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June 6, 2008
Could asking judge to officiate defendant's wedding be a sneaky sentencing ploy?
I have reported before on cases in which a defendant has gotten married at the same time he is sentenced (see here and here), but this new article from the Washington Post puts a new spin on this kind of tale. Apparently the prosecution is objecting to what it fears is a sentencing ploy:
A former State Department officer has a proposal for U.S. District Judge Gerald Bruce Lee: Before the judge sentences him on child pornography charges, he wants Lee to perform his wedding ceremony. Lee is considering the highly unusual request, under which Gons Gutierrez Nachman, 42, would tie the knot with his 21-year-old Brazilian fiancee in the same Alexandria federal courtroom where he admitted having sex with three underage girls while posted overseas.
Prosecutors are not forever holding their peace. "The government objects," they wrote the judge Wednesday. "The defendant's request, in the government's view, attempts to shift the focus away from the very serious criminal offenses for which he will be sentenced."...
Legal ethicists said the judge should have strenuously objected. "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility," said Stephen Gillers, a law professor at New York University. "He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail." "I suspect that in 232 years of American history," Gillers added, "it's never happened that a judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."
I suppose we now know that Professor Gillers is not a regular reader of this blog: just a few months ago I spotlighted here a story headlined "First the Wedding, Then Years in Prison." That post even included this amazing picture in case Professor Gillers is concerned about the possibility of bloggers creating revisionist American history.
UPDATE: In the comments, Professor Gillers reports that he was misquoted by the Wash Post: "I said 'federal judge,' but the 'federal' got dropped. I continue to suspect that what I actually said is true." As one who has been frequently misquoted local media, I fully understand his plight and I now feel bad that I made fun of this mis-quote.
I am not sure that I would share Professor Gillers' confidence that this is a completely unprecedented request, and I would love for a federal judicial historian to perhaps help us find out. That said, I do think that the nature of the crime, as well as the fact that the bride is half the age of the defendant, makes Professor Gillers' ethical instincts here spot on.
June 6, 2008 at 07:23 AM | Permalink
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» Is It Ethical for the Sentencing Judge to Perform a Marriage Service for the Defendant? from The Volokh Conspiracy
Over at Doug Berman's sentencing blog, there is this interesting discussion about whether asking the sentencing judge to perform a wedding service could be a [Read More]
Tracked on Jun 6, 2008 3:58:44 PM
Comments
I think I learned about 3 months into law school not to say "I doubt that's ever happened."
Posted by: anonymous | Jun 6, 2008 7:51:10 AM
This pinhead from NYU has a lot of nerve popping off about Judge Lee's judgment and his ability to perform two official functions without one influencing the other. Judge Lee is an excellent judge and a first-class gentleman. He can no doubt perform the marriage with the solemnity the occassion deserves and then conduct the sentencing hearing with the decorum that occassion deserves.
Posted by: A. Nony. Mous | Jun 6, 2008 9:11:37 AM
It cannot be done because a judge cannot lend the prestige of his office out to a private entity. Every lawyer, prosecutor and judge knows this basic tenet.
Posted by: Ronald Humphreys | Jun 6, 2008 9:55:21 AM
Ronald: what does that have to do with anything? Judges marry people all the time.
I think the sentencing should come first, and THEN the marriage. Maybe the proseuctors would be alright with that temporal arrangement. Simple solution... though if that were the case I have a feeling the defendant would not want to bother. Clearly the defense wants the judge to have to sentence him immediately after marrying him. Marrying him after sentecing wouldn't be as difficult or conflicting. If I were the prosecutor that's what I'd suggest.
Posted by: bruce | Jun 6, 2008 10:30:28 AM
Mr. Humphreys, are you joking? Judges officiate weddings all of the time. The problem here is that the judge is being asked to do it by a party who has a case before him.
I don't doubt the second commenter's assertion that the judge is perfectly capable of doing both things properly, but it is a questionable request for a defendant to make of a judge under the circumstances.
Posted by: anonymous | Jun 6, 2008 10:35:36 AM
I agree that it is a questionable request and I would even be willing to agree that it is a bald-faced defense ploy to attempt to garner sympathy. If I were the prosecutor, I would likely object for the record.
Defense attorneys make these sympathy plays all the time and judges are supposed to be able to see through them. I'm just saying that Judge Lee is fully capable of seeing through the charade and imposing a proper sentence.
Posted by: A. Nony. Mous | Jun 6, 2008 11:02:12 AM
The sentencing proceeding is a function of the judge's duty in the course of his service to the state. That is his office and his station to the state.
The marriage would be a private affair. The marriage is not CONNECTED to the state duty owed IN THE CRIMINAL CASE. If this were permissible then perhaps WE COULD ALSO GET THE JUDGE TO ANSWER SOME LEGAL QUESTIONS ON MATTERS THAT INVOLVE THIS DEFENDANT IN OTHER PROCEEDINGS.
While it is permissible for judges to marry citizens, perhaps you fine listeners would agree that this scenario is not permissible --the sentencing judge performing the defendant's marriage ceremony. The mere performance of the ceremony pre-sentence would suggest pre-sentence leniency. 554(a)
Posted by: Ronald Humphreys | Jun 6, 2008 11:03:29 AM
Mr. Humnphries, You raise an interesting argument, but it might need a wee bit of refining there.
The First issue is that this is a federal – not a state – judge. While federal judges usually can preform state weddings (as the state statute says they can), they are bound by different canons of ethics than state judges.
Secondly, you do not explain how using large letters make your point more valid. You also seem to have a strange rubric of “duties owed” which is rarely found in any of the literature concerning judicial ethics. Perhaps, to give some comfort, to those of us that think that you are a non-lawyer, or making this stuff up, you can provide some citations.
Third, your reference to “554(a)” is somewhat strange. First of all, what “554(a)” are you talking about. Second, what does it say? As an American, I am sure that you understand the importance of citing and providing any relevant text. This is what separates real Americans (i.e. lawyers) from poor people and terrorists.
Taking a guess, the 554(a) I know is in the Administrative Procedure Act (i.e. 5 USC 554). This wouldn’t have much to do with an Article III Judge. 28 USC 554 is the oath of office for United States Attorneys.
So, I think that a lot of your argument needs some refinements.
Posted by: S.cotus | Jun 6, 2008 12:04:23 PM
Right, I don't read this blog except this once. I said °federal judge," but the "federal" got dropped. I continue to suspect that what I actually said is true.
Posted by: Stephen Gillers | Jun 6, 2008 12:25:33 PM
Thank you for your very constructive criticism. First, I should have used the term "federal" to describe the proceeding and the judge. You are correct. Second, I should have cited to 455(a) instead 554(a) of Title 28, although I am fairly certain you knew I meant the recusal provision --perhaps not in taxation matters. However, I will again state you were correct and it is better for our discussion and the "benefit of others" that I restate that you are correct. Third, I take issue, however, with your statement: "This is what separates real Americans (i.e. lawyers) from poor people and terrorists." In rebuttal I state that real Amercians do not have to be attorneys, just Americans. Fourth, I am not an attorney (my law degree is not accredited) and if you visited my website to learn how my legal education was stolen (www.anti-nova-nsu.org) then you would certainly not have wondered. I would like to be an attorney and I have more than 15 years of draft experience. Finally, I will take great care to express my opinions in a more concise manner, succinctly to the point on each and every occasion in the hopes that I will not confuse anyone ---and I will be careful not to use CAPS where bold text is without, lest I wake the sleeping giant. In the end, the government will have an excellent appealable issue, particularly so if any downward departure or low-end sentence is given (after the marriage proceeding). That is why the government would have objected.
Posted by: Ronald Humphreys | Jun 6, 2008 12:36:48 PM
As long as the federal judge can perform marriages under the applicable state law, there is NO REASON the judge can't recess the sentencing hearing and perform the marriage.
Posted by: bruce | Jun 6, 2008 12:56:57 PM
Scotus I wonder in your mind if those are real Americans fighting over in Iraq and Afghanistan?
Posted by: noway | Jun 6, 2008 1:58:44 PM
Quit whining, everyone knows poor people and terrorists are not True Americans (tm).
Posted by: bruce | Jun 6, 2008 3:17:23 PM
The question is whether the public might likely conclude that the judge, having just married this particular defendant --whether that factor would likely impact the judge's decision to impose a harsh sentence vis-a-vis a lenient sentence. It is not whether state law permits it --this is a question of ethics and federal law (28 USC 455). Would the judge now be more likely to impose a lighter sentence? Would any member of the public likely conclude that the judge might be partially compromised by virtue of having joined this defendant to another in matrimony? The judge could enter an order granting a motion for permission to marry, but the service should be performed by someone other than the sentencing judge. Besides, even the minister is a witness to the marriage. I believe the government would be unfairly disadvantanged in the sentencing proceeding that followed such a union. I would expect a departure for family ties and circumstances. And if the defendant did not get it, even he could later complain that the possibility of the appearance of a 28:455 problem was the very reason such a departure was not given. Too many variables.
Posted by: Ronald Humphreys | Jun 6, 2008 3:29:48 PM
As a former federal judge, I should disclose that I once sentenced a defendant after his sentencing before me for a serious felony. The case involved a youthful defendant who was a felony in possession of firearm. As I recall, after receiving the request from the defendant, I checked with prosecution and the court security staff to make sure there were no concerns. Hearing no objection, I went forward with the ceremony. I felt that it was important to rehabilitation of the defendant in prison (I think he got about 18 months) for him to know that he had a beautiful wife willing to wait for him. I believe I performed the ceremony in about 2005. The marshals allowed the defendant to kiss the bride after the ceremony, which was performed in my courtroom.
Posted by: Paul Cassell | Jun 6, 2008 3:45:00 PM
Noway, I recently received an email from one of my law school classmates in Iraq, so there are at least some real Americans fighting over there.
Mr. Humphries, since you didn't graduate from an accredited law school there really isn't a reason to continue talking to you. This is not a reflection on you personally, but rather on your qualifications and commitment to American values.
Posted by: S.cotus | Jun 6, 2008 3:46:30 PM
Mr. Cassell, I generally agree with you. I think that there it is neither unethical nor unwise for a sentencing judge to conduct a wedding. However, are you saying that if his wife had been ugly (and that was revealed on the record), would you have not gone ahead with the ceremony?
Posted by: S.cotus | Jun 6, 2008 3:56:39 PM
You present yourself, S.cotus, as an elitist fascist. I will note your written insults. This was a legitimate discussion which you turned into a personal attack. Part of American values is respecting the opinion of another which disagrees with your opinion. I respect your opinion, even if I disagree. Why can't you respect mine? With all of your legal training, have you forgotten about free speech? Why should we abuse the artistic license given to us in these discussion rooms?
Posted by: Ronald Humphreys | Jun 6, 2008 4:36:58 PM
I have no quibble with the notion that non-lawyers are entitled to express their views. I don’t see what good it does, but I feel the same way about many kinds of music. I did not mean anything to be a personal attack and I believe that I so stated.
Posted by: S.cotus | Jun 6, 2008 4:42:51 PM
Ronald--It's a schtick. A seemingly never-ending, not very funny one, but a shtick nonetheless. He does it full time over at his other blog, although there it alternates with more straightforward expressions of his otherwise generic liberal views (which I don't necessarily disagree with, at least on these issues).
Posted by: Jay | Jun 6, 2008 5:11:38 PM
Thank you, Jay, for the education. I found www.jim.com to be a very interesting place. Nice to see that someone still makes our Federalist Papers available online without asking for compensation. I have always liked A.Hamilton's address to the people of the State of New York on my birthday (5/28), his mention of habeas corpus, which was my inspiration for the filing of my first 28:2255 (for another) --which was granted (after 5 years pending). Recently I was able to help reduce a 720 month sentence to 360 months (one of the largest post-Amendment 706 reductions) and on June 3, 2008, I was able to help vacate a Life sentence to 360 months. I may not have the degree, but I have the ability. Judge Ryskamp inspired me to move on to a modified IRAC styled, which has helped greatly in mitigation cases.
Posted by: Ronald Humphreys | Jun 6, 2008 5:50:31 PM
I don't buy the notion that being forcefully separated from your spouse (especially if he/she is non-ugly) will effectuate rehabilitation. First of all, being married at sentencing means there is no way to consummate the marriage, so it can easily be annulled by the non-incarcerated spouse. That will happen relatively soon after sentencing, assuming the judge doesn't allow a self-surrender (which is an option in federal court, but not in state courts as far as I know). Judge Cassell - did you allow this particular defendant to self-surrender, so he could go home with his wife and consummate the marriage?
I respect your opinion, even if I disagree. Why can't you respect mine? With all of your legal training, have you forgotten about free speech?
Ronald: Your right to free speech does not include having your opinion respected by others. If a person is not qualified to give an opinion on a particular matter, there's no reason it should be respected. And certainly no constitutional right to demand such respect. I disagree with S.cotus about needing a law degree to talk about the law, at least in general. As long as you're not poor or a terrorist, you can presumably talk about anything. Your words might rebut that presumption, if they indicate a lack of knowledge, logic, or rationality. I think we give too much credence to professional licenses these days. Most lawyers don't know what the hell they're talking about, either.
Posted by: bruce | Jun 6, 2008 7:21:16 PM
Jay, Out of curiosity, do you think my view that executions should be televised and that the public has a right to view them under the 1st amendment is "generic." I can't get a single person at an ACS, NLG, or ACLU meeting to agree with me no matter how many drinks I buy for them.
Posted by: S.cotus | Jun 6, 2008 7:33:13 PM
Bruce: good analysis on consummating and annulling the marriage. As to free speech, perhaps I should just tolerate another's right to use abusive terms and in the same field of play, another should learn to tolerate the free speech of other Americans. The blog is not a place to impose one's will, but rather to share ideas. Qualified....hmmm...interesting term. In this atmosphere even the peasant may share his thoughts with the king. If an opinion does not lack "knowledge, logic, or rationality", would the opinion by qualified? I need not worry, for as a Plaintiff in a civil RICO action, I am a private attorney general.
Posted by: Ronald Humphreys | Jun 6, 2008 7:53:59 PM
The blog is not a place to impose one's will, but rather to share ideas.
That's a false dichotomy. It's a place for both - I impose my will at this blog, and others, all the time. And I share ideas, too. In fact, merely by sharing my ideas I oftentimes impose my will.
I really don't think S.cotus was "abusive" towards you. Dismissive, yes. But not abusive. You really think people unqualified to talk about X should have their opinions about X respected by others? I could not disagree more strongly. In court, if you're not qualified to talk about something, your opinion is legally irrelevant and not admissible. You'll be forcefully told to shut up and held in contempt if you don't. I wish real life worked that way.
Posted by: bruce | Jun 6, 2008 8:09:13 PM
