Sentencing Law and Policy

Is OJ providing a high-profile test case for the application of Lafler and Frye?

I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences.  But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:

O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.

Mr. Simpson is seeking a ruling overturning his conviction of armed robbery and kidnapping of sports memorabilia dealers in 2007. He says his counsel was inadequate and that his lawyer misled co-counsel. "I had never sold any of my personal memorabilia, ever," he testified Wednesday, dressed in prison blues.

Squabbles between lawyers and their clients and co-counsels are not uncommon, says Robert Pugsley, a professor at Southwestern Law School in Los Angeles. “Most clients in this situation are so poor or low on the economic scale that their bad lawyering doesn’t get much attention, and so the issue remains largely unnoticed,” he adds. “Whether Simpson prevails or not, this proceeding has a great chance to put the spotlight on this widespread problem.”...

Simpson’s claim of ineffective assistance of counsel “will predictably devolve into a ‘he said, he said,’ conflicting, fact-based narrative by Simpson and his former attorney,” says Professor Pugsley. Simpson's counsel in the robbery case that went to trial in 2008, Yale Galanter, has refused to comment publicly but is scheduled to testify Friday.

Potentially working in Simpson’s favor is a US Supreme Court ruling last session (Missouri v. Frye) that held that the guarantee of “effective assistance of counsel” extends to the consideration and negotiation of pleas – Simpson’s key complaint.

Co-counsel in the 2008 trial, Gabriel Grasso, said on the stand this week that while Mr. Galanter told him he'd talk with Simpson about a proposed plea deal, Galanter never told Mr. Grasso why he rejected it. Grasso said he didn't know if Simpson was even told.

“O.J. might have the good luck to rely on the Supreme Court’s decision last term in Missouri v. Frye. Timing is everything,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles....

Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal....

The appeal is taking place in Las Vegas, and this is Simpson's last chance under Nevada law to prove that he was wrongly convicted. A federal court appeal is still possible.

However, the standard of proof is so high that Simpson is unlikely to meet it, even if the judge believes everything he says, says Norman Garland, a professor at Southwestern Law School. “Simpson has to prove not only that the advice given to him was deficient, but that he was prejudiced by that deficiency,” says Professor Garland. “The requirements for demonstrating ineffective assistance of counsel are demanding, and the defendant must overcome a strong presumption that counsel’s performance was within the range of competent representation in order to prevail.”

A few recent related posts on Lafler and Frye:

• "Two Rights to Counsel"
• A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
• A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining

Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

As detailed in this new AP report, the "same jury that convicted Jodi Arias of murder one week ago took about three hours Wednesday to determine that the former waitress is eligible for the death penalty in the stabbing and shooting death of her one-time lover in his bathroom five years ago." Here is more about today's jury finding and what now follows in this high-profile capital case:

The decision came after a day of testimony in the "aggravation" phase of the trial, during which prosecutor Juan Martinez hoped to prove the June 2008 killing was committed in an especially cruel and heinous manner.

Family members of victim Travis Alexander sobbed in the front row as Martinez took the jury through the killing one more time. He described how blood gushed from Alexander's chest, hands and throat as the motivational speaker and businessman stood at the sink in his master bathroom and looked into the mirror with Arias behind him....

The trial now moves into the final phase, in which prosecutors will call Alexander's family and other witnesses in an effort to convince the panel Arias should face the ultimate punishment. Arias' attorneys also will call witnesses, likely members of her family, in an attempt to gain sympathy from jurors so they give her life in prison. That phase is scheduled to start Thursday morning.

The aggravation phase played out in quick fashion, with only one prosecution witness and none for the defense. The most dramatic moments occurred when Martinez displayed photos of the bloody crime scene for the jury and paused in silence for two minutes to describe how long he said it took for Alexander to die at Arias' hands on June 4, 2008....

Martinez told jurors Wednesday that Alexander "suffered immensely" at Arias' hands. "She made sure she killed him by stabbing him over and over and over again," he said.

The defense didn't have much of a case given how many times Alexander was stabbed, the defensive wounds on his hands, the length of the attack, and the sheer amount of blood found at the scene. Defense lawyers said Alexander would have had so much adrenaline rushing through his body that he might not have felt much pain.

The only witness was the medical examiner who performed the autopsy and explained to jurors how Alexander did not die calmly and fought for his life as evidenced by the numerous defensive wounds on his body.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?

Taking note of some notable federal tax sentences

This new Forbes commentary by Robert Wood, headlined "Lauryn Hill Jail Time --- What's A Fair Tax Sentence?", discusses some notable recent federal tax sentencing decisions. Here are excerpts (with a few links preserved):

Grammy winning Singer Lauryn Hill was sentenced in Newark.... Ms. Hill didn’t get probation alone as she had requested, but she drew only 3 months of incarceration. That is quite a good deal compared to the 24 to 36 months she faced. Her lawyer Nathan Hochman did a superb job of keeping her sentence down, stressing how she had stepped up, paid all her taxes, and more. In fact, a prior delay in sentencing may have been due to the fact that paying first is clearly better.

Whether it’s fair could be debated, but most observers would say she was lucky and ably represented. Tax sentencing isn’t an exact science. There are sentencing guidelines, but the judge also has discretion. And that can sometimes make similar missteps seem disparately treated. Just compare Stephen Baldwin’s sentence to Wesley Snipes’ [discussed here].

Ms. Hill pleaded guilty to three counts of failing to file tax returns on more than $1.8 million between 2005 and 2007. Just as with Wesley Snipes, it could have been far worse had she filed false returns....

This is a light sentence given the dollars involved. It’s the second favorable sentence drawn by Hochman in recent weeks. He was one of the lawyers for 79 year-old Mary Estelle Curran of Palm Beach, who had foreign account troubles. Like Ms. Hill, she was facing serious jail time for filing false 2006 and 2007 tax returns.

That case generated national interest with a potential prison term up to six years. U.S. District Judge Kenneth Ryskamp gave Ms. Curran one year probation, then instantly revoked it altogether. The Judge even suggested to Ms. Curran’s lawyers that they seek a Presidential pardon [discussed here].

Ms. Hill couldn’t expect the kind of deference Ms. Curran received, who had actually tried to come forward to the IRS about her foreign accounts and was rebuffed.  But regardless of whether you sympathize with celebrities, they often get bum steers from advisers, as clearly happened with Wesley Snipes.  His three-year stint seemed harsh.

In some ways, tax returns are the great levelers. Some things, after all, you just can’t delegate.

After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP

As reported in this new USA Today article, "Jodi Arias, convicted of first-degree murder of her on-and-off lover, says she was surprised by the jury's verdict Wednesday and hopes for the death penalty over life in prison."  Here is more:

Arias, who choked back tears as the jury's decision was read, told KSAZ-TV in a courthouse interview after the verdict was announced that she was surprised the jury found her guilty of premeditation in the death of Alexander. "It was unexpected for me, yes, because there was no premeditation on my part," she said.

She said she would "prefer to die sooner than later" and that "death is the ultimate freedom." The Maricopa County sheriff's office said in a statement that Arias was being put on a suicide watch because of her interview comments.

The 12 jurors deliberated reached a verdict after deliberating less than three full days. The televised trial, which began Jan. 2, gained notoriety for its accounts of gore and sex....

Arias spoke to Fox affiliate KSAZ in an exclusive courtroom interview about 20 minutes after the verdict was read.  Arias was mostly calm and chose her words carefully during the 45-minute interview, appearing to hold back tears a few times, much as she did during the trial, according to the interview.

She said she hoped her sentence would be the death penalty. "The worst outcome for me would be natural life (in prison). I would much rather die sooner rather than later," she said.

Arias said she is healthy, doesn't smoke and that longevity runs in her family. That means she would expect to live in prison for a long time. "I said years ago I'd rather get death than life," she said. "I believe death is the ultimate freedom."

Arias added that she hopes the family of victim Travis Alexander can find peace now that the verdict has been rendered. She said she prayed for members of the jury every day and was shocked that they decided the killing was pre-meditated.  Arias said she could "see how it could look that way" but that "there was no premeditation on my part."...

Maricopa County Attorney Bill Montgomery issued a statement after the verdict was read, saying, "We look forward to the next phase of the proceedings, where the state will present evidence to prove the murder was committed in an especially heinous, cruel, or depraved manner."...

Defense attorneys contended that Arias killed Alexander in June 2008 in an unplanned fit of rage as she reacted to what attorneys portrayed as his pattern of emotional and physical abuse.  It had cost Maricopa County taxpayers at least $1.7 million as of late April to defend Arias.

I have not followed this case closely until now, and it will be interesting to see if the capital sentencing proceedings in the days and weeks ahead garner as much attention as the trial did. It will also be interesting to see if Arias and/or her attorneys expressly request the sentencing jury to impose a death sentence.

Based on various press reports, I surmise that Arias appears to be a effective liar, and thus I cannot help but wonder if her desire for a death sentence is not really a desire to die sooner. A shrewd defendant in Arias' position would know that her case and appeals would be sure to get a lot more attention, from courts and abolitionist activists, if she were to be sentenced to death. If Arias gets an LWOP sentence, her life and crimes will likely be forgotten in a few years. But if she gets sentenced to death, we will likely be seeing her name in the papers during each round of legal appeals for decades to come.

Corrupt state supreme court judge and sister facing state sentencing in PA

As reported in this local article, headlined "Former Pennsylvania Justice Orie Melvin, sister face sentencing today," a high-profile corruption case in the Keystone State has finally reached the sentencing stage. Here are the basics:

Former Pennsylvania Supreme Court Justice Joan Orie Melvin and her sister and former court aide Janine Orie will be sentenced today by Allegheny County Common Pleas Judge Lester Nauhaus.

Prosecutors, in briefs filed before the court last month, are seeking incarceration for Ms. Orie Melvin and for her sister, who were convicted in February of misusing state-paid employees in Ms. Orie Melvin's campaign for a seat on the high court in 2003 and 2009. The sisters were found guilty of theft of services, conspiracy and misapplication of government funds. Janine Orie was also convicted of tampering with evidence and solicitation.

In their briefs, Ms. Orie Melvin's defense attorneys asked for probation, citing her dedication to public service, charitable work and her devotion to her family and the hardship incarceration would bring upon her family, including her six children and elderly father.

The sisters were charged with misapplication of government funds, theft of services and conspiracy for using the justice's former Superior Court staff and the legislative staff of a third sister, former state Sen. Jane Orie, to run campaigns for the Supreme Court in 2003 and 2009. Among the allegations were that staffers wrote speeches, drove Ms. Orie Melvin to campaign events and worked the polls....

At the time of the verdict, Matt Mabon, the jury foreman, explained that the jury couldn't reach a decision on the official oppression count, which was connected to the employment of Lisa Sasinoski, chief law clerk for the justice who was a witness. Because there were competing versions of whether she was fired or resigned, jurors couldn't reach a decision, he said.

Ms. Orie Melvin voluntarily stopped hearing cases before the high court when she was indicted a year ago, just hours before the court issued an order suspending her to "preserve the integrity" of the system. That same day, the Pennsylvania Judicial Conduct Board issued a recommendation that she be suspended with pay pending resolution of the criminal case, but in August, the Court of Judicial Discipline ruled that Justice Orie Melvin should not be paid during her suspension. Her salary at the time was $195,309.

Justice Orie Melvin fought unsuccessfully to have the charges against her dismissed, claiming that the Supreme Court itself should have jurisdiction over the allegations and not the criminal courts. A month after the verdict, on March 25, Ms. Orie Melvin announced, in a letter to Gov. Tom Corbett, that she would resign May 1 "with deep regret and a broken heart."...

Jane Orie is serving a 21/2- to 10-year prison term for using her staff for her own and Ms. Orie Melvin's campaigns and for forging documents to cover it up. She was found guilty in March 2012 of 14 of 24 counts against her, including ethics violations, theft of services, tampering with evidence and forgery.

Assistant district attorney Lawrence Claus is seeking consecutive sentences of incarceration in the aggravated range for Ms. Orie Melvin. The standard range is probation to 30 months, versus 48 months in the aggravated range. For Janine Orie, the standard range is probation to 27 months and up to 45 months in the aggravated range.

Related post:

• You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?

UPDATE:  I am very pleased to see from this local article, headlined "Orie Melvin must write apology letters to Pennsylvania judges on photos of herself," that the sentence for the former judge includes a serious shaming sanction.  Here are the awesome basics, about which I will blog more in a future post:

Disgraced former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced today to house arrest followed by probation and ordered to send handwritten apologies on photographs of herself to every judge in the Commonwealth.

Allegheny County Court of Common Pleas Judge Lester Nauhaus sentenced Orie Melvin to three years' house arrest with two years' probation to follow.

A jury found Orie Melvin and her sister Janine Orie guilty on Feb. 21 of using judicial staff, as well as the staffers of another sister, former state Sen. Jane Orie, to work on the campaigns in 2003 and 2009 for the Pennsylvania high court.

Orie Melvin, 56, was found guilty on six of seven counts against her, including conspiracy, theft of services and misapplication of government funds. She resigned from the Supreme Court in March.

She must serve in a soup kitchen three times a week and can otherwise only leave her house for church.

Judge Nauhaus also ordered that an official county photographer take a photograph of Orie Melvin, on copies of which she must apologize to each of Pennsylvania's judges. She must pay for the cost. He ordered a deputy to handcuff her and the photo was taken of her in handcuffs.

Her sentence also includes $55,000 in fines, a prohibition on using the title "justice" during her term and handwriting apologies to former members of her campaign staff and that of her sister, former state Sen. Jane Orie, whom she made engage in illegal work.

You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?

After a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey.  This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:

Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.

The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007.  She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.

She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000.  "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.

In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing.  She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.

Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.

A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday.  She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline.  "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.

Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.

Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh?  expensive?) alternative to imprisonment sentence.

For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.

Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system. 

UPDATE:  This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill.  I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.

Intriguing final (sentencing) chapter in landmark SCOTUS Fourth Amendment case

Via this post at The BLT, which is titled "Man in Landmark Supreme Court GPS Case Pleads Guilty," we find out today that Antoine Jones' success in convincing the Supreme Court to declare his warantless GPS tracking to be an unconstitutional search in the end allowed him to secure a plea deal with a sentence of only 15 years in prison rather than his original federal LWOP term.  Here how:

Facing his fourth trial, the man at the center of a landmark U.S. Supreme Court ruling on GPS tracking pled guilty today to a drug conspiracy charge and was sentenced to serve 15 years in prison.

Antoine Jones was arrested in 2005 and charged with participating in a drug trafficking ring in the Washington area. Jones will receive credit for time already served, meaning he'll spend an additional seven years in jail.  After he is released, U.S. District Judge Ellen Segal Huvelle sentenced him to five years of supervised release and 200 hours of community service.

"I think you can teach other people how to stay out of trouble," Huvelle said to Jones during today's hearing. Huvelle has handled the case from the beginning.  "It's been a long haul, Mr. Jones," she said.

Jones stood trial three times. His first trial ended in a mistrial in 2007. He was found guilty at the second trial and received a life sentence, but the U.S. Court of Appeals for the D.C. Circuit vacated that conviction after finding the government violated his Fourth Amendment rights through the warrantless use of a Global Positioning System tracking device.

Last year, the U.S. Supreme Court affirmed the D.C. Circuit's ruling, meaning prosecutors couldn't use the GPS data at trial.  The government had used the information to link Jones to a drug house in Maryland.  During the course of the investigation, the authorities never saw Jones personally handle any drugs.

Following a third trial earlier this year, in which Jones represented himself, the jury split and Huvelle declared a mistrial.  The government announced shortly after that it planned to seek a fourth trial.

Following today's hearing, Assistant U.S. Attorney Darlene Soltys declined to discuss details of the plea negotiations, except to confirm that Jones continued to represent himself.  She also declined to comment on the resolution of the case....

Jones, who waived his right to appeal, requested Huvelle recommend he be placed in a federal prison near Atlanta, where he has family.  Huvelle agreed to make the recommendation; the Federal Bureau of Prisons will make the final decision about his placement.

Huvelle urged Jones to do something "legitimate" with his life after serving his time in jail.  She pointed out that some of the jurors thought Jones performed well as his own lawyer and that he had wasted his talents.

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"
• Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

Might the Gov of Virginia soon be a federal criminal defendant?

The question in the title of this post is prompted by this new Washington Post piece, headlined "FBI looking into relationship between McDonnells, donor."   Here are the basics:

FBI agents are conducting interviews about the relationship between Virginia Gov. Robert F. McDonnell, his wife, Maureen, and a major campaign donor who paid for the food at the wedding of the governor’s daughter, according to four people familiar with the questioning.

The agents have been asking associates of the McDonnells about gifts provided to the family by Star Scientific chief executive Jonnie R. Williams Sr. and actions the Republican governor and his wife have taken that may have boosted the company, the people said.

Among the topics being explored, they said, is the $15,000 catering bill that Williams paid for the 2011 wedding of McDonnell’s daughter at Virginia’s historic Executive Mansion.  But questions have extended to other, previously undisclosed gifts from Williams to Maureen McDonnell as well, they said.

The interviews, at which Virginia State Police investigators were present, began in recent months as an outgrowth of a federal investigation of securities transactions involving Star Scientific, which produces a dietary supplement called Anatabloc.  The company disclosed that probe in a regulatory filing last month, saying it had received subpoenas from the U.S. attorney’s office for the Eastern District of Virginia.

Now, federal officials are trying to determine whether to expand that investigation into a broader look at whether McDonnell or his administration took any action to benefit Star Scientific in exchange for monetary or other benefits, according to the four people familiar with the interviews.  It is unclear whether the probe will be broadened.

Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health

As highlighted in this story about a hearing in a high-profile federal case in DC, "prosecutors raised the prospect on Friday in court of having their experts examine former Rep. Jesse Jackson Jr. if his lawyers plan to raise his bipolar disorder as a mitigating factor in trying to reduce his prison sentence." Here is more:

U.S. District Court Judge Amy Berman Jackson made no decision after prosecutor Matt Graves said he wanted to “alert” her to the possible issue in advance of the sentencing July 1 of Jackson and his wife, former Ald. Sandi Jackson.  The two pled guilty in February to looting $750,000 from campaign funds for personal use.

Judge Jackson asked for the hearing because she is taking over the case after U.S. District Court Judge Robert Wilkins — who handled the pleas of the couple — withdrew without explanation from the case.

Graves said the government is “entitled” to have Jackson checked “by our own experts” if Jackson’s lawyers decide to argue Jackson’s mental health should be taken into consideration by the judge when she sentences him.

Defense attorney Reid Weingarten told Judge Jackson that the former congressman’s bipolar disorder is well known and “not controversial.”  Weingarten also said they do not intend to argue that Jackson’s “criminal activity” was caused by his mental illness.  The former congressman was hospitalized at Mayo Clinic last year for treatment of bipolar depression.

Judge Jackson — who consolidated two separate sentencing dates into one morning July 1 sentencing session for the couple — had nothing before her to rule on, since the defense lawyers have yet to show their hand.  The judge signaled that the former congressman’s mental state may be a factor for her, since she said she was required to consider “who he is as a person.”

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
• Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

This new Chicago Tribune article, headlined "For sentencing, Jacksons get new judge named Jackson," reports on some notable pre-sentencing developments in the run up to a high-profile federal sentencing scheduled for later this year. Here are the basics:

The felony cases of former Rep. Jesse Jackson Jr. and his wife, former Chicago Ald. Sandi Jackson, have been assigned to a new judge — named Jackson.

Court papers filed Tuesday moved the cases to U.S. District Judge Amy Berman Jackson, but did not explain why the judge who accepted the Jacksons' guilty pleas, Robert Wilkins, would not be the one to sentence them this summer.

Harvard law professor Charles Ogletree Jr., who recently joined Jesse Jackson Jr.'s legal team, told the Tribune that Wilkins is a former law student whom he knows well, and that Wilkins may have recused himself out of caution.

Ogletree said he joined Jackson Jr.'s team on a pro bono basis and will appear at his sentencing June 28. He said he was not involved in the defense of Sandi Jackson, who will be sentenced July 1.

Under sentencing guidelines, the former congressman faces 46 to 57 months in prison and Sandi Jackson one to two years. The pair pleaded guilty in separate cases in the U.S. District Court for the District of Columbia after Jackson Jr. looted his campaign treasury of more than $750,000 and Sandi Jackson failed to report on joint tax returns about $600,000 in income.

Ogletree, when asked what would be a fair sentence for Jackson Jr., would not say whether that involved prison time but argued that he deserved a "second chance." He said he thought any judge will look not only at the guidelines but at Jackson Jr.'s record of public and community service and work with seniors and young people.

Ogletree, a longtime acquaintance of the Rev. Jesse Jackson Sr., the civil rights leader, said the case was not about the father but about his son, who is "a young man in a very challenging situation who has a story that I hope people will be willing to listen to."

Judge Amy Berman Jackson was chosen for the Jacksons' case based on a random reassignment. She is not related to the couple — but she is a Harvard law alum like Wilkins and Ogletree.

Judge Jackson has familiarity with a convicted congressman: As a defense attorney before her appointment to the bench, she represented Rep. William Jefferson, D-La., who was convicted of corruption after authorities found $90,000 in cash in his freezer.

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

Former NFL player now a high-profile felon facing (severe?) federal sentencing realities

As reported in this ESPN piece, headlined "Sam Hurd pleads guilty," I now have a new high-profile (and potentially high) federal defendant to watch as his sentencing approaches.   Here are just some of the interesting details:

Former NFL wide receiver Sam Hurd pleaded guilty Thursday to trying to buy cocaine and marijuana to set up a drug-distribution network, a move that leaves him facing significant prison time.

Hurd, 27, pleaded guilty in federal court in Dallas to one count of possession of cocaine and marijuana with intent to distribute. His trial was scheduled to begin Monday, and a federal judge had refused his attorney's request to delay it.

Prosecutors and Hurd's attorneys have been in plea discussions for months, according to one of his attorneys, Jay Ethington. One sticking point was what allegations Hurd would acknowledge in a plea agreement, which will factor into his recommended sentence on the indictment, Ethington said in September.

Ethington told The Chicago Tribune that he plans to "vigorously contest" Hurd's sentencing, contending that the former receiver didn't engage in drug trafficking to the extent alleged by prosecutors. "He's a marijuana freak," Ethington told the newspaper. "He loves marijuana. He's addicted to high-grade marijuana."

Ethington said Hurd was not a marijuana dealer. "Sell? No. Share with his friends? Yes," Ethington told the newspaper.

Hurd was a player for the Chicago Bears when was arrested in December 2011 outside a Chicago-area steakhouse after accepting a kilogram of cocaine from an undercover officer, according to documents prosecutors filed in the case.  Prosecutors alleged he told the officer and an informant at the steakhouse that he wanted to purchase up to 10 kilograms of cocaine a week for $25,000 per kilogram.

His arrest shocked his teammates and led to his release from the team. Months later, he was back in court after failing two drug tests and allegedly trying to arrange another drug buy.  Two men linked to Hurd's alleged attempts to buy drugs have pleaded guilty and were prepared to testify against him.

You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Earlier this month, however, I generated a notable sentencing debate by changing the script via this post in which I encouraged folks to imagine being a federal prosecutor tasked with recommending a federal sentence for Jesse Jackson Jr. and his wife after it was clear that they intend to plead guilty to political corruption charges stemming from their misuse of campaign finance monies.  (See "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?".)

As the title of this post reveals, I think it valuable to encourage readers again to think as a prosecutor about sentencing recommendations for political corruption.  But, as explained via this local story, "Judge sets May 7 sentencing for Joan Orie Melvin," the high-profile upcoming sentencing I have in mind is in state court and concerns a prominent state jurist and her sister after a trial conviction on multiple charges:

Allegheny County Judge Lester Nauhaus has scheduled suspended Supreme Court Justice Joan Orie Melvin's sentencing for May 7, the judge's staff said Wednesday.

A jury on Feb. 21 found Melvin, 56, of Marshall guilty on six criminal charges dealing with her misuse of state-paid employees to campaign for a seat on the high court in 2003 and 2009. The jury deadlocked on a seventh charge of official oppression.

The jury also convicted her sister and former staffer, Janine Orie, 58, of McCandless on six related charges.  Information on her sentencing date wasn't available.  A third sister, former state Sen. Jane Orie, 51, of McCandless is serving 2 1⁄2 years to 10 years in state prison on similar charges.

Obviously, the exact specifics of the crimes and the political positions of Jesse Jackson Jr. and Joan Orie Melvin are quite different.  Nevertheless, the underlying criminal behavior is arguably similar, as is the basic background of the offenders in relevant respects (e.g., both convicted defendants came from prominent political families, had a record of electorial success, and have considerable parental responsibilities).  Of course, Jackson Jr. and his wife are due to be sentenced in the federal no-parole system in which judges must impose exact sentences subject only to a 15% reduction for good prison behavior, whereas Melvin and her sister are to be sentenced in the Pennsylvania with-parole system in which judges general impose sentences in term of broad ranges.  Further, the Jacksons pleaded guilty and have expressed remorse, whereas Melvin and his sister both execised their trial rights and were found guilty on nearly all charges by a jury.

Differencea aside, I am eager to hear what readers think state prosecutors ought to be recommending as a sentence for Joan Orie Melvin and her sister.  Do you think they merit a longer or shorter sentence that what the Jacksons are facing?  Do you think the fact that state sentencing in Pennsylvania involves possibility of parole should lead to state prosecutor to urge for a much longer sentence in the Melvin case than federal prosecutors are urging in the Jackson case?  Do you disagree with my general notion that these crimes are in some ways comparable given that they were prosecuted in different jurisdictions (even though, I think, the feds could have prosecuted both cases)?

I raise these points not only because I see high-profile, white-collar sentences as provide a great setting for debating sentencing issues, but also because I think efforts to compare the sentencing treatment of seemingly similar defendants can often distract from the task of seeking to impose the most just and effective sentence for a singular defendant.  Ergo my interest in reader views on both the upcoming sentencing in this high-profile state political corruption case and how it should be compared to the upcoming sentencing of the Jacksons in federal court.

Recent related posts:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
• Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

This recent post, titled "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?", engendered a lengthy debate over federal sentencing law and practice as applied to a pair of new high-profile federal defendants.  Now, this New York Times article, headlined "Jesse Jackson Jr. Pleads Guilty: ‘I Lived Off My Campaign’," reports that federal prosecutor, apparently parroting the recommendations of the federal sentencing guidelines, have already urged significant prison terms for Jesse and Sandi Jackson.  Here are the details:

Jesse L. Jackson Jr., the former Democratic representative from Illinois, pleaded guilty on Wednesday to one felony fraud count in connection with his use of $750,000 in campaign money to pay for living expenses and buy items like stuffed animals, elk heads and fur capes.

As part of a plea agreement, prosecutors recommended that Mr. Jackson receive a sentence of 46 to 57 months in prison. The federal judge overseeing the case, Robert L. Wilkins, is scheduled to sentence Mr. Jackson on June 28....

“Guilty, Your Honor — I misled the American people,” Mr. Jackson said when asked whether he would accept the plea deal. Mr. Jackson’s father, the Rev. Jesse L. Jackson, his mother and several brothers and sisters accompanied him to the hearing.

Mr. Jackson’s wife, Sandi, also accompanied him, and later in the day she pleaded guilty to a charge that she filed false income tax statements during the time that Mr. Jackson was dipping into his campaign treasury. Prosecutors said they would seek to have her sentenced to 18 to 24 months....

Last summer, Mr. Jackson took a medical leave from Congress and was later treated for bipolar disorder. After winning re-election in November, he resigned, citing his health and the federal investigation into his use of campaign money.

After the hearing, Mr. Jackson’s lawyer, Reid H. Weingarten, said his client had “come to terms with his misconduct.” Mr. Weingarten said that Mr. Jackson had serious health issues that “directly related” to his conduct. “That’s not an excuse, it’s just a fact,” Mr. Weingarten said.

Court papers released by federal prosecutors on Wednesday provided new details about how Mr. Jackson and his wife used the $750,000 in campaign money to finance their lavish lifestyle.

From 2007 to 2011, Mr. Jackson bought $10,977.74 worth of televisions, DVD players and DVDs at Best Buy, according to the documents. In 2008, Mr. Jackson used the money for things like a $466.30 dinner at CityZen in the Mandarin Oriental in Washington and a $5,587.75 vacation at the Martha’s Vineyard Holistic Retreat, the document said.

On at least two instances, Mr. Jackson and his wife used campaign money at Build-A-Bear Workshop, a store where patrons can create stuffed animals.  From December 2007 through December 2008, the Jacksons spent $313.89 on “stuffed animals and accessories for stuffed animals” from Build-A-Bear, according to the documents....

Documents released on Friday showed how Mr. Jackson used his campaign money to buy items like fur capes, celebrity memorabilia and expensive furniture.   Among those items were a $5,000 football signed by American presidents and two hats that once belonged to Michael Jackson, including a $4,600 fedora.

Because neither Jesse Jr. nor Sandi Jackson would appear to present any threat to public safety whatsoever, I am not quite sure why federal prosecutors believe that imposing a sentence "sufficient but not greater than necessary" to achieve congressional sentencing purposes requires a muti-year prison term for both of them.  I fully understand, of course, that the sentences here ought to be severe enough to serve general deterrence purposes.  But I am not sure that such extended prison terms are needed, especially if the Jacksons' sentences require them now to pay significant criminal fines and penalities in addition to forfeiting all ill-gotten gains and paying all their tax liabilities.

Former federal prosecutor Bill Otis has said repeatedly in recent threads that federal prosecutors should not have their sentencing recommendations defined by applicable sentencing guidelines.  But I surmise that the prosecutors' recommendations here that Jesse Jr. get 46 to 57 months in prison and that Sandi get 18 to 24 months are drawn directly from the guidelines.  (We can be quite sure that the defense attorneys in these cases will not draw their recommendations from the guidelines, and I would guess that the defense will end up making full-throated arguments for non-prison sentences for both Jesse Jr. and Sandi.)

Recent related post:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Celebrity witness for high-profile (and interesting) federal sentencing appeal

I have blogged a good deal about the long-running federal criminal travails of Cameron Douglas, in part because the involvement of celebrities at sentencing is intriguing and in part because of the many legal and social issues raised by the seemingly lenient sentence Cameron Douglas was given at his first federal sentencing and the seemingly harsh sentence he got the second time around (some backstory here). 

Today, all these travails came before the Second Circuit for oral argument.  This new AP article about the argument hints that a notable reasonableness ruling might be in the offing:

Michael Douglas was among spectators Wednesday as an appeals court panel heard attorneys argue whether his son was treated too harshly when he was sent to prison for nearly 10 years for drug crimes.  The actor sat in the back of a Manhattan courtroom the size of a basketball court as three judges from the 2nd U.S. Circuit Court of Appeals heard attorney Paul Shechtman complain that Cameron Douglas got the stiffest sentence ever — 4 1/2 years in prison — for being caught with drugs in prison. The time was added last year to a five-year prison sentence Cameron Douglas was already serving....

The appeals panel, unlikely to release a written opinion for weeks or even months, did not indicate through its questions whether it will order a resentencing.  Like the sentencing judge, it seemed troubled by crimes Cameron Douglas, 34, committed after he was given leniency in return for cooperating against two of his former drug suppliers.  Without the benefit of cooperation, he would have faced a mandatory 10-year prison term after he pleaded guilty to narcotics distribution charges on Jan. 27, 2010.

Shechtman said only 2 percent of inmates are prosecuted when they are caught with drugs behind bars.  And he said the Bureau of Prisons had already punished Cameron Douglas with 11 months in segregation and by taking away nearly three months of good behavior credit.

Assistant U.S. Attorney Justin Anderson said Judge Richard M. Berman properly considered the unique characteristics of Cameron Douglas' crimes.  Cameron Douglas has admitted that he had a girlfriend sneak drugs to him after he was first arrested and was staying at his mother's place under tight bail conditions and that he convinced a female lawyer who had a romantic interest in him to sneak drugs to him in prison.  He also has admitted continuing to use drugs in prison.  "Extraordinary cases require extraordinary sentences," Anderson said....

Judge Guido Calabresi asked Anderson why Berman was not entitled to impose a sentence that was double what prosecutors were requesting and was nearly five times what the Probation Department recommended after he became disappointed with the number of chances Cameron Douglas had squandered.  Judge Gerard Lynch said it was understandable that Berman would think: "This guy got a big break and he screwed up."

Shechtman called Cameron Douglas' behavior "purely the conduct of an addict."  Lynch asked whether Berman was entitled to say drug offenders "have to clean up their act and I'm not going to see addiction as a justification."

Shechtman said he was not suggesting his client should not be punished but rather "54 months is an unreasonable sentence."

Prior posts concerning Cameron Douglas's federal sentencings:

• Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
• Cameron Douglas sentenced to five years for federal drug offense
• "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
• Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
• Stiff sentence given to Cameron Douglas for drug possession while in prison
• Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment

Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency

The NFL provides some more sad crime and punishment news this Saturday as detailed in this NBC Sports report headlined "Cowboys’ Jerry Brown dead, teammate Josh Brent charged." Here are the basics:

Cowboys linebacker Jerry Brown has died in an early morning car crash, and Cowboys nose tackle Josh Brent has been charged with intoxication manslaughter in Brown’s death. The police department in Irving, Texas, has confirmed that Brown died in a crash early this morning and Brent (whose legal name is Josh Price-Brent) was charged.

“Officers at the scene believed alcohol was a contributing factor in the crash; therefore, Price-Brent was asked to perform field sobriety tests,” a statement from the Irving Police Department said. “Based on the results of the tests, along with the officer’s observations and conversations with Price-Brent, he was arrested for driving while intoxicated. He was transported to an area hospital for a mandatory blood draw. Once it was learned that the passenger of his vehicle had died as a result of the crash, Price-Brent was booked into the Irving City Jail on one count of Intoxication Manslaughter.”

Adding aggravation and insult to this fatal injury is this follow-up story headlined "Josh Brent had a prior DUI arrest in college":

The arrest for intoxication manslaughter was not the first time Josh Brent has been charged with drinking and driving. The Cowboys nose tackle, who was arrested Saturday morning after a one-car crash that killed teammate Jerry Brown also had a drunken driving arrest in Illinois when he was in college.

In June 2009, he was sentenced to two years probation and 60 days in jail as part of a plea deal from a March 2009 DUI arrest in Champaign County, Illinois.

I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI.  And, looking forward, I think NFL Commissioner Roger Goodell would do more good for both his sport and society if, rather than worry too much about kickoffs, he were now to decree that any NFL player convicted of any DUI charge will be suspended for at least two years (and perhaps even for life).

Should history of concussions always be a critical concern at sentencing?

The question in the title of this post is prompted by this notable story out of Florida covered by NBC Sports concerning the state sentencing of former NFL player (and OSU Buckeye) David Boston.  The piece is headlined "David Boston gets six months in jail, concussions cited at sentencing," and here are the details:

Former NFL wide receiver David Boston was sentenced to six months in prison today for punching a woman last year, but the sentence could have been much more severe, as prosecutors were seeking to put Boston behind bars for four years.

So why did the judge give Boston a more lenient sentence?  In part, because Boston blamed concussions suffered in football for his actions off the field, and the judge found Boston’s claims convincing.

According to the Sun Sentinel, a psychiatrist testified at Friday’s sentencing hearing that Boston had at least four concussions from playing football, and Circuit Judge Charles Burton said he agreed to impose less jail time than prosecutors were seeking because of evidence that Boston suffers from a brain disorder [more on Boston's crime and sentencing can be found in this Sun Sentinel piece].  Boston said in court that he is suing the NFL over head trauma he suffered on the field.

With thousands of former players now suing the NFL for brain damage they say they suffered during their playing days, this surely won’t be the last time we hear of a player blaming brain damage after being convicted of a crime.  The 34-year-old Boston, a once-promising Pro Bowler who has had several off-field problems, pleaded guilty last month to felony aggravated battery in connection with last year’s incident.

Effective capital defense attorneys have a long history of investigating and presenting evidence of a defendant's traumatic brian injury at the penalty phase of a death penalty case.  But I suspect that relatively few defense attorneys in non-capital cases have a habit of even considering whether their clients might have a history of concussions.

I am not surprised (but still impressed) that the attorney and judge involved in a former NFL's player's sentencing gave considerable attention to a history of concussions.  But statistics indicate that hundreds of thousands of high-school and college athletes suffer concussions every years, and I doubt many criminal defense attorneys even think to ask about a criminal defendant's teenage sports experiences when developing a record of mitigating evidence for sentencing.  Indeed, I fear that, unless and until formal sentencing law in some way were to require judges to consider this "silent epidemic,"  very few defendants with a history of concussions will be able to get the same kind of sentencing benefit as former NFL players like David Boston.

Nails does not get nailed at federal sentencing for bankruptcy fraud

Serious baseball fans my age likely still have the 1986 playoffs deeply etched in their memories even a quarter century later.  (In my case, it helps that I was in Shea Stadium for Game 6 of the 1986 World Series.)  Consequently, the federal sentencing of a member of the 86 Mets has an extra bit of salience.  But, as this Los Angeles Times article highlights, the player nicknamed Nails during his playing days now should be more grateful for Booker than for Buckner.  Here are the reasons why:

Already serving a three-year state prison sentence for auto theft, former New York Mets star Lenny Dykstra was sentenced to an additional 6.5 months on Monday for federal bankruptcy fraud.

Dykstra, who helped the Mets win the 1986 World Series, had pleaded guilty to looting his mansion of valuables before creditors could liquidate them. The defendant, who reportedly scuffled with Los Angeles County sheriff's deputies in April, has racked up numerous criminal charges since his financial empire began to crumble in 2009.

On Monday, U.S. District Judge Dean Pregerson ordered Dykstra to pay $200,000 in restitution and to perform 500 hours of community service in addition to prison time. The 6.5-month sentence was far lighter than the 30 months federal prosecutors had sought....

According to federal prosecutors, Dykstra sold sports memorabilia and household items from his Ventura County mansion, including a $50,000 sink. Dykstra was barred from selling the items.

Nicknamed "Nails" by baseball fans for his aggressive play, the Garden Grove native turned to bankruptcy court in July 2009 to try to save his lavishly furnished Sherwood Country Club estate. He bought the property from hockey legend Wayne Gretzky for $18.5 million, at the height of the last housing boom.

An affidavit filed by FBI Special Agent Ty Thomas lays out how federal investigators allege that Dykstra "sold many items belonging to the bankruptcy estate" and "destroyed and hid other estate items, depriving the estate of a combined $400,000 of assets." Dykstra reportedly transferred dozens of items — including chandeliers, mirrors, artwork, a stove and a grandfather clock — to a consignment store, Uniques, on South Barrington Avenue in West Los Angeles. The owner of the store paid him cash for a U-Haul truckload of goods, according to the agent.

Jared Loughner sentenced to seven consecutive life sentences plus 140 years

Largely because (and seemingly only because) federal prosecutors were willing to take the threat of a death penalty off the table, a very high-profile mass shooting in Arizona reach a sentencing result today less than two years after the crime.  This AP story, headlined "Life sentence in Ariz attack that wounded Giffords," reports on some of the basics:

Former Congresswoman Gabrielle Giffords, partially blind, her right arm paralyzed and limp, came face to face Thursday with the man who tried to kill her last year, standing beside her husband as he spoke of her struggles to recover from being shot in the head.

"Her life has been forever changed. Plans she had for our family and her career have been immeasurably altered," said astronaut Mark Kelly, both he and his wife staring at the shooter inside a packed courtroom. "Every day is a continuous struggle to do those things she once was so good at."

Jared Lee Loughner, 24, was then ordered to serve seven consecutive life sentences, plus 140 years in federal prison for the January 2011 shooting rampage that killed six people and wounded 13 others, including Giffords, outside a grocery store in Tucson, Ariz.

Loughner pleaded guilty under an agreement that guarantees he will spend the rest of his life in prison without the possibility of parole. He avoids a federal death sentence, although state prosecutors could still decide to try him.

One by one, survivors of the attack at a Giffords political event approached the courtroom podium to address Loughner, each turning toward him where he sat stoic and emotionless at a table with his attorneys. "You took away my life, my love and my reason for living," said Mavanell Stoddard, who was shot three times and cradled her dying husband in her arms as he lay bleeding on the sidewalk after shielding her from the spray of bullets.

Susan Hileman, who was shot, spoke to him, at times visibly shaking. "We've been told about your demons, about the illness that skewed your thinking," she said. "Your parents, your schools, your community, they all failed you. It's all true," Hileman said. "It's not enough."...

Some victims, including Giffords, welcomed the plea deal as a way to move on. It spared them and their families from having to go through a potentially lengthy and traumatic trial and locks up the defendant for life.

Giffords didn't speak, but stood by Kelly and kissed her husband when he was done. He grabbed her hand and they walked away, her limping. Earlier, Loughner told Burns that he would not speak at the hearing.

Both sides reached the deal after a judge declared that Loughner was able to understand the charges against him. After the shooting, he was diagnosed with schizophrenia and underwent forcible psychotropic drug treatments.

Christina Pietz, the court-appointed psychologist who treated Loughner, had warned that although Loughner was competent to plead guilty, he remained severely mentally ill and his condition could deteriorate under the stress of a trial....

It's unknown whether Pima County prosecutors, who have discretion on whether to seek the death penalty against Loughner, will file state charges against him. Stephanie Coronado, a spokeswoman for Pima County Attorney Barbara LaWall, said Wednesday that no decision had been made.

It's also unclear where Loughner will be sent to serve his federal sentence. He could return to a prison medical facility like the one in Springfield, Mo., where he's been treated for more than a year.  Or he could end up in a prison such as the federal lockup in Florence, Colo., that houses some of the country's most notorious criminals, including Oklahoma City bombing conspirator Terry Nichols and "Unabomber" Ted Kaczynski.

I am very interested to hear (especially from vocal death penalty advocate and opponents) whether folks think justice has now been served in this high-profile case. I am likewise interested to hear whether folks think Arizona prosecutors should now follow-up with state charges against Loughner.  

Are criticisms of Rajat Gupta's two-year prison sentence sound or suspect?

The question in the title of this post is prompted by this AP piece headlined "Ex-Goldman Exec's 2-Year Sentence Draws Scrutiny."  Here are excerpts, which also includes some highlights from Judge Jed Rakoff's comments about the federal sentencing guidelines:

A two-year prison sentence for insider trading at the height of the 2008 economic crisis, by a man who was once one of the nation's most respected business executives, is a fifth of the 10 years requested by the government and well below sentencing guidelines.  Now, some experts are questioning whether it's a fair punishment.

Judge Jed Rakoff described the sentence and $5 million fine given to former Goldman Sachs and Procter & Gamble Co. board member Rajat Gupta, 63, on Wednesday as sufficient to deter others and properly punish the Westport, Conn., resident.  "At the same time, no one really knows how much jail time is necessary to materially deter insider trading; but common sense suggests that most business executives fear even a modest prison term to a degree that more hardened types might not.  Thus, a relatively modest prison term should be 'sufficient, but not more than necessary,' for this purpose," Rakoff said.

Some legal observers did not agree.  Chicago attorney Andrew Stoltmann said the sentence should have been closer to the 10 years prosecutors had recommended because Gupta's crimes were more serious than those committed by Raj Rajaratnam, the billionaire hedge fund founder he tipped off. Rajaratnam is serving 11 years in prison.

"Gupta intentionally betrayed his duties to Goldman Sachs as a director of the company, refused to take responsibility for his actions and put the government through a long and exhaustive trial costing taxpayers millions," Stoltmann said. "Judge Rakoff should have thrown the proverbial book at Gupta and sentenced him to the higher range of the 97 to 121 months prosecutors were requesting."...

Rakoff criticized sentencing guidelines that he said called for Gupta to serve at least 6½ years behind bars.  Citing information he received under seal, Rakoff said Gupta's crimes may have occurred because Gupta may have "longed to escape the straightjacket of overwhelming responsibility, and had begun to loosen his self-restraint in ways that clouded his judgment."...

Rejecting defense arguments that a community service sentence would be sufficient, Rakoff said a prison sentence was necessary to send a message to insider traders that "when you get caught, you will go to jail."

"While no defendant should be made a martyr to public passion, meaningful punishment is still necessary to reaffirm society's deep-seated need to see justice triumphant," the judge said. "No sentence of probation, or anything close to it, could serve this purpose."...

Rakoff said he could not spare Gupta from prison and only order him to perform community service.  "It's not a punishment. It's what he finds satisfaction doing," the judge said.... In his attack on federal sentencing guidelines that are meant to be advisory, Rakoff said "mechanical adding-up of a small set of numbers artificially assigned to a few arbitrarily-selected variables wars with common sense."

He added: "Whereas apples and oranges may have but a few salient qualities, human beings in their interactions with society are too complicated to be treated like commodities, and the attempt to do so can only lead to bizarre results."

Notably, long-time federal prosecutor and frequent commentator Bill Otis stated in the first comment to a prior Gutpa post that he has "a hard time seeing what interest would be served by giving [Gupta] a sentence longer than he got." In addition to appreciating Bill's candor, his comment spotlight the import and distorting impact of the guidelines even in a post-Booker world.  Though Bill Otis sees Gupta's two-year prison term to be "sufficient" in light of the commands of 3553(a), federal prosecutors in this case argued that a guideline sentence at least four times longer (more than eight years) was necessary to serve congressional sentencing goals. And even post-game criticism of Gupta's sentence reflected in the above-quoted article is quick to assert that the guideline range was a better benchmark for a proper sentence.

For social and psychological reasons, I continue to understand why guideline provisions and ranges has such a huge anchoring effect on federal sentencing decision-making even now eight years after the Booker ruling. But for normative and humanitarian reasons, I continue to be saddened that a big book of sentencing suggestions still dominates analysis of federal sentencing decision-making even now eight years after the Booker ruling.

Related prior posts on Gupta sentencing:

• Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
• Interesting commentary on upcoming Gupta sentencing for insider trading
• Rajat Gupta hoping to get by (federal sentencing) with a little help from his friends
• Gearing up for high-profile sentencing of high-profile insider trading defendant
• Might it hurt Rajat Gupta to get sentencing support letters from the 1%?
• "Rajat Gupta Should Walk Free Wednesday"
• Gupta sentencing memos: feds seeking 97 to 121 months in prison, defense requesting probation and "rigorous community service"
• Rajat Gupta gets 24-month prison term, $5 million fine at sentencing for insider trading