Bobby Thorne, a local man convicted in January on drug possession charges, will get a new sentencing hearing after the D.C. Court of Appeals found that there was a good chance the trial judge "punished" him for exercising his constitutional rights at trial.
In an order (PDF) published yesterday, a three-judge panel found that D.C. Superior Court Judge Jennifer Anderson's statements in court that she would "take into account" at sentencing Thorne's decision to cross-examine a government witness warranted a new hearing before a different judge.
"In view of the judge’s comments, there is a reasonable likelihood that she punished appellant for invoking his Sixth Amendment right to confrontation," the court found.
Thorne’s attorney, Cassandra Snyder of the Georgetown University Law Center’s Criminal Defense & Prisoner Advocacy Clinic, could not immediately be reached Friday. The U.S. attorney’s office, through spokesman William Miller, declined to comment.
Following a one-day bench trial in January before Anderson, she found Thorne guilty of possessing heroin. At trial, according to the government’s brief, Thorne had argued a theory that he was “in the wrong place at the wrong time” and that there wasn’t sufficient evidence tying him to the drugs.
Thorne did not waive the testimony of the government’s chemist, who had tested the substance to identify it as a narcotic. Anderson, according to the brief, said that it was Thorne’s right to question the chemist, but that she took “all these things into account.”
At sentencing, Anderson said that she wasn’t giving Thorne any credit for accepting responsibility because he insisted on drawing out the proceedings by questioning the chemist about information that wasn’t in dispute. She sentenced him to 180 days in jail, with credit for time served.
On appeal, the government argued that Anderson’s sentence was based on more than just his decision to cross-examine the chemist. The government said that, if anything, the case could be remanded to Anderson to allow her to more fully explain her sentencing rationale, but that ordering a re-sentencing by another judge was unnecessary.
In the appellate court’s order, the judges disagreed, citing case law that says that penalizing a person for exercising their constitutional rights is “patently unconstitutional.” According to the two-page order the court will issue a full opinion later on.
Judges Stephen Glickman and Anna Blackburne-Rigsby and Senior Judge Inez Smith Reid heard the case.