Pubdate: Wed, 07 Apr 1999 Source: Sacramento Bee (CA) Copyright: 1999 The Sacramento Bee Contact: P.O.Box 15779, Sacramento, CA 95852 Feedback: http://www.sacbee.com/about_us/sacbeemail.html Website: http://www.sacbee.com/ Forum: http://www.sacbee.com/voices/voices_forum.html DEFENDANTS CAN TAKE FIFTH IN SENTENCING, COURT SAYS Ruling: plea doesn't negate right to silence Judges cannot heap stiffer punishment on criminal defendants who, after pleading guilty, refuse to give details about the crime at sentencing, the Supreme Court said Monday. Holding such defendants' silence against them would impose "an impermissible burden on the exercise of the constitutional right against compelled self-incrimination," the court ruled 5-4 in a Pennsylvania drug case. The Constitution's Fifth Amendment states that no one "shall be compelled in any criminal case to be a witness against himself." In 1965, the nation's highest court ruled that criminal trial juries cannot hold defendants' silence against them. Writing for the court on Monday, Justice Anthony M. Kennedy said, "Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants." That would let prosecutors indict someone in a drug case without specifying the amount of drugs involved, obtain a guilty plea and then use the defendant's testimony at sentencing to establish the amount of drugs, Kennedy said. Kennedy's opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor and Clarence Thomas. They agreed that defendants who plead guilty can refuse to testify at sentencing, but said judges should be allowed to hold it against them. Monday's ruling reversed a lower court decision that said defendants who plead guilty forfeit the right to remain silent at their sentencing. Amanda Mitchell of Allentown, Pa., invoked that right in refusing to testify at a sentencing hearing about the extent of her involvement in a cocaine-selling ring. Mitchell was charged along with 22 other people. She pleaded guilty in 1995 to federal charges of conspiracy and distributing cocaine, but she reserved the question of her level of culpability for the amount of cocaine she actually distributed. At her sentencing, Mitchell refused to answer when the judge asked about her level of involvement. The judge sentenced her to 10 years in prison, saying the testimony of other witnesses established that she had distributed more than 13 kilograms of cocaine over a two-year period. The judge specifically said he drew a negative inference from Mitchell's refusal to discuss details of the crime. "I held it against you that you didn't come forward today," the judge said, adding that Mitchell had no Fifth Amendment right to remain silent because she waived that right when pleading guilty. The 3rd U.S. Circuit Court of Appeals agreed, saying she lacked constitutional protection even though her refusal to testify created a risk of harsher punishment. The Supreme Court reversed. - --- MAP posted-by: Rich O'Grady