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November 9, 2013

You be the federal judge: should everyone claiming to be a Whitey Bulger victim get to speak at sentencing?

The question in the title of this post is prompted by this new USA Today article discussing arguably the only legal uncertainty preceding this week's coming high-profile federal sentencing. Here is the background:

When a jury in August found Boston mob boss James "Whitey" Bulger guilty in 11 murders and 31 racketeering counts, the verdict left eight families hungering for more justice. Their loved ones' deaths, the jury found, couldn't be linked to Bulger.  Now, with Bulger's sentencing hearing coming up Nov. 13 at federal court in Boston, these frustrated survivors might get the last word. Prosecutors hope at least some of them will get to tell the court how Bulger victimized them.

That prospect, however, has at least one juror crying foul, defense attorneys pushing back and legal experts warning that such an uncommon procedure could backfire by strengthening Bulger's grounds for appeal.

Judge Denise Casper is considering a prosecution request to permit "all victims" to give impact statements at the upcoming hearing. It is "beyond dispute that the criminal enterprise was responsible for the murder of all the victims specified in the indictment," says an Oct. 11 prosecution filing with the court. "Thus … family members of the murder victims clearly have a right to be heard at Bulger's sentencing."

Bulger's attorneys have fired back, urging the court to "reject the United States Attorney's Office's invitation to disrupt the findings of the jury." Meanwhile, Bulger trial juror Janet Uhlar has asked the U.S. Senate Judiciary Committee to investigate what she calls "a threat to U.S. jurisprudence."

"The verdict we carefully, dutifully, and painfully deliberated is being mocked by the US Attorney's Office," Uhlar said in an email to USA Today. If all are permitted to speak despite the jury's findings, she said, "U.S. jurisprudence will be dealt a fatal blow."

Legal experts say Casper has discretion to permit a narrow or wide range of impact statements. They add that no matter who's permitted to speak, 84-year-old Bulger is all but certain to spend the remainder of his days in prison. Prosecutors are asking for two consecutive life sentences, plus five years, in accordance with sentencing guidelines.

To allow victim impact statements from those not linked to the defendant's crimes would be extremely rare, according to Michael Coyne, associate dean of Massachusetts School of Law in Andover, Mass. He's never seen a case where it's been permitted, he said, adding that it would potentially cast aspersions on the sentence. "The appeals court could end up sending it back to her for having made a mistake," Coyne said, if the higher court finds the sentencing hearing was improperly managed.

But Casper might be weighing competing factors, according to David Frank, editor of Massachusetts Lawyers Weekly, a newspaper that covers legal affairs in the commonwealth. Among the possible concerns: Be sure no one who might count as a Bulger victim in this super-complex racketeering case is denied an opportunity to speak. "By law, victims of crime have an absolute right to address the court before sentencing," Frank said. "The judge has a difficult decision to make" as she considers, in light of conspiracy and other racketeering findings, how to define who is and who isn't a Bulger victim.

If the prosecution prevails, the government's image might get a boost among those who were hurt, especially during the 1970s and 80s by Bulger's Winter Hill Gang, Coyne says. Such victims have long resented how the government did little to bring the gangsters to justice, instead taking bribes and agreeing to generous deals with Bulger associates.

Yet the price paid for such an open forum could include an impression that the court is being used for more than justice. "It would reduce the sentencing hearing, to large extent, to a circus," said Robert Bloom, a criminal procedure expert at Boston College Law School. "It has absolutely no meaning other than some sort of cathartic relief for some of the victims."

Candidly, I find both foolish and fantastical the comments asserting there could be big legal problems resulting from the victims of "acquitted conduct" getting a chance to speak at Bulger's sentencing.  As informed folks should know, under established Supreme Court doctrine (US v. Watts) acquitted conduct can be (and still regularly does get) used by federal judges to significantly increase a defendant's sentence on other counts.  Though I view U.S. jurisprudence allowing such sentence increases to be misguided, I do not see how our justice system will be "dealt a fatal blow" from simply letting "acquitted conduct" victims speak at sentencing.  And, given that Bulger is facing mandatory life terms, even if it were somehow a procedural error to let these "victims" speak at sentencing, I am certain that the First Circuit would consider any such error harmless.

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November 9, 2013 at 10:46 AM | Permalink

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I would not be dumb enough to go testify against Whitey. He still has friends and offspring who will be offended. If the judge adds on another five years to his sentence due to what I say, I would expect five feet cut off of my right leg by a Sicilian looking guy with a chainsaw.

Posted by: Liberty1st | Nov 9, 2013 1:02:18 PM

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