by a jury after trial, but only of drug dealing.  Had the government chosen to charge and try him for murders as well, then the jury would have heard additional evidence of that crime and had an opportunity to decide whether he was proven guilty beyond a reasonable doubt.  But the government chose not to do so.

Here’s the kicker:  Even if the government had charged  and tried Austin for the murders, and the jury rejected the proof as inadequate and returned a verdict of acquittal, he still could have been sentenced for acquitted conduct. Guilty, you lose. Acquitted, you lose. Not even tried for it, you lose.

In fairness, the court doesn’t get unfettered discretion to nail the defendant to the wall for a score of crimes for which he wasn’t found guilty.  The court is still limited by the maximum for the crimes for which he was, actually, convicted. But given the statutory max for most federal felonies, that’s little comfort.  Not to mention, his treatment over the next 35 years will be relative to the offenses for which he was handed his free room and board.  Prison may be miserable in general, but can be made far more miserable for a cop killer.

So what did J. Rock do that his drug dealing conviction wasn’t bad enough, but that the court found him to be a killer as well?

Lefkow — who found Austin responsible only “on the preponderance of the evidence,” not “guilty beyond a reasonable doubt” as would have been required at trial — on Thursday said it was clear Austin had beaten the original state murder case by intimidating witnesses in his West Side neighborhood.

But she told him he “made a slip” in a recorded call from Cook County Jail, in which he criticized a police re-enactment of the murders, telling a girlfriend, “I ain’t have no damn hat on.”

Maybe.  Or maybe he’s a guy who didn’t like hats. Or maybe he was making a joke. Or maybe his command of the mother tongue is truly awful, such that “I ain’t have no damn hat on” would have been something to put before a jury, after evidence and argument, to decide what, if anything, it meant.  That’s a thin reed, the thinnest reed, to be found a cop killer.  Not that he wasn’t, or he was.

The judge said she also was impressed by an emotional videotaped statement given to police by Terrance Scott, a low level drug dealer who said he was riding in Austin’s Buick when Austin jumped out and murdered Romberg and Soto as they sat in a parked SUV on the 3000 block of West Franklin.

Well, maybe that’s a stronger basis for the finding. Except:

Though Scott later recanted, saying he’d been beaten by police, Lefkow said the video made it clear he was “pouring his heart out.”

Sometimes people get very emotional after a damn good beating.  Whether that’s “pouring his heart out” or doing as much as possible to not be beaten again by the cops is a question best left to a jury.

But if there was such persuasive evidence that J.Rock murdered a cop and his companion, then why not try him for the murders?  Why not lay it out bare in a courtroom, before a jury, to convince them that Austin was guilty beyond a reasonable doubt?

Because in America, in a federal court, the government doesn’t have to.