April 18, 2007
Good works Booker break for white-collar offender in DC
The Washington Post has this detailed coverage of a notable federal sentencing of a white-collar offender yesterday in Washington. Here are some of the highlights:
Downtown developer Douglas Jemal avoided prison when a federal judge yesterday sentenced him to probation and declared that the countless good works he has performed for Washington and its residents far outweighed his financial fraud conviction. U.S. District Judge Ricardo M. Urbina said the maverick leader of Douglas Development Corp. was "one of those rare cases" and that he felt compelled to balance the community's views about Jemal's character against the prosecution's demand for punishment....
Prosecutors initially sought a prison sentence of up to five years for the financial fraud conviction, and later agreed that 33 to 41 months was a proper penalty. The judge's rejection of the prison sentence floored the U.S. attorney's office and its public corruption team, which spent three years on the case. Jemal's sentencing came nearly six months after a jury rebuffed most of the government's case, acquitting him of charges that he had bribed a former D.C. government official in return for sweetheart city leases on an impound lot and other properties....
Lead federal prosecutor Mark H. Dubester had urged the judge to send Jemal to prison to punish him and deter other business leaders from committing similar crimes. Dubester also stressed that a prison term would give the public confidence that wealthy white-collar criminals -- who can afford top-notch lawyers and give generously to charitable causes -- won't get off easier than "little guys."... "Clearly, we're disappointed," Jeffrey A. Taylor, U.S. attorney for the District of Columbia, said in a statement. "In our view, this sentence -- well below that called for by the sentencing guidelines -- sends the wrong message to the citizens of the District and the many honest businesspersons of this city."
The judge said he compared two disparate groups in reaching his decision: convicted felons-turned-cooperators for whom prosecutors urge reduced sentences and community members who attested that Jemal's generosity changed their lives. "They have committed numerous, numerous crimes," Urbina said of the informants. "They have lived such a corrupt life that it now helps them buy their way out of trouble." By contrast, Jemal had demonstrated a genuine selflessness, he said, helping homeless men get work, giving plane tickets to poor workers for family visits, even giving his beloved dog to a woman suffering mental anguish.
"One thing is clear: Mr. Jemal has devoted much of his adult life to good, charitable causes," Urbina said. "When I compare the valuable and worthwhile services [repeat offenders] provide to society and I see what Mr. Jemal has done over the course of his lifetime, it is inconceivable to me that I should impose the penalty proposed here. . . . Being fair means being fair."
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“who can afford top-notch lawyers and give generously to charitable causes -- won't get off easier than "little guys."... "”
I still don’t understand how anyone – least of all lawyers – can differentiate between “good” and “bad” lawyers in court. The prosecutor seems to be making the argument that he would have sought a lower sentence had he had a “worse” lawyer. What does this mean? A public defender (who would have more experience at trial)? A privately retained lawyer that adduced less favorable evidence? This makes no sense to me.
Since most people agree that “good works” are relevant for the purposes of sentencing, it goes to show that people of greater means simply deserve to be in jail for shorter periods of time. I am not objecting to this, but I am merely showing why white-collar criminal might get shorter periods of time in jail.
Perhaps prosecutors should come up with a more nuanced argument – or copy arguments used in some celebrated cases: the contributions to charity are nothing more than a business expense, or a publicity stunt. The problem in this case, is that it seems that he actually meant to do some good, and the judge seems to have noticed this.
Posted by: S.cotus | Apr 18, 2007 10:41:35 AM
The rich guys, little guys distinction doesn't play so strongly when someone is so generous that he let's someone have his own dog.
I suspect that the fact that the jury only believed a fraction of the charges also influenced the judge. Clearly this is not a case where the judge felt that the acquitted conduct was in fact committed.
Posted by: ohwilleke | Apr 18, 2007 3:33:22 PM
Clearly the defendant in this case has done fa, far more good in his lifetime, for both the city of Washington DC and for the people that were close to him. I think the judge did the right thing, as Jemal seems to be truly and genuinely sorry, and I believe that this was a mistake, and not an intentional act to defraud anyone. The prosecution tried nailing him on 7 separate counts, and only got him on this count, and you can bet your bottom dollar that this prosecutors job was on the line. They spent years, and millions, trying to get Jemal, and they lost.
Posted by: Washintonian | Apr 18, 2007 8:22:18 PM
Washingtonian, Sort of an interesting point you make. If the prosecution spent “millions” (and I agree that they probably did), couldn’t that money have been better spent elsewhere. Like, say, fixing up one or two DC public schools. Or, maybe building a skateboard park. I am not saying that people should not be prosecuted (even if the damage they did was less than the cost of prosecution), but somewhere along the line, it seems that priorities became messed up.
I have always wondered how a procedural rule requiring juries to be instructed about the costs of incarceration would play out.
Posted by: S.cotus | Apr 19, 2007 11:48:32 AM