Thursday, November 19, 2015

Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses

As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:

Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.

Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."

Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders.  "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."

She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway.  "What a gift to have such a professional windfall fall in your lap," Pratt said.

Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."

Prior related posts:

November 19, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (34)

Thursday, November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, September 16, 2015

Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal

This local article from Indiana, headlined "Convicted sex offenders object to Fogle's proposed plea deal," reports that at least a couple of incarcerated federal child pornography offenders have written to a federal judge to complain about how federal prosecutors used their discretion to resolve sex offense charges against former Subway pitchman Jared Fogle. Here are the basics:

Sex offenders in prison right now around the country are writing the judge here in Indiana handling the Jared Fogle case, upset over his possible plea deal.

In the letters — one from an inmate in Tucson, the other from an inmate in Florida — both talk about the time they are serving for distribution of child pornography.  One is serving a 40-year sentence, the other 16.5 years.

They are critical of Fogle's plea deal that could have him serve 5- to 12.5 years behind bars. They argue they are serving far more time for child pornography, and Fogle is also accused of having sex with underage girls.  Both asked for the judge to deny the plea deal.  Fogle's sentencing is set for November 19.

These two inmate letters make for fascinating reads and they can be accessed at this link. Among other stories, these letters provide an interesting perspective on how federal prosecutorial discretion can and does contribute to federal sentencing disparity and on how this disparity is perceived by those most impacted by it.  Notably, in a post last month I asked, Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?, and the question prompted a good comment dialogue.  Obviously, some federal child porn offenders think the answer to this question is obviously yes.

Prior related posts:

September 16, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, August 20, 2015

Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?

The question in the title of this post is one that I first had when I initially heard of the basics facts and basic plea deal terms (reported here) surrounding the child sex crimes committed by former Subway pitchman Jared Fogle.  In addition, a number of blog commenters have in prior posts comments likewise wondered about the sentencing range Fogle would appear to be facing under the terms of the plea deal.  Along those lines, here are now some recent media coverage on this plea deal front:

As federal practitioners know, whatever plea deal that has been put together in this case by the parties could ultimately be rejected by the district judge. Such a plea deal rejection, in a typical federal criminal case, is quite rare. But the media attention already generated by this case makes it anything but typical, and that media attention might also end up influencing the judge who has to approve the deal before it becomes official.

Helpfully, this official press release from the U.S. Attorney’s Office for the Southern District of Indiana provides a bit more detail about what seem to be the sentencing elements of the proposed plea deal: 

According to Senior Litigation Counsel Steven D. DeBrota, who is prosecuting the case for the government, under the terms of the plea agreement, Fogle faces a mandatory minimum sentence of at least 5 years of imprisonment, a fine of up to $500,000, and supervised release after serving his prison sentence for at least 5 years and up to the remainder of his life. There is no agreed sentence in the case and the government may request of up to 151 months of imprisonment. However, Fogle may not request a sentence below 5 years of imprisonment.

The Plea Agreement also requires Fogle to pay a total of $1,400,000 in restitution to the 14 victims in the case, 8 of whom are still minors, and forfeit assets of $50,000. This is the largest amount of restitution ever ordered for a child pornography or sex trafficking case in the history of the Southern District of Indiana. The victims will be able to use these funds to pay for counseling and treatment to combat the debilitating life effects of these crimes.

Reading between the lines, it seems that the plea deal as described here may only limit the severity of the sentencing that prosecutors recommend, it may not formally limit what sentence the judge could acually impose. If this is accurate, then I would predict that the district judge would be inclined to accept even a seemingly "sweetheart" deal for Fogle safe in the knowledge that he could ultimately impose a sentence longer than the 12.5 years of imprisonment likely to be recommended by prosecutors when sentencing finally rolls around.

Prior related posts:

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Fourth Circuit refuses to allow convicted former Virginia Gov to remain free pending SCOTUS appeal

As reported in this local article, headlined "Bob McDonnell headed to prison after appeals court rejection," a high-profile white-collar federal defendant has just learned that he may no longer avoid serving his imposed prison sentence while continue to pursue his appeals. Here are the basics:

Former Virginia governor Bob McDonnell is likely headed to prison after a federal appeals court turned down his request to remain free while he appeals his federal corruption conviction to the Supreme Court....

The decision means we should know when and where McDonnell will serve his sentence in seven days. McDonnell’s attorneys planned to petition the Supreme Court to allow the former governor to remain free on bond.

“I am saddened by the Court’s decision today to deny me freedom while I pursue vindication in the U.S. Supreme Court,” McDonnell wrote in a statement released Thursday afternoon. “I am innocent of these charges and will petition the U.S. Supreme Court for a grant of bond. I ask my exceptional friends across the nation to continue to support and pray for me and my family during this agonizing time. I thank God for His abundant grace and strength as I continue this difficult journey.”

Earlier this month, the 4th Circuit Court unanimously rejected’s McDonnell’s second request to consider an appeal.

McDonnell was found guilty of corruption charges and sentenced in January to two years in federal prison. Since then McDonnell has been trying to get his guilty verdicts thrown out. As a result, McDonnell’s lawyer Henry Asbill said his team would appeal the conviction to the Supreme Court.

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Wednesday, August 19, 2015

Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses

This Reuters article, headlined "Former Subway pitchman seeks to plead guilty to child pornography, sex charges," provides a lot more factual details concerning the multiple federal sex offenders committed by a renown TV figure.  Here are the ugly factual and legal specifics surrounding Jared Fogle:

Former Subway sandwich chain pitchman Jared Fogle asked a federal judge on Wednesday to accept his plea of guilty to charges of child pornography and traveling for illicit paid sex with minors.  Federal Judge Mark Dinsmore must now review the plea deal Fogle's attorneys reached with prosecutors and decide whether to accept it. In the meantime the court entered a technical plea of not guilty on Fogle's behalf.

Fogle, who became famous after losing a lot of weight on a diet that included Subway sandwiches, was placed on home detention and must wear an electronic monitoring device. No date has been set for his next appearance.

Under the deal, Fogle would serve between five and 12 years in prison, pay $1.4 million in restitution to 14 minor victims, register as a sex offender and meet other conditions....

According to the charges, Rusell Taylor, head of the Jared Foundation set up to combat child obesity, secretly taped 12 minors while they changed clothes and showered at his home, including two who were as young as 13 or 14. He shared the images with Fogle, who knew they showed minors, prosecutors said.

Prosecutors said Fogle also received commercial child pornography from Taylor, viewed it and failed to report it. He stored explicit images of children as young as six, prosecutors said.

Fogle traveled to New York City at least twice between 2010 and 2013 seeking sex with minors, and paid for sex acts with a girl he knew to be 17 years old and another girl younger than 18. He told the first girl he would "make it worth her while" if she could find him another minor to have sex with, "the younger the girl, the better," according to the indictment. Prosecutors said he repeatedly asked prostitutes and others to find him 14- and 15-year-olds for sex.

Police and prosecutors said in a news conference on Wednesday that the investigation of Taylor and Fogle started after a tip from a private citizen....

Immediately after the hearing Fogle's wife, Katie, said in a statement that she would seek an end to the marriage. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a dissolution of the marriage," she said in the statement released by her lawyer.

Fogle's attorney Jeremy Margolis told reporters in a statement on the courthouse steps: "He expects to go to prison, he will do his time... He will continue to make amends to people whose lives he has affected, and at some point hopes to become again a productive member of society."

Authorities searched Fogle's home in the Zionsville suburb northwest of Indianapolis in July, two months after Taylor was arrested on federal child pornography charges. Assistant U.S. Attorney Steven DeBrota said at a news conference that Fogle continued to seek paid sex with minors even after Taylor's arrest, but was not successful.

I would need to see the text of any plea agreement in order to come up with any firm prediction as to Fogle's likely guideline sentencing range or as to what ultimate sentence he will receive. Nevertheless, the fact that Fogle's crimes included not only child porn offenses, but also repeated solicitation of under-age girls (even after he was under investigation) leads me to predict a double-digit prison sentence is already pretty likely.

Prior related post:

August 19, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

Tuesday, August 18, 2015

What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?

The question in the title of this post is prompted by this (celebrity?) federal criminal justice news emerging from Indiana late today: "Jared Fogle, the former Subway spokesman, is expected to plead guilty to possession of child pornography charges."  Here are the details:

Sources say Fogle will accept a plea deal Wednesday. The U.S. Attorney’s Office will hold a press conference tomorrow afternoon to discuss the deal and charges against Fogle. Fogle’s attorney, Ron Elberger, had no comment in regards to the plea deal. He said any information regarding the charges would come from the attorney’s office. Elberger did say Fogle’s suspension with Subway continues....

The charges come after federal agents raided Fogle’s Zionsville home in early July. FBI sources confirmed to FOX59 state and federal investigators were serving warrants at his home in connection with a child pornography investigation. Several computers and DVDs were seized from Fogle’s home.

Earlier this year, Russell Taylor, the former director of the Jared Foundation started by Fogle, was arrested in a child pornography case. He was accused of possessing and producing child pornography. Investigators said a search of Taylor’s home turned up more than 500 videos with images of child pornography. In May, Taylor unsuccessfully tried to kill himself while in jail.

Fogle gained national fame after attributing massive weight loss to eating Subway sandwiches. He was a freshman at Indiana University at the time. He later became a visible presence in Subway ad campaigns, pitching the restaurant’s sandwiches and touting their health benefits.

Subway suspended their relationship with the spokesman shortly after the raid.

Prior related post:

August 18, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, July 28, 2015

Federal authorities grant parole to spy Jonathan Pollard after 30 years in prison

As reported in this new New York Times story, headlined "Jonathan Pollard, Spy for Israel, to Be Released on Parole in November," a high-profile defendant who committed his crimes before the federal system abolished parole has now benefited from the reality that life sentences in the past frequently just meant a long period before parole eligibility. Here are the details:

Jonathan J. Pollard, who was sentenced to life in prison in 1985 for passing classified documents to the Israeli government, will be released on parole in November after 30 years in prison, a government panel decided on Tuesday. Mr. Pollard’s lawyers announced the decision of the United States Parole Commission on Tuesday afternoon, and officials at the Department of Justice confirmed that Mr. Pollard had been granted parole.

Mr. Pollard, 60, had been scheduled for mandatory parole in November, but could have been kept in prison for years longer if the United States government had objected to his release, citing concerns about an ongoing threat to national security.

Last week, officials for the Department of Justice signaled that they would not object to Mr. Pollard’s release if the United States Parole Commission determined that he should leave the prison in North Carolina where he is being held. “The Department of Justice has always maintained that Jonathan Pollard should serve his full sentence for the serious crimes he committed, which in this case is a 30-­year sentence, as mandated by statute, ending Nov. 21, 2015,” Marc Raimondi, a spokesman for the department, said in a statement....

White House officials have denied that Mr. Pollard’s imminent release — something that Prime Minister Benjamin Netanyahu of Israel and others in the country have demanded for years — is an attempt to placate the Israelis in the wake of the Iran deal. “Mr. Pollard’s status will be determined by the United States Parole Commission according to standard procedures,” Alistair Baskey, a spokesman for the National Security Council, said last week. “There is absolutely zero linkage between Mr. Pollard’s status and foreign policy considerations.”

July 28, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, July 20, 2015

Local coverage of compelling realities to be at heart of Aurora shooter penalty phase

Not suprisingly, the Denver Post now has especially fullsome coverage of the key issues to surround the upcoming penalty phase following the capital conviction of James Holmes last week.  Here are two pieces (and their extended headlined) that caught my eye:

July 20, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, July 07, 2015

Subway pitchman and his "Jared Foundation" subject to serious child porn investigation

At the risk of encouraging some poor-taste puns (such as that one), I could not resist reporting here on this remarkable unfolding story of an on-going FBI investigation in Indiana which, if I had to guess, could well result in a very high-profile federal child pornography sentencing.  This latest press report is headlined "Attorney for Jared Fogle says Subway pitchman is cooperating in probe," and here are some of the unsavory details:

An attorney for Jared Fogle says the Subway pitchman has not been arrested on any crime and is cooperating with investigators as they look into items authorities took out of his Zionsville home. "Jared has been cooperating, and continues to cooperate, with law enforcement in their investigation of unspecified charges and looks forward to its conclusion," attorney Ron Elberger said in an email. "He has not been detained, arrested or charged with any crime or offense."

Fogle was driven away from his Zionsville home by an attorney in a black Lexus Tuesday afternoon amid an hours-long police investigation conducted by federal and state officials. The Subway chain said it believes the investigation is related to the prior arrest of a former Jared Foundation executive on child pornography charges.

Investigators from the FBI, Indiana State Police and Postal Service arrived at Fogle's large, brick home in the 4500 block of Woods Edge Drive early Tuesday and parked an evidence truck in the driveway.  In the early hours of the probe, Fogle was seen leaving the truck, and investigators carried electronics and other items out of Fogle's home.

It could not be confirmed why police were at the residence, but the raid comes just two months after 43-year-old Russell Taylor, the executive director of The Jared Foundation, was arrested in Indianapolis on federal child pornography charges.  A detective's affidavit filed in May to obtain search warrants for Taylor's residence details allegations against the former head of Fogle's foundation, including claims he produced and possessed child pornography involving children — both boys and girls — as young as 9 years old.

One item police recovered from Taylor's home office, according to court records, did appear to have a link to Fogle or his foundation. The officers who searched Taylor's home reported recovering a thumb drive that contained multiple videos of child pornography, including what police described as "commercially made child pornography from Eastern Europe similar to that seized on other investigations," court records said. The detective leading the probe noted an examination of that thumb drive "revealed a document file with Taylor's employer listed in the file name." It is unclear, however, if that referred to Fogle or the foundation. It also is unclear from the court document if that specific file contained pornographic images. Federal officials wouldn't comment on either case today....

FBI spokeswoman Wendy Osborne this morning confirmed that the agency was conducting a criminal investigation in Zionsville, but she would not comment on the nature of the probe. She referred questions to officials from the U.S. attorney's office, who declined to comment, citing a Department of Justice policy that prohibits them from confirming or denying the existence of an investigation.

Fogle rose to fame in television commercials for the Subway sandwich chain after losing 235 pounds by eating Subway sandwiches and exercising. Fogle was a 425-pound freshman at Indiana University when he embarked on the unusual diet of turkey and veggie subs in 1998. Fogle founded the Jared Foundation to encourage children to develop habits of healthy eating and exercise.

Two days after he was formally charged, Taylor attempted suicide on May 6 at the Marion County Jail and was placed on life support. Tim Horty, a spokesman for the U.S. attorney's office, said Tuesday that Taylor's health is improving and he is in the custody of the U.S. Marshals Service. He faces seven counts of production of child pornography and one count of possession of child pornography.

Court documents said officers initially searched Taylor's home in the 1300 block of Salem Creek Boulevard on April 29 looking for "evidence of bestiality, including images or videos," but found several digital media cards and thumb drives that included "multiple video files of nude or partially nude minor children." Over 400 videos of child pornography were found on computers and storage media.

It added many of those images appeared to have been made in bedrooms and bathrooms at Taylor's former and current homes. "Many of these videos showed the exposed genitals or pubic area of the children" – both boys and girls – and that the "minors did not appear to be aware that they were being filmed," according to the court record. The court documents also said Taylor had an interest in bestiality and shared images with an unnamed person involving a "dog licking the nude genital area of an adult female." Taylor has not been charged with any crimes related to that video or alleged bestiality.

After Taylor's arrest, Fogle issued a statement that said he was "shocked" over the allegations and that the foundation was "severing all ties" with Taylor.

July 7, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, June 09, 2015

You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?

I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence.  But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries.  This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts: 

After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.

Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.

Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”

Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....

At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.

Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.

A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.

One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.

The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.

Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.

June 9, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, April 23, 2015

Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?

Petraeus-broadwellThe question in the title of this post is prompted by the sorted story surrounding the criminal misdeeds of former CIA director David Petraeus.  This press report, with the subheadline "Former CIA director and military commander expected to plead guilty to sharing government secrets with his biographer and lover, Paula Broadwell," provide the backstory leading up to this afternoon's sentencing of a high-profile federal defendant:

A scandal that began to unravel in Charlotte ends in Charlotte on Thursday when former CIA Director David Petraeus is expected to admit sharing top government secrets with his biographer and lover.

Under a February agreement with prosecutors, Petraeus, 62, will plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine. The government will recommend that punishment for the former commanding general in Iraq and Afghanistan be limited to two years’ probation and a $40,000 fine.

U.S. Magistrate Judge David Keesler, who will preside over Petraeus’ hearing, is not bound by the plea deal. But legal experts say judges typically give great weight to such agreements.

Critics say the retired general is getting off light, given how zealously the Obama administration has pursued government leaks. By comparison, CIA analyst and case officer John Kiriakou, the whistleblower who revealed the secret CIA torture program, is serving a 30-month sentence. Open-government groups say President Barack Obama’s lieutenants have prosecuted more leakers than the rest of U.S. administrations combined.

“It’s hard to reconcile cases like that, and it leads to the conclusion that senior officials are held to a different and more forgiving standard than others,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists in Washington, D.C.

The case against Petraeus, a former Obama confidant, has apparently troubled the administration from the start. The New York Times reported earlier this year that Attorney General Eric Holder was resisting the recommendations of his staff to charge Petraeus with a felony that could have led to possible prison time.

Petraeus resigned three days after Obama’s 2012 re-election. Up to then, the retired four-star general was among the most respected military leaders of modern times. He was sometimes mentioned as a future presidential or vice presidential candidate.

That all began to change three years ago. Paula Broadwell of Charlotte had already written “All In,” Petraeus’ biography. But in May 2012, the West Point graduate began sending a series of anonymous emails disparaging Jill Kelley of Tampa, Fla. Kelley was a friend of Petraeus and other military leaders. Broadwell, documents say, considered her a romantic rival.

Using “Tampa Angel” and at least one other pseudonym, Broadwell sent some of her emails from the old Dilworth Coffee shop on East Boulevard. Within weeks, the FBI had traced the messages back to Broadwell. In June 2012, agents visited the Dilworth home she shares with her husband, radiologist Scott Broadwell, and their two children. A search of her email accounts uncovered the affair. Prosecutors say Broadwell’s computer housed classified information that went far beyond her security clearance as a major in the Army Reserve.

Petraeus resigned as CIA director on Nov. 9, 2012. Court documents filed by acting U.S. Attorney Jill Rose of Charlotte and others say Petraeus shared eight “black books” with Broadwell that he compiled in Afghanistan. Prosecutors say the books held everything from secret codes and the identities of covert officers, to war strategy and notes from National Security Council meetings. Broadwell kept the books for at least four days beginning in August 2011, prosecutors say. The FBI later seized the books during an April 2013 raid on Petraeus’ home.

Petraeus lied to investigators about both having classified information and sharing it with Broadwell, according to court documents. Prosecutors say none of the classified material appeared in Broadwell’s book.

I am troubled by the appearance of disparate favorable treatment being shown to Petraeus, especially given how serious his offense conduct seems and his lies to investigators (which could have been charged as obstruction of justice).  Unfortunately, I do not think federal prosecutors have ever explained — or will ever have to explain — just why they gave Petraeus a seemingly "sweetheart" deal (every pun intended there).  Without any such explanation from federal prosecutors concerning how they exercised their charging and bargaining discretion in this case, it is difficult for me to make an informed judgment on the sentence being recommended by prosecutors for the former CIA director.

UPDATE: This CNN piece reports on the outcome via its headline: "Petraeus sentenced: 2 years probation; $100K fine." By Theodore Schleifer,

April 23, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."

The quote in the title of this post is the amusing first line of the sole dissenting opinion authored by Judge Rawlinson in the en banc reversal by the Ninth Circuit of Barry Bonds' federal conviction for obstruction of justice. The other 10 judges in the en banc court considering US v. Bonds, No. 11-10669 (9th Cir. April 22, 2015) (available here), had a variety of different views about why the slugger's conviction could not stand, and all the lengthy opinion are worth reading for anyone concerned about the potentially very broad reach of the federal crime of obstruction of justice.  Here is the two-paragraph per curiam part of the opinion that reflects its actual holding:

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record.  Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy Clause.  See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)).  His conviction and sentence must therefore be vacated, and he may not be tried again on that count.

I would guess Barry Bonds is pleased to be now free from a federal conviction and its collaterally consequences, I would also guess getting to this point cost him a very big bill in attorneys' fees.

April 23, 2015 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (2) | TrackBack

Wednesday, April 15, 2015

Former NFL star Aaron Hernandez convicted of first-degree murder and to get mandatory LWOP

An this CNN piece reports, "former New England Patriots' star Aaron Hernandez nodded no as jurors in his Massachusetts trial found him guilty Wednesday of first degree murder, which carries a penalty of life imprisonment without the possibility of parole."  Here is more:

Hernandez was also found guilty of unlawful possession of a firearm and unlawful possession of ammunition. He will be sentenced Wednesday morning....

Hernandez was on trial for the shooting death of Odin Lloyd, whose body was found in a Massachusetts industrial park in June 2013. Lloyd's family appeared anxious in the Fall River, Massachusetts, courtroom prior to the verdict, as did the mother of Hernandez....

The sensational trial started in late January, just days before the Patriots' Super Bowl victory over the Seattle Seahawks. Prosecutors took months to present more than 130 witnesses to build their case. The defense wrapped up its witnesses in less than a day.

Prosecutors say Lloyd was seen June 17, 2013, around 2:30 a.m. with Hernandez and Hernandez's friends, Carlos Ortiz and Ernest Wallace, in a rented silver Nissan Altima. Later that day, a jogger found his body riddled with gunshots. Wallace and Ortiz, who were also charged with murder, have pleaded not guilty, and will be tried separately.

Hernandez's attorney, Sultan, told jurors that Hernandez "witnessed" Lloyd's killing, "committed by somebody he knew," and that the former NFL player "really didn't know what to do, so he put one foot in front of another" and moved on with his life. Two other men who were drug dealers allegedly killed Lloyd, Sultan told the jury.

Because this murder conviction carried a mandatory life without parole sentence under Masschusetts law, the sentencing process is something of a formality and thus can (and will) take place on the same day as the verdict was reached.

April 15, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (2) | TrackBack

Monday, April 13, 2015

Nearly 7 years after her crime, Jodi Arias finally officially gets LWOP sentence in Arizona

As reported in this Reuters article, an "Arizona judge sentenced former waitress Jodi Arias to life in prison with no possibility of parole on Monday for shooting and stabbing her ex-boyfriend to death in 2008." Here is more:

Maricopa County Superior Court Judge Sherry Stephens said Arias' crime, which attracted national attention, was "especially cruel ... (and) involved substantial planning and preparation."

Arias, 34, had escaped a possible death sentence last month after a lone juror at her sentencing retrial refused to back the death penalty throughout five days of deliberations.

She was found guilty of murder in 2013 after a trial packed with lurid details and graphic testimony. Prosecutors said she killed her former partner in a jealous rage, while Arias argued she acted in self-defense.

Shackled and clad in jail stripes, Arias told the court she had long wanted to be put to death for the crime. "But I had to fight for my life just like I did on June 4, 2008, because I realized how selfish it would be for me to escape accountability for this mess I created," Arias said.

She said she remembered the moment she plunged the knife into Travis Alexander's throat. "He was conscious. He was still trying to attack me. It was I who was trying to get away, not Travis, and I finally did," she said. "I never wanted it to be that way."

The 30-year-old victim was found in a shower at his Phoenix-area home. He had been shot in the face and stabbed more than 20 times, and his throat was slashed almost from ear to ear.

Eleven of the jurors from Arias' retrial were in court for the sentencing, wearing blue clothing and ribbons in memory of the victim. The holdout juror did not attend. After they failed last month to reach a unanimous verdict on whether she should be executed, Stephens had to choose between sentencing Arias to life in prison or to life with the possibility of parole after 25 years.

"The defendant did not render aid to the victim ... (and) destroyed evidence at the crime scene. The defendant went to great lengths to conceal her involvement," Stephens said. "The court finds the mitigation presented is not sufficiently substantial to call for leniency and that a natural life sentence is appropriate."

Samantha Alexander, a younger sister of the victim, told the court Arias had sought to smear Travis throughout and that she deserved to be put to death. "She continuously makes atrocious lies about my brother, dragging his name through the mud like she dragged his body through his own blood," she said.

Some prior posts on the Arias case:

April 13, 2015 in Celebrity sentencings, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 23, 2015

Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?

The provocative question in the title of this post is prompted by the notable celebrity sentencing news breaking today and reported in this extended USA Today article headlined "Darren Sharper sentenced to nine years in first of plea deals." Here are the details:

Former NFL star Darren Sharper was sentenced to nine years in prison Monday in Arizona after pleading guilty to sexual assault and attempted sexual assault in November 2013, the Maricopa County Attorney's office confirmed to USA TODAY Sports.

Sharper, 39, entered his pleas Monday in Arizona from Los Angeles, where he was expected to appear in court later in the day and enter a guilty plea in connection with two other rape allegations from 2013 and 2014.

The pleas are part of an attempted "global" plea agreement that could resolve all nine rape charges against him in four states. In addition to the charges in California and Arizona, he faces two rape charges in Las Vegas and three in New Orleans, where is expected to enter guilty pleas within the next month.

The sentences will run concurrently in federal prison, said Jerry Cobb of the Maricopa County Attorney's office. Sharper is not eligible for early release in Arizona, but will be credited for time served in Los Angeles, where he has been in jail without bail since Feb. 27, 2014.

By agreeing to the plea deal, Sharper, 39, avoids the risk of receiving an even worse punishment in the future and expensive litigation that could drag on indefinitely in four states. If convicted, he faced life in prison in Louisiana and more than 30 years in Los Angeles. For prosecutors, the plea deal avoids the risk of going to trial, where juries might be influenced by Sharper's fame and celebrity defense attorneys.

His suspected string of serial rapes ended in January 2014, when he was arrested on a suspicion of rape in Los Angeles. At the time of his first arrest, he had 20 zolpidem pills in his possession – a sleep drug known by its brand name Ambien. Sharper obtained a prescription for the drug after suffering sleep problems he attributed to his 14-year career in the NFL with the New Orleans Saints, Green Bay Packers and Minnesota Vikings, according to a workers compensation claim form he filed in 2012.

The drug can be slipped into drinks to knock out women and rape them, and that's what authorities say Sharper did time after time, according to court records. Sharper ultimately was charged with nine rapes in four states, including three in consecutive nights in two different states in January 2014.

None of the cases went to trial or even received an evidentiary hearing except in Arizona, where a judge ruled last April there was "proof evident" Sharper raped a women there in November 2013. DNA found inside the women's body partially matched Sharper's, and a witness reported waking up and seeing Sharper naked and making thrusting movements over the woman, according to a detective's testimony at the hearing.

The detective said the woman hadn't known Sharper before that night and didn't remember what happened to her after consuming a drink Sharper made her. Zolpidem was found in the cup in subsequent tests. Though Sharper's attorney noted that none of Sharper's sperm was found on the alleged victims in Arizona, the detective said he was told that Sharper had a vasectomy, which could explain the lack of sperm. The revelation caused a stir that day in Arizona, where Sharper was charged with drugging three women and raping two of them.

In Los Angeles, he was charged with drugging and raping two women – one in October 2013 and one in January 2014. In the first one, Sharper met two women at a club in West Hollywood and later invited them to his hotel room, where he offered them a drink, according to a police report of the incident filed in court....

In New Orleans, Sharper was accused of drugging and raping two women in September 2013. He also faced federal drug charges and another rape charge from Aug. 31, 2013, all of it happening just a few years after he helped the Saints win a Super Bowl in 2010.

Though the evidence against Sharper has not, obviously, been proven in court, this press account and his global plea leads me to think he truly is guilty of nine rapes. And assuming that is true, a year in prison for each of nine rapes is a pretty sweet plea deal. Ergo the question in the title of this post.

March 23, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, March 18, 2015

Death penalty symbolism and Robert Durst

Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:

Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.

I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.

March 18, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Thursday, March 05, 2015

Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row

I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row.  Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.  

As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:

Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.

It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle.  It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.

Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days.  The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....

Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated.  It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.

The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October.  Prosecutors say they don't regret trying again to send Arias to death row.  Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."

Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition."  She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive.  She did more media interviews after the jury convicted her of murder.

Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.

The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.

I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row."  After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.

Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems.  The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona.  As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000.  I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).

Some prior posts on the Arias case:

March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, January 07, 2015

Victim rights' back-story at heart of new Cassell-Dershowitz blood feud

Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz.  Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started.  The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention.  Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.

The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls.  Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute.  Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.

Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal.  They want a federal court to invalidate the agreement, a position fiercely contested by the government.  The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes.  Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”

The case exposes tensions between the due-process rights of the accused and the rights of victims.  Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”

U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law.  And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.

In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies.  The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”

In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.”  And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”

The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”

January 7, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 06, 2015

Former Virginia Gov McDonnell gets (way-below-guideline) sentence of two years in prison

As reported here by the Washington Post, a "federal judge sentenced former Virginia governor Robert F. McDonnell to two years in prison Tuesday — a term far lower than what prosecutors had sought and one that means the popular politician will be free before his 63rd birthday." Here is more:

U.S. District Judge James R. Spencer said he was moved by the outpouring of support for McDonnell, though he could not ignore the jury’s verdict. “A price must be paid,” Spencer said. “Unlike Pontius Pilate, I can’t wash my hands of it all.  A meaningful sentence must be imposed.”

The penalty is a win for defense attorneys, who had asked that the former governor be sentenced to mere community service even as prosecutors initially advocated for a prison term stretching longer than a decade.  The U.S. probation office had determined that federal sentencing guidelines called for a term of incarceration between 10 years and a month and 12 years and seven months.

Spencer ordered the former governor to report to prison on Feb. 9. Though McDonnell (R) will certainly appeal his conviction, the sentence brings to a close a stunning narrative of politics, greed and family drama that reached a climax in September when McDonnell, 60, and his wife, Maureen, were convicted of public corruption. A jury found unanimously that the couple used the governor’s office to help a wealthy dietary supplement company executive advance his business interests, and in exchange, the businessman gave the McDonnells $177,000 in loans, gifts and luxury goods.

January 6, 2015 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, December 28, 2014

Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate

McdonnellThis lengthy local article from Virginia, headlined "U.S. seeks McDonnell sentence of 10 to 12 years," details the competing arguments being set forth in a high-profile federal white-collar sentencing slated for next month. Here are excerpts from the piece:

Prosecutors are asking that former Gov. Bob McDonnell, convicted of 11 corruption charges in September, be imprisoned for at least 10 years and one month to as much as 12 years and seven months when sentenced Jan. 6 by U.S. District Judge James R. Spencer.

In sentencing memorandums filed Tuesday, the U.S. Attorney’s Office asked for a term within the federal sentencing guideline range determined by the probation office, while McDonnell’s lawyers asked for 6,000 hours of community service instead of prison time and argued the guideline range should be 33 to 41 months.

“After serving as a prosecutor and attorney general, this defendant corrupted an office that few bribery defendants achieve, and then falsely testified and shifted blame for his actions before the jury that convicted him,” wrote Dana J. Boente, the U.S. attorney for the Eastern District of Virginia. McDonnell, the government wrote, “stands before this court as only the 12th governor in the United States — and the first governor of Virginia — to be convicted of a public corruption offense.”

McDonnell and his wife, Maureen, were convicted in a six-week trial in which the marriage and the former first lady were portrayed as troubled.  Maureen McDonnell was convicted of nine charges, one later thrown out, and will be sentenced Feb. 20.  Bob McDonnell testified on his own behalf, but his wife did not.  The McDonnells were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the then-CEO of Star Scientific, in exchange for promoting a new dietary supplement product. Williams, a key government witness, was granted immunity....

In its 31-page sentencing memorandum, the government urged Spencer to adopt the findings in the presentencing report from the probation office and reject McDonnell’s objections.  Prosecutors argued that McDonnell abused his power and violated his duty to the people of Virginia.

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to elected officials existed and that he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’ ” prosecutors wrote. “But he was not convicted of accepting gifts; he was convicted of accepting bribes. And bribery has always been a violation of state (as well as federal) law,” they added.  The government said the presentencing report correctly factored in obstruction of justice based on what it termed McDonnell’s lies from the witness stand....

McDonnell’s 51-page sentencing position, also filed Tuesday, took a very different view of the case.  It said: “Bob McDonnell has devoted his life to public service, family, and faith. This offense is a total aberration in what was by all accounts a successful and honorable career.”

McDonnell argued the appropriate guideline range should be 33 to 41 months. “A sentence of imprisonment of any length, however, much less one of 10 years or more, would be a severely disproportionate punishment,” his lawyers contend.  “Instead, a variant sentence of probation with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote location served over three years is ‘sufficient, but not greater than necessary,’ to provide a just punishment,” they wrote.

“An outcome in which Mr. McDonnell serves any time in prison ... while Mr. Williams suffers no criminal justice consequences at all would neither promote respect for the law nor provide a just resolution to this case,” McDonnell’s lawyers argued.

Much of McDonnell’s sentencing position is taken up with his biography, accomplishments, and service in the military and as a state legislator, Virginia attorney general and governor.  Seven appendixes, including hundreds of letters of support, were filed along with the document.

The memorandum notes the outline of the scheme for which he was convicted.  “Mr. McDonnell’s actual conduct, however, differs in critical ways from that of others who have been convicted under the same federal bribery laws,” McDonnell’s lawyers argued.  “Mr. McDonnell did not demand or receive cash payments from Mr. Williams.  He did not take briefcases of money or hide stacks of $100 bills in his freezer,” they wrote.  “Rather, the quid that the indictment charges that Mr. McDonnell or his family members received were gifts — a wedding gift to Mr. McDonnell’s daughter and several rounds of golf at Mr. Williams’ country club — as well as three loans at commercial rates that the McDonnells paid back with interest.”

While McDonnell’s decision to accept the items showed poor judgment, Virginia state ethics laws at the time permitted officials to accept unlimited gifts of that nature, McDonnell’s lawyers argued.  “Numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy hangers-on.”...

The defense contends that McDonnell’s trial and conviction already act as powerful deterrents to criminal conduct by others, making imprisonment unnecessary.  “No elected official would want to live through the last year of Mr. McDonnell’s life,” his lawyers write.  McDonnell and his family “have already suffered tremendously,” the lawyers write. “His once-promising political career is dead,” and “his marriage has fallen apart.”

Defense lawyers wrote that McDonnell’s “sterling reputation in the community has been irreparably damaged,” he has lost his ability to practice law, he is likely to lose his state pension, “and he will have to sell his family home.”  The former governor’s lawyers also contend prison is unnecessary to protect the public because there is no risk McDonnell will commit any further crimes. “He is 60 years old and out of politics.”

Relatedly, this Washington Post article reports on some of the notable letters written to the sentencing judge in support McDonnell. The piece is headlined "Former Virginia governor Bob McDonnell’s downfall is wife’s fault, daughter says," and it provides this link to some notable character letters.

Prior related posts:

December 28, 2014 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, December 09, 2014

Madoff aides finally getting sentenced for their roles in massive Ponzi scheme

As reported in this new AP article, a notable set of fraud sentences are being handed out this week and next in New York federal court.  Here are the early parts of a high-profile white-collar sentencing story:

The former secretary for imprisoned financier Bernard Madoff was sentenced Tuesday to six years in prison after she apologized to victims of the multi-decade, multi-billion dollar fraud and berated herself for failing to see past her boss's influence and the riches he bestowed on her.

Annette Bongiorno, 66, was sentenced in Manhattan by U.S. District Judge Laura Taylor Swain, who said she believed Bongiorno's testimony at trial that she was largely duped by Madoff into manufacturing fake trade results for his private investment business.  She called her "a pampered, compliant and grossly overcompensated clerical worker who supervised other clerical workers with a ferocious enthusiasm."

The judge said Bongiorno "could and should have recognized that Mr. Madoff's success seemed impossible because it was impossible." Swain added: "Ms. Bongiorno chose to put her life and the life of others in the wrong hands."

One of Madoff's computer programmers was awaiting an afternoon sentencing.  Bongiorno was convicted earlier this year along with four others after a six-month trial.  Sentencing proceedings resulting from it will conclude on Monday.

On Monday, Madoff's director of operations was sentenced to a decade in prison.

Prosecutors said in court papers that Bongiorno was "at the very heart of the fraud" for decades. They had sought a prison sentence of more than 20 years. The fraud cost thousands of investors nearly $20 billion. Madoff, 76, was arrested in December 2008 and is serving a 150-year prison sentence.

Before she was sentenced, Bongiorno portrayed herself as a loyal worker who was in over her head from the time she was hired at age 19. "Not once in my 40 years there did anyone say to me, 'Annette, this is not the way it's done in the real world,'" she said. "I thought I was doing my job as I thought it should be done."...

The judge, who also ordered forfeiture of $155 billion, said she will recommend that Bongiorno serve the last year of her prison term in home confinement.

December 9, 2014 in Booker in district courts, Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Tuesday, October 21, 2014

Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend

Download (1)As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.  Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....

During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name.  He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013.  But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.

Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment.  He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters.  "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration.  As a family, we are ready to support and guide Oscar as he serves his sentence."

The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."

The prosecution had asked for a minimum prison sentence of 10 years for Pistorius.  After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing.  Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....

Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.

She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."

In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."

The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.

In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.

On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.

Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.

The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.

Previous related post:

October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, October 13, 2014

"Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"

The question in the title of this post is the first line of this AP article headlined "Factors that may affect if Pistorius spends time in prison." Because I know very little about South African sentencing law and procedure, I found this AP article quite informative, and here are excerpts:

Judge Thokozile Masipa began hearing testimony Monday before deciding what sentence the double-amputee Olympic athlete should serve.  Pistorius was acquitted of murder in Steenkamp's shooting death but convicted of a lesser charge of culpable homicide, or killing Steenkamp through negligence.  It has a wide range of possible sentences in South Africa, from a fine and no prison time to as much as 15 years in jail....

Judge Masipa will hear testimony from a small number of witnesses called by the defence and then prosecution before deciding on Pistorius' sentence.  The defence began presenting witness testimony on Monday, arguing why the judge should be lenient.  Prosecutors could call Steenkamp's family members to show that Pistorius should be sent to prison for years because of the suffering he has caused....

Pistorius' lawyers cited what they say is his remorse and previous good character as reasons for a lenient sentence.  Defence lawyers began by calling a psychologist who has counselled the athlete since he killed Steenkamp. Dr. Lore Hartzenberg testified that Pistorius was a "broken man" wracked with grief following the shooting, and had lost his reputation, his friends and his career.  The defence hopes her testimony -- which focused on what she said was Pistorius' emotional pain following an accidental killing -- will help persuade Masipa that Pistorius is remorseful, has suffered already and shouldn't be sent to prison because he needs ongoing therapy.

Prosecutor Gerrie Nel countered that Pistorius was "still alive" and Steenkamp wasn't and that should be considered....

Pistorius' work with charities before the Feb. 14, 2013 shooting was listed extensively by his agent, Peet van Zyl, who was also called by the defence.  Van Zyl's testimony was designed to paint the Paralympic champion as a generally good person who had no previous criminal record.  He also said that Pistorius had lost all his athletics endorsements because of the court case and had already been punished financially.

A social worker from South Africa's department of correctional services was the only one of the three defence witnesses who testified on the first day of the hearing to suggest a sentence.  Joel Maringa said three years of "correctional supervision" would be appropriate, where Pistorius would be partly under house arrest and have to do community service, but would also be able to train and attend athletics meets.

Nel fiercely criticized that suggestion, saying it was "shockingly inappropriate" after Pistorius killed someone.  The prosecution, which sought a murder conviction, has insisted that Pistorius should go to prison because of the level of negligence he displayed when he fired four hollow-point bullets through a toilet cubicle door in his home and into a small space without checking who was inside.

Masipa's options are wide-ranging: She could order a fine and a suspended prison sentence, meaning the 27-year-old Pistorius spends no time in jail unless he offends again.  But she could also sentence him to up to 15 years in prison.  In between those two scenarios, Masipa could order he be put under house arrest for a period.  Pistorius could apply for parole after serving half of any prison sentence.

October 13, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, September 04, 2014

Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges

As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:

Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.

A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.

Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption."  Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."

The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012.  The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans.  They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.

The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify.  His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....

Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses.  Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.

My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.

September 4, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (13) | TrackBack

Thursday, August 21, 2014

Pennsylvania Superior Court upholds (most of) sentence requiring former state Supreme Court Justice to write apology

As reported in this local Pittsburgh Post-Gazette article, an intermediate state appellate court upheld most (but not quite all) of the notable sentencing terms imposed on former Pennsylvania Supreme Court Justice Joan Orie Melvin. Here are the basic details of a lengthy and interesting sentencing ruling:

The state Superior Court today affirmed the criminal conviction of former state Supreme Court Justice Joan Orie Melvin, as well as that of her sister, Janine Orie. The panel also affirmed the part of Melvin's sentence requiring her to send apology notes to her former staff and fellow judges in Pennsylvania, but it eliminated the requirement that she do so on a picture taken of her following sentencing in handcuffs.

"The trial court unquestionably staged the photograph for maximum effect," wrote Judge Christine Donohue. "At the time it was taken (immediately after sentencing), Orie Melvin was no longer in police custody and was otherwise free to go home to begin house arrest. She was not in restraints at that time, and the trial court directed that she be placed in handcuffs only to take the photograph.

"The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues."

The Superior Court panel said it would enforce the idea of writing apology letters because, it "adresses the trial court’s intent to rehabilitate her by requiring her to acknowledge her wrongdoing."

As part of its 114-page opinion, the court also reversed the order of Common Pleas Judge Lester Nauhaus, who in November stayed Justice Melvin's criminal sentence in its entirety pending appeal.

Justice Melvin was found guilty of six of seven counts against her, including theft of services, conspiracy and misapplication of entrusted property. Judge Nauhaus ordered her to serve three years of house arrest, pay a fine, work in a soup kitchen and write the letters of apology.

Thanks to How Appealing not only for alerting me to this ruling, but making sure I knew all 100+ pages from the Superior Court of Pennsylvania is available at this link.

August 21, 2014 in Celebrity sentencings, Criminal Sentences Alternatives, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, August 16, 2014

Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges.  But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges.  This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment): 

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city.  Democrats said the indictment underscores Perry’s insider dealing and he should step down.  Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April.  McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said.  Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew.  I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

August 16, 2014 in Celebrity sentencings, Mandatory minimum sentencing statutes, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Saturday, August 09, 2014

"May the government try John Hinckley for James Brady’s murder?"

The question in the title of this post is the headline of this astute analysis by Eugene Volokh concerning the legal question that emerged in the wake of James Brady's death being rules a homicide.  Here is how it begins:

The death of James Brady, President Ronald Reagan’s press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan’s life in 1981. Let’s assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?

The answer is no, likely for two different reasons.

August 9, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Tuesday, August 05, 2014

Is Jodi Arias really going to represent herself at her Arizona death penalty retrial?

The question in the title of this post is prompted by this new report from Arizona headlined "Jodi Arias to represent self in Arizona death penalty sentencing retrial." Here are the basics:

An Arizona judge agreed on Monday to allow convicted murder Jodi Arias to represent herself during a sentencing retrial to determine if she will face the death penalty for killing her ex-boyfriend in 2008, a court spokesman said.

Judge Sherry Stephens granted the request by Arias during a hearing in Maricopa County Superior Court, allowing her to act as her own lawyer when the retrial begins in September, said spokesman Vincent Funari.

Stephens issued the ruling from the bench after cautioning the former California waitress that she felt it would not be in her best interest to take over from her current attorneys, Funari said.

Arias was convicted last year of murdering Travis Alexander in his Phoenix-area home six years ago in what authorities said was a bloody crime scene. He was found slumped in his shower, stabbed multiple times, his throat slashed and shot in the head.

The same jury that convicted Arias in a high-profile trial that was live-streamed on the Internet to tens of thousands of viewers found her eligible for the death penalty, but deadlocked on whether she should actually be put to death.

The sentencing phase retrial will see a new jury impaneled next month to weigh her fate, but will not be broadcast live. If the new jury also deadlocks on capital punishment, a judge will sentence Arias to spend either her natural life in prison, or life with the possibility of parole after 25 years.

Monday's decision came during a rare open session in the case, which has mostly been argued in recent months behind closed doors. Funari said while Arias will represent herself, her current attorneys will act as advisory counsels.

Some prior posts on the Arias case:

August 5, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, July 09, 2014

Former NOLA mayor Ray Nagin gets 10-year federal prison sentence for corruption

As reported in this New York Times article, "Ray Nagin, the former mayor of New Orleans, was sentenced to 10 years in prison on Wednesday on federal corruption charges, ending a case that began with the rebuilding of the city after Hurricane Katrina." Here are a few more more details of this high-profile federal sentencing:

The sentence was less than the recommended 15 years, but Judge Ginger Berrigan of United States District Court for the Eastern District of Louisiana told the court that the evidence failed to show that Mr. Nagin had organized or had been a leader of a corruption scheme....

Prosecutors objected to the sentence, a move that could set up an appeal. MOReaction was swift, and mixed. “I think that he got off lightly considering the violations of the public trust,” said Edward E. Chervenak, a political science professor at the University of New Orleans and a critic of Mr. Nagin during his eight years as mayor.

“I think he should have gotten more time,” says Michelle Alford, 37, a native of New Orleans and a hotel employee. “He did nothing to benefit the city. I think he should have gotten 20 years at least. I think it’s ridiculous. It’s ridiculous.”

July 9, 2014 in Celebrity sentencings, Offender Characteristics, White-collar sentencing | Permalink | Comments (6) | TrackBack

Wednesday, June 18, 2014

Should feds agree to moving capital trial of Boston Marathon bomber?

As discussed in this USA Today article, headlined "Lawyers for Boston bombing suspect want trial elsewhere," the most notorious federal capital defendant is likely to seek to be tried in a jurisdiction outside the community he helped terrorize.  Here are the basic details, after which I explain why I think federal prosecutors might seriously consider agreeing to a change of venue:

Attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev are due in federal court today in Boston, where they are expected to ask a judge to move their client's November trial.

Judge George A. O'Toole Jr. last week denied a motion that would have given attorneys Miriam Conrad and Judith Clarke until August to make their case for changing venues.  At issue is whether Tsarnaev can receive a fair trial in the city where two bombs went off near the Marathon finish line on April 15, 2013, leaving three dead and more than 260 wounded....

Questions of venue came up last month in three related obstruction of justice cases. Judge Douglas Woodlock said at the time that media coverage in Boston hasn't made it impossible to impanel local juries that will be fair to three friends of Tsarnaev who allegedly interfered with bombing investigations.  "I don't find it to be the kind of press coverage that on the whole creates presumptions," Woodlock said.

He added, however, that "the proof of the pudding is in the selection of the jury." If impartial jurors can't be found in Boston, then the upcoming trials of Azamat Tazhayakov, Dias Kadyrbayev and Robel Phillipos could be moved to Springfield, Mass.  Tsarnaev's trial is scheduled to begin Nov. 3.

I wonder if the feds have thought about agreeing to a change of venue, and also urging the new venue to be a nearly jurisdiction with some history with the death penalty like Connecticut or New York. I fear that, absent a change of venue, Tsarnaev's defense team will have a potent appeal issue for challenging a death sentence for many years to come. A venue change seems the only way to avoid years of litigation on this front, and such a venue change might arguably make it easier for the feds to ultimately secure the conviction and death sentence prosecutors are seeking.

Notably, a change of venue was granted in the other historic and horrific federal capital bombing trial of recent vintage: US. District Judge Richard Paul Matsch ordered that the venue for the trial of the Oklahoma City bomber Tim McVeigh be moved to Denver based on concerns he would be unable to receive a fair trial in Oklahoma. Given that history and precedent, I think the feds would be wise to agree rather than oppose the defense effort to have the trial moved.

June 18, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 20, 2014

Occupy Wall Street activist sentenced to occupy jail for three months

CecilyAs the New York Times reports here, a "woman whose assault case had become a cause célèbre, first among Occupy Wall Street supporters and then expanding well beyond the movement, was sentenced to three months in jail on Monday, as a judge rejected calls for her immediate release." Here is more about a high-profile state sentencing that occurred yesterday in Manhattan:

The woman, Cecily McMillan, 25, a graduate student at the New School and a volunteer labor organizer, was convicted two weeks ago of assaulting a police officer at Zuccotti Park in Manhattan in 2012.  Before the sentence was delivered, Ms. McMillan remained mostly defiant, even as she characterized the encounter with the officer as “an accident.”.....

But Justice Ronald A. Zweibel, who had remanded Ms. McMillan on May 5 after the four-week trial, imposed the jail sentence that prosecutors had requested, rather than release her on probation, as her lawyers had urged.  She could have faced a maximum of seven years for the second-degree assault.  “A civilized society must not allow an assault to be committed under the guise of civil disobedience,” Justice Zweibel said....

Upon her conviction, Ms. McMillan’s supporters wrote scores of letters to Justice Zweibel, urging him to be lenient.  Five City Council members delivered the same message on the steps of City Hall, and the Russian activists Pussy Riot, who were recently imprisoned for criticizing President Vladimir Putin, visited her on Rikers Island and called for her release. An online petition calling for leniency garnered 160,000 signatures....

Before sentencing, Shanda Strain, an assistant district attorney, said Ms. McMillan deserved a three-month stay in jail because she had falsely accused Officer Bovell of grabbing her breast, lying under oath “to avoid responsibility for her actions.”

“This trial was not a referendum on a large social cause or movement, though the defendant tried and continues to try to make it just that,” Ms. Strain said. Then she added, “In essence, she has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.”...

Ms. McMillan’s lawyer, Martin Stolar ... told the judge that the bruises and mental trauma that Ms. McMillan had suffered during her arrest were punishment enough.  “You touch a police officer and get the hell beat out of you,” he said outside court.  “That’s what happened to her. That’s enough of a deterrent.”

Ms. McMillan also received five years of probation, and was ordered to undergo a mental-health evaluation and treatment.  Mr. Stolar said he had filed a notice of intent to appeal the verdict, and had asked that his client be granted bail pending the appeal.

May 20, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

Tuesday, May 13, 2014

Corruption nets former Israeli prime minister a six-year prison sentence

As reported here via CNN, Israel's former "Prime Minister Ehud Olmert was sentenced Tuesday to six years in prison for taking bribes while mayor of Jerusalem."  Here are more details concerning this high-profile crime and punishment from the promised land:

Olmert was also fined 1 million shekels (about $289,000), Israeli state radio IB reported.

Olmert was convicted in March of receiving about $161,000 in bribes related to a controversial Jerusalem housing project called Holyland. The judge acquitted Olmert on a third count of bribery. The developer of Holyland, Hillel Cherney, had been previously convicted of bribing Olmert and other high-level officials in exchange for Holyland approvals.

Olmert was mayor of Jerusalem from 1993 to 2003. Olmert, an attorney who in 1973 became the youngest person ever elected to Israel's parliament, the Knesset, served as prime minister from 2006 to 2009. He announced his resignation shortly after police recommended corruption charges against him.

In August 2012, he was convicted of breach of trust and acquitted on two corruption-related charges after a trial that lasted nearly three years. He was given a 3-month suspended jail sentenced and fined about $19,000 in that case....

Prosecutors accused him of double-billing government agencies for travel, taking cash from an American businessman in exchange for official favors and acting on behalf of his former law partner's clients.

May 13, 2014 in Celebrity sentencings, Sentencing around the world, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, March 27, 2014

Remorseless killer bride gets sentenced to 30+ years in federal prison

As this local piece reports, today a federal "judge has sentenced Jordan Linn Graham to 30 years in prison for the murder of her husband last summer in Glacier National Park."  Here are the basics:

U.S. District Judge Don Molloy sentenced the Kalispell woman to 365 months in federal prison, with no possibility of parole. He also prohibited her from benefiting in any way, including financial, from revealing additional details about the murder. Molloy said he did not find Graham remorseful about her husband's death. He said he kept waiting for her to say she was sorry for pushing her husband of eight days off a cliff in Glacier Park - but that never came.

Earlier in Thursday's hearing, Molloy denied Graham's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer....

Graham, 22, of Kalispell, pleaded guilty in December to federal charges in the death of her husband, Cody Johnson, 25. She has admitted to pushing Johnson off a cliff at Glacier National Park on July 7 following an argument.

But Graham's attorneys sought this week to withdraw the plea after the U.S. attorney's office called for a sentence of 50 years to life. Prosecutors recommended such a lengthy sentence in part because they said Graham appeared to plan Johnson's killing.

Molloy, however, ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December — and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing.

Assuming Graham gets the usual 15% sentence reduction for good time credit, this means she will have to serve over 25 years in the federal pen.  But it also means she should be a free woman again before she turns 50.

Previous related posts (with lots of interesting prior comments):

March 27, 2014 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (38) | TrackBack

Saturday, March 22, 2014

Florida state judge balks at 50-year proposed sentence for notable child porn downloader

As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:

A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide.  Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.

Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.

Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.

Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.

Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.

Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....

Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.

March 22, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, March 18, 2014

Infomercial celebrity to be selling in federal prison for next decade

Kevin_Trudeau-Prison_Escape_PlanAs reported in this local article, headlined "TV pitchman Kevin Trudeau sentenced to 10 years in prison," a salesman many have seen on late-night television will now only be seen in federal prison for a long time. Here are the sentencing details:

When TV huckster Kevin Trudeau stood in a packed federal courtroom to make one final sales pitch Monday, he hardly resembled the tanned, dapper figure seen hawking miracle diets and natural cancer cures on so many late-night infomercials.  After spending four months in jail for contempt of court, Trudeau’s trademark jet black coif was thin and gray. His usual tailored suit was replaced by rumpled orange jail clothes.  Even his typical air of defiance had turned to contrition, a change he said washed over him during his sleepless first night in custody.

“If I ever write a book again, if I ever do another infomercial again, I promise no embellishment, no puffery and absolutely no lies,” Trudeau told U.S. District Judge Ronald Guzman in a remorseful tone.  “I know going forward I will be a better person.”

But the judge wasn’t buying a word.  Moments after Trudeau’s plea for leniency, a visibly irritated Guzman sentenced the best-selling author to 10 years in prison, citing Trudeau’s decades-long history of fraud and calling him “deceitful to the core.”

“He has treated federal court orders as if they were mere suggestions...or at most impediments to be sidestepped, outmaneuvered or just ignored,” Guzman said in handing down an unusually lengthy prison term for a contempt conviction.  “That type of conduct simply cannot stand.”...

Trudeau has been jailed since Nov. 12 when he was convicted by a federal jury of criminal contempt for lying in several infomercials about the contents of his hit book, “The Weight Loss Cure 'They' Don't Want You to Know About.”  Prosecutors said he ignored a previous court order by describing the program as easy when it actually called for punishing calorie restrictions and a crippling list of food restrictions.  Meanwhile, U.S. District Judge Robert Gettleman has repeatedly found Trudeau in civil contempt for failing to pay anything toward a $37.6 million fine imposed by the Federal Trade Commission in spite of continuing to live a lavish lifestyle.

On Monday, prosecutors cited Trudeau’s history of fraud that goes back to a state conviction in 1984.  “He is a habitual liar and a fraudster,” Assistant U.S. Attorney April Perry said.  As a result of the size of the fraud and Trudeau’s two previous felony convictions, federal sentencing guidelines called for 20 to 25 years in prison, a range that Guzman said he thought was “appropriate.”  However, he eventually agreed with prosecutors who said a 10-year term was sufficient since -- unlike in many fraud cases -- no one who bought Trudeau’s book was financially ruined.

Trudeau’s attorneys argued that prosecutors vastly inflated the amount of harm done by Trudeau’s misleading infomercials, saying many buyers were satisfied with the weight loss book.  In his lengthy statement to the court, Trudeau said he has been “completely wiped out” financially and that he and his wife Nataliya Babenko, 26, are “effectively homeless.” He said his time at the Metropolitan Correctional Center has changed his perspective and led him to realize he had made many errors. While he wouldn’t wish incarceration on anyone, the experience has wound up being “one of the best, most positive things in my life,” Trudeau said.

“In the past four months I have been stripped of all ego, defiance, arrogance and pride and for that I am thankful,” Trudeau said as he stooed at a lectern and read from typed notes.

But Judge Guzman was unimpressed, noting that in his three decades of fraud, Trudeau had taken on more than a dozen different aliases and even used his mother’s Social Security number to perpetrate a scam. “That doesn’t happen by accident, and it doesn’t happen by good intentions,” the judge said. “It is a reflection of a person’s character.”

March 18, 2014 in Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (6) | TrackBack

Wednesday, February 12, 2014

Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?

The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:

Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004.  A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.

Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption.  Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.

In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take."  Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....

Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial.  Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."

Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....

Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.

He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.

As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.

February 12, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (12) | TrackBack

Tuesday, January 28, 2014

Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain

This new AP story, headlined "Arias defense costs Ariz. taxpayers $2 million and counting," reinforces my sense that state taxpayers will often be the folks most harmed by some prosecutorial decisions to aggressively pursue the death penalty.  Here are the basics:

Jodi Arias' legal bills have topped $2 million, a tab being footed by Arizona taxpayers that will only continue to climb with a new penalty phase set for March, officials said Monday.

Arias, 33, was convicted of murder in May, but the jury couldn't reach a verdict on her sentence. Prosecutors are now pursuing a second penalty phase with a new jury in an effort to get the death penalty.  Trial is set for March 17.  The former waitress and aspiring photographer has been held in jail in Maricopa County awaiting her fate while her legal bills continue to mount.

As of Monday, the county had paid $2,150,536.42 for her court-appointed attorneys, expert witnesses and other costs associated with her case, Maricopa County spokeswoman Cari Gerchick told The Associated Press.

Maricopa County Attorney Bill Montgomery has refused to provide a tally of how much it has cost to prosecute the case, citing a court order that attorneys not discuss Arias-related matters.

Arias admitted she killed her boyfriend, Travis Alexander, in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the forehead in what prosecutors argued was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.

The case captured headlines worldwide and became a cable television staple with its tales of sex, lies and a brutal killing while every minute of the trial was broadcast live. This time around, the judge will be limiting media coverage in hopes of avoiding the same publicity. There will be no live video coverage of the second penalty phase, and electronic devices will be banned, meaning reporters won't be able to provide real-time updates via Twitter as occurred during her first trial.

Under Arizona law, while her murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury.  If the second panel fails to reach a unanimous decision, the death penalty will automatically be removed from consideration, and the judge will sentence Arias to spend her entire life behind bars or be eligible for release after 25 years.

 I have to guess that the second penalty phase now in the works and just the direct appeals if Arias gets sentenced to death will end up costing Arizona taxpayers another million or more in defense costs. And then there will surely be a number of costly habeas appeals, too, if Arias is on death row. Considering also the state court and state prosecutorial expenses, I do not think it inflated to assert that Arizona taxpayers are likely to end up spending at least $5,000,000 just to have Jodi Arias set and kept on death row.

As the title of this post highlights, this multi-million dollar expense seems like a great waste of state resources because the effort to send Arias to Arizona's death row has raised the profile of her case and helps ensure Arias is now forever a hero to the anti-death-penalty community. In addition, Arizona already has over 125 murderers on its death row but only gets around to executing a few each year, and thus Arias is likely to die of natural causes before being executed by the state even if sent to death row. Had Arizona prosecutors been able to cut a deal with Arias to take the death penalty off the table, at least after the first jury could not decide on a sentence, taxpayers would have saved a lot of money and Arias would likely now just be facing the pain of LWOP rather than the fame that comes with being a high-profile capital defendant.

I make these points not to defend Arias but rather to highlight the significant budgetary costs of seeking the death penalty in hard cases. I also could not help but research where all this Arizona taxpayer money now wasted on a fight over murderous Arias might have been better used. This lengthy Arizona budget document seems to reveal that the Arizona Crime Victims Programs -- which is under the authority  of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" -- has an annual budget of around $5,000,000. I am inclined to think that most folks, even those who support the death penalty in many cases, probably would share my view that it would have been a better use of state tax resources to double the funds for crime victims programming rather that keep seeking a death verdict that likely will never get carried out.

Related posts:

January 28, 2014 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Sunday, January 26, 2014

Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke

I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame.   It was very helpful to see different folks express different reactions to these sentiments.

Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense.  Via this AP story, here are the details:

Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.

Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car.  Brent could have been sentenced to up to 20 years in prison.  He was also fined $10,000....

One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh.  Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."

Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read.  She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."

Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation.  "The victim's family will always have a bearing on the punishment phase," Harris said.  "Should it make a difference?  What if she had been wanting the maximum? Would they have given the maximum?  That's why we let the jury decide."

Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people.  In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."

The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence.  "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....

Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent.  Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....

Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas."  The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.

"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."

Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving.  (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.)  And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.

Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence.  As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.  I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.

Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player.  As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine."  (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)  

In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving.  Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble.  (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)

Some related posts on drunk driving leniency and NFL player sentencings:

January 26, 2014 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, January 23, 2014

Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?

The foul-mouthed question in the title of this post was my reaction to reviewing the details in this AP article concerning the charges brought and sentencing ranges in play following troubled pop star Justin Beiber's arrest for drunk driving early this morning.  Here are the basics:

Justin-bieber-mug-600A judge set pop singer Justin Bieber's bail at $2,500 Thursday after police say he drag-raced down a Miami Beach street while under the influence of alcohol. He was charged with DUI, driving with an expired license and resisting arrest.

Bieber was arrested after police said they saw him speeding down a residential street in Miami Beach in a yellow Lamborghini. Officers say he had an expired license, was initially not cooperative when he was pulled over and smelled of alcohol. Police say Bieber later admitted that he had been drinking, smoking marijuana and taking prescription medication....

R&B singer Khalil Amir Sharieff was arrested in the same incident. He is charged with driving under the influence, and his bond was set at $1,000. Police said Khalil was driving a Ferrari. Both Bieber and Khalil appeared briefly in court wearing bright red jail fatigues. They remained silent while defense attorney Roy Black negotiated bond.

Black, a high-profile lawyer whose clients have included Rush Limbaugh and William Kennedy Smith, said he thought the case would proceed "hopefully as any other case would" in light of Bieber's celebrity status.

Authorities say Bieber was arrested after police saw him and Khalil racing two luxury vehicles down the street at 4:09 a.m., with two other vehicles apparently being used to block off the area. Police say Bieber was clocked at 55 to 60 mph in a 30 mph zone. Earlier Thursday, police chief Ray Martinez said at a news conference that the singer was initially not cooperative when the officer pulled him over. Martinez said the singer also had an invalid Georgia driver's license and admitted to smoking marijuana, taking prescription medication and drinking.... Bieber failed a field sobriety test and was taken to the Miami Beach police station for a Breathalyzer, police said. Results haven't been released....

The street where police say Bieber was racing in mid-Miami Beach is a four-lane residential street divided by a grass median dotted with palm trees. Along one side of the street are small apartment buildings, and on the other side are a high school, a youth center, a golf course and a city firehouse....

Thursday's arrest is just the latest in a series of troubling incidents. Bieber has been accused of wrongdoing in California, but has never been arrested or charged. He is currently under investigation in a felony vandalism case after a neighbor reported the pop star threw eggs at his house and caused thousands of dollars of damage....

Under Florida law, people under the age of 21 are considered driving under the influence if they have a blood-alcohol content of .02 percent or more - a level Bieber could reach with one drink.

For a first DUI offense, there is no minimum sentence and a maximum of six months, a fine of $250 to $500, and 50 hours of community service. For anyone under 21, there is an automatic six-month license suspension. A first conviction for drag racing carries a sentence of up to six months, a fine of $500 to $1,000 and a one-year license suspension....

The Florida arrest likely won't affect Bieber's immigration status. According to U.S. immigration law, authorities do not revoke an individual's visa unless the person has been convicted of a violent crime or been sentenced to more than one year imprisonment.

Immigration attorney Ira Kurzban says neither driving under the influence nor driving without a license can make an individual eligible for deportation. Nor would either of those offenses keep Bieber from being readmitted into the U.S. "He's not subject to deportation because of a DUI offense," said Kurzban, "nor is driving with an expired license a deportable offense."

Long-time readers know that, while I think the scale of punishments for many offenses (especially nonviolent ones) in the US is often much too harsh, I have long viewed the scale of punishments for drunk driving to be way too lenient.  In my view based on the innocent lives ended and permanently damaged every day by drunk drivers, the offense of DUi is one of the most persistent and enduring threat to public safety and one that I think modern criminal justice systems out to be do a heck of a lot more to deter and prevent.

For reasons that should be clear from the above description of Justin Beiber's offense conduct, it would seem as though he has committed one of the most aggravated forms of DUI here: he is an underage drinker, was in a residential neighborhood, was going twice the speed limit, resisted arrest, and (I suspect) was very drunk on numerous intoxicants while drag racing. For all those reasons, I want the book thrown at this dangerous (and famous) criminal. But apparently the worst sentence he can possibly get is "six months [in jail], a fine of $250 to $500, and 50 hours of community service." Yeesh.

As I have said before and as I know I will say again: my interest in deterring and incapacitating drunk drivers makes me eager to see rich, celebrity offenders get slammed with every reasonable shaming and alternative sanction possible ranging from having to forfeit their cars to losing driving privileges for years to paying enormous fines IN ADDITION TO whatever prison term is thought to send the right kind of message concerning these kinds of offenses. Sadly, though, I suspect Beiber will end up just getting a slap on the wrist after Roy Black trains him to say he was sorry, and we all will have to worry about whether and when there will be a next time Beiber (and maybe some of his beiliebers) spill blood rather than just oil on a neighborhood road.

Some related posts on sentencing drunk drivers:

January 23, 2014 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack

How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction

As reported in this lengthy local article, the conviction of a high-profile defendant in Texas state court now presents an interesting new case study in jury sentencing discretion.  Here are the detais:

Former Dallas Cowboy Josh Brent faces up to 20 years in prison after a Dallas County jury Wednesday found him guilty of intoxication manslaughter for a 2012 wreck that killed his best friend and teammate.

The verdict followed six days of testimony and arguments and approximately nine total hours of jury deliberations about whether Brent was actually drunk while driving in a Dec. 8, 2012, rollover wreck that killed 25-year-old Jerry Brown Jr., a Cowboys practice squad linebacker.  The jury will now have to determine how much time — if any — Brent will spend behind bars for the felony conviction.

Brent — who served 30 days in an Illinois jail in 2009 after being arrested for driving drunk on an expired license and speeding — is eligible for probation. The punishment phase of Brent’s trial is set to begin Thursday.... The judge sent the jurors home Wednesday evening after they had been sequestered in hotel rooms Tuesday night. But they are still not allowed to talk to anyone about the case or take in media accounts until after the sentencing....

Brent was originally arrested after the early morning single-car crash on a State Highway 114 frontage road in Irving.  He was driving at least 110 mph on a 45-mph stretch of road when his car hit a curb and spun out of control, according to court testimony. Neither Brent nor Brown wore their seat belts. An investigator testified during the trial that Brown’s body helped cushion Brent from more serious blows during the crash.

Tests showed Brent’s blood alcohol content after the wreck was 0.18 percent, which is more than twice the legal limit for driving of 0.08. A toxicologist testified that Brent, who weighs 320 pounds, would have had to drink 17 standard alcoholic drinks to reach that level.

Brent’s attorneys — George Milner III, Kevin Brooks and Deandra Grant — acknowledged that he was speeding, but tried to cast doubt on whether the ex-player was drunk at the time. “There is no proof in the record as to why he drove fast … He drove fast when he had nothing to drink,” Milner said in closing arguments.

January 23, 2014 in Celebrity sentencings, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, January 19, 2014

Your tax dollars at work in incarceration nation

Two very different recent stories about two very different prisoners have the unifying theme of taxpayers footing the bill.  Here are the headlines and the starts of the stories:

"Federal appeals court upholds Mass. inmate’s right to taxpayer-funded sex change surgery"

A federal appeals court in Boston today upheld a judge’s ruling that a transsexual inmate convicted of murder is entitled to a taxpayer-funded sex change operation as treatment for her severe gender identity disorder. In a ruling that was a first of its kind, a three-judge panel of the US Court of Appeals for the First Circuit said courts must not shy away from enforcing the rights of all people, including prisoners. “And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.

“Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court,” the court said in a 2-1 ruling, which could still be appealed to the full appeals court or to the US Supreme Court.

"Ex-Michigan Supreme Court Justice Diane Hathaway wants out of Camp Cupcake"

Former Michigan Supreme Court Justice Diane Hathaway, who is serving a one-year sentence for bank fraud, wants out of prison and says her unique status is keeping her confined longer than what’s normal.

Hathaway, in a self-drafted motion filed today, asks U.S. District Judge John Corbett O’Meara to let her out early or allow her to serve the rest of her sentence at home. O’Meara sentenced Hathaway on May 28 to 12 months and one day in prison, plus two years’ probation, after she pleaded guilty to one count of bank fraud in connection with the short sale of her Grosse Pointe Park home.  She reported to prison in August.

She is serving her time in Alderson, W.Va., at a federal facility sometimes referred to as Camp Cupcake because of its relatively comfortable conditions, compared with some federal prisons.  Former Detroit City Council President Monica Conyers also served time there.

In her motion, Hathaway says she would normally be eligible for a move to a halfway house at this point in her sentence, but the Bureau of Prisons won’t consider such a move because of security and safety concerns because she is a former sentencing judge. Instead, she is only eligible to serve the last 10% of her sentence at home, Hathaway said in the motion. “Defendant is being denied equal protection of the law,” Hathaway told the judge.

Lest I be misunderstood, I am not saying that the incarceration costs for these two very different offenders are not worthwhile. Rather, I am just highlighting the (annoying?) reality that just about every interesting prison story in incarceration nation is being funded and fueled by state and federal tax dollars.

January 19, 2014 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Tuesday, December 31, 2013

Feds now saying Lynne Stewart should get compassionate release from prison term

This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:

A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.

In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.

Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.

She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.

A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.

A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."

Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.

December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack

Friday, December 27, 2013

As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?

Reagan_assassination_attempt_3The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays."  Here are the basics:

John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department.  No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.

His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.

Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va.  He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away.  Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.

On average, a person convicted of a violent crime in America serves about five years in prison.  Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....

Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month.  The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....

The hearing did provide some droll moments.  In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.”  To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”

Hinckley’s case contains some valuable lessons:  The insanity defense is very rarely used in America and usually fails when it is used.  Hinckley succeeded, but what has it gotten him?  More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.

Before Hinckley shot Reagan, he had been stalking Jimmy Carter.  In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage.  He paid a fine of $62.50 and was released from custody.  Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47.  Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.

Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun.  In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws.  His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.”  The National Rifle Association condemned Reagan’s statement.

St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients.  As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010.   St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s.  About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.

As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.

December 27, 2013 in Celebrity sentencings, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Friday, December 20, 2013

Should elected officials be subject to drug tests? And then forced to resign if they fail?

The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:

Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.

On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents.  “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.

Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records.  When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail.  When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21.  He has been on leave from the House.

Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public.  Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests.  He said he only used cocaine a handful of times.

The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”

December 20, 2013 in Celebrity sentencings, Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (8) | TrackBack

Monday, December 09, 2013

Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride

Graham cliffIn part because federal jury trials for traditional common-law crimes are rare, and especially because this case has already garnered considerable media attention, I am likely to follow closely the high-profile federal murder trial starting today in Montana.  This AP article, headlined "Jury selection begins in newlywed murder trial," provides the basics and sets up the sentencing query of this post:

Jury selection gets underway Monday in the murder trial of a newlywed bride accused of pushing her husband to his death in Glacier National Park just days after their wedding. Jordan Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making a false statement to authorities in the death of Cody Johnson.

Graham, 22, and Johnson, 25, had been married for eight days when they argued over her doubts about the marriage, prosecutors said.  She texted a friend that she planned to confront Johnson about those doubts the night of July 7.

Graham's trial in U.S. District Court in Missoula is expected to last one to two weeks with dozens of friends, acquaintances and expert witnesses — though no eyewitnesses — scheduled to testify.

Federal prosecutors will attempt to convince jurors that Graham deliberately pushed Johnson to his death, then made up a story about how he was last seen driving off with friends.  Graham's federal public defenders will ask jurors to believe that while Graham thought she married too young, she loved Johnson and was only trying to remove his hand from her arm when he fell off the steep cliff.

Witnesses will describe Graham as a naive, immature and shy woman who deals better with the children she watched over as a day care worker than with most adults, federal public defender Michael Donahoe wrote in his trial brief.  Johnson liked to race cars, drink beer, play softball and hang out with friends, and he changed for Graham when they began dating, Donahoe wrote.  Johnson started going to church and stopped most of his drinking, Donahoe wrote.

Graham may have had misgivings about getting married too young, but that doesn't prove she intended to kill Johnson, Donahoe wrote.  Federal prosecutors have mostly circumstantial evidence in their case to prove the killing was premeditated, he wrote.

Assistant U.S. Attorney Zeno Baucus wrote in his own brief that the killing was premeditated, which can be proven by circumstantial evidence.  That circumstantial evidence — or the "surrounding circumstances" before, during and after Johnson's death — is needed because Graham and Johnson were the only direct witnesses to what happened on the cliff, he wrote.  Graham had told Johnson before the wedding that she had a "surprise" planned for him later that day, Baucus wrote.

After she pushed him, she didn't call police or seek any assistance. Instead, she began sending text messages to friends, planting stories about Johnson's disappearance and talking about her dance moves, Baucus wrote.  Graham initially told investigators that Johnson had driven away with friends the night of July 7.  Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings....

In the recorded portion [of a police interview], Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier park, according to a transcript.  Graham said Johnson grabbed her arm at one point.   She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail.  "I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.

As I review these facts, it seems that there is essentially no dispute that Graham pushed her husband off a cliff to his death.  At issue at trial is only what her mens rea was at the time of this push, which in turn will determine whether she is guilty of murder, manslaughter or perhaps not guilty of any homicide charge.

Given these realities, I am eager to hear now some reader perspective on what would be appropriate sentencing outcomes if we assume the best and/or assume the worst about this defendant's mens rea.  If a jury were to conclude she was a premeditated, purposeful killer of her new husband and thus convicts this defendant of first-degree murder, do folks think an LWOP sentence would be justified?  Alternatively, if a jury concludes that the cliff push was a terrible, but still blameworthy, mistake and thus convicts this defendant of involuntary manslaughter, do folks think a short or lengthy prison sentence would be appropriate?

Previous related post:

December 9, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (26) | TrackBack

Sunday, December 01, 2013

"Death penalty for Boston bomber a complicated question"

The title of this post is the headline of this new piece from USA Today.  Here are excerpts:

The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others.  There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.

Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case.  Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....

In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty.  In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.

"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."

Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....

"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.

Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.

Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."

I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.

Some prior related posts:

December 1, 2013 in Celebrity sentencings, Death Penalty Reforms, Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, November 20, 2013

Congressman pleads guilty and gets quick resolution to local DC cocaine charge

As reported in this Washington Post article, headlined "Rep. Trey Radel pleads guilty on charges of cocaine possession," a new member of Congress discovered how quick and efficient (and humane?) government in the form of the criminal justice system can sometime be.  Here are the notable details:

Freshman Rep. Trey Radel (R-Fla.) pleaded guilty in D.C. Superior Court on Wednesday to a misdemeanor charge of possession of cocaine, after buying the illegal drug outside a restaurant in Dupont Circle late last month.

According to court documents, the first-term congressman “unlawfully, knowingly and intentionally possessed” a quantity of cocaine. Radel was charged Tuesday, following an indictment by a Superior Court grand jury.

Radel and a friend of his met an undercover agent at a restaurant in Dupont Circle at 10 p.m. on Oct. 29, prosecutors said in court. Radel asked the friend and the agent to go with him to his home. The agent declined. Radel then purchased 3.5 grams of cocaine, estimated to be worth $250, from the agent in his car.

After the transaction was made, officers stormed the vehicle, and Radel dropped the drugs. He allegedly invited the officers back to his apartment to discuss the incident. When officers went to the home, they found a vial containing cocaine.

Judge Robert S. Tignor sentenced Radel to one year on probation while he undergoes treatment in Florida. Radel said he is also seeking counseling in the District. Tignor said he took into account that this was Radel’s first offense. If Radel violates the probation, he will have to serve 180 days in jail. He also had to pay a $260 fee. His attorney had sought six months probation at the court hearing.

“Your honor, I apologize for what I’ve done,” Radel told the judge. “I hit a bottom and I realize I need help.”

“I am so sorry to be here,” he said. “I have let my constituents, my country and my family down. I want to come out of this stronger and I intend to do that, to be a better man, a better husband and continuing serving this country.”

If Radel completes probation, he won’t have a conviction on his record, according to the U.S. attorney’s office.

Radel, 37, was elected last November with 63 percent of the vote. He represents Florida’s 19th Congressional District, which includes Fort Myers, Naples, Cape Coral, Bonita Springs and Marco Island. In a statement issued after he was charged Tuesday, Radel expressed profound regret for his actions and said they stemmed in part from an addiction to alcohol. “I struggle with the disease of alcoholism, and this led to an extremely irresponsible choice,” he said. “As the father of a young son and a husband to a loving wife, I need to get help so I can be a better man for both of them . . . I know I have a problem and will do whatever is necessary to overcome it.”

Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), said the matter will be dealt with outside the halls of Congress. “Members of Congress should be held to the highest standards, and the alleged crime will be handled by the courts,” Steel said. “Beyond that, this is between Representative Radel, his family and his constituents.”

But Radel’s case will also be examined by the House Ethics Committee. House rules require the panel to launch a preliminary investigation any time a member is indicted or charged with criminal conduct.

Radel did not participate in House votes Monday evening. But he has been casting votes in recent weeks, including on the day of and the day after the alleged cocaine purchase. He recently co-sponsored a bipartisan bill to reform the nation’s mandatory minimum sentencing laws for drug offenses.

November 20, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (10) | TrackBack

Sunday, November 17, 2013

Cyber-criminal/hacktivist gets max federal sentence of 10 years after guilty plea

As reported in this Rolling Stone piece, headlined "Cyber-Activist Jeremy Hammond Sentenced to 10 Years In Prison: The hacker, who pleaded guilty in May, is given the maximum sentence by a federal judge," a high-profile on-line criminal got a big-time sentence in federal court late last week.  Here are the details and some context:

Cyber-activist Jeremy Hammond was sentenced to 10 years in federal prison ... by Judge Loretta A. Preska in a federal courtroom in lower Manhattan for hacking the private intelligence firm Stratfor.  When released, Hammond will be placed under supervised control, the terms of which include a prohibition on encryption or attempting to anonymize his identity online.

Hammond has shown a "total lack of respect for the law," Judge Preska said in her ruling, citing Hammond's criminal record — which includes a felony conviction for hacking from when he was 19 — and what she called "unrepentant recidivism." There is a "desperate need to promote respect for the law," she said, as well as a "need for adequate public deterrence."

As Hammond was led into the courtroom, he looked over the roughly 100 supporters who had shown up, smiled, and said, "What's up, everybody?"  Prior to the verdict, he read from a prepared statement and said it was time for him to step away from hacking as a form of activism, but recognized that tactic's continuing importance.  "Those in power do not want the truth exposed," Hammond said from the podium, wearing black prison garb.  He later stated that the injustices he has fought against "cannot be cured by reform, but by civil disobedience and direct action."  He spoke out against capitalism and a wide range of other social ills, including mass incarceration and crackdowns on protest movements.

The Stratfor hack exposed previously unknown corporate spying on activists and organizers, including PETA and the Yes Men, and was largely constructed by the FBI using an informant named Hector Monsegur, better known by his online alias Sabu. Co-defendants in the U.K. were previously sentenced to relatively lighter terms. Citing Hammond's record, Judge Preska said "there will not be any unwarranted sentencing disparity" between her ruling and the U.K. court's decision....

Hammond's defense team repeatedly stressed that their client was motivated by charitable intentions, a fact they said was reflected in his off-line life as well. Hammond has previously volunteered at Chicago soup kitchens, and has tutored fellow inmates in GED training during his incarceration.

Rosemary Nidiry, speaking for the prosecution, painted a picture of a malicious criminal motivated by a desire to create "maximum mayhem," a phrase Hammond used in a chat log to describe what he hoped would come from the Stratfor hack.  Thousands of private credit card numbers were released as a result of the Stratfor hack, which the government argued served no public good.

Sarah Kunstler, a defense attorney for Hammond, takes issue with both the prosecution and judge's emphasis on the phrase "maximum mayhem" to the exclusion of Hammond's broader philosophy shows an incomplete picture. "Political change can be disruptive and destructive," Kunstler says. "That those words exclude political action is inaccurate."

Many supporters see Hammond's case as part of a broader trend of the government seeking what they say are disproportionately long sentences for acts that are better understood as civil disobedience than rampant criminality.

November 17, 2013 in Celebrity sentencings, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Saturday, November 09, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

November 9, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack