Eliding the E Word

This wikilog article is a draft, it was not published yet.

by: Ryan • December 12, 2013 • no comments

I remember a conversation from college in which I referenced the two lesbian characters in The Great Gatsby. The person I was talking to was skeptical that such characters existed. Looking me in the eye, he said, "if there were two lesbians in The Great Gatsby, I would have remembered."

I pointed out that they were not identified as lesbians explicitly. Rather, they were two girls who attended Gatsby's parties, and the fact that they were gay could be understood from contextual clues. One of those clues, I noted, was that they both wore yellow, and yellow in the book consistently suggested decadence. (Obviously, this reflects the attitude at the time, not contemporary attitudes, and certainly not my attitude. Recall that we are farther away from the initial publication of Gatsby than Gatsby was from the Civil War.) In support of the yellow-as-decadence motif, I noted that Tom Buchanan's extravagant car -- the one that killed his mistress -- was yellow. Also, Daisy was named after a flower that is white on the outside (suggesting an appearance of innocence) but yellow on the inside. The same symbolism held true for "Daisy Miller" in the story by Henry James.

"Or," the other person said, "Fitzgerald just likes yellow."

Perhaps. But textual cues can deepen our understanding of the author's intent. The words we use and the words we avoid. And to some extent the same can be true for opinions.

Take State v. Reinke. I want to focus on one aspect of the opinion. There is a word almost entirely missing from a crucial part of the opinion, and I have wondered since the opinion was issued whether the omission was intentional or inadvertent. I am now convinced it was intentional.

Reinke was the case that held that offense-specific enhancement facts do not have to be submitted to the Grand Jury under the Oregon Constitution. The opinion does note that such facts do have to be submitted to and proven to a jury. But the court notes that the right to a jury trial is a separate provision than the right to an indictment. Sure, they're related, but they each have different responsibilities, different purposes. Like police and prosecutors. Some overlap in purpose, but not the same thing.

I want to quote that portion of the opinion in full.

B. The Jury Trial Clause of Article I, section 11

Defendant invokes one other clause in Article I, section 11, the clause that guarantees an accused the "right to public trial by an impartial jury" in all criminal prosecutions. Defendant argues that, as we have interpreted the Jury Trial Clause, he had a right to have the jury find one of the three sentence enhancement facts necessary to impose a dangerous offender sentence — whether he was "being sentenced for a felony that seriously endangered the life or safety of another." See ORS 161.725(1)(b). The state does not dispute that the Jury Trial Clause of Article I, section 11, required the jury to find that fact, and we assume that it did. The question that remains is whether the Jury Trial Clause also governs what the grand jury must find and the indictment must plead.

In interpreting an original constitutional provision, we consider the text of the provision, its history, and our cases interpreting it. See Priest, 314 Ore at 415-16 (looking to those sources). Textually, the clause of Article I, section 11, on which defendant relies guarantees the right to a jury trial in all criminal prosecutions. Or Const, Art I, § 11. It does not address the facts that the grand jury must find in order to return an indictment. The two bodies are distinct, and it is textually difficult to convert a constitutional right to a trial by jury into a requirement that governs what the grand jury must find to issue an indictment.

The second problem is related to the first. The context is at odds with defendant's reliance on the Jury Trial Clause of Article I, section 11. As explained above, a separate provision of the constitution, Article VII (Amended), section 5, governs the facts that the grand jury must find to return an indictment for a felony. As also explained above, that provision does not require that grand juries find sentence enhancement facts to indict a defendant for a crime. We would have to ignore Article VII (Amended), section 5, and indeed read it out of the constitution, to interpret the Jury Trial Clause of Article I, section 11, as defendant urges us to do. To the extent that the two constitutional provisions conflict, Article VII (Amended), section 5, controls. See Fadeley, 310 Ore at 560.

There is another contextual problem with defendant's argument. This court explained in State v. Ice, 343 Ore 248, 257, 170 P3d 1049 (2007), rev'd on other grounds, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009), that the existence of the jury trial right under Article I, section 11, does not "tur[n] on whether the [sentencing] factor extends the length of a defendant's sentence beyond the statutory maximum," which is one criterion for identifying sentence enhancement facts. Put differently, the class of facts that the Jury Trial Clause of Article I, section 11, requires juries to find is not coextensive with the class of sentence enhancement facts. The former class is both broader and narrower than the latter class. 18 In our view, the lack of identity between the facts that the Jury Trial Clause requires the jury to find and sentence enhancement facts, makes the Jury Trial Clause of the Oregon Constitution an unlikely source for the constitutional requirement that defendant asks us to announce.

FOOTNOTES

18 As the court explained in Ice, the Jury Trial Clause requires juries to find some facts necessary to impose mandatory minimum sentences, even though those facts do not result in a greater sentence than the statutory maximum. See 343 Ore at 257. Conversely, the Jury Trial Clause does not require juries to find facts that result in a greater sentence than the statutory maximum when, to use a shorthand formulation, those facts relate to the offender rather than the offense. See id. at 257-61 (describing which "offense-specific" facts the Jury Trial Clause requires a jury to find).

Finally, our cases consistently have held that, even though the Jury Trial Clause of Article I, section 11, requires the jury to find some facts related to sentencing, those sentencing facts are not elements of the offense that the grand jury must find and that the indictment must plead. See, e.g., Johnson, 340 Ore at 352; Oatney, 335 Ore at 292-97; Wagner, 304 Ore at 171-72. We consistently have held that, as a matter of state constitutional law, the grand jury's task is more limited. Johnson, 340 Ore at 352. It only needs to find the elements of the "conventional charge" as the legislature has defined it. Id.; Hicks, 213 Ore at 641. It need not find any sentence enhancement facts. In that regard, we note that none of the common-law history that defendant has cited (to the extent it provides any support for him) supports the proposition that the grand jury must find only a subset of sentence enhancement facts. Defendant thus provides no history to support his argument that the Jury Trial Clause of Article I, section 11, requires the grand jury to find the same limited set of facts that it requires juries to find. The text of the Jury Trial Clause, its history, and the cases interpreting it provide no support for defendant's reliance on that clause. We conclude that neither Article VII (Amended), section 5, nor the two clauses in Article I, section 11, on which defendant relies required the grand jury to find and plead sentence enhancement facts.

Until that last paragraph, the word that is missing is "element." Because what the OSC kept avoiding is the fact that whether a "sentencing enhancement" must be submitted to the jury hinges on whether it's an element of the offense. The Ice court determined that questions that arise under Or. Const. art. I, § 11, are to be resolved primarily in terms of whether the fact that authorizes an enhanced punishment is an "element" of the crime for which the defendant is to be punished, regardless of how it has been denominated by the Oregon Legislature.

But the Reinke opinion goes out of its way to avoid calling "sentence enhancements" to which a person has a right to a jury trial "elements." It calls them anything but elements. Yet those "sentence enhancement facts" are elements under Article I, section 11. The cases that Reinke relies on say so.

So why not just call them elements? Because the court had already claimed that the notice clause in Article I, section 11, which is often considered one source of the Grand Jury right, only applied to elements, not sentence enhancements. The Reinke court said, "If the people did not intend to require that indictments conform to that aspect of nineteenth-century pleading practice, it is difficult to see why they would have intended that the Notice Clause would incorporate what is, in our view, a far more uncertain common-law proposition — that an indictment must go beyond pleading the elements of the crime and also plead sentence enhancement facts." [Emphasis added.]

In other words, one of the arguments that the court relied on to avoid applying the notice provision of Article I, section 11, to enhancement facts was the fact that they were enhancement facts and not elements. But the Ice court, in reviewing the case law, had held that offense-specific enhancement facts were exactly that, elements, because -- regardless of the legislative label -- they served the role of elements of an enhanced crime. Since the Reinke court wasn't prepared to overrule all the previously Supreme Court opinions that are summarized in Ice (a rare demonstration of restraint from this court), the only way to avoid this obvious flaw in the court's logic is to simply refer, when discussing what the Ice court calls elements, as something else. Instead, they are "sentence enhancement facts" to which a person has a right under Article I, section 11, to a jury trial. But don't call them elements, even though that's what they are and that's what the Court's prior opinions have held, because doing so would completely undermine the distinction that the court relied upon when explaining why the notice clause of the same constitutional provision doesn't apply to offense-specific aggravating factors.

Extending the earlier analogy, it's like the court saying that cops and prosecutors have very different responsibilities and very distinct roles, and while police arrest people for "illegal activity," prosecutors charge people with "crimes." As long as we don't say that police arrest people for "crimes," we can pretend we're talking about two very different things.

The court almost slips in that last paragraph. It uses the word "element." But note how it does so. The Reinke court says, "Finally, our cases consistently have held that, even though the Jury Trial Clause of Article I, section 11, requires the jury to find some facts related to sentencing, those sentencing facts are not elements of the offense that the grand jury must find and that the indictment must plead."

If you read that quickly, you might think that the "facts related to sentencing" are not elements of the offense. But it doesn't say that. Instead, it tries to straddle the line in a not very ingenious way. They are "not elements of the offense that the grand jury must find and that the indictment must plead." Implicitly, they are elements, just not elements that need to be pleaded. But it's easier now just to refer to them as "sentencing facts that the defendant has a right to a jury trial on" rather than explaining that yes, they're elements under the Constitution, but the word "elements" means different things under one part of Article I, section 11, than under another part of Article I, section 11. Better to just elide the problem by eliding the word.