Metropolitan News-Enterprise


Wednesday, January 31, 2007


Page 1


Ninth Circuit Upholds Convictions in Reservation Fire Death

Concurring Judge Suggests Life-Without-Parole Sentences an ‘Extreme Injustice’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the convictions and life imprisonment-without-parole sentences of two Native Americans who set fire to a home on the Fort Belknap reservation in Montana, apparently without knowing that a 15-year-old girl was asleep inside.

The panel—made up of Senior Judge Jerome Farris and Judges Richard Clifton and Carlos Bea—agreed in an unpublished memorandum Monday that the district judge was required to impose the life sentences for first degree felony murder. Clifton, however, wrote separately that the facts called for consideration of executive clemency.

“Although I concur in the memorandum disposition and join fully in its legal analysis, I find the outcome of this case to be troubling,” he wrote.

“Extreme justice is extreme injustice, according to an ancient legal maxim cited by Cicero,” Clifton declared. “....So it may be here.”

The defendants, Kenneth Arcand and his common-law wife Bobbi Jo Wing, were found guilty of first degree murder in the death of Angel Denny in the April 2005 fire. They admitted setting the fire, although they later claimed their confessions were coerced and challenged them in a motion to suppress and at trial.

Prosecutors said that Wing and Arcand lived at the house, but burned it down because of a dispute within the Wing family as to who actually owned the property. Witnesses said there was arguing at a family gathering the night before the fire, and that Wing, Arcand, and another person threatened to burn the house down.

Prosecutors argued that the confessions were voluntary and presented testimony by a fire marshal that the burn pattern was consistent with the defendant’s statements as to where they started the fire.

Defense lawyers contended that Wing’s mother, who allegedly set a previous fire in a relative’s yard, may have set the fatal blaze. But U.S. District Judge Sam Haddon of the District of Montana excluded evidence of the previous fire, and the appellate panel agreed the evidence was inadmissible because the two fires were so different—the previous blaze was small and was confined to the yard—that any inference they were set by the same person was unwarranted.

The appellate panel said that ruling was correct. The judges also rejected the contention that Haddon misled implied that he had discretion over sentencing, and thus misled the jury, when he gave the standard instruction not to “consider punishment in deciding whether the government has proved its case against a Defendant beyond a reasonable doubt.”

The instruction as a whole, the panel reasoned, “properly distinguishes the fact-finding role of the jury from the sentencing role of the court, and does not make the implication suggested by Appellants.”

The judges also rejected the argument that Haddon had discretion to impose a lesser sentence based on the U.S. Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005), that treating the Sentencing Guidelines as mandatory violates the constitutional right to trial by jury.

Booker does not apply to statutory minimum sentences,” nor does the sentence violate the Eighth Amendment ban on cruel and unusual punishment, the panel concluded.

But Clifton still found it necessary to “express my dismay at the consequences of the result we reach.”

He reasoned:

“Nothing reflects any intent on the part of the defendants to injure the victim or anyone else. Aside from this one episode, the defendants have had only a few minor brushes with the law. Yet the mandatory sentences of life imprisonment mean that the lives of these young people, aged 25 and 21 at the time of conviction, may be entirely squandered in prison. It is appropriate that the defendants be seriously punished for what they did, but these life sentences do not square with my concept of justice.”

The case, he added, may have been charged as first degree murder only to induce the defendants to accept a plea agreement.

“Whatever might be said about using charging decisions as part of hardball negotiation, there is nothing to commend carrying this strategy through to conviction, at least in this case,” he wrote. “The Government brought these charges; it cannot pretend to be an innocent bystander without responsibility for what happened thereafter.”

The judge, an appointee of President George W. Bush, noted that the chief executive “has the power to temper justice with mercy,” and expressed the hope that “if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.”

The case is United States v. Arcand, 06-30124.


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