Sentencing Law and Policy

Debating the likelihood of the death penalty for Khalid Sheikh Mohammed

The Chicago Tribune has this new piece discussing the death penalty realities surrounding the prosecution of suspected terrorists in federal court.  The piece is headlined "9/11 terror trial: Justice facing 'uphill battle' on death penalty?; Some legal experts say death penalty no sure bet in Khalid Sheikh Mohammed case," and here is an excerpt:

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York.  He helped win convictions for the four acolytes of Osama bin Laden who plotted the simultaneous bombings of U.S. embassies in Kenya and Tanzania in 1998. Jurors found the four men guilty as charged, but they were divided on the punishment in the summer of 2001.  As a result, all four were sentenced to life in prison.

Some jurors said afterward they opposed a death sentence because these followers of bin Laden said they wished to die as martyrs.   "Obviously, the 9/11 crimes are as serious as you can get," Butler said, "but it is difficult to get 12 people in Manhattan to agree on a death penalty."

This month's decision by Attorney General Eric Holder to try the alleged Sept. 11 plotters in a federal court rather than in a military commission set off a legal and political battle.

Critics of the decision said a Manhattan trial poses a grave security threat to the city and that they feared the defendants would be found not guilty or escape the death penalty.  They also said they feared the perpetrators of the worst mass murder in U.S. history would use the trial to spew propaganda.

Defenders of the decision said the nation's courts have shown themselves fully capable of trying and convicting the worst of criminals.  And they said trying the accused terrorists as ordinary criminals and murderers was more fitting than treating them as warriors in a "war on terror."

Still, despite the fierce disagreements, it is not obvious that the result in these cases would be different depending on which legal system was used.   Lawyers on both sides of this dispute say they fully expect that Mohammed and his co-conspirators will be found guilty of the charges of mass murders.  And while 12 military officers on a military commission at Guantanamo might be more likely to impose the ultimate sanction than 12 New York civilians, the very limited experience to date with such commissions does not make that a foregone conclusion.

Military commissions have surprised both civil libertarians and the Pentagon by dismissing charges against some accused terrorists and giving sentences considered lenient to others. Pentagon lawyers sought a 30-year prison term for Salim Hamdan, the former driver for bin Laden.  But last year, a military judge sentenced him to serve just six more months in prison, and he was subsequently released and sent home to Yemen.

As I have noted before, limits on the reach of double jeopardy rules might enable state prosecutors to go after Khalid Sheikh Mohammed if the results of his first trial are not to everyone's liking.  But I still have faith that a jury is likely to return a death sentence if it sees convincing evidence that 9/11 would not have happened without KSM's involvement.

Some recent related posts:

• Obama Administration making key decisions on how to prosecute key terror suspects
• "Obama suggests 9/11 suspect will get death penalty"
• "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"
• Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

Ever since AG Holder announced the decision to try Khalid Sheikh Mohammed in civilian court in New York City, there has been much hand-wringing in the media (and on this blog) about the possibility that KSM could be acquitted or avoid the death sentence that would seem justified in this case.  But these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed.

First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC.  If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania.  Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths.

Second, even if the feds decide to bring all of these charges for all of KSM's federal crimes in the planned NYC trials, state prosecutors in New York and Virginia and Pennsylvania can (and arguably should) bring state prosecutions against KSM.  Of course, New York does not have a functional death penalty and Pennsylvania capital system is stuck in arrested development.  But Virginia has a well-functioning death penalty system, and the citizens of that state have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory.

Usefully, another major modern terror attack on US soil provides recent precedent for potential dual prosecutions.  After the feds only secured a life sentence for Terry Nichols for his role in the Oklahoma City bombing, Oklahoma state officials brought a state capital prosecution in order to seek to vindicate the state interests implicated by this act of mass murder.  (Notably, state jurors were unable to decide to give Nichols a state death sentence, though the fact that Tim McVeigh was sentenced to death and executed for his role in the Oklahoma City bombing probably explains why even state jurors decided to go soft on Nichols.)

Some recent related posts:

• Obama Administration making key decisions on how to prosecute key terror suspects
• "Obama suggests 9/11 suspect will get death penalty"
• "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"

Second Circuit issues huge opinion (with sentencing stuff) in Lynne Stewart case

In the words of one of my co-panelists at today's OSU Scalia symposium, "Holy Buckeyes, Batman!":  while I was thinking had about originalism and the jury, the Second Circuit handed down a massive opinion in the high-profile Lynne Stewart case.  That opinion, which runs almost 200 pages including the separate opinions, can be accessed at this link.

I likely will not have time to consume this massive effort (which seems to have lots of sentencing parts) until probably late tomorrow.  But, in the meantime, perhaps Supremecy Clause and other commentors of note will have something interesting to say about a lawyer told to go directly to jail.

Former congressman William Jefferson scheduled to learn sentencing fate today

As detailed in this local article, which is headlined "William Jefferson can expect long prison sentence -- but not 27 years, experts say," many are forecasting that a record-setting sentence for a former member of Congress will be handed down today. Here are the particulars:

William Jefferson is facing a lengthy prison sentence from U.S. District Judge T.S. Ellis III on Friday, legal experts say, but probably not the 27 to 33 years recommended by prosecutors.

Jefferson, 62, the New Orleans Democrat who served nine terms in the House of Representatives, is due for sentencing Friday afternoon in the same Alexandria, Va., federal courthouse where he was convicted in August 11 public corruption counts.  The jury acquitted him on five other charges after an eight-week trial.

Those willing to predict a sentence suggest that Jefferson faces something in the range of 10 to 20 years, still the harshest punishment handed down in a congressional corruption case. "The federal government is going to want to make an example of him," said Kevin Tamez, managing partner of a New Jersey firm that specializes in federal sentencing issues. "But I would be shocked if he got anything close to 27 or 33 years."...

Predicting how long a sentence the defendant will get is difficult, especially now that judges are not required to strictly follow federal sentencing guidelines. Ellis appears to have established a floor by imposing stiff prison terms for two men who pleaded guilty in the case.

Brett Pfeffer, a former Jefferson aide, got eight years for conspiracy to commit bribery. Vernon Jackson, CEO of a Kentucky technology firm who testified that he sent payments to a firm headed by Jefferson's wife in return for the congressman's help landing contracts in Western Africa, was given seven years and three months. 

"This is a hard one because the sentencing guidelines are almost off the charts, in effect a life sentence for Jefferson who is 62," said Harry Rosenberg, a former chief federal prosecutor in New Orleans now in private practice.  Rosenberg said he doesn't expect the judge to along with what the Justice Department wants but believes the sentence will be "significantly longer" than the terms given Jackson and Pfeffer.

But Dane Ciolino, a Loyola University law professor, said that while the Jackson and Pfeffer sentences "are partly the result of lesser culpability, the acceptance of responsibility and cooperation with the government, Mr. Jefferson's sentence should not be grossly disproportionate to theirs."  "Otherwise, his sentence will appear to be a penalty for the exercise of his constitutional right to a fair trial," Ciolino said.

Jefferson should benefit by some calculations used in sentencing such as this being his first criminal offense and the fact that other members of Congress convicted of corruption have received sentences no higher than eight years, four months.  That sentence was given to former Rep. Duke Cunningham, R-Calif, after he pleaded guilty to taking bribes to get appropriations in House spending bills for defense contractors. Jefferson's lawyers argue that their client never introduced a bill or sought an earmark, or appropriation in return for the payments alleged by the government.

In a memorandum submitted Thursday, lead prosecutor Mark Lytle and his co-prosecutors disagreed.   "The jury found beyond a reasonable doubt that the defendant converted his congressional office into criminal racketeering enterprise in which he repeatedly sold his office to business people willing to pay cash, stock and equity interests through which the defendant and his family stood to gain more than $500 million," the prosecutors wrote. "Even the most egregious of the cases cited by the defendant do not involve the potential for payoffs of hundreds of millions of dollars."

UPDATE:  This Reuters piece details the sentencing outcome: "William Jefferson, who hid $90,000 in cash in his freezer, was sentenced on Friday to 13 years in prison for bribery, racketeering and money laundering." 

Fort Hood shooter formally charged with 13 capital counts of premeditated murder

As detailed in this new New York Times piece, "Military prosecutors have charged Maj. Nadil Malik Hasan with 13 counts of premeditated murder in last week’s shooting rampage at Fort Hood, Tex., a spokesman for the Army criminal investigation division said Thursday." Here are more of the legal details, with a death penalty spin:

The 13 charges against Major Hasan are “initial charges,” said the Army spokesman, Chris Grey, “and additional charges may be preferred in the future, subject to the ongoing criminal investigation.”...

The Uniform Code of Military Justice provides the death penalty as a possible punishment for 15 offenses, many of which must occur during a time of war, the center says. All nine men on the military’s death row were convicted of premeditated murder or felony murder.

There has not been a military execution since 1961, although nine men are on the military’s death row at Fort Leavenworth, Kan., according to the Death Penalty Information Center. The president has the power to commute a military death sentence, and no military prisoner can be executed without the president’s approval.

President George W. Bush approved the execution of one of the nine, Pvt. Ronald A. Gray, on July 28, 2008. Private Gray was convicted by court-martial of two murders, an attempted murder and a series of rapes around Fort Bragg, N.C., more than two decades ago. Lethal injection is now the method of execution, the Death Penalty Information Center says.

The last military prisoner to be executed was Pvt. John A. Bennett, who grew up in southern Virginia and was hanged at Fort Leavenworth on April 13, 1961, three days past his 26th birthday for the rape and attempted murder of an 11-year-old Austrian girl in December 1954.

In 1957, President Dwight D. Eisenhower approved Private Bennett’s execution, and President John F. Kennedy declined to grant clemency, although he did commute one military death sentence in 1962.

Private Bennett’s execution got relatively little attention at the time because the previous day the Soviet Union had launched the first person, Yuri Gagarin, into space, and several days later the Bay of Pigs invasion took place in Cuba.

Ballon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming from last month's Balloon Boy hoax, the couple's lawyer said."  Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor.  Richard Heene's charge — attempting to influence a public official — is a felony.  The deal stipulates a probation sentence for both charges. The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said.  "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."  Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

Prosecutors seeking long prison term for ex-Rep. William Jefferson

As detailed in lots of media coverage, federal prosecutors are seeking a long prison term for former US Representative William Jefferson following his bribery convictions.  Yet, as these different headlines from different press sources reveal, it is not perfectly clear how long a prison term prosecutors are seeking:

• This AP piece is headlined "Govt asks 27 years in prison for ex-Rep. Jefferson
• This Politico piece is headlined "Feds seek 30 year sentence for William Jefferson"
• This BLT piece is headlined "Prosecutors Want 33 Years for Jefferson"

I suspect this variation in reporting is a result of the government's guidelines, which prosecutors are likely stressing because they produce a range of 324-405 months of recommended imprisonment.

The piece from The BLT reports on how Jefferson's lawyers are countering the prosecution's sentencing recommendations:

Jefferson’s lawyers issued their own sentencing memorandum ... asking for a sentence of less than 10 years.  The memo notes that no member of Congress has ever been sentenced to more than 100 months in prison, and that other sentences in the Jefferson investigation have been less than a decade.

Bernie Kerik enters plea deal providing him a different perspective on homeland secutiry

As detailed in this New York Times article, Bernard Kerik today pleaded guilty to eight charges including tax fraud and lying to White House officials. Kerik, who lead the NYPD through the 9/11 attack and was taped in 2004 to head the Department of Homeland Security, was able to secure a plea deal with a specific sentencing recommendation:

The prosecution and the defense recommended that the judge, Stephen C. Robinson, sentence Mr. Kerik, who faced up to 30 years in prison on the most serious charge, to 27 to 33 months. The judge, who is not bound by the recommendation, set sentencing for Feb. 18. Mr. Kerik was also ordered to pay restitution of nearly $188,000.

The tax fraud charges stemmed in part from Mr. Kerik’s acceptance of $250,000 in renovations to his Bronx apartment, provided by a company accused of having ties to organized crime. He also admitted lying to White House officials, denying improprieties, while he was being interviewed to be head of the Department of Homeland Security.

It is officially time for Second Amendment fans to start supporting NBA's Delonte West

This local article from Maryland, which is headlined "Cavs Delonte West Faces Weapons Charges," reports that a prominent NBA player is now officially facing state criminal charges for posessing guns in self defense.  Here are the basic legal details:

Prince George’s County Grand Jury has returned an eight count indictment against Cleveland Cavaliers Guard Delonte West.  West is charged with transporting concealed weapons.

Police say the former Eleanor Roosevelt High School basketball star was found with two loaded pistols and a shot gun after being pulled over on the Beltway September 17th.  Police say the Cavaliers guard was riding a three wheeled motorcycle when he cut an officer off on the outer loop near Central Avenue.  On the side of the road police say West admitted he was armed....

"These charges carry up to three years in jail for each offense,” said State’s Attorney Glenn Ivey. “So potentially he could be looking at some jail time here... I don't know that the sentencing guidelines are going to require that but we'll have to see how that plays out over time."

Ivey says West has not yet hired an attorney to represent him.  The State’s Attorney says he expects an early January trail date will be set.  West has not commented on his arrest but his father did, telling reporters in September his son was protecting himself from “a lot of not too nice people out there.”

Delonte West has said he suffers from Bipolar disorder.  He left training camp last year to get treatment for depression.  West, who could still face a league suspension over the charges in Maryland, made his season debut during Saturday night's 90-79 win against Charlotte, scoring 13 points in 24 minutes.

This Washington Post account of the indictment provides more of the legal particulars and also spotlights why West need to be seriously concerned about facing prison time:

In addition to the weapons offenses — each of which is a misdemeanor carrying a maximum penalty of three years in prison — the grand jury also indicted West, 26, on one count each of reckless driving and negligent driving.

Prince George's prosecutors routinely seek jail time for people convicted of weapons charges, even first-time offenders.  State's Attorney Glenn F. Ivey said West's case will be handled no differently than any other.

I trust that West has the resources to hire a first-rate criminal defense attorney.  I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police.

Some related posts on Delonte West's situation and other celebrity gun possession cases:

• Another prominent athlete presents another potential Second Amendment test case
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress
• "In U.S., Record-Low Support for Stricter Gun Laws"
• Rapper Lil Wayne cops a plea to New York gun possession charge

Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

I noticed this interesting recent piece on CNN headlined "'Lipstick Killer' behind bars since 1946."  The article is fascinating for various reasons, and here are a few highlights:

William Heirens, the "Lipstick Killer," is believed to be the longest-serving inmate in the United States. He turns 81 on November 15.  Diabetes has ravaged his body, but his mind is sharp.

"Bill's never allowed himself to be institutionalized," said Dolores Kennedy, his long-time friend and advocate. "He's kept himself focused on the positives." The days are spent mostly watching television and reading magazines.  Using a wheelchair and sharing a cell with a roommate in the health unit of Dixon Correctional Center, he still yearns for a chance at freedom.  It is something he has not tasted since 1946.

Heirens has been locked behind bars and walls for 63 years, making inmate C06103 the longest-serving prisoner in Illinois history, state officials say.  According to Steven Drizin, the legal director of the Center on Wrongful Convictions at Northwestern University, Heirens "has served longer than anyone in the U.S. that I can find."

He was put away a year after the end of World War II. It is a dubious record, but fitting for the man dubbed the Lipstick Killer, whose crime spree remains among the most infamous in the history of Chicago...  "Pray for my release," he wrote in a letter dated October 11. "There is no reason to keep this man behind bars," said Drizin. "He meets all the criteria for parole."

While Drizin, who has represented Heirens since 2001, and others passionately plead for his release and prepare to re-petition the state parole board that has consistently refused to free Heirens, others are convinced he is a manipulative murderer.  "He was the bogeyman," said Betty Finn of the man convicted of strangling her sister.  "I don't think you need to feel sorry for him. He chose his life and he chose his actions."...

He pleaded guilty to three counts of murder.  In exchange for the plea, Heirens was spared the death penalty and given three consecutive life sentences.

Heirens has distinguished himself in prison.  He was the first inmate in Illinois to receive a college degree . "He helped redesign the library system in the department of corrections," said Drizin, who also commended Heirens for becoming a "first-rate jailhouse lawyer."   Drizin said Heirens has been eligible for parole nearly every year since the 1970s. 

There are so many notable elements to this interesting story, ranging from claims that Heirens was tortured into a confession back in 1946 to the fact that he was able to avoid the death penalty by virtue of pleading guilty.  It is also interesting and notable that Heirens was only 17 at the time of his crimes; the Supreme Court's consideration of Eighth Amendment standards for juve sentencing in the upcoming Graham and Sullivan cases could arguably have some relevance to the "Lipstick Killer."  Then again, the issue in Graham and Sullivan concerns sentences of life without the possibility of parole for non-homicide crimes, whereas the "Lipstick Killer" is serving three life sentences with the possibility of parole for homicides.

"Roman Polanski faces 2 years in prison if returned to L.A., Swiss officials say"

The title of this post is the headline of this new item from the Los Angeles Times.  Here are the details:

Swiss authorities said that director Roman Polanski could spend up to two years in prison if he was extradited back to the United States for sentencing in a sexual assault case. Officials said in a statement earlier this morning that U.S. officials formally asked Swiss officials to extradite the famed director, 76, to Los Angeles, where he sexually assaulted a 13-year-old girl more than 30 years ago. Polanski fled to Europe just before sentencing for that crime.

Los Angeles County prosecutors have refused to say what kind of sentence they would seek for Polanski if he returns to Los Angeles, and they could not immediately be reached for comment today.

Last month, prosecutors said the proceedings should pick up exactly where they left off in 1978 -- with a judge sentencing Polanski for a statutory rape charge. "He will appear before the court and the court will decide what his sentence is," said Sandi Gibbons, a spokeswoman for the district attorney's office, told The Times in late September, after Polanski was arrested in Zurich.

Legal experts, however, said Polanski has options beyond begging for leniency. There are a number of legal maneuvers, such as withdrawing his guilty plea, that could result in the case being dropped entirely or in a sentence of no prison time.

Recent related post:

• Friday forum: What kind of sentence would you give to Roman Polanski?

Rapper Lil Wayne cops a plea to New York gun possession charge

As detailed in this AP article, which is headlined "Lil Wayne pleads to attempted gun possession," New York's tough (and arguably unconstitutional) gun possession prohibition has brought down another celebrity.  Here are the basics:

The Grammy-winning rapper Lil Wayne pleaded guilty to attempted weapon possession on Thursday, and expects to receive a one-year jail sentence.  He previously had pleaded not guilty to illegal gun possession charges that carried at least 3 1/2 years in prison upon conviction.

Lil Wayne remains free on bail while awaiting his February sentencing. The somber-looking rapper did not speak as he left court.  Police said a gun was found on his tour bus in Manhattan in 2007....

Police pulled over Lil Wayne's tour bus in Columbus Circle on July 22, 2007. They said they had seen and smelled marijuana smoke wafting out the door before the bus left a concert venue minutes earlier.  Police said that as an officer approached, the rapper tossed away a Louis Vuitton bag containing a gun.

With so much legal uncertainty in the wake of the Supreme Court's Heller decision, I remain puzzled why prominent defendants like Plaxico Burress and Lil Wayne are apparently not even trying to press Second Amendment defenses before copping pleas that include significant jail time.  Though these defendants might not ultimately prevail on such claims, I do not fully see the down side of raising constitutional concerns in the hope of perhaps securing a more favorable plea deal.

Some related posts on the celebrity gun possession cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress
• Another prominent athlete presents another potential Second Amendment test case
• "In U.S., Record-Low Support for Stricter Gun Laws"

Federal sentencing in Mob case becomes life imitating art

Fans of the HBO TV series The Sopranos surely remember the fascinating character of Vito Spatafore, who was a subordinate of mob boss Tony Soprano and a closeted gay.  This New York Daily News article reports on a sentencing in federal court yesterday that has life imitating HBO art:

Mob hit man Robert Mormando stunned a veteran Brooklyn judge Monday when he renounced his membership in La Cosa Nostra and — for good measure — acknowledged he was gay.  "That's the first time I've heard this in court," Federal Judge Jack Weinstein said of the mobster's renunciation of his blood oath. "I've asked many Mafia members and they've always refused," added Weinstein who was appointed to the bench in 1967 by President Lyndon Johnson.

Mormando, 44, a divorced father of two sons, was being sentenced for participating in the shooting of Queens bagel store owner Angelo Mugnolo, who was wounded in the driveway of his Howard Beach home in 2003.  The rubout was ordered by Vincent Gotti, the younger brother of late crime boss John Gotti, who suspected the baker was fooling around with his wife. Mormando became a government informant shortly after the shooting....

Defense lawyer Nancy Ennis told the judge Mormando was given the contract a month after he was inducted into the crime family in 2002.  "He was summoned to perform an act that he found totally unacceptable afterward," Ennis said....

Ennis' biggest bombshell was announcing that Mormando is out of the closet.  "He has been openly gay since he left the mob," Ennis said.  Mormando's partner has refused to enter the witness protection program, but they have relocated and together they "live a peaceful working life," she said.

Friday forum: What kind of sentence would you give to Roman Polanski?

The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?".  Here is how the commentary starts and ends:

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...

Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.

This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.

"Victim’s letter lessens attacker’s prison sentence"

The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:

A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.

Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time.  He wasn't bitter, and had compassion for his attackers.  "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...

Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison.  According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.

Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand.  On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:

I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony.  She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time.  Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried.  Instead, she is a footnote in all the commentary, on both sides.  No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.

Former prosecutor thickens sentencing plot in Polanski case

The Polanski case continue to generate both buzz and news, and the latest comes from this AP story headlined "Former prosecutor says he lied about Polanski case."  Here are highlights:

A former prosecutor says he made up a story he told a film crew about advising a judge handling Roman Polanski's sex case to send the director to prison.

In "Roman Polanski: Wanted and Desired," David F. Wells is depicted as conferring with a trial judge more than 30 years ago about Polanski's case. Wells said in the documentary that the judge took his advice in deciding to renege on a plea bargain and give Polanski additional prison time. "I made that up to make the stuff look better," Wells said. He also said he overstated his actions after being told the film would air in France, not the United States. The film aired on HBO.

Wells' statement on the documentary later became part of the basis for a move by Polanski's attorneys to dismiss the case against the fugitive director, who was arrested in Switzerland on Saturday....

In France, several government officials who had initially rushed to Polanski's defense were being more cautious on Thursday, stressing that the renowned filmmaker is not above the law.

Wells, who retired more than two years ago, did not handle Polanski's case but was assigned to the courtroom where it was heard and had frequent interactions with the now-deceased trial judge Laurence J. Rittenband. "They interviewed me in the Malibu courthouse when I was still a DA, and I embellished a story," Wells said about the film crew in an interview with The Associated Press Wednesday. "I'm a guy who cuts to the chase - I lied. It embarrasses the hell of me."

Wells said he was sorry about making the comments for the documentary. "I cost the DA's office a lot of money and aggravation over this," Wells said.

Polanski was accused of plying a 13-year-old girl with champagne and part of a Quaalude during a modeling shoot in 1977 and raping her. He was initially indicted on six felony counts, including rape by use of drugs, child molesting and sodomy.

He pleaded guilty to the lesser charge of unlawful sexual intercourse; in exchange, the remaining charges were dropped, and the judge agreed to send Polanski to prison for a 90-day psychiatric evaluation. But Polanski was released after 42 days and fled the country for France before sentencing after the judge reportedly told lawyers he planned to add more prison time.

Polanski's attorneys later argued in a motion to dismiss the case that the communications between the judge and Wells were clear misconduct and violated Polanski's constitutional rights. That motion was dismissed because Polanski was a fugitive at the time, though the judge acknowledged "substantial misconduct" in the original case. The matter is now in the hands of an appeals court....

Polanski's victim, Samantha Geimer, who long ago identified herself, has joined in Polanski's bid for dismissal. She testified at the time that Polanski forced himself on her - which he acknowledged in his guilty plea - but has said she forgives him and wants the ordeal to be over.

"Lil Boosie Gets Two-Year Prison Sentence For Drug Possession"

And now from the entertainment sentencing news desk, as the title of this post is the headline of this sentencing story from MTV.  Here are the basic details:

Louisiana rapper Lil Boosie (born Torrence Hatch) pleaded guilty to a third-offense marijuana possession charge on Tuesday and was sentenced to two years in prison. The plea deal came just one day before it was announced that the MC's latest album, Superbad: The Return of Boosie Bad Azz, will debut in the top 10 on next week's Billboard albums chart.

According to Baton Rouge station WBRZ, Boosie will serve at least one year in prison after prosecutors reached an agreement with his lawyers in which all but two years of a 10-year sentence were suspended. The rapper will also be on active supervised probation for two to five years after his release from prison. If he completes his probation, the gun charge will be dropped.

"I'm ready to get this behind me," Boosie, 25, told Judge Chip Moore one week before he was scheduled to stand trial in connection with his October 22 arrest.  During the incident, East Baton Rouge sheriff's deputies found a bag of marijuana, a cigar loaded with weed and another unspecified drug and a gun in a car driven by Boosie.  At the time, he was charged with third-offense possession of marijuana, punishable by up to 20 years in prison, as well as possession of a firearm with a controlled dangerous substance, a crime that carries a mandatory minimum five-year prison term.

The judge set a November 9 sentencing date and strongly warned Boosie to stay out of trouble and away from drugs, guns and convicted felons between now and his sentencing, according to WBRZ. If the rapper is rearrested, tests positive for drugs or fails to show up for his November sentencing date, the judge warned the consequences will be harsh. "When I do catch up with you, I can assure you I will not abide by this agreement of 10 years. It will be much more," Moore said.

"Plax prison touchdown"

The title of this post is the headline of this little article in today's New York Post.  Here are the basics:

Plaxico Burress is due to turn himself in at 9:30 a.m. today to begin a two-year prison term. The ex-Giant -- who shot himself in the thigh in a Midtown club last November -- pleaded guilty last month to attempted gun possession to avoid serving a mandatory three years if found guilty of possession.  He bought his gun legally in Florida but lacked a New York license.

His time behind bars could drop to 20 months with good behavior. But the self-inflicted wound cost him the $27 million left on his Giant contract.  And under NFL rules, he can't sign with any team until he's completed his term.

As regular readers know, I think the fact that Plax is willingly serving two years in prison for gun possession without even raising a Second Amendment claim is strong evidence that Heller is unlikely to mean much for most law enforcement purposes for quite some time.  Then again, maybe Delonte West is now poised to be a celebrity spokesperson for the Second Amendment.

Some related posts on the Burress cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Interesting data on the application of NY gun law for Plaxico's consideration
• Talk of a plea deal to resolve gun charges against Plaxico Burress
• Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
• Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
• Why Second Amendment supporters need to be helping out Plaxico Burress

UPDATE:  This New York Times article discusses today's events in state court in which Plaxico official received his two-year prison sentence

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here).  Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly.  Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

Five years on probation for Chris Brown in high-profile domestic violence case

As detailed in this LA Times update, singer Chris Brown was sentenced today for assaulting his former girlfriend.  Here are the details:

Pop singer Chris Brown was sentenced today to five years of probation and 180 days community labor — to be personally supervised by the chief of police in Richmond, Va. — in connection with his attack on former girlfriend Rihanna.

Brown reached a plea deal with L.A. prosecutors in June that was expected to limit his sentence to probation and no jail time.  Under the agreement, Brown, 20, will serve five years' probation and take a yearlong domestic violence prevention class.  L.A. County Superior Court Judge Patricia Schnegg also ordered him to stay at least 50 yards away from Rihanna, 21, for the next five years.

Brown was arrested in February for beating and threatening Rihanna, also a pop singing star, during an argument in a rented Lamborghini. The incident occurred as the couple drove home from a pre-Grammy party.

As always in these high profile cases, I am curious to hear reader reactions to the sentence itself and to the broader message this kind of sentence sends.