« Please welcome (and often visit) the new Civil Rights Law & Policy Blog | Main | Record-long political corruption sentence for former mayor of Detroit »

October 10, 2013

US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas

Regular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him.  The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over.  Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose.  It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt.  And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.

Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty.  But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy.  Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations.  If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

Download US v Kupa statement of reasons final

Some prior posts noting Judge Gleeson's recent sentencing opinions:

October 10, 2013 at 11:26 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2019affe9acbd970b

Listed below are links to weblogs that reference US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas:

Comments

During my time in Federal prison [at USP - Big Sandy, in Inez, Kentucky], I met a 22 year old black inmate from D.C. who had received a mandatory life sentence under 21 U.S.C. section 851. The total amount of drugs involved in his drug felonies (predicates were possessions, not distribution crimes) was 8 ounces of marijuana and 3 grams of heroin. He will probably live in Federal prison for 50+ years, at a cost to the taxpayers of more than $2 million. This insanity must end.

Posted by: Jim Gormley | Oct 10, 2013 11:35:11 AM

Jim Gormley --

You actually took at face value what a fellow inmate and (admitted) drug dealer claimed to you was the full extent of his behavior???

Posted by: Bill Otis | Oct 10, 2013 12:58:24 PM

Over the years, my clients have given up the many arguably meritorious motions to suppress under threat of having the indictment superseded with a prior conviction alleged. For the same reason, clients have give up a fighting chance at trial. Indeed when I first started in federal defense, I would try lots of cases; now hardly any. Sure this policy ensures that lots of guilty people are doing lots of time. Unfortunately, it also ensures lots of injustice in that some innocent folks are pleading guilty to avoid the draconian alternatives. The policy also ensures that lots of 4th, 5th, and 6th Amendment violations are being ignored. Congratulations to Judge Gleason for telling it like it is; I'm afraid, though, he is like King Lear raging impotently at the storm.

Posted by: Michael R. Levine | Oct 10, 2013 1:21:11 PM

It's hard to believe that Gleeson does not understand the basics, so I'll set them out.

1. The Constitution creates three separate AND CO-EQUAL branches of government. The branches are designed to be able to influence, but not to control, each other. And each has authority beyond the others' purview. For example: the executive alone has the power to pardon; the judicial alone has the power to say what the Constitution requires or forbids; and the legislative alone has the power to lay taxes.

2. One of the powers reserved exclusively to the executive branch is the power to charge or not to charge, and to decide which charge to bring.

3. Ergo, Gleeson's contempt for (and very thinly disguised envy of) the executive branch for exercising authority the Constitution gives it, not him, is utterly out of line. If he wants to get appointed Attorney General, fine, ask Obama. Otherwise, charging decisions are no business of his, not in his official capacity anyway. If he wants to write a letter to the paper, he should feel free. On his personal stationery, of course.

Within the judicial branch, lower ranking courts (Gleeson) must obey higher ranking court (SCOTUS). In Bordenkircher v. Hayes, the SCOTUS held that it's perfectly permissible for the prosecutor to threaten a higher charge if the defendant refuses to plead to a lower one, then follow through on the threat. The decision was written by that well-known right wing freak, Potter Stewart, and fully joined by that other right wing freak, John Paul Stevens.

Posted by: Bill Otis | Oct 10, 2013 1:21:37 PM

Bill, I'm not sure if you know that Judge Gleeson was an AUSA in the Eastern District of New York for many years. He put a lot of mobsters away, including John Gotti. So when he speaks about the use and misuse of prosecutorial discretion, he's speaking from experience in the field rather than from a judicial ivory tower. And while he always follows the law even when he disagrees with it - I've been in front of Judge Gleeson, and I don't think there are many more law-abiding judges in the EDNY than him - he does sometimes share his opinions in an attempt to change the culture, which (IMO at least) is an entirely reasonable thing for judge to do.

You're certainly entitled to disagree with him, but I don't think your accusations of contempt or envy are even close to the mark.

Posted by: Jonathan Edelstein | Oct 10, 2013 2:22:07 PM

The charge is drug dealing. It likely stands in for hundreds of crimes a year, including the beatings and murders of competitors. The defendant did not learn from prior punishments, perhaps cannot change. After several convictions, only incapacitation serves the purpose of the owner of the law, the public. Any pretext thus has legal, moral, and utilitarian validity. So Al Capone killed hundreds. A stint for tax evasion had to make due for the tired public.

Posted by: Supremacy Claus | Oct 10, 2013 2:28:25 PM

"Co-equal"

Absolutely not. Your dog thinks he owns you, but you really own your dog. Congress can fire or cut off funding for the President. What can he do to them? Not equal.

Then there is the Judiciary. Same powers of Congress. However, the Supreme Court is absolutely the dog of Congress. It fetches political matters Congress feels are too dirty for it to touch. In return for carrying this burden, it has prohibited attacks or threats against the Court. Try criticizing the Court, get arrested on false trumped up charges of corruption, no matter how powerful or well funded.

Posted by: Supremacy Claus | Oct 10, 2013 3:05:19 PM

That's why no members of Congress criticized President Clinton's end-of-term pardons because they knew it was his sole constitutional authority to grant pardons. Oh, wait... Maybe they understood, as Judge Gleeson does, that there is a difference between whether a branch has the power to do something and whether a branch is exercising that power responsibly. Seems to me since they have the same boss - the American public - public officials should be allowed to criticize the discretionary exercise of power of other public officials without being accused of envy. Seems downright healthy to me.

Posted by: Thinkaboutit | Oct 10, 2013 3:34:39 PM

horse shit bill. it's BLACKMAIL plain and simple. Govt discovered you can threaten people or their family and friends they they will almost always shut up and take it. Unless they have a clean shot to kill the blackmailer.

As for the USSC. Sorry till that two-faced buch of traitors reverses it's decisons that it is perfectly legal for law enforcment to LIE, CHEAT, STEAL, FAKE EVIDENCE. They are a non-starter as far as i'm concerend

We won't even talk about prosecutors who pretty much have the same excemption to the laws the rest of us have to obey!

Posted by: rodsmith | Oct 10, 2013 4:10:47 PM

Jonathan Edelstein --

Yes, I know that Gleeson was an AUSA. Indeed, he was head of appeals in his Office at the same time I was head of appeals in mine (although I never met him to my memory).

"And while he always follows the law even when he disagrees with it..."

Which puts him ahead of Jack Weinstein, who does whatever he pleases because (1) he's so old he thinks his age puts him above criticism, and (2) he doesn't get criticized by anyone whose opinion matters to him anyway (which would not include the Second Circuit).

"...he does sometimes share his opinions in an attempt to change the culture, which (IMO at least) is an entirely reasonable thing for judge to do."

Judges occupy a special place of respect and influence. Gleeson is exploiting that, and doing so in florid, bordering-on-intemperate, language. It strikes me as inappropriate for that office.

Let me ask you this: If a conservative judge launched in the same way and in the same language against a perfectly legal maneuver by a liberal USAO, would you speak up for that judge with equal vigor?

And let me ask you one more thing: If you're an AUSA bringing a mandatory minimum prosecution in the future, would you be confident you'd get a fair shake in that courtroom? Or would you think Gleeson is just waiting for you to make one little screw-up?

Posted by: Bill Otis | Oct 10, 2013 5:54:52 PM

Thinkaboutit --

"That's why no members of Congress criticized President Clinton's end-of-term pardons because they knew it was his sole constitutional authority to grant pardons. Oh, wait..."

Members of Congress do not adjudicate cases. There is all the difference in the world, in terms of the need for restraint, between a frankly political office (Congressman) and a judicial one (judge).

"Seems to me since they have the same boss..."

Not at all. Congressmen can be removed by the electorate at the next election. Federal judges cannot be removed except by impeachment by the House and conviction by the Senate, which has happened all of nine times in the country's history.

"...public officials should be allowed to criticize the discretionary exercise of power of other public officials without being accused of envy. Seems downright healthy to me."

If you think this kind of snarling attack by a district judge doesn't have, and is not intended to have, an intimidating effect on AUSA's who don't have anything like Gleeson's clout, you don't know how the culture of litigation works.

Gleeson is bullying a prosecutor who is following Supreme Court law. If he bullied the Federal Public Defender (who is also a public official) for following the canons of ethics, even to snooker the jury into acquitting an obviously guilty and dangerous man, would you have written the same post?

Posted by: Bill Otis | Oct 10, 2013 6:10:55 PM

Hey Bill, you are asking the wrong person if you want someone to agree that the biggest problem in our system is bullying judges as opposed to bullying prosecutors. Judges can be removed by the people's representatives. That it doesn't happen alot means nothing, as you often note that the clemency power protects people from being oversentenced and don't seem troubled that it is almost never exercised.

This is my bottom line test for prosecutors: if you think the public really wants the sentences being charged and sought, then let the juries know the potential sentence before they deliberate. After all, the jury is a snapshot of the public and they will know as much about the defendant's bad acts as the prosecutors want to share. So, how about this: federal prosecutors refrain from objecting to attempts to inform the jury about the potential sentence, and in cases of mandatory minimums, the minimum required sentence? What would be wrong with that?

Posted by: Thinkaboutit | Oct 10, 2013 7:46:14 PM

Thinkaboutit:

I approve of your idea at 7:46 PM. If the public almighty is to be properly informed, they need to know what the sentences are or may be and to be instructed in jury nullification.

I would be glad to be questioned by any federal agent, if AND ONLY if:

- It was videorecorded
- My defense counsel was present
- An exact copy of the questions and responses was provided in duplicate to me and my defense counsel immediately. I mean, what's to hide? Federal agents never lie, do they?

Posted by: albeed | Oct 10, 2013 8:15:32 PM

Thinkaboutit: if you want the jury to hear about the possible penalties, then let them hear all of the other evidence required by 18 USC 3553, including the history and characteristics of the defendant, including his criminal history, etc. Let them hear from the crime victims, too.

The facts of the case are the check on the prosecutors' charging discretion. If the government can prove that the defendant committed the elements of the more serious offense, then what's the problem?

Posted by: Domino | Oct 10, 2013 9:29:33 PM

Albeed, good point. How can anyone justify fact that FBI opposes audio recordings of their interviews, let alone video interviews, in this day and age? Why do we have to rely on their handwritten notes? Such a scam. Domino, all of those factors already come into play at sentencing because the judge hears those things. My point is simply this: prosecutors defend lengthy sentences - and lobbying Congress against shortening sentences - because "the public wants them." So I think the best way to test that theory is to let the 12 members of the public who know the case simply be aware of the potential sentence. Do you know why prosecutors would oppose that? I do.

Posted by: Thinkaboutit | Oct 10, 2013 10:09:00 PM

Part 1 of the drug sentencing scheme is mandatory: Zero to 20 is not enough, let's make it 5-40, that's not enough,let's make it 10-life.

Part 2 of the drug sentencing scheme is discretionary with the prosecutor: Oh, you have prior, let's make it zero to 40, that's not enough, let's make it 10-80, that's not enough, then let's make it 20-life.

The question is should Congress be able to effectively delegate sentencing to a prosecutor through mandatory sentencing enhancements that are effectively unreviewable?

It the Gleeson bullying the prosecutor when he point's out the obvious discrepancies or is the AUSA bulling the defendant into taking a "deal." Ultimately, how does the average person view this scheme -- does the citizen have more confidence or less confidence in a legal system employing such a scheme?

Posted by: ? | Oct 10, 2013 10:34:58 PM

Thinkaboutit --

"Judges can be removed by the people's representatives."

The process for doing so is very cumbersome, accounting for the fact that it is almost never done. But that's not really the point. The point is that removal should never become an issue, because judges should act with a special degree of restraint and circumspection that Gleeson didn't show.

"...the clemency power protects people from being oversentenced and [you] don't seem troubled that it is almost never exercised."

That's correct, I'm not. The reason is that the criminal justice system, with its longer sentences, has succeeded like few if any other social policies over the last generation. You change when you're failing, not when you're succeeding. And if the response is that we're succeeding at too high a price, my answer is that we're FAILING at a much higher price (in runaway entitlements), so the place to start cutting costs is with what's failing, not what's working.

The other reason is that people who wind up in prison for by far the most part could have had a different fate had they made better choices about their behavior. I am responsible for my own choices, not those made by others.

"After all, the jury is a snapshot of the public..."

Juries are far, far too small to be a decent sample size of the public. Congress is a much better sample, which is why it, not juries, is empowered to enact law.

"...and they will know as much about the defendant's bad acts as the prosecutors want to share."

Last time I looked, the rules about introducing the defendant's bad acts did not read, "As much as the prosecutors want to share."

"So, how about this: federal prosecutors refrain from objecting to attempts to inform the jury about the potential sentence, and in cases of mandatory minimums, the minimum required sentence? What would be wrong with that?"

That it would invite the jury to go outside its assigned mission of determining whether the defendant committed every element of the crime, and invite it to render a guilty or not guilty verdict based on personal sentiment about the possible sentence rather than an assessment about the facts shown by the evidence.

Posted by: Bill Otis | Oct 10, 2013 11:54:27 PM

Another problem with Gleeson's speech -- uh, make that "order" -- is that it is, by its own terms, patently illegal.

Gleeson says: "And the only reason for [the plea agreement] is Kupa buckled under the enormous pressure that looming sentence placed on him."

It's black letter law by now that a court may only accept a plea if it's voluntary. When Gleeson says that the "only reason" Kupa pled was because of the "enormous pressure" that forced him to "buckle" under, he is saying in the plainest sort of language that the plea was INvoluntary. That being the case, there is no way Gleeson could legally (or morally for that matter) accept it.

Were I head of appeals in that USAO, I would point this out to Gleeson in a motion to vacate the plea and set the case for trial on the original indictment. If Gleeson denied the motion, I would on the spot file a notice of appeal.

The reason for that would be to show Gleeson that, if he wants to accuse my Office and my colleagues of being a bunch of thugs, he can go right ahead and prove it in the Second Circuit. If he (represented by the defense lawyer) wins, fine, we proceed with the present arrangement. But if I win, Gleeson will be exposed as having made a false and scurrilous accusation.

Which is exactly what he's done. By far the Number One reason the defendant offered, and Gleeson accepted, this plea is that the defendant is factually guilty and, accordingly, thinks it highly likely that he'll get convicted of the higher level offense originally charged. Gleeson's statement that government blackjacking was the "only reason" Kupa pled is simply false (as Gleeson implicitly but unambiguously concedes by taking the plea AT ALL).

If Gleeson wants to explain to the higher court why he accepted a coerced plea, he's welcome to do it. As chief of appeals, I'd happily give him that chance.

Posted by: Bill Otis | Oct 11, 2013 12:27:29 AM

Bill, your last answer is pretty much a non-response. Juries were not always fact-finding robots the government wants them to be today. They were intended to be a group of one's peers who could provide a check on the government's power by deciding in most cases whether or not to remove someone from their community. If you think after hearing the facts of the case and the potential sentence, a jury might balk at the sentence, what does that tell you? If the sentences prosecutors choose are always appropriate, they should jump at the chance to let juries know what they are proposing. Why not trust the defendant's peers with that information?

P.S. Did you see albeed's and my other point? Can you explain why prosecutors are completely opposed to taping interviews instead of having the FBI take notes like it's 1900? I know one reason why prosecutors like the current system, but it has nothing to do with fairness or justice.

Posted by: Thinkaboutit | Oct 11, 2013 12:31:05 AM

Thinkaboutit --

"Juries were not always fact-finding robots the government wants them to be today."

God forbid that juries find, and base verdicts upon, facts. How could anyone support such an outrage?

"They were intended to be a group of one's peers who could provide a check on the government's power by deciding in most cases whether or not to remove someone from their community."

I see that opinion -- which is all it is -- all the time. What I don't see is any court buying it. Let me guess: That's because the courts are a fascist cabal.

C'mon, Thinkaboutit.

"If you think after hearing the facts of the case and the potential sentence, a jury might balk at the sentence, what does that tell you?"

That juries can sometimes be stupid, see, e.g., Casey Anthony, OJ Simpson. They can also be bought off, as you and every adult knows. Think it doesn't happen?

But while we're at it, do you think juries should also be able to disregard the law that imposes the reasonable doubt standard, and find guilt because the defendant might be guilty and, in addition, looks mean?

I'm serious. Should they be able to do that? Why not? Why should the nullification theory proceed only in one direction? Doesn't the jury-as-community theory require that it function without favoritism toward either side?

"If the sentences prosecutors choose are always appropriate, they should jump at the chance to let juries know what they are proposing."

They don't propose a sentence until AFTER the verdict is in. And with the safety valve, they don't even know what sentence they're going to recommend.

"Can you explain why prosecutors are completely opposed to taping interviews instead of having the FBI take notes like it's 1900?"

I've been in favor of taping interviews for years, going back to the time I was in the USAO. The reason is simple: There's nothing like the tape to show that the defense lawyer's outraged claims of coercion are, as usual, pure fabrication.

Posted by: Bill Otis | Oct 11, 2013 12:51:10 AM

Think (and maybe others): The vitriol directed toward prosecutors appears misplaced to me. If you hold the view that federal sentencing rules are draconian, you should lay the blame at Congress's feet, not the prosecutors'. Prosecutors have the duty to enforce the law, not to write it.

It seems to me patently absurd to have Congress write laws, the President sign laws and the prosecutors to ignore those laws. If you don't like a law, point the finger where it will actually do some good - Congress.

Domino wrote: "The facts of the case are the check on the prosecutors' charging discretion. If the government can prove that the defendant committed the elements of the more serious offense, then what's the problem?"

To me, this suggests that you are OK with the idea that prosecutors are justified in going after convictions whenever they can get one. This is the exact thinking that brought us the Michael Morton tragedy.

Bill wrote: "I've been in favor of taping interviews for years, going back to the time I was in the USAO. The reason is simple: There's nothing like the tape to show that the defense lawyer's outraged claims of coercion are, as usual, pure fabrication."

And yet they aren't. I wonder why.

Posted by: C60 | Oct 11, 2013 1:33:33 AM

Prosecutors are worthless rent seeking thugs, lazy, slow shuffling government worker parasites. They fail to protect us from vicious violent illegal alien gangs, and will go after people for tiny regulatory infractions. Why? They are cowards seeking easy money from productive middle class people. If any tries to deviate form the above script, he is personally destroyed as an at will employee, then fired by a political hack boss.

The only reason to refuse to be taped is to preserve the ability to lie later. There is no mutuality of remedy, with the government able to lie, able to surreptitiously record, able to go fishing in discovery, to seize assets prior to conviction.

It should become the standard of defense professional due care to do total e-discovery on all judge and prosecutor work and personal computers. Refer the massive child porn likely there to the FBI. To deter the thug. 6

Posted by: Supremacy Claus | Oct 11, 2013 6:01:11 AM

C60 --

"And yet they [the interviews] aren't [taped]. I wonder why."

Holder could easily order them taped, so your question is best directed to him and his Administration. I haven't been in the USAO for almost 15 years.

But let me ask a question about what you think goes on in those interviews, and thus what taping would show. Which do you think is the more frequent occurrence: (1) The cops beat and/or intimidate the suspect into talking involuntarily; or (2) The suspect, thinking he can wriggle himself out a tight spot, talks voluntarily -- although at the outset not very forthcomingly -- to try to persuade his questioners that his role was minimal or forced on him by tougher, higher-ranking members of the gang/conspiracy.

Would you say that (1) or (2) comprises the great majority of what goes on?

Posted by: Bill Otis | Oct 11, 2013 9:08:44 AM

Bill Otis: In response to your query above about whether I took what another inmate in a Federal penitentiary told me about the extend of his criminal conduct, the answer is that I did not. Back in 2003, inmates still had possession of copies of their own Presentence Investigative Reports (PSRs) in prison. I always asked to see the PSRs of inmates I tried to help or work with in the law library, to ensure that I had all of the relevant information and that the inmates had not forgotten anything and were not lying to me. One thing you may not know about me is that I am a graduate of Vanderbilt University and the University of Virginia Law School. I am a highly intelligent and educated man, who was not easily deceived by any other inmate. I saw several extraordinary uses of the section 851 enhancement, requiring the Judge to impose a mandatory life sentence. In one of those cases, the sentencing Judge told the AUSA that he wanted the U.S. Attorney to personally come explain to him why the Government had filed the section 851 enhancement papers and why he should be required to impose a mandatory life sentence on an inmate he clearly did not think deserved it. After a brief recess, the AUSA returned to the Judge's courtroom to explain to him that his boss, the U.S. Attorney, has declined to come to court to explain. The AUSA told him that his office was under orders from Main Justice to seek the section 851 enhancement in all cases where it was available. I saw three such cases where I thought that the Government's position was far off base, and horribly misguided. In one case, section 851 was used because the defendant refused to debrief about a meth organization. That defendant has 5 children, who would have been murdered if he had debriefed, as the Government wanted. He is serving a life sentence, rather than jeopardize his children's lives.

Posted by: Jim Gormley | Oct 11, 2013 9:57:22 AM

? -- Prosecutors in choosing what to charge are not sentencing. They may be having an impact on the sentencing, but they are not making that sentencing decision any more than Congress is by creating a sentencing range in the first place. That is what the respective branches are supposed to do.

Congress/State legislatures define the offenses and define the applicable range of punishments (and the low end on even the most serious of cases today are substantially lower than the low end of the early 1800s). By the very act of enacting offenses with different levels and degrees (which most defense lawyers I know consider to be a good thing to avoid lumping in lesser offenses with more serious offenses), legislatures delegate to others the obligation to make decisions about how to enforce and implement the laws governing those offenses. It would be easy to pass a law that basically put all available sentences on the table from probation to death on every case, but we don't want a 25-year sentence on the table for a pickpocket, and we don't want probation on the table for a cold-blooded murder.

The Executive/DA/AUSA decide what cases are worth pursuing and what charges are appropriate. Yes, they can overcharge, but those are the cases that tend to go to the jury. When I had a weak case as a line prosecutor, I couldn't get a defendant to plead to anything. Where the prosecutor has leverage is when the prosecutor has not charged the maximum supported by the evidence and can reconsider what should be charged. Defendants loved to plead guilty when it was an open and shut case if I would take a higher sentencing range off the table.

The Judiciary is supposed to adjudicate cases within the law -- in this case, specifically decide the sentence within the range authorized by law for the offense of conviction.

Yes, the prosecutor has some leverage in plea negotiations, but so does the defendant. The defendant can insist on going to trial -- thereby forcing lay witnesses (in many cases victims) to undergo the unpleasant experience of testifying and police witnesses to spend time in court rather than in investigating crimes. All the prosecutor has is to threaten the defendant with going to trial and being sentenced for the offense that he actually committed instead of being allowed to plead to some lesser-offense.

Posted by: tmm | Oct 11, 2013 10:35:18 AM

Yes, Bill, you got me, I think courts are fascist cabals. The speed with which you move from reading a point to fitting it onto a Left-Right continuum is amazing. Let me just say this: You like to play the "I was a prosecutor card" so I will tell you as a defendant who has been through the system and seen it from a perspective you have not, I know why interviews are not recorded. It is NOT because defense lawyers oppose it. You surely must understand that. I know what it's like to have FBI agents create 302s from their notes that don't accurately record what was said. Do you want to take a wild guess which way their notes characterized things - in a way that benefited the defendant or the prosecution? We can debate lots of things but some things are so plain obvious I don't see how you can contest them.

Posted by: Thinkaboutit | Oct 11, 2013 11:01:17 AM

Jim Gormley --

A few points.

-- Yes, I knew you are well educated and have a law degree.

-- I'm very surprised the prison administration would allow one inmate to see the PSR of another. I think that could be quite problematic.

-- Even with access to the PSR, you could still be deceived. Deceit and manipulation are the coin of the realm in prison, as you might know better than I would.

-- I'm glad the USA refused the judge's request to explain why he was going with the enhancement. As I have explained, the Constitution gives the judicial branch no role in charging. Such a meeting could only have been used to threaten and browbeat the USA into charging (or not charging) in the way the judge wanted, thus breaching the constitutional division of power.

Judges have a whole bunch of power now. They don't need, and are not entitled to, all of it.

-- If meth defendants are threatening the murder people's children, then I guess they're not the Heroes of Freedom that they are constantly portrayed as being by libertarians. Unless, that is, multiple child murder is considered to be mere collateral damage in the Great Legalizing Cause of Doing Whatever You Want.

-- As ever, I appreciate your giving your real name and wish others had a similar willingness to step up.

Posted by: Bill Otis | Oct 11, 2013 11:09:40 AM

In the SDNY and EDNY, perhaps legally-challenged political officials such as Rangel, Silver, & Spitzer have set such a low bar for accountability
before the law, that NY courts are hereby descending to the level of a cockroach to make it under.

“In fact, the report says that judges in the EDNY and SDNY dropped below the Guidelines [2.6x the rate] nationwide.”
“In 2008, a post-Booker and post-Gall year,
44.4% of offenders received sentences within the guideline range,
20.2 % received a government sponsored downward departure;
5.0% received a non-government sponsored downward departure;
30.0% received a non-guideline below range sentence, and
0.3% received an upward departure.”--------------------------------------nyfederalcriminalpractice.com, ussc.gov/Legislative_and_Public_Affairs/

Posted by: Adamakis | Oct 11, 2013 11:24:43 AM

Thinkaboutit --

You're an intelligent and educated man, and no pushover. What I would have done in your situation is this: "Mr. Agent, I'd be more than happy to talk to you, because my conduct has been fully legal. Indeed, I'm so happy to talk to you that I'm going to record it right on my smart phone here. This is for your protection as well as mine. If you agree to this procedure, designed to facilitate ascertaining the truth for a judge later on, excellent, we can start right away. If, for reasons unknown, you will not agree, I must reluctantly decline to talk with you. I certainly hope you'll make Choice No. 1. What would you like to do, sir?"

At that point, you've already won. Either the agents go along, in which case you get what you want, or they don't, in which case (a) they get no interview, and (2) you get to tell the judge that the agents oddly didn't want a recording so the HE THE JUDGE could see the whole thing, in which case they have one foot in the bucket just to start with.

You are easily smart enough and shrewd enough to have done that.

Posted by: Bill Otis | Oct 11, 2013 12:01:52 PM

JG wrote, "In one case, section 851 was used because the defendant refused to debrief about a meth organization. That defendant has 5 children, who would have been murdered if he had debriefed, as the Government wanted. He is serving a life sentence, rather than jeopardize his children's lives."

Am I reading this right? The defendant voluntarily associated with folks of the sort that would kill his children if he told the truth to the government and you say it is somebody else's fault or some prosecutor's fault that that defendant is serving a life sentence? I'm sorry, I just can't get there from here. Hopefully this defendant can take solace that by his example, the next person might think twice about so entangling himself with such people.

Maybe the old saying is right - crime doesn't pay. Sometime, it costs.

Posted by: C60 | Oct 11, 2013 6:19:12 PM

Thinkaboutit:

Boy, this has been an interesting thread.

I'm glad I didn't bring up my next big bug-a-boo regarding federal CIVIL forfeiture cases where you have to sue the government to attempt to PROVE your innocence to get your material things (house, car, boat, money, etc.) back. I wonder where in the Constitution our fearless leaders created that monstrosity. Oh yeah, it was created by the same people whose intention is to make the small citizen hurt as much as possible because of the government shutdown.

You know, your agreement with the term "fascist cabal" was not far off the mark.

PS: It is ALL about Left vs. Right to small minds.

Posted by: albeed | Oct 11, 2013 7:50:07 PM

Jim Gormley came out of this discussion looking like a class act and this Bill Otis character is nothing more than a righteous thug, incapable of apologizing after admitting that he prejudged someone-- good thing he never made it to the bench!

Posted by: Doug Ashby | Nov 13, 2013 1:09:07 PM

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