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October 27, 2012

Is justice delayed really justice denied before federal sentencing for child porn professor?

The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time."  Here are the details of this intriguing sentencing story:

A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines.  James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974.  He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.

The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines.  The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it.  U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.

A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes.  The initial sentencing date was set for Dec. 17, 2010.

Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.

After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents.  More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.

Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.

Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.

As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.

I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon.  But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period).  In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.

I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.

October 27, 2012 at 01:44 PM | Permalink

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Comments

Always throw out a computer compromised by a virus. First it is probably not much more expensive to get a new one. Second, the idea that a computer nerd at a repair shop will be viewing the content is outrageous and illegal, in the case of private health data. This scenario, of being reported by computer repair shops is a frequent element of most downloading cases.

Posted by: Supremacy Claus | Oct 27, 2012 7:11:13 PM

I am currently working on a case where there were 7 continuances (because the plea agreement stated the statutory maximum was 10 years when the statutory minimum was 15 years).

Posted by: Jack | Oct 27, 2012 7:29:21 PM

One has to ask. Is the best use of a federal prison bed, in terms of public safety? Meanwhile, serial killers are trolling our kids like sharks through schools of herring. The government does nothing about them, because that would require real work for a change.

I would like to see people like Jack stop thinking about their salaries for a minute and start to go after the prosecutors, personally. Begin simply. Demand total e-discovery on the prosecutor's computers, and those of the judge, looking for improper purposes, and judge biases. . Start attacking the mortal enemies of your client (but the very good friends of your employment).

One guess as to what you find. That's right, the federal government is the biggest subscriber and downloader of child porn. Without this volume of business, child porn producers could not survive financially.

Turn over all findings of child porn on government computers to the FBI. Let the federal thug explain how the recorded viewings at 11 PM are part of his official duties.

Posted by: Supremacy Claus | Oct 27, 2012 8:38:24 PM

Good luck. Post the results.

Posted by: anon | Oct 28, 2012 12:21:55 AM

Does he get credit for time served on his home detention?

Posted by: federalist | Oct 28, 2012 10:43:34 AM

I've never been involved in any case, even CP cases, where there have been this many continuances let alone such a lenghty delay between the plea and sentencing. Usually there are two or three continuances. I've been noticing more sua sponte continuances lately probably because of flooded dockets.

Posted by: Mark Allenbaugh | Oct 28, 2012 10:44:49 AM

Federalist:
Time spent on pretrial house arrest as a condition of release does not qualify as jail credit under 18 USC 3585(b).

Posted by: ? | Oct 28, 2012 11:31:45 AM

I believe it should become a professional standard of due care to investigate all aspects of the prosecution, including personal computers. If the prosecution has an improper motive and the defense missed that, that should be legal malpractice. It would justify a summary judgment and is highly relevant to the outcome of the case.

One reason defense lawyers do not do that is to avoid in any way scaring or deterring the lawyer who wants to destroy the client. Why this betrayal of the client? Because the prosecution also is the source of the defense lawyer's employment. There is an inherent conflict of interest. The client must hire two lawyers. One for the defense. One malpractice expert to terrorize the defense lawyer at every turn to get him to fulfill all his duties to the client.

Posted by: Supremacy Claus | Oct 28, 2012 12:46:35 PM

Yeah I wonder if the home detention is counting for whatever he gets sentenced to.

Posted by: David | Oct 28, 2012 1:00:47 PM

Looks like this is not the first time this Judge has used case-delay as the way to give one side what it wants (here, keeping the professor out of jail) while trying to remain immune from appellate review:

http://nashvillepost.com/news/2010/12/2/appeals_court_rebukes_judges_reassigns_tenncare_case

Posted by: Web search | Oct 28, 2012 1:13:39 PM

Prof. Berman --
With over 280 federal criminal cases behind me, I am pretty sure I qualify as experienced, relative to your inquiry. What I have gleaned is that I think that nothing is as important as the judge to the question you pose.

Within the past few years I have had federal sentencings delayed by the same judge for 15 and 20 months, with narcotics defendants on release or held in custody, respectively. The delays were to afford me time to resolve isses regarding the criminal history of each client, as I had filed and was litigating coram nobis petitions seeking to vacate prior state convictions which were enhancement qualifiers under USSG career offender and/or 21 USC sec. 851.

These collateral state proceedings repeatedly were delayed, though without my playing a part in such delays. In each case I was permitted to postpone the sentencing several times, on a few occasions over the government's objection. The case with the 20 month delay still hadn't seen a state court resolution when the federal judge determined that his sentencing should go forward, while the 15 month case had been heard, and I had taken an appeal to the intermediate appellate court. I do not believe that every judge would permit this kind or extent of delay, and ultimately this will be driven much more by the judge than by any other consideration. My judge told me flat out that he'd give me as much time as I needed to resolve these issues, and never delayed a sentencing by less than 4 months. Perhaps the fact that I am before this judge regularly created some cred, in terms of his accepting that I was diligently addressing these matters, along with his history as a state court judge and understanding of the oft-glacial pace of matters there.

But while by no means can the case you discuss be considered usual or routine, I don't believe that the case is as much unusual (in posture) as it is unique (in foundation). Without the confluence of factors you cite, I'd have to question if this could or would happen often.

Michael Montemarano

Posted by: michael montemarano | Oct 28, 2012 1:37:19 PM

Having spent a number of years practicing in the "rocket docket" -- the Eastern District of Virginia -- I'd love to see what would happen to the defense lawyer who asked for this many continuances. I believe he'd wind up in the slammer, along with any AUSA who agreed to it.

If the bench expects the cases to move, and the bar knows it, they actually do move. Discipline and high expectations work.

Posted by: Bill Otis | Oct 28, 2012 4:08:21 PM

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