I've seen this movie before. In the wake of Penry v. Lynaugh, 492 U.S. 302 (1989) many Texas defense attorneys made the Catch-22 argument. The Eighth Amendment, as amended interpreted by the Supreme Court, says you cannot sentence a defendant to death without considering mitigating factors beyond those contained in the Texas special issues. However, the Texas statute (until its 1991 amendment) provided no authority for the jury to consider additional factors. Therefore, the argument went, no one could be sentenced to death in Texas. The Texas judges didn't buy it and proceeded to craft ameliorative instructions. The aftereffects are presently before the Supreme Court in Smith v. Texas.

Now this argument is being tried in noncapital cases in California, in the wake of Cunningham. Virginia Hennessey of the Monterey Herald reports on a case where a similar argument is being advanced. The main charge, murder with special circumstances, presents no Cunningham problem. California law has long provided for a jury verdict beyond a reasonable doubt on those circumstances. However, Daryl Lipska is also charged with lesser offenses, raising the issue of an upper term under the Determinate Sentencing Law if he beats the murder rap. The defense argument is that the Legislature hasn't provided a procedure for juries to make the additional findings in DSL cases. The implication is that until the Legislature acts, nobody can receive the upper term in California, no matter how aggravated the case.

That outcome is so patently unjust and contrary to the purpose of the law, it is hard to believe it will get any traction. We know from bitter experience that there is no such thing as an argument so far-fetched that no judge will accept it, but it is virtually certain that the California Supreme Court will reject this argument in the end.

The California District Attorneys' Association had its winter meeting last week. The general feeling there was that Cunningham is a manageable problem.