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October 20, 2008

A notable (and notably late) Second Circuit conviction reversal

The Second Circuit today in US v. Ogando, No. 05-0236 (2d Cir. Oct. 20, 2008) (available here), reverses for insufficient evidence a set of jury trial convictions for a livery cab driver hired to pick up a drug courier at the airport.  Though not a sentencing case, this paragraph at the end of the long factual recitation in the opinion caught my eye:

Ogando was convicted on all four counts.  The Pre-Sentence Report calculated a Guidelines range of 63 to 78 months' imprisonment.  The court granted the defense’s motion for a downward departure based on aberrant behavior, U.S.S.G. § 5K2.20, and sentenced Ogando principally to 30 months'  imprisonment.  Ogando has completed serving his prison sentence.

This case makes me wonder whether bail pending appeal ought to be a default rule for any non-violent first offender.  The fact that the Ogando received a (pre-Booker) downward departure for aberrant behavior suggests he had no serious criminal history or propensity for violence.  Nevertheless, he had to serve a 30-month prison sentence based on unlawful convictions that it took a few years to get reversed. 

Ogando and his case surely will not get anything close to the attention that wrongfully convicted capital defendants receive.  Nevertheless, this kind of injustice might readily be corrected through sounder rules and rulings concerning bail pending appeal.  Especially in a criminal justice world in which wrongful convictions are an enduring problem, a loosening of bail pending appeal standards perhaps should become an important agenda item for modern criminal justice reformers.

October 20, 2008 at 11:40 AM | Permalink

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Comments

That's one way to look at it. Another way is to wonder why cases are taking so long to work their way through the criminal justice system. There is a right to a "speedy trial" but there seems to be no right to "speedy justice". If you've never done so, it's worth reading the open chapter to Charles Dickens' "Bleak House". It's one of the most sarcastically savage takes on the English criminal justice system in the late 1800s, which had exactly the same problem we do today.

A person on bond may not be in prison, but he/she still has the threat looming over his/her head. At least psychologically, that's a type of prison too. Free on bond may be a better answer than what we have now, but I don't think it's the best answer.

Posted by: Daniel | Oct 20, 2008 1:03:40 PM

Maybe the system is clogged up with frivolous sentencing appeals from refusals to grant a variance.

Posted by: Da Man | Oct 20, 2008 2:01:15 PM

They system isn't "clogged." This is a piece of propaganda aimed at the lower classes.

Moreover, there is probably no such thing as a "frivolous" appeal, since criminal defendants are generally seeking the relief they state (e.g. reversal or a reduction in their sentence.) Even if the standard is "abuse of discretion" an appeal is not frivolous.

Posted by: S.cotus | Oct 20, 2008 2:18:45 PM

There is a constitutional right to a speedy appeal according to some courts. Harris v Champion, 48 F.3d 1127, 1132 (10th Cir. 1995) (presumption of prejudice if delay is for more than 2 years). I believe other federal courts have addressed this issue. I do not know, off the top of my head, if the U.S. S.Ct. has addressed the issue.

Posted by: Tim Holloway | Oct 20, 2008 2:36:57 PM

I'm somewhat surprised that no one has yet commented on one easily avoidable aspect of the delay: the time it took a unanimous three-judge panel of the Second Circuit to produce an opinion in this case. The appeal was argued in February. The opinion issued today. That's 8 months. 8 months to produce an eleven-page unanimous opinion on an apparently straightforward issue of law. Federal appellate courts are busy, and some cases inevitably fall through cracks. But the eight months here--no offense to Prof. Berman's former boss--seems unwarranted.

Perhaps it's time for Congress to do with appeals courts what it's done to trial judges--impose a "six month list" to shame delinquent judges into issuing their opinions more promptly, at least in criminal cases.

Posted by: LT | Oct 20, 2008 2:44:34 PM

I'm somewhat surprised that no one has yet commented on one easily avoidable aspect of the delay: the time it took a unanimous three-judge panel of the Second Circuit to produce an opinion in this case. The appeal was argued in February. The opinion issued today. That's 8 months. 8 months to produce an eleven-page unanimous opinion on an apparently straightforward issue of law. Federal appellate courts are busy, and some cases inevitably fall through cracks. But the eight months here--no offense to Prof. Berman's former boss--seems unwarranted.

Perhaps it's time for Congress to do with appeals courts what it's done to trial judges--impose a "six month list" to shame delinquent judges into issuing their opinions more promptly, at least in criminal cases.

Posted by: LT | Oct 20, 2008 2:47:00 PM

Do we know when the defendant finished his sentence? I've wondered if judges in some instances are more willing to declare the evidence insufficient to support conviction for persons who have served their sentence, where they might otherwise resist reaching that judgment due to concerns of being publically criticized for letting a bumb off on a "legal technicality." Further, if we think shame is an appropriate means to to move judges to act quickly, why should we not be just as concerned that shame will intimidate judges out of applying the law and the constitution? Isn't that precisely why prosecutors make statements in the media criticizing reversals of criminal convictions?

Posted by: sdn | Oct 21, 2008 9:51:46 AM

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