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.