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March 24, 2014

Bridezilla murderer Jordan Graham's federal sentencing as amazing teaching opportunity

Regular readers (or anyone who watches morning television) likely remember the killer newlywed Jordan Graham. As reported in prior posts here and here, Graham admitted to pushing her new husband from a cliff in Glacier National Park, but at first claimed that she did not mean to do it. Then, after a federal jury trial was conducted, but before a jury started deliberating about the charges, Graham entered a plea to second-degree murder in exchange for federal prosecutors agreeing to drop a first-degree murder charge and a count of making a false statement to authorities.

Now, as reported in this local article, headlined "Newlywed murder case unusual for federal court; sentencing Thur," it is now sentencing time. Unsurprisingly, federal prosecutors and Graham's defense team have much different views on what sentence she ought to receive for second-degree murder:

Does pushing your husband off a cliff to his death warrant serving life in prison? Or 10 years? Or somewhere in between? On Thursday, U.S. District Judge Donald Molloy must decide what punishment is fitting for Jordan Graham, who pushed her husband off a cliff in Glacier National Park last summer after only eight days of marriage. After both sides had rested their case in a December trial, 22-year-old Graham pleaded guilty to second-degree murder in the death of 25-year-old Cody Johnson before the jury could enter into deliberations. The case is relatively unusual for federal court, since accusations of murder are usually tried and sentenced in county courtrooms, but Graham pushed Johnson on federal land, said Jordan Gross, an associate professor of law at the University of Montana who teaches criminal law and criminal procedure. Federal sentencing guidelines are vague on what’s required for second-degree murder. Hence the 90-year difference in sentences the defense and prosecution are asking Molloy to hand down, Gross said. Graham was charged with first-degree murder, a lesser included charge of second-degree murder and making false statements to law enforcement. For first-degree murder, prosecutors must prove there was intent on the defendant’s part, where intent is not required for a second-degree murder conviction. Although Graham pleaded guilty, prosecutors rehashed in their sentencing memorandum that Johnson was found without his wedding ring or car keys and hinted at the possibility that Graham had indeed intended to kill her new husband. Graham’s defense team contends that the circumstances of the evening were a recipe for disaster and that the incident was more akin to an accident. “She pleaded guilty, but that doesn’t mean that the prosecution can’t come in and argue her sentence up to life because that’s what the statute says,” Gross said. Federal statutes also don’t stipulate a required minimum sentence. The benefit of pleading guilty before the jury could return a verdict is that it shows Graham accepts responsibility for her actions, Gross said. “There are shades of acceptance of responsibility,” though, Gross said, adding that in Graham’s case, she didn’t spare Johnson’s family the anguish of taking the stand and reliving their pain during a trial. Letters from family and friends in support of Graham and letters filed on behalf of the prosecution, also will play a role in Molloy’s determination — and give insight from those who know Graham and Johnson best. Brad Blasdel, who knew Graham for several years through her family, wrote that she was quiet and shy on the surface but cold and calculating underneath and showed no emotion about Johnson’s death. “Not once did I see any sign of remorse in Jordan for killing Cody,” he wrote, asking Molloy to consider the woman’s callousness during sentencing. “She took Cody’s life with premeditation and malice; now she must give hers,” he continued. Cyndi Blasdel called Graham a “quiet instigator” who frequently encouraged bad behavior in others from the time she was a child. After Graham and Johnson’s engagement, Graham’s behavior became increasingly erratic, to the point of murder, Blasdel said. “Jordan Graham knew what she did was wrong and knew the consequences. She needs to be held accountable. She is not a nonviolent offender. Those of us who know her are afraid and some of us still sleep with the lights on,” she wrote. People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church and served as a mentor to other young women. Graham’s stepfather, Steven Rutledge, wrote he feels Johnson’s death was a terrible accident. “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.” If Molloy is lenient, Graham has the potential to become a contributing member of society, her mother, Lindele Rutledge, wrote. Her daughter has shown remorse repeatedly in letters, through phone conversations and during visitation times, Rutledge wrote. “She has never been in trouble with the law. Her only record is a couple of speeding tickets. By showing her leniency she could get a college education and become a better and useful member of society.”... Graham also likely will address Molloy during Thursday’s hearing in U.S. District Court in Missoula. It will be her opportunity to interact with Molloy outside of the case facts, said Paul Ryan, who has practiced law in Missoula for 20 years. Her comments to the judge will allow her to personally explain why she pushed Johnson and convey if she truly accepts responsibility for her actions, Ryan said. Johnson’s mother, Sherry Johnson, as well as several other family members, will make comments during the sentencing hearing too. “They’re usually the most emotional and they can certainly carry a lot of weight with the judge,” Ryan said. What Johnson’s family feels is appropriate punishment also will factor into the decision, as will the impact to the victim, he said. “In this case, it was fatal. There can’t be a greater impact on a person than that,” he added.

As the title of this post highlights, I think this upcoming sentencing provides an extraordinary opportunity for me to explore with students critical sentencing issues ranging from views on how offense facts beyond the offense of conviction ought to impact sentencing and whether post-offense behavior by the defendant ought to play a large role at sentencing.

In this prior post, I noted some of the federal sentencing guideline issues that this case necessarily raises. Specifically, the guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Should that apply here? Also, I believe federal prosecutors have calculated the guidelines to include enhancements for obstruction of justice and without any reduction for acceptance of responsibility based on the lateness of the plea. Are those fair and proper as sentencing consideration?

I could go on and on, but I want to save some of the fun for my students in class this week. In the meantime, though, I would love to hear from readers (especially those who are regular sentencing practitioners) about what elements of this high-profile case provide especially good teaching ideas.

Previous related posts (with lots of interesting prior comments):

March 24, 2014 at 11:42 AM | Permalink

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| “People who wrote letters on Graham’s behalf, though, urged Molloy to be lenient to the quiet, hardworking woman who they say diligently attended church

and served as a mentor to other young women.”|

|| “Why she decided to tell stories about the true events are unknown and unfortunate, but not a reason for a long prison term,” he wrote. Graham is a quiet churchgoer

who cares deeply about others, he wrote. “I ask you to grant Jordan some leniency, and a chance at living her life as a young Christian woman.” ||

--- I personally apologise for the Christian Community. This immoral defence of murderous and fraudulent behaviour is not Biblical, and therefore not Christian.

--- Insomuch as Mr. Rutledge and others profess to represent followers of the Messiah, I am compelled to refute his drivel disguised as compassion.

--- Many are reflecting the spirit of our selfish age, rather than the teachings of our selfless Creator.

“He that justifieth the wicked, and he that condemneth the just, even the both are abomination to the LORD.”—Prov 17:15

Remember Cody Johnson

• missoulian.com/news/local/newlywed-murder-case-unusual-for-federal-court-sentencing-is-thursday/article_dc0947ec-b212-11e3-b71e-001a4bcf887a.html

• www.typepad.com/services/trackback/6a00d83451574769e2019b027165f9970b



Posted by: Adamakis | Mar 24, 2014 1:07:54 PM

The expert interpretation of what is "Christian" and "biblical" is noted as is the artistic stylings of the opening post.

Posted by: Joe | Mar 24, 2014 3:42:48 PM

The most interesting teaching point is the anchoring point of the guideline for murder 2. Like so many numbers in the Guidelines, it is picked out of a hat. The parties will argue about obstruction, acceptance and variance from a purely arbitrary number handed down from the USSC. No matter how students would come out on the issues for the court, they could land all over the map with respect to the appropriate "starting point" for this offense conduct.

As judge, after not finding obstruction and giving her 2-levels for acceptance, my analysis would include an upward variance because of the extreme nature of the offense conduct.

Posted by: Wes Porter | Mar 25, 2014 10:04:59 AM

Since any second-degree murder involves killing without predmeditation, what exactly makes Graham's action extreme? The fact that she pushed him off a cliff? The fact that she initially lied about it?

If she stays at level 38, the low end of the range is 235 months (19 years, 7 months) the high end is 293 months. I understand that Johnson's friends and family want a life sentence. I don't blame them, I would too. However, life without parole is not the type of sentence widely imposed in second-degree murder cases.



Posted by: Bryan Gates | Mar 25, 2014 12:33:51 PM

Brian,

Except that it was a plea to 2nd degree murder and as has been discussed many times the plea exposes her to whatever the statutory range is for that offense. Depending on the plea document the prosecution could still be allowed to argue premeditation at sentencing. And even if the prosecution can't argue it due to the plea negotiation the judge could still find it. There may or may not be a guideline adjustment for such a thing but even if there is not the judge is still now allowed to vary based solely upon personal beliefs about penological philosophy.

Posted by: Soronel Haetir | Mar 25, 2014 2:57:50 PM

sorry but any plea agreement that does not contain at a minimum a sentence with a specific range time has an idiot or traitor for a lawyer.

Posted by: rodsmith | Mar 25, 2014 7:31:58 PM

Prof. Porter --

Just out of curiosity, I was wondering whether you saw in the LA Daily Journal my response to your article about mandatory minimums in that same paper.

Posted by: Bill Otis | Mar 26, 2014 2:20:36 AM

Federal Sentencing Guidelines are not my forte, but I don't see anything particularly heinous, cruel, etc. I do see lack of remorse - a plea because of uncertainty whether she would get convicted of first degree or not. The character evidence from others, for what it's worth, also suggest a lack of remorse. Given that, I think neither an upward departure nor a downward departure are warranted.

Obviously, the Judge heard the evidence in the case and might decide for himself whether there was proof of premeditation beyond a reasonable doubt (in which case, he might want to increase the sentence), but I think the plea as entered does not support premeditation and the best option would be to consider the sentence of the offense she pled guilty to. 20 years is in the ballpark for murder two. Enhancement for obstruction, perhaps, although it seems the line gets fuzzy between obstruction and simply not accepting responsibility unless she did more than deny to the police.

Posted by: Erik M | Mar 26, 2014 8:59:32 AM

Erik M: as we have seen time and again in the context of sentencing based on uncharged or acquitted conduct, the sentencing judge need not find premeditation "beyond a reasonable doubt" to sentence Defendant to the high end of the statutory range.

Posted by: KL | Mar 26, 2014 9:47:43 AM

well like I've said over and over any sentence based on "uncharged or acquitted conduct" is in fact an illegal sentence and legal grounds for the individual to remove themselves from the govt's control at the earliest opportunity.

No matter who they have to hurt or remove to do it.

Posted by: rodsmith | Mar 26, 2014 8:21:24 PM

Bill, interestingly, I read everything from Doug, you, and other leading voices on MM and the important sentencing issues of the day but I didn't see your response to my LA Daily Journal piece. Can you send it along or link it here?

Before seeing it, I understand well your position on MM and the need for a legislative balance to judicial discretion - yet, I believe we align with respect to my contention that blaming prosecutors as "bullies" is a false narrative?

Posted by: Wes Porter | Mar 27, 2014 10:35:59 AM

Wes --

It appeared in the LA Daily Journal on December 24. Unfortunately, I have no way to send it to you electronically, since it appears to be behind an ironclad paywall, and I (living on the East Coast) am not a Journal subscriber. If you are a subscriber, of if the law library gets it, you'll probably be able to dig it out.

The piece was not directly to you by name, but covered much the same ground.

We think the same thing about federal prosecutors, but have differing views about the advisability of MM's. I simply do not trust judges that much.

Posted by: Bill Otis | Mar 28, 2014 6:45:03 PM

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