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The Loophole (official Transcript)Season 4: Episode 7Barry: When Sharon Mack was a newspaper reporter in rural Maine in the early 90s, she’d have her police scanner on all day when she was on the beat. She was listening when something caught her attention on a Friday afternoon, just as she was packing up to go home from work. Sharon: They were calling for an evidence truck and there was something in their voice. And I said, Oh, no, I’ve got to go find them. I don’t know where they are, but I’m gonna go find them. Barry: Sharon used the scanner to figure out where the evidence truck was headed. And she found it deep in the woods.Sharon: And they were not happy to see me. It started to rain. What they actually had tripped upon was couch cushions, blankets, pillows covered with blood. Barry: Two men had gone missing a week prior, Thanksgiving weekend. Paul, Lindsey and Buddy Martin both were in their early 20s. The police had been on the case for a week, but swore the families to secrecy and kept as much off the scanner as possible, probably to keep nosy reporters away.Sharon: The next day, the sun was out, and so was a helicopter. And I said, I’m going to follow that helicopter. And I’m trying to drive these back roads that don’t know where the helicopter is going. And I managed to find a house that they had not even taped off yet. But there were a dozen cruisers, evidence technicians. And I said, I think I found the scene, whatever it was. Barry: The house in the woods belonged to the family of two half brothers, Henry Lombard and Hubert Hartley. Lombardo was the older brother in his early 30s. Hartley was 19. They were friends of the missing men and had invited them to the house in the woods for Thanksgiving weekend. Sharon: What actually had happened is they had killed them, shot them, put their bodies in plastic bags and put it in the cellar and had Thanksgiving dinner with family. They did not have Turkey. For some reason, is stuck in my head that they had a ham. The family didn’t think it odd that there were no cushions on the couches or anything, and they had thrown all of that down somewhere. And then at some point after everybody left they went out on a wooded road, which is where I first found the state police, dumped the cushions, the blankets, anything that had blood on it that was in the house, and then went to a different location, kind of a swampy shrub location. And they dumped the bodies there. Those guys were arrested very quickly. They were placed in the same cell. And had plenty of opportunity to talk to each other before they were interviewed separately. One of them started to crack. We were never told which one talks about where the bodies were, because right off the bat, they started blaming each other. Well I'll blame you and you blame me, and then they’ll have to let us both go. It actually happened. The attorney general time Tom Goodwin, made a fatal error and decided to try them separately. Two dead people. Nobody gets convicted of it.Chau: From Slate, this is Hi-Phi Nation, philosophy in story form. This season, crime and punishment. Recording from Vassar College, here's your host, Barry Lam.Barry: Because the assistant attorney general in May prosecuted both brothers separately each was able to argue for reasonable doubt that he pulled the trigger. For each trial, it was 50/50 that the defendant pulled the trigger, even though it was 100 percent that one of them did. So nobody was ever convicted of murder for the Thanksgiving Day slayings in 1990 in Maine. But eventually, one of the brothers was sentenced for those murders. You might be confused. I thought we couldn’t try people twice for the same crime in America. How can someone be acquitted of a crime and sentenced to life for it also? 05:00 The answer is a loophole in American criminal law. When the government fails to prove you’re guilty, but they are sure you did it, there are a series of steps they can take to put you in prison for that crime. All they need is the right judge. Henry Lombard and Hubert Hartly managed to pull one over the system, only to step right into the loophole, and have the federal government pull it tight. That story when we come back. Chau: Hi-Phi Nation will return after these messages. Barry: So we’re talking about Henry Lombardo and Hubert Hartley. Describe them.Sharon: Very different. They had different dads, same mom. Henry was in and out of trouble all his teenage years. He was familiar with the police in the town I lived in. Mostly petty vandalism, except for that one time he ran down the road with an ax, he was never known for anything violent. He just was a troublemaker. He was thin he had a habit of-- when he laughed, he rubbed his hands together like this. Hubert was much younger, an attractive young man, a little round face, looked very much like a young boy. Barry: And then there was one other person in that house.Sharon: Hubert’s girlfriend, she was pregnant at the time and had a very young child with her at the time. She was sitting on the stairs to the upstairs and she heard the shooting and she heard their conversation before the shooting. Barry: Hubert’s girlfriend, whose name was Tammy, was the only third party witness to the murders. The toddler was too young to testify. Hubert Hartley’s trial came first. Tammy’s testimony made the key difference in both trials. Sharon: Hubert and Henry had gone out supposedly hunting that morning while everyone else was asleep. Tammy said she was sitting on the stairs to the second story of this little house. She was pregnant. Early pregnant then. But she had her little toddler, one year old, sitting on her lap. And she heard them come in. Now, you and I would have gone down the stairs. But for some reason, she stayed on the stairs and listen to their conversation. And this story never wavered in both both trials. She said that Henry challenged Hubert. And said, if you don’t do it, I’m going to. And there were shots-- two shots. And Henry 10:00 said to Hubert, I can’t believe you did that. Then she came down the stairs. And they told us to go back up. Barry: She didn’t hear anything from the victims?Sharon: No, they were asleep. I have to tell you, that was a very odd sight, when she is very calmly on the witness stand. Very pregnant in this little polka dot dress with a bow, almost as if she was recanting how they cooked dinner that night. It was very, very odd. Barry: Why did they kill the two guys? Sharon: No one knows. A motive was never even hinted at in the trials. It was never even hinted at after the trials.Barry: what was the state’s story that they wanted to sell to the jurors? What was the state arguing tat Hubert’s trial? Sharon: It was that Henry and Hubert came in from hunting, and that Henry had been challenging Hubert the whole way-- to do this, to prove his himself as a man. No one-- not attorneys, not prosecutors, not witnesses, no one said there was any bad blood between the two visitors and the two brothers. That was their theory is that he was just trying to look like a big guy for his brother. Barry: The prosecutor in the case waffled, he argued earlier in the trial that Hubert was part of the planning of the murders, but that Henry pulled the trigger. But after Tammy’s testimony and the accusations by Henry that Hubert pulled the trigger, the prosecutor changed the argument and claimed Hubert was the murderer. That was enough to manufacture reasonable doubt as to Hubert’s fault in the murder. And he was acquitted. Sharon: The first trial came as not a huge surprise to a lot of people because they still had Henry. They were banking. And because Henry was a harder convicted felon, he had some brushes with the law and served time before and Hubert had squeaky clean reputation. And I mean, if you just looked at them, Hubert were somebody you would have at your dinner table. Henry was a little bit scarier. Barry: Now, tell me about the second trial. What was the most fascinating testimony from the second trial? Sharon: There wasn’t. And it was really a carbon copy of the first one. It was--I mean, you could have scripted it. It was-- everybody got up there and said the exact same things.Barry: Except for Tammy. Tammy gave the same testimony except switched the names. Sharon: In Henry's trial, was Hubert that said to Henry, I can’t believe you did that. Barry: Oh, I thought. I thought her story was consistent across the two. Sharon:The story was consistent. But who she heard say 'I can’t believe you did that' was completely the opposite. Barry: Wait, wait--and the prosecution didn’t take her to task for the inconsistency? Sharon: You would have thought there would have been a perjury charge there. Whoa were people furious when Henry got off. The victims families were horrified, horrified because they said two other boys are dead. Somebody killed them. Barry: Unbeknownst to either man, though, the federal government was standing by in case there was an acquittal. As much as the state of Maine had botched the trials, Henry Lombard had unknowingly committed what would eventually be a fatal error in the cover up. He testified in both trials that he secured a 22 caliber hunting rifle that he and Hubert took hunting the morning of the murder. All sides agreed that the rifle was the murder weapon. This admission on the record opened Henry up to federal gun possession charges because he had been convicted of a felony in the past. It also opened up Hubert to charges of aiding and abetting in that very crime. They weren’t murder charges, but they were charges that could keep both men in custody and subject them to another trial on different charges they could not escape. Hubert, who didn’t have a record, pled guilty at the end of the federal trial. Sharon: Hubert walked out of that courtroom and walked out of everybody’s lives. You never saw him. You never heard from him. Haven’t heard from him this day. Barry: Henry Lombard was found guilty of illegal gun possession. It was at that point that he stepped into the loophole. Judge Block: The jury convicts and then when it comes to sentencing 15:00 the judges has this wide range to consider a lot of factors. Barry: That’s Federal Judge Frederic Block of the Eastern District of New York. Judge Block: And you keep his city even acquitted content. Barry: The idea is that sentencing judge consent and someone for a crime that theywere not convicted of it. Judge Block: Most people can’t believe that. Barry: Yeah. Judge Block: And most lawyers can’t believe that a judge can consider uncharged conduct, acquitted conduct. But you can, regardless of what the verdict might be. Barry: At Henry Lombard's sentencing the prosecutors brought back in the facts of the murders to give the judge reason to sentence Lombard to the highest possible sentence you could get for federal weapons charges. They argued that the weapon Henry Lombard is now guilty of possessing illegally was a weapon he used in a murder. That’s the loophole. When the prosecution waits until the sentencing phase after a trial is officially over, they can bring back in all matters of things they no longer need to prove beyond a reasonable doubt. And they do it to convince the judge of a particular sentence. Those facts can include anything crimes. The convicted was acquitted of, crimes the government could never charge them for, anything. All they need to do is convince the judge that the facts are true, and it’s up to the judge to determine their relevance and their appropriateness to a sentence. Henry Lombard was sentenced to life in prison on gun possession charges, but he was sentenced to life for using that gun in a murder-- a murder which the prosecution never needed to prove beyond a reasonable doubt he committed. And do you think this is correct? Do you have any feelings about it morally? Do you think it should be a tool in the toolbox for the judge? Judge Block: I think it’s okay if there are enough safeguards set in place in the path of-- to protect against indiscriminate, you know, irrational decision making. Todd: I think that’s great. Barry: This is state senator and former federal prosecutor Todd Kominski, whose perspective on the practice comes from his many years as a prosecutor, set on locking away the bad guys. Todd: You know, when a judge is sentencing someone, they’re supposed to consider the totality of everything in that person’s life history, whatever. You can do everything from murder on to other things. I think a judge needs to consider that. I don’t think you just make it up. There has to be some evidentiary standard that you could bring it in a later case. But I think it’s absolutely irrelevant. I mean, is a judge not supposed to know that if somebody two months before they committed the crime in front of him or her also committed a heinous act?Barry: Even if he was acquitted? Like in state court.Todd: Look, I think if a prosecutor thinks there’s reason to believe it’s true and there’s evidence to support it, that they can withstand the scrutiny of a hearing, you should absolutely bring it in, you should bring it all in. Matthew: It’s wildly unjust.Barry: Now, why do you think that?This is philosopher Matthew Noah Smith of Northeastern University, who thinks and writes a lot about justice in many areas of political philosophy. After I found out about this practice, I called up some friends of mine to get their knee jerk reactions and then to talk through with them why we felt so bothered by the practice. Matthew: It’s wildly unjust because it seems suspicious, to say the least, to change the procedure so dramatically with respect to the same questions, simply because you’ve reached a different phase in a trial. It eliminates all of the procedures that are supposed to ensure that the criminal justice system realizes certain values that really matter to us. Barry: Listen to my conversation with Matthew Noah Smith and my philosopher friend Mark Schroeder of USC in the Slate Bonus episode for this week. We talk about procedural and substantive justice. You can get it by becoming a Slate Plus member, by going to hiphiplus.Here's how you should think about the reasoning that led to Henry Lombard's life sentence. In the trial, the state needed to show beyond a reasonable doubt that Henry Lombard was the trigger person in the murders. For the sake of argument, we’ll say that that means that a reasonable person has to be 95 percent sure that Lombard did it. But given the way the state botched the case, the jurors were closer to 50/50 that he pulled the trigger. Now it’s sentencing time in the federal case, and it’s admitted as fact that Henry was in possession of the gun. At this point, the prosecution only needs to establish 20:00 to the judge that it’s likelier that Henry pulled the trigger than Hubert. The standard has been lowered from 95 percent to 51 percent to admit as fact that Henry pulled the trigger. And that’s far easier to prove. If you know ahead of time that it’s 50/50 whether one of two people pulled the trigger, anything could sway you just a little over the top, as it did the federal judge.Sharon: I interviewed Henry several times after the trial. He called me at home. I think he had started to unravel a bit. He just seemed a bit lost and stupefied state like, how the hell did I get here? How did this happen? Barry: Did he give you a version of the story? Sharon: No. I asked, he would change the subject. I asked him a specific question about a specific something-- who moved the bodies, or did you talk about it in the woods before you went to the house, that kind of thing, he would mumble and he would say his brother’s name. He would just say Hubert, Hubert. Barry: Henry Lombard lost every appeal his lawyers filed. They argued that sentencing him for acquitted conduct violated his due process rights. There are three different constitutional amendments. The Fifth, Sixth and Eighth Amendments, that this practice could be argued to violate. The right to a jury trial, the right against double jeopardy, the right against excessive punishment for crimes. None of them worked. Sharon: Towards the end he just really seemed confused and fractured. His stepmother called me very, very, very-- I was going to say late at night, but it was early in the morning, and then told me that Henry had hung himself with the cord from his laundry bag. I felt really sad that that that’s what it had come to. Barry: So not as a reporter, but as like a Maine resident, do you think justice was done in that case? Sharon: Oh, absolutely not. You know, two guys are dead. Never made it home to their own house for Thanksgiving. And two guys walked away from that.Barry: The fact that Henry ended up getting a life sentence-- did that make it better in your mind or worse?Sharon: I don’t think it made a lot of difference. Yeah, OK, yeah, he went to jail, but he didn’t go to jail for killing some. Chau: We’ll return to the rest of nation after these messages. Gerry: 25:15 I’m Gerry Leonard, professor of law at Boston University School of Law. Barry: There have been many claims made to the Supreme Court that being sentenced for conduct that the government has not convicted you of is a violation of the constitutional rights to a trial by jury and against double jeopardy. Gerry: But they have been shot down unceremoniously by the Supreme Court. As long as there is a conviction in place, you can be punished for that offense. If there’s some other offense of what you’ve been acquitted, the facts underlying that offense might be appropriate context for the offense of which you’ve been convicted. Barry: The Supreme Court has said that there no double jeopardy because you’re not placed on trial again for the crime to which you’ve been acquitted. You remain legally not guilty of that crime. Facts admitted during sentencing are there to figure out whether there were aggravating or mitigating factors to the crime you were convicted of committing. Here’s an example. Two different people sell a gram of cocaine to someone else. That’s the offense. They both plead guilty without any trial or testimony and come before the judge for sentencing. That judge is presented with facts by the lawyers that one of these people is a recreational user who offered some cocaine to a friend at a club and the friend gave them a dollar bill in return as a joke. The other person is a regular dealer near the local high school. And the buyer was underage. Gerry: They’re very different offenders, violating the very same statute. And to punish them identically seems to me morally wrong. Completely out of touch with all of our traditions. Barry: The tradition is one where every sentence should be individualized. The sentence should depend on the person and person’s circumstances when committing the crime. Were there factors that make someone’s crime a little more excusable, a little more justifiable, or, in contrast, even more heinous? And in order to individualize, you’re going to need to know the person and the circumstances. This is called contextualizing the circumstances of a crime. Gerry: But you have to allow a certain amount of fact-finding at sentencing. Barry: But just what kind of facts it’s okay to allow and what kinds of facts are not okay to allow is not clear in the law and it’s not even clear in our moral reactions. In 1994, a college student in Fayetteville, North Carolina, named Anthony Barber began working as a driver for a drug dealer. The drug dealer stopped paying Barber for the rides, and eventually Barber and his friend David Hodge bought a shotgun, drove with the dealer out in the car and shot him in the back of the head. Because Barber had no priors and for various reasons known only to the prosecutor, both Barber and Hodge pled guilty to second degree murder. Gerry: First degree murder requires a premeditated killing--that is you've decided ahead of time that you mean to kill someone. If you kill somebody unjustifiably but you haven’t premeditated it, then what you’re guilty of is most likely second degree murder. Barry: But Barber admitted in a post plea statement that he did premeditate the murder. He planned it out with his friend days in advance. The judge had right in front of him an admission of premeditation. Premeditated murder was uncharged conduct, conduct the state couldn’t charge Barber with because of the plea bargain. But an admission of premeditation really does seem to contextualize the murder that Barber did commit. If you thought your friend killed someone in the heat of the moment and you find out later, he had planned it for days, it does make it worse. That was the reasoning of the judge who sentenced Barber to prison time consistent with first degree murder. That’s a sentence Gerry Leonard does not believe is just. Gerry: Is just I would argue that a trial judge cannot take premeditation into account as a contextualizer of second degree murder because it doesn’t contextualize second degree murder. It creates a whole new offense that we already have on the books called first degree murder. So if the conviction is second degree murder, the punishment has to be for second degree murder. 30:00 Barry: Using second degree murder as an example, Leonard argues that a judge should not be allowed to contextualize a crime by using facts that make the crime into another crime. For Leonard, using facts that turn a crime into another crime is not contextualizing. It’s double charging. This would mean that most uses of acquitted and uncharged conduct would be illegitimate in sentencing. Because by definition, you’re using different chargeable crimes to contextualize this person’s crime. The test makes Henry Lombard's sentence an unjust one, because murdering someone with an illegal gun is not a particularly egregious form of illegal gun possession. It’s a way of redefining gun possession as murder and murder is on the books as a different crime. Leonard’s test sounds reasonable, but it has some rather paradoxical implications. It seems to depend on accidents of what we decide to criminalize and what we don’t. There’s a case where a judge sentenced the man to 30 years for a second degree murder because the judge found it particularly heinous that the man stabbed the victim 16 times. Only first degree murderers to time like that. Leonard’s test would make this sentence OK, because there’s no unique crime of homicide by 16 stabbings. So 16 stabbings can be an aggravating factor in sentencing. I think that’s okay. But is it okay just because there happened to be no law criminalizing homicides by 16 stabbings? Legislatures have been pretty creative in recent years. We have different crimes for different amounts of cocaine, different crimes for powder versus crack cocaine, crimes concerning whether you could use butter or margarine, as we talked about in our first episode. It’s weird to think that if lawmakers suddenly criminalize the number of stabbings and a murder, then all of a sudden it’ll be like premeditation, something you can’t admit as an aggravating factor in sentencing. Why isn’t it just whatever is aggravating is aggravating and whatever is mitigating his mitigating? Let the judges use all of it like we do now. Or let them use none of it.Is a solution all right, we’ll just cut it out completely, cut out the use of unconvicted conduct, in fact, let’s not contextualize it at all. We make almost complete uniformity across crimes and sentences. Is that a solution? And if so, what is to be said against that? Gerry: For most people, there are such meaningful differences between between particular offenders who who fit the same offense but whose culpability or whose ongoing dangerousness seems so different that it just seems deeply wrong to punish them in the same way. Having what sometimes referred to as a flat time system-- you do this offense, you get that punishment, end of story, no discretion-- not something we’ve ever really done in our system. Barry: Gerry, as you’re describing this, it occurs to me, why can’t the problems like this be settled at the statute phase versus the sentencing phase? Let me explain my question here. I’m asking Leonard why, instead of letting judges make the discretionary decision about what’s aggravating and mitigating, you let the criminal law do that. You make a different crime every time you think someone deserves a different sentence. Gerry: Well, in principle, they can. You can have very, very fine grained statutes. You’ve stolen a thousand dollars. You get this much. Between two thousand and five thousand you get this much, between five thousand and ten thousand you get this much, right. Barry: It gets really pedantic very quickly. Gerry: Yeah. I mean, federal guidelines operate on a table that has forty three offense levels. Right. And there're point systems. And they still leave an out for the judges to exercise discretion in cases where all of that work in the guidelines doesn’t adequately cover the facts of the case. Barry: There’s no way to make a fine grained enough. Gerry: There’s no way to mechanize it completely, at least not in a way that makes us all feel good about the outcome. Barry: Ultimately, there is no way around the problem. We have a strong moral commitment 35:00 that individual circumstances can aggravate or mitigate responsibility for a crime. Yet we don’t know ahead of time what facts are aggravating and what are mitigating. When we try to figure it out, we end up with absurdly ornate laws that never capture the full range we originally wanted, and when we fail, we end up with the need for judge's discretion anyway. And finally, there is the public demand for substantive justice. The demand that the actual bad guys get put away and punished for the crimes they actually did.From the other side, when I looked at a lot of these cases, you know, I found cases where the state was unable to prove that some serial killer was a serial killer so they got him on credit card charges or something like that. I found a lot of those, you know, and I’m trying to look at it not from my professor's vantage point about procedures of justice and constitutionality. But there are some pretty bad people who most likely did something and judges have a tool that they actually don’t use all the time, but they use when they are convinced that somebody is going to escape justice if they don’t use it. That way of looking at it makes it sound like this is there not as a loophole for the state to do extra violence on people who don’t deserve it, but to catch the people that can easily slip through the system unless judges actually did use the practice. And so -- do you have a compelling argument against me if I came to it looking at it from that perspective? Gerry: What you’re suggesting is, all right, this doesn’t get done that often, but when you need to catch the serial killer and all you’ve got his credit card fraud, then that’s what you do. And we know that there are going to be, shall we say, adaptations through the system, around the edges. But you’re suggesting it’s rare. And the thing is, we have no idea if it’s rare. So for one thing, how do we know that that serial killer actually is a serial killer? Haven’t been convicted of it, but somebody, the police, prosecutor, judge, they’re convinced of it, but they aren’t able to convict the person. So are we really OK with that? I mean, there might be the rare case where you and I would both go-- dodged a bullet there, got the serial killer on credit card charges. But in fact, the way the system works is that 95 percent of convictions are had through guilty pleas and not through trials. And when you have a guilty plea, there’s very little transparency about what’s going on. So the kind of punishment for unconvicted conduct that we’re talking about is potentially very, very common. We don’t know, because we don’t get to look behind guilty pleas. What we do know is that the capacity to punish for unconvicted conduct is one of the tools that gives prosecutors leverage in pushing people to plead guilty to things that they may or may not have done and to accept facts that may or may not be be accurate. Barry: Gerry Leonard’s position reminds me of something I’ve learned throughout this series. A particular criminal procedure, in this case the use of judicial discretion to sentence for unconvicted conduct isn't just or unjust in a vacuum. Is isn't just or unjust on the basis of whether it got the right or wrong result in particular cases. These procedures occur in the context of an entire system of procedures that skew prosecution, policing, sentencing and punishment in a particular direction. That direction recently is easier convictions and harsher punishments. It’s an interesting development in this country in particular. Four out of the ten original amendments to the U.S. Constitution were about criminal justice, and they weren’t tips on how prosecutors and judges can make sure they got the right sentences for the bad guys. They were written to protect defendants from the power of the state in criminal justice prosecutions. But clever people find clever loopholes, and it seems like the state found a doozy. But that might change. At the Supreme Court, the two Trump appointed justices Neil Korsak and Brett Kavanaugh have on the record opinions questioning the constitutionality of using acquitted and uncharged conduct. They would be joining Justice Ruth Bader Ginsburg 40:00 and Justice Clarence Thomas, who have already written in support of banning the practice. That makes four out of nine. And in the Senate, Dick Durbin and Chuck Grassley introduced the bill in the fall of twenty nineteen to ban the use of acquited conduct in federal sentencing. Though it leaves untouched uncharged conduct. That bill hasn’t gone anywhere. They’ve been kind of busy in the Senate. Chau: Hi-Phi nation is written, produced and edited by Barry Lam, associate professor of philosophy at Vassar College. Editorial director for Slate podcast is Gabriel Roth, senior managing producer for Slate podcast. It’s June Thomas, operations manager for Slate podcast is Asha Lucja, editor for Slate. Plus is me Chau Tu. Barry: Executive producer for Slate podcasts is Alicia Montgomery. Chau: Production assistance this season provided by Noa Mendoza-Goot. Visit for a complete show notes soundtrack. A reading list for every episode. That’s . Follow Hi-Phi Nation on Facebook and Twitter and at the Web site for updates on stories and ideas. Barry: You can hear my complete conversation with Matthew Noah Smith and my friend Mark Schroeder of USC in the Slate plus bonus episode this week. ................
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