By William C. Lhotka
Of the Post-Dispatch
Tuesday, Dec. 21 2004
St. Louis Rams defensive stalwart
Leonard Little is trying an end run around
county courts to get his pending felony drunken driving charge dismissed.
The Pro Bowl defensive lineman has petitioned the Missouri Supreme Court to
throw out the felony indictment on the grounds that the law authorizing the
charge is unconstitutional.
The dismissal request before the high court is pending, Beth Riggert, the
Supreme Court's communications director, confirmed Monday, and the judges could
rule on the matter as early as this afternoon.
Little's attorneys, James Bennett and K. Lee Marshall of the Bryan Cave law
firm, are contending that a spate of U.S. Supreme Court rulings since 2000
relating to a defendant's right to trial by jury under the Sixth Amendment
apply in Little's case.
Specifically, the lawyers say in court documents filed with the Missouri
Supreme Court that by Missouri law, a judge, not a jury, has decided that
Little is a persistent offender, and the statute that makes his pending case a
felony therefore fails to pass muster.
Bennett and Marshall's arguments were rejected July 30 by St. Louis County
Circuit Judge Emmett M. O'Brien and Nov. 3 by the Missouri Court of Appeals.
Mark Bishop, the assistant prosecutor trying Little, argued in his recent reply
that the lower courts acted properly and the Supreme Court should reach the
same conclusions.
If the high court rules otherwise, the decision could be devastating statewide,
Bishop said, and affect a dozen other statutes, including six sex abuse laws in
which new charges become felonies because of prior misdemeanor convictions.
Little pleaded guilty of involuntary manslaughter six years ago in a drunken
driving accident downtown that took the life of Susan Gutweiler.
At 3:44 a.m. on April 26, Ladue police Officer Greg Stork stopped Little on
Interstate 64 (Highway 40) at Lindbergh Boulevard. Stork alleged that he
clocked Little's 2003 Mercedes at 78 mph in a 55-mph zone.
Stork said the defendant smelled of alcohol, failed sobriety tests, admitted he
had been drinking and refused a Breathalyzer test.
Because of his prior conviction for manslaughter, under a law passed by the
Legislature in 2001, Little is a persistent offender. If he is convicted of the
pending drunken driving charge, Little will face a maximum of four years in
prison as a felon, instead of jail time.
Under a series of rulings beginning in 2000 and culminating in Blakely v.
Washington this year, the U.S. Supreme Court has moved steadily toward a theory
that only juries, not judges, can enhance punishment.
Little's lawyers say the prior conviction is an element of felony drunken
driving. All elements in an indictment must be proved to a jury, the lawyers
say, but Missouri law requires the judge and not the jury to determine the
element of a prior conviction.
Therefore, O'Brien, the trial judge, has no option but to throw out the charge,
and his failure to do so is "an abuse of discretion and usurpation of judicial
power," the lawyers say. Bennett and Marshall say three states have followed
that logic.
Bishop, the prosecutor, says judges in Illinois and 10 other states agree with
the prosecution theory that persistent offender language is a sentencing
enhancement provision, not an element of a separate and distinct crime.
Even if parts of the persistent offender statute for drunken driving were to be
found invalid, Bishop argued, the proper remedy would be for a jury to decide
whether Little should be tried as a persistent offender. Bennett and Marshall
say the Legislature would have to write a new law.
On a different front, court records show that Little's trial attorneys, Scott
Rosenblum and John Rogers, are seeking all of Stork's arrest records for the
year prior to his arrest of Little. Bishop is arguing that those records should
be confidential.
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