« Two troubling rulings from the circuits | Main | Race, class and criminal justice in campaign 2008 »

January 24, 2008

Sentencing word to the wise: watch your pre-sentencing words

Thanks to this CNN piece, here is a classic sentencing example of the old "watch what you say" lesson:

A judge sentenced a woman to nearly the maximum prison term for negligent homicide after hearing a recorded jail conversation in which she made light of the bicyclist she killed.

Melissa Arrington, 27, was convicted two months ago of negligent homicide and two counts of aggravated DUI in connection with the December 2006 death of Paul L'Ecuyer. She could have gotten as few as four years behind bars, but Superior Court Judge Michael Cruikshank sentenced her Tuesday to 10½ years -- one year shy of the maximum. Cruikshank said he found a telephone conversation between Arrington and an unknown male friend, a week after L'Ecuyer was killed, to be "breathtaking in its inhumanity."

During the conversation, the man told Arrington that an acquaintance believed she should get a medal and a parade because she had "taken out" a "tree hugger, a bicyclist, a Frenchman and a gay guy all in one shot." Arrington laughed. When the man said he knew it was a terrible thing to say, she responded, "No, it's not."

January 24, 2008 at 09:27 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e54ff0d1ba8833

Listed below are links to weblogs that reference Sentencing word to the wise: watch your pre-sentencing words:

Comments

I've long felt that jail phone calls are monitored solely for purposes of preventing escape, the introduction of contraband into the facility, and preventing the defendant from committing further crimes (i.e. ordering a hit on a witness). But monitoring calls for "insensitive" statements is not a legitimate purpose and it gives the prosecution an unfair advantage (defendants don't get to record phone calls made by state's witnesses while trial is pending). Insofar as this statement had nothing to do with furthering the defendant's escape or commission of an additional crime or introduction of contraband into the facility, it should not have been heard by the prosecutor (jail employees should scan the calls and flag those that a prosecutor needs to hear which are relevant to a purpose of monitoring phonecalls) and should not have been admissible in the criminal proceeding.

That being said, I don't have much pity here.

Posted by: bruce | Jan 24, 2008 10:18:38 AM

Don't forget the rest of the article:

Assistant Public Defender Michael Rosenbluth told the judge his client has never been "cold, callous or flippant" about L'Ecuyer's death and has always felt remorseful.

Arrington said words couldn't express how she feels, and that once she's out of prison, she hopes to share her story with Mothers Against Drunk Driving.

L'Ecuyer, 45, was riding his bike the night of December 1, 2006 when Arrington swerved off the road, hit him and then continued for 800 feet before stopping, according to Deputy Pima County Attorney Jonathan Mosher.

Arrington's blood-alcohol content was .156 percent, nearly double Arizona's .08 legal limit. She had been driving on a suspended license for a prior DUI.
~~~~~~~~~~~~~~~~~~~~~~~~~~~

This broad deserves the prison time. She had NO business getting behind the wheel - and she's stupid.

Posted by: VegasGal | Jan 24, 2008 10:21:55 AM

I would have a problem if they wire-tapped her home phone, but it would seem calls coming out of a detention facility are as much fair game as a recording of that person in their cell, or in the back seat of a squad car. Ones right to privacy is not absolute when you're in someone elses' home, even less so in a public jail. I can't say I'm terribly distressed even if there is an issue here - obviously this woman has no regard for human life and takes no responsibility for her own actions.

Posted by: Bob | Jan 24, 2008 10:29:48 AM

Bob, i agree that there is a lessened right to privacy in a jail/prison. I agree and concede that phone calls should be monitored. But they are monitored for specific purposes (wich are integral to maintaining a safe, working jail). Listening to calls to stop escape attempts, further crimes, smuggling of drugs/contraband into the jail, those are all legitimate reasons why calls are and should be monitored. But, if they happen to come across some information that is juicy for sentencing purposes (like the defendant is a jackass) but otherwise irrelevant to the purposes of monitoring calls, I think the balance should be that the information is not used to the detriment of the defendant.

Posted by: bruce | Jan 24, 2008 10:53:10 AM

But, if they happen to come across some information that is juicy for sentencing purposes (like the defendant is a jackass) but otherwise irrelevant to the purposes of monitoring calls, I think the balance should be that the information is not used to the detriment of the defendant.

Why?

Posted by: | Jan 24, 2008 11:21:51 AM

Anna Ayala (of Wendy's chili-finger fame) was given a harsher sentence by Judge Edward Davila (Santa Clara Co., CA) because of her post-trial statements, overheard while incarcerated awaiting sentencing. Davila considered those statements to be "aggravating circumstances" and gave her the near-maximum nine years. On appeal 6th Cal App agreed with her that the extra-harsh sentence was not based on jury findings and "chopped off" the extra five years.

While it may be intrusive to use a person's own words/sentiments against them for sentencing purposes, can we at least agree that expressions of sorrow and regret delivered with tears in the courtroom are often lawyer-driven, and maybe less than sincere? And isn't a criminal's real attitude about their actions (especially homicide) worth taking into account? Would it be as intrusive if that phone call had been filled with remorse and plans to make amends, and it had helped reduce Arrington's sentence?

As a side note, I wish Judge Cruikshank had published the name, address, truck description and tag number of Arrington's jolly friend. That's someone I would like to avoid when I'm out riding my bicycle! As an enthusiastic bike rider I've often felt that many drivers have a "hunting season is open" mentality as they make a run at me. His comments confirm my intuition.

Dave Ross,
forensic construction expert, married to a DUI defense attorney (both of us serious cyclists, so this case "hit" close to home)

Posted by: Dave Ross | Jan 24, 2008 11:35:57 AM

Does anyone (including Doug) know how the actual process works? That is:
1) Who exactly is monitoring the conversation?
2) How does that person alert the prosecutor (or warden? or who?) that a statement was made that has relevance to sentencing?
3) Is there any process a prosecutor must follow for requesting that the tape be made available for the sentencing stage?
4) Does a judge have to approve it?

Posted by: curious | Jan 24, 2008 1:05:18 PM

The exact procedures probably vary from facility to facility. This is my understanding of how the procedure operates in my area. Every phone call to and from the jail begins with a recording warning that the call is from a detention center and it is monitored and recorded by the facility. Supposedly, calls to and from the defendant's lawyer are not monitored, to avoid interference with the client's 6th Amendment rights, but I don't know if that is true. In fact, I believe all calls are recorded because it is automatic. The AUSA can request the calls of a particular inmate and review them for incriminating statements. It may be that calls to and from the attorney's office are screened out at that time and not divulged. We have often received copies of the conversations from the AUSA when there are statements the AUSA wishes to admit at trial against the defendant. So far as I know, no judge is involved in requesting copies of the conversations. The judge only gets involved if someone objects to the admission of the statements. Use of such statements at sentencing is, I think, less objectionable than the accepted practice of using jailhouse snitches who "report" what the defendant allegedly said; at least with the recording, there's actual evidence of the client's statements.

Posted by: defense attorney | Jan 24, 2008 1:39:09 PM

Why? Because the right to free speech still means something, even for those in jail and in prison. But most importantly, because it is a one-sided advantage that only the state has. The defendant doesn't get the opportunity to listen to and record the phone calls made by the state's witnesses where they are talking to their friends about how they lied about the charges, about how they hate the defendant, his skin color, his religion, his family, etc, how they want the defendant to rot in prison for the rest of his life. These are all things that a defendant would like to know for trial and sentencing. But only the prosecutor gets them if they get to listen to every phone call the defendant makes, and introduce them into evidence.

Again, I'm not saying all calls are off limits or should be inadmissible. A large portion should be admissible, particularly if they go to showing the defendant lied in court or tried to have a witness or juror killed. But if for example the defendant is heard to say he doesn't like the victim's skin color, why is that admissible? Then we get into a debate about the merits of hate crime enhancements. A crime is a crime, regardless of the thoughts going through the defendant's head (other than specific intent). Punishing motive is not proper, IMHO.

Posted by: bruce | Jan 24, 2008 3:20:00 PM

It's not that the recording of jail calls is not objectionable, just that it's less objectionable to use those statements in court because Detainees are warned that the calls are recorded; they are not warned that the cell mate is a snitch. It's similar to the Miranda warnings: If the defendant is warned that anything he or she says might be used against him or her and talks anyway, the courts generally will allow the prosecution to use it. Similarly, if the phone call begins with a warning that it's not private, and the detainee says incriminatory things anyway, the courts will let it in. I just think it's more unfair to have a supposedly sympathetic person elicit incriminatory statements (or, often, manufacture them) and then have those alleged statements used in court without prior warning.

Furthermore, motive, intent, remorse, and similar emotions and motivations are considered in sentencing all the time. A judge can simply decide that a defendant isn't really sorry, or isn't sorry enough, and deny all or part of an acceptance adjustment in federal court.

Posted by: defense attorney | Jan 24, 2008 4:13:37 PM

Thanks, defense attorney.
- Curious

Posted by: curious | Jan 24, 2008 4:29:33 PM

Some defendants just don't get it about remorse and humility at sentencing. I once knew a 19-year old from West Virginia who had been caught stealing $80 worth of steaks from a grocery store. The Judge could have put him on probation, but the defendant had to get slick and arrogant. The Judge saud, "Son, is there anything you would like to say to me before I pass sentence?" The Defendant responded, "Suck my dick, your Honor!" Without missing a beat the Judge replied, "Two years to serve, next case!" Eight years later that guy is still serving probation violation sentences over those steaks, and he even told this story about himself to other inmates in the Regional Jail in Charleston, West Virginia! Unfortunately, he is not alone in his foolish and immature attitude.

Posted by: james j. gormley | Jan 24, 2008 6:24:22 PM

As a layman, I'm pretty sure that she has no expectation of privacy. The phones in the jails warn prisoners of monitoring.

As for using the taped phone call at sentencing? I'm pretty sure this applies...

§ 3553. Imposition of a sentence

(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced.[1]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

Posted by: Jameson | Jan 25, 2008 1:19:14 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB