Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Thursday, August 03, 2017

Distinct sentencing advice from family members for teen guilty of involuntary manslaughter for encouraging suicide

This local article, fully headlined "Conrad Roy’s aunt: Give Michelle Carter 20 years; Defendant’s dad wants probation," reports in the very different advice being given to a juvenile judge in Massachusetts in a high-profile case due to be sentenced today. Here are the details:

A grieving aunt of teen suicide victim Conrad Roy III is looking for a 20-year prison sentence for Michelle Carter tomorrow on the heels of her conviction in the blockbuster suicide-by-text case — but the girl’s worried dad is pleading for probation. “I believe she should be kept far away from society,” wrote Kim Bozzi, Roy’s aunt, in a statement she said she plans to read at Carter’s sentencing inside Taunton Trial Court.

“Take away the spotlight that she so desperately craves. Twenty years may seem extreme but it is still twenty more than Conrad will ever have,” Bozzi said in the written statement she gave to the Herald.

But David Carter, Michelle’s father, begged for probation and “continued counselling” in a July letter to Judge Lawrence Moniz. “She will forever live with what she has done and I know will be a better person because of it,” David Carter wrote in the signed letter, provided to the Herald. “I ask of you to invoke leniency in your decision-making process for my loving child Michelle.”...

The judge found that Carter caused the death of Roy, who killed himself in a Fairhaven Kmart parking lot in 2014 by filling his truck with carbon monoxide. Carter, 20, of Plainville, who had an almost entirely virtual relationship with Roy, goaded him into killing himself through a series of texts and calls. The Mattapoisett teen left the truck as it filled with deadly fumes, but according to testimony at Carter’s trial, she told him on the phone to “get back in.”

“I’m unsure when she decided to set her sick plan into motion or why, but when she did she did it relentlessly, it was calculated and it was planned down to a T,” Bozzi wrote in the victim-impact statement. “She preyed on his vulnerabilities, he trusted her, which in turn, cost him his life.” Bozzi, who attended every court appearance, told the Herald other family members are prepared to speak as well. She said Carter’s conviction was a relief and that “what happens next is up to God and a judge.”

Prior related post:

UPDATE:  Michelle Carter received a prison sentence of 2.5 years, but only half has to be actually served in prison as explained in this CNN article.  It starts this way:

Michelle Carter, who was convicted of involuntary manslaughter in the 2014 suicide of her boyfriend, was sentenced Thursday to a two-and-a-half-year term, with 15 months in prison and the balance suspended plus a period of supervised probation.

"This court must and has balanced between rehabilitation, the promise that rehabilitation would work and a punishment for the actions that have occurred," said Bristol County Juvenile Court Judge Lawrence Moniz.

August 3, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Wednesday, July 19, 2017

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Monday, June 12, 2017

Swift and sensible sentencing justice for high-profile violent crime in Montana

As reported in this local article, headlined "Greg Gianforte gets anger management, community service after admitting he assaulted reporter," a high-profile crime and criminal got a non-prison sentence for a violent crime today.  Here are some of the particulars:

Republican congressman-elect Greg Gianforte will not spend any time in jail after he admitted a charge of misdemeanor assault Monday for “body slamming” a reporter on the eve of his election. “I just want to say I’m sorry,” Gianforte told Ben Jacobs, the reporter for the Guardian that he assaulted in Bozeman at a campaign event about 24 hours before polls closed on May 24.

Gallatin County Justice Court Judge Rick West ordered Gianforte to complete 20 hours of anger management counseling and 40 hours of community service. He was given a deferred six-month jail sentence.  If he does not violate the conditions of his sentence, the charge could be dismissed.

West initially tried to give Gianforte a sentence of four days in jail, converted to two days in a work program.  Work programs, which cut the time of a sentence in half, are not an option in assault cases, however. West said he felt anger management was necessary since Gianforte, who will go to Washington, D.C., under heavy scrutiny, could not handle questions from a single reporter.

Motioning around the courtroom, he said “It’s not a lot of cameras compared to what you’re going to see at the White House.”

"It is not my intent you spend four days in jail," West said to a small courtroom packed with journalists and some other members of the public. "I do not think that would serve the community or the taxpayers." West referenced Gianforte's charitable giving in the Bozeman community and around the state when deliberating the sentence, but also said Gianforte's unprovoked attack overshadowed that....

Jacobs, wearing a suit and new pair of glasses that replaced the ones broken in the attack, read to the court from a prepared statement. He spoke quietly enough the judge had to ask him to speak up. Jacobs described the day of the attack, saying he had entered a room to ask Gianforte a question.  "I was just doing my job," Jacobs said. "Mr. Gianforte's response was to slam me to the floor and start punching me." After the attack, Jacobs said Gianforte then sent an "inflammatory public statement in which he insisted this unprovoked ... attack was somehow my fault," Jacobs said.

When pressed by the judge, Gianforte at first did not give clear details on the assault but later said he grabbed for Jacobs' phone, ended up grabbing his wrists instead and a "scuffle" ensued where both men fell to the ground....  In his apology letter to Jacobs, Gianforte wrote “Notwithstanding anyone’s statement to the contrary, you did not initiate any physical contact with me, and I had no right to assault you.”  Neither Gianforte nor his staff have clarified why a false statement was sent out after the assault....

A handful of protesters were outside the Law and Justice Center after court ended.  They held up signs saying "Lock him up," "Shame" and "Justice vs. White Christian Privilege." Jackie Crandall drove up from Roberts that morning to protest. "I think Greg Gianforte got special treatment," she said.  "If he wasn't rich and powerful, he would be in jail. If he was black, he would be in jail."

As the title of this post suggests, I think a non-prison sentence for this violent crime seems quite sensible for a remorseful first offender who seems unlikely to be on a path to criminality (even though he is on a path to Congress).

June 12, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Friday, June 02, 2017

Former Penn State administrators get a few months in jail for failing to report Sandusky sex crimes leading to child endangerment convictions

As reported in this USA Today article, "former Penn State officials Tim Curley, Gary Schultz and Graham Spanier were all sentenced to jail time Friday for failing to alert authorities to the allegations against ex-football coach Jerry Sandusky, allowing the now-convicted serial predator to continue molesting boys for years." Here is more:

All three were convicted of child endangerment. Schultz, the former university vice president, could serve a minimum of two months in jail and a maximum of 23 months. Curley, the former university athletic director, could serve a minimum of three months in jail and maximum of 23 months. And Spanier, the former university president, could serve a minimum of two months and a maximum of 12 months. All three are also poised to have house arrest after the jail time.

Prosecutors in the case argued that the ex-Penn State staffers failed as leaders and cared more about themselves and the school’s image than protecting the children. Judge John Boccabella in the case called it a “Shakespearean tragedy” and was befuddled by the former administrators lack of action. “These men are good people who made a terrible mistake,” the judge said. “Why no one made a phone call to police … is beyond me. All three ignored the opportunity to put an end to (Sandusky’s) crimes when they had a chance to do so."

“I deeply regret I didn’t intervene more forcefully,” Spanier said, expressing remorse, in reference to Sandusky’s victims. Spanier will appeal a misdemeanor of child endangerment charge that both Schultz and Curley pleaded guilty on.

Curley and Schultz also told the court they were sorry they didn’t do more. “I am very remorseful I did not comprehend the severity of the situation. I sincerely apologize to the victims and to all who were impacted because of my mistake,” Curley said. Said Schultz: “It really sickens me to think I might have played a part in children being hurt. I’m sorry that I didn’t do more, and I apologize to the victims.”

Sandusky is serving a 30 to 60-year prison term after being convicted of sexually abusing 10 boys.

June 2, 2017 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (8)

Friday, May 19, 2017

You be the federal judge: what sentence for former Rep Anthony Weiner for "transferring obscene material to a minor"?

As detailed in this New York Times article, "Anthony D. Weiner, the former Democratic congressman whose “sexting” scandals ended his political career and embroiled him in a tumultuous F.B.I. investigation of Hillary Clinton before the election, is to appear in a federal courtroom in Manhattan on Friday to enter a guilty plea." Here are more of the basics:

Mr. Weiner will plead guilty to a single charge of transferring obscene material to a minor, pursuant to a plea agreement with the United States attorney’s office in Manhattan, one of the people said. Mr. Weiner surrendered to the F.B.I. early Friday morning.  The federal authorities have been investigating reports that, beginning in January 2016, Mr. Weiner, then 51, exchanged sexually explicit messages with a 15-year-old girl in North Carolina.

The plea covers conduct by Mr. Weiner from January through March of last year, the person said.  A likely result of the plea is that Mr. Weiner would end up as a registered sex offender, although a final determination has yet to be made, the person added.

The charge carries a potential sentence of between zero and 10 years in prison, meaning Mr. Weiner could avoid prison.  The ultimate sentence would be determined by a judge.

Reports of the federal investigation surfaced in September after a British newspaper, The Daily Mail, reported that Mr. Weiner had engaged in an online relationship with the girl, which included explicit messages sent over social media and suggestive texts.

It was during the investigation that the F.B.I. seized Mr. Weiner’s electronic devices, including a laptop computer on which agents found a trove of emails to his estranged wife, Huma Abedin, a top aide to Mrs. Clinton.  That discovery led to the surprise announcement in late October by James B. Comey, then the F.B.I. director, that the bureau was conducting a new investigation into Mrs. Clinton’s handling of official email, an inquiry that ended two days before the election, with no charges brought....

The Daily Mail article said that Mr. Weiner began exchanging messages with the girl when she was a high school sophomore and that the messages indicated that Mr. Weiner knew that she was underage.  The newspaper, which did not identify the girl, said she did not want to press charges “because she believes her relationship with Weiner was consensual.” The paper said that she and her father agreed to be interviewed “out of concern that Weiner may be sexting with other underage girls.”

Mr. Weiner was forced to resign from Congress, where he represented parts of Queens and Brooklyn, in June 2011, not long after an explicit picture, sent from his Twitter account, became public.  Mr. Weiner initially claimed that his account had been hacked but eventually admitted that he had lied and that he had sent the image and had inappropriate online exchanges with at least six other women.

As the title of this post is meant to suggest, my mind reels with all the possible "relevant conduct" that could be argued for guidelines calculation purposes as well as with all the ways to characterize Weiner's "history and characteristics" for purposes of the broader 3553(a) sentencing analysis. Until I see some more details about the offense conduct to which Weiner is pleading guilty, I am disinclined to make any prediction or even a guess about what sentence I would expect Weiner will get from a federal district judge. But I can already safely predict this will be a very interesting sentencing to watch and a very challenging one for the judge.

But perhaps readers would not find it very challenging and would like to share their views in the comments. Try to keep it clear and repsectful and perhaps even funny on a Friday.

May 19, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (27)

Tuesday, May 09, 2017

Dance Mom star Abby Lee Miller gets "a year and a day" for bankruptcy fraud

Today's celebrity federal sentencing news involves former "Dance Moms" reality TV star Abby Lee Miller, whose case is covered in hard-hitting fashion here via E! Online

Two years after her indictment, Abby Lee Miller has officially learned her legal fate.  The reality star, who rose to fame on the Lifetime series Dance Moms, was sentenced to one year and one day in prison followed by two years of supervised release on Tuesday, according to several reporters in the court room.  She was also reportedly fined $40,000 and ordered to pay a $120,000 judgment. She has 45 days to report to prison.

"It's a very serious situation when someone who files for bankruptcy isn't truthful with the court," Judge Joy Flowers Conti told the reality star in court.

The 50-year-old dance instructor was initially indicted in 2015 on 20 charges of bankruptcy fraud, concealment of bankruptcy assets and false bankruptcy declarations after the FBI, IRS and postal inspectors conducted an investigation.  She allegedly hid more than $755,000 in other bank accounts, income reportedly stemming from appearances on the show in 2012 and 2013....

In June 2016, Lee Miller pleaded guilty to concealing bankruptcy assets, as confirmed to E! News. Miller also pleaded guilty to one count of not reporting an international monetary transaction. In March, she also announced she was walking away from the longtime TV series.

While appearing in court Tuesday, she told the judge she was ashamed to be meeting this way and that she wished the judge could have taken her class. Lee Miller ultimately got teary eyed as she expressed regret for her actions. "I am very sorry for what I've done," she said, according to reporters. "My name has been dragged through the mud."

Prior related post:

May 9, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

Tuesday, March 28, 2017

Federal prosecutors seeking 3-year prison terms for "Bridgegate" defendants

I have covered in a few prior posts the convictions and coming sentencing of Gov Chris Christie staffers who are now felons thanks to federal prosecutions in the wake of the so-called Briedgegate scandal.  This local article, headlined "Bridgegate: Feds seek 'meaningful' jail term for former Christie allies," reports on final filings as sentencing approaches:

Calling their crimes a "stunningly brazen and vindictive abuse of power," federal prosecutors urged a federal judge to sentence both Bill Baroni and Bridget Kelly, convicted last year in the Bridgegate scandal, to a "meaningful term of imprisonment."

But in a pre-sentence report filed Monday, the U.S. Attorney's office did not ask for the maximum term. Instead, they recommended a sentence for the two Bridgegate defendants to be "at the bottom or modestly below" the federal sentencing guidelines of between 37 to 46 months in prison.

Such a term, though, would still stand in stark sentence to the year of home confinement handed down earlier this month to David Samson, the former chairman of the Port Authority of New York and New Jersey, after he pleaded guilty to bribery in connection with the shakedown of United Airlines so he could get a more convenient flight to his country estate in South Carolina. Facing two years in jail, the former Port Authority chairman, David Samson, instead was sentenced to probation after attorneys, calling his actions a one-time lapse in judgment, asked the court to grant leniency for the ailing 77-year-old attorney, who was Christie's mentor.

Indirectly referencing the Samson ruling, the prosecutors said a sentence that could be perceived as a mere "slap on the wrist" would "send precisely the wrong message to the public, as well as to thousands and thousands of New Jersey public officials, elected and appointed."

Defense attorneys challenged the sentencing guidelines, which call for far longer prison terms than the typical corruption case, in large part because the Bridgegate convictions included charges of civil rights violations. "This sentencing is not about how much hyperbole the government can use in its sentencing brief," said Baroni's attorneys in a brief, also filed Monday. "Indeed, Bill accepts full responsibility for his actions and failure to act at a critically significant moment in his life. He will bear that cross forever, no matter (how) the court impose(s) sentence." But they asked the judge as well to "exercise the most leniency possible when tailoring a sentence based upon Bill's dedication to the altruistic service of others."

Both Baroni and Kelly are seeking a probationary sentences. "A non-custodial sentence including probation, home confinement and community service as punishment, is an appropriate sentence for Bridget Kelly," said her attorney, Michael Critchley.

Prosecutors said the defense challenges should be denied. "Defendants like Baroni and Kelly, who have had the opportunity to do good work and build relationships with influential people, are not entitled to a get-out-of-jail-free card, particularly for serious crimes," they wrote.

The two former members of Gov. Chris Christie's inner circle are scheduled to be sentenced on Wednesday....

"Baroni and Kelly took all of these actions for the pettiest of reasons: to punish a local mayor and send him a nasty political message because he did not endorse Gov. Christie for re-election," wrote assistant U.S. attorneys Vikas Khanna, Lee Cortes Jr. and David Feder in a 55-page brief. "Nothing about Baroni's and Kelly's actions or motivations in committing these crimes mitigates their conduct." At the same time, they cited the "complete lack of remorse for their wrongful conduct."

The self-admitted architect of the scheme, David Wildstein, a former political blogger and friend of the governor who landed a patronage job at the Port Authority, testified against Baroni and Kelly. He pleaded guilty and is awaiting sentencing.

Prior related posts:

March 28, 2017 in Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Friday, March 24, 2017

Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal

As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):

After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.

Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.

Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.

Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.

Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.

Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.

Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.

Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."

Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence.  But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).

I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor."  This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.

March 24, 2017 in Celebrity sentencings, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, January 18, 2017

Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning

Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7.  But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:

January 18, 2017 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, December 19, 2016

Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner

This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:

A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.

The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.

“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously.  Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.

The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline.  First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification. 

Some (of many) prior related posts on the Brock Turner case:

December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 15, 2016

Unsurprisingly, Dylann Roof gets convicted on all counts by federal jury

As this extended USA Today article reports, a federal "jury in the trial of Emanuel AME Church shooter Dylann Roof on Thursday found Roof guilty of 33 counts, including hate crimes after two hours of deliberations." Here is more:

The verdict came about an hour after they asked to look at a video of his confession, expressing interest in his statements that he didn't know how many people he had shot. The jury of eight white females, one white male, two black females and one black male was sent out initially a little after 1 pm, then recalled to clarify a legal instruction by the judge....

Closing arguments in the guilt phase of the trial ended late Thursday morning. Dylann Roof's chief defense lawyer told the jury that the most important question in the 2015 murders of nine black parishioners is why and he pointed to Roof's internet exploration of racial crimes as an explanation. "That is the why as far as the evidence shows," David Bruck told the jury.

But government prosecutors told the jury there was no mystery to Roof's motivation, which they said stemmed from racial hatred so immense that he was willing to shoot innocent people as they prayed in a church and lay wounded on the floor.

Roof's lawyers called no witnesses when testimony ended this week and Roof has indicated he will take over his defense in the sentencing phase if he is found guilty. Bruck did not contest the evidence in his closing arguments and even offered praise for the FBI's probe in the case. He focused instead on what motivated Roof, sowing seeds of doubt about his intent, an argument that might be useful if jurors deliberate his sentence....

U.S. District Judge Richard Gergel sustained multiple objections from prosecutors during Bruck's closing, as he did during the opening of the trial when prosecutors felt Bruck was attempting to take jurors to the penalty phase of the trial before Roof's guilt was decided. One of the objections came after Bruck attempted to discuss Roof's mental status, a discussion that Gergel said should take place during a penalty phase.

The penalty phase of this trial is due to take place in January.

December 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, November 22, 2016

"Trump will not pursue charges against Clinton, aide says"

The title of this post is the headline of this new FoxNews piece, which reports these details:

President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.

In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.

The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....

Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.

Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State. 

UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."

November 22, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (20)

Tuesday, November 15, 2016

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Monday, November 07, 2016

Focus on the federal death penalty as capital trial begins for Charleston mass murderer Dylann Roof

Today marks the start in Charleston, South Carolina of the highest-profile federal capital trial since the death sentencing of the Boston Marathon bomber.  Here are some local and national stores/headlines providing some context and a sense of what to expect in the courtroom:

Meanwhile, for those unsure what some in the traditional media think about this capital case, here are links to a recent Los Angeles Times editorial and a New York Times op-ed arguing against capital punishment even in this case of mass murder in which there is no doubt about guilt:

November 7, 2016 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, November 04, 2016

"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations

As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories.  And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much.  These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:

Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.

Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.

The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.

Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid.  Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee."  Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....

Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.

Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.

I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.

November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, August 09, 2016

As federal prosecutors urged, former Gov Blagojevich resentenced to same 14-year prison term despite a few vacated convictions

As reported in this Wall Street Journal piece, a "federal judge on Tuesday refused to reduce a 14-year prison sentence handed down to former Illinois Gov. Rod Blagojevich" at his resentencing. Here are more details on why and how Blago was resentenced earlier today:

“The fabric of this state is torn,” said U.S. District Judge James Zagel, adding that “the fault lies with the governor and no one else” for his lengthy sentence. The former governor, 59, now will have 10 years left to serve of his prison sentence.  Mr. Blagojevich — appearing via video feed from a prison in Colorado with his once-black hair turned grayish-white — appeared stunned and shook his head as the judge delivered his decision.

Mr. Blagojevich had appealed for a reduced sentence of just five years after an appeals court last year threw out five of the original 18 counts for which he was found guilty. In court on Tuesday, his lawyer Len Goodman argued that his case was “significantly different” after the appellate court’s ruling. Mr. Goodman also argued that Mr. Blagojevich wasn't acting inappropriately for personal gain, but to acquire political muscle and therefore should serve a shorter sentence.

“He never took a bribe,” said Mr. Goodman, speaking in court. “He bought his own clothes; he bought his own baseball tickets.” Mr. Blagojevich, speaking to the court via a blurry video feed, apologized for his mistakes and for his actions in his time as governor. “I recognize that it was my words and my actions that have led me here,” he said, with his family present in court. “I’ve made mistakes and I wish I had a way to turn the clock back.”...

Both his children addressed the court Tuesday, saying that their father was a good man and that their family was suffering greatly from his absence. They both broke down in court upon hearing the judge’s sentence. Mr. Goodman also submitted a series of letters to the court written by prisoners who were serving time with Mr. Blagojevich, all of whom said he was an inspiration who was helping them through their sentences and teaching them useful skills, including how to prepare for a job interview.

Judge Zagel said that Mr. Blagojevich’s good behavior in prison was “not especially germane” to his decision and that the same circumstances remained from when he rendered the sentence in 2011.

Speaking after the sentencing, Patti Blagojevich, the former governor’s wife, said that his family finds the sentence “unusually cruel and heartless and unfair.”

“I am dumbfounded and flabbergasted at the inability of the judge to see that things were different” than before, she said.

I would assume that the former Gov may now appeal this newly-imposed 14-year prison term. Depending upon how the full sentencing record now shapes up, it seems at least possible that a Seventh Circuit panel might give a hard look at the reasons given by the district judge here for not changing the sentence at all this time around.

Some older related posts on the Blagojevich case:

August 9, 2016 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (7)

Wednesday, July 27, 2016

John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity

As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday."  Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:

U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.

In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.

The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.

Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.

If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.

Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.

Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.

The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.

On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.

Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.

The full 103-page opinion in US v. Hinckley is available at this link.

Some prior related posts:

July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, July 12, 2016

Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions

As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:

Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.

Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.

“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”

Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.

“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”

Some older related posts on the Blagojevich case:

July 12, 2016 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Thursday, July 07, 2016

Sharp criticisms of bladerunner Oscar Pistorius being sentenced only to six years for murdering his girlfriend

A high-profile defendant, Oscar Pistorius, was resentenced this week after the South Africa's Supreme Court of Appeal had concluded he should be convicted of murder and not just manslaughter for shooting girlfriend Reeva Steenkamp. Regular readers may recall the trial judge seemed to accept his self-defense claims when first giving him only a five-­year sentence. This time around, the sentence only was increase by a year, and more than a few commentators have expressed disappointment in this result:

My complete ignorance about South African sentencing laws, procedures and practices lead me to be unable to comment intelligently on either the Pistorius resentencing or these sharp reactions to it.  But this case provides still more evidence that sentencing outcomes, especially for high-profile figures, are often controversial no matter where in the world they take place.

Prior related posts:

July 7, 2016 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

Tuesday, July 05, 2016

Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?

James-comey-fbi-director_29603_ver1.0_1280_720Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing.  In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.

I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email."  As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System."  It includes these key passages:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....

While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....

In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

UPDATE:  The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement: 

July 5, 2016 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Sunday, July 03, 2016

"Utah Senator Meets Inmate Who Inspired Sentencing Law Rewrite"

Lee_BC_236_062916The title of this post is the headline of this recent Roll Call article reporting on a notable meeting between a prominent advocate for federal sentencing reform and a prominent (former) "poster child" defendant representing the need for reform. The article includes a short video, and here are excerpts of a story that seems worth profiling on a weekend for celebrating US freedoms:

Sen. Mike Lee has told the story of Weldon Angelos’ prison term hundreds of times, describing the 55-year sentence over three marijuana sales in 72 hours as “crazy” and “nuts.”

An improbable set of events brought the two men together Wednesday in the Utah Republican's office on Capitol Hill. The recently freed Angelos hugged the lawmaker who made him a living symbol of the push to overhaul the nation’s sentencing laws.

“I’ve been telling his story a lot,” Lee said during the meeting. “A lot of the time I was telling this good story, I would sit there and wonder, actually, I wonder if he’s going to care if I’m using his name this frequently.”

“But your story was very helpful in explaining to people why we need this legislation and why we need to reform the law,” Lee told Angelos, who has two sons, ages 19 and 17, and a daughter, age 13.

Angelos, 36 and the founder of a hip-hop music label, said he met others in prison with unjust sentences. He plans to tell his story himself in Washington in support of the bipartisan bill. The legislation appears unlikely to pass in this election-shortened year, and amid disagreements among Republicans in both chambers.

“It kept me together, and my family,” Angelos said to Lee. “Your support was amazing and I just wanted to come here and thank you personally for supporting me and your commitment to criminal justice reform.” Lee has credited Angelos' case, which has attracted national attention, for sparking his work to change sentencing laws.

The legal action that freed Angelos on May 31 is somewhat mysterious and extraordinary. There is recent action in his court case — but no sign of a judge’s order releasing him. Lee said President Barack Obama set in motion a way to reopen the case and seek his release.  It wasn’t a commutation or pardon but “another type of action,” Lee said.  The senator, a former assistant U.S. attorney, is among dozens of people who have urged Obama to commute Angelos’ sentence, including former U.S. District Judge Paul Cassell, who sentenced Angelos.

That shows what a lot of extra attention on a case can accomplish, said Molly Gill, government affairs counselor for Families Against Mandatory Minimums, a group that flew Angelos to Washington this week and is working to end the types of sentencing laws that resulted in his sentence. “But it also shows there are a lot a people who don’t have and are never going to have that level of support,” Gill said.

Lee said Angelos’ release does not undercut the need for the legislation, since there are others out there who can’t get relief like Angelos. “We know there’s more to be done,” Lee said. A provision in the bill would prevent prosecutors from stacking mandatory minimum sentences related to certain gun possession crimes together in one case. It would reduce that mandatory minimum sentence from 25 years to 15 years.  It would also allow judges to reduce the sentence for prisoners who are in Angelos’ situation.

Angelos was a first-time offender who was arrested in 2002 after Salt Lake City police set up controlled drug deals between Angelos and a confidential informant.... A jury convicted him of 13 charges, including three counts of possession of a gun in furtherance of a drug trafficking crime. Angelos in 2004 received a five-year mandatory minimum sentence for the first charge of possession of a firearm in furtherance of a drug trafficking crime; a consecutive 25-year sentence for the second, and another consecutive 25-year sentence for the third, FAMM said.

After nearly 12 years in federal prison, Angelos was surrounded Wednesday by the dark wood and art in Lee’s office. “It’s just overwhelming,” Angelos said. “I feel like I’m in a dream.”

Prior related post:

July 3, 2016 in Celebrity sentencings, Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (6)

Wednesday, June 15, 2016

Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions

I am generally somewhat hesitant about lambasting a judge's sentencing decision when I have only limited information about the case, and I often wonder whether others' quick to critcize a particular decision have reviewed all the key evidence before going on the attack.  Relatedly, I am uniquely interested in the views and criticisms of a sentening decision lodged by anyone who was intimately involved in the case, and thus I find distinctly noteworthy this new report about new criticisms of the controversial Brock Turner sentencing.  The article is headlined "Juror slams judge in Stanford rape case, calls sentence 'a mockery' amid recall push," and here is how it gets started:    

The judge who sentenced Stanford University swimmer Brock Turner to six months in jail for sexual assault is continuing to face criticism for his decision. The effort to recall Santa Clara County Superior Court Judge Aaron Persky has gained steam, with several political groups vowing to raise money for the campaign.  Two veteran Democratic political consultants, Joe Trippi and John Shallman, decided Thursday to join the effort to force a recall election.

Then, one of the jurors who convicted Turner of sexual assault wrote a letter to Persky. The juror wrote of being “absolutely shocked and appalled” at the sentence.

“After the guilty verdict I expected that this case would serve as a very strong deterrent to on-campus assaults, but with the ridiculously lenient sentence that Brock Turner received, I am afraid that it makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape,” the juror wrote to Persky.  “Clearly there are few to no consequences for a rapist even if they are caught in the act of assaulting a defenseless, unconscious person,” the juror wrote in the letter, which was obtained by the Palo Alto Weekly [available here].

Prior related posts:

June 15, 2016 in Celebrity sentencings, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, June 12, 2016

Now a murderer, Oscar Pistorius facing resentencing

Tdy_rossen_oscar_150819.nbcnews-ux-1080-600This new AP article, headlined "A Glance at Oscar Pistorius's ReSentencing, Now for Murder," details the high-profile resentencing scheduled for this coming week in South Africa. Here are excerpts:

Oscar Pistorius is going back to jail. The only question now is for how long? It could be 15 years. The double­amputee Olympic runner's sentencing hearing opens Monday after he was convicted of murder by South Africa's Supreme Court of Appeal for shooting girlfriend Reeva Steenkamp.

It'll be the second time Pistorius has been sentenced for the killing following an appeal by prosecutors. The three-­year legal saga that began with the fatal gunshots in the pre­dawn hours of Valentine's Day 2013 now appears to be near its end....

Pistorius was initially convicted of the lesser charge of culpable homicide, or manslaughter, at his 2014 trial for shooting Steenkamp through a closed toilet door in his home. He testified he mistook the model and reality TV celebrity for a nighttime intruder hiding in a bathroom, and shot with his 9mm pistol in self­defense fearing an attack. The trial judge accepted part of Pistorius' story, and he was given a five­year jail sentence based on the judge's ruling that he acted recklessly, but didn't mean to kill. After serving a year in jail, Pistorius was released on parole in line with South African procedure and has been living under house arrest at his uncle's mansion since October last year.

But following Pistorius' manslaughter verdict, prosecutors appealed to the Supreme Court, saying that the former star athlete, a multiple Paralympic champion, should have been found guilty of murder. They argued that Pistorius intended to kill someone — even if he didn't know it was Steenkamp in the toilet cubicle — when he shot four times through the door with no justification.

In December, a panel of Supreme Court judges agreed with prosecutors, overturned Pistorius' manslaughter conviction, and raised it to a more serious murder conviction. Pistorius must now be sentenced for murder. Supreme Court Justice Lorimer Leach said: "The accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent."...

15 years in prison [is] the minimum sentence for murder in South Africa, which no longer has the death penalty. Legal experts say a judge can reduce that sentence in some circumstances, and that Pistorius' disability and the fact that he is a first-­time offender could be taken into account. He has also already served a year in prison. Pistorius will return to the same courthouse in Pretoria where his dramatic seven­month murder trial played out in 2014 to be sentenced again.

The hearing has been scheduled to last a week and Pistorius' punishment will again be decided by Judge Thokozile Masipa, who acquitted him of murder at his trial but had her decision overturned by the Supreme Court....

After his conviction was changed to murder by the Supreme Court last year, Pistorius appealed to South Africa's highest court, the Constitutional Court, to review his case. The Constitutional Court dismissed that appeal in March and Pistorius now has no chance of escaping the murder conviction.

Prior related posts:

June 12, 2016 in Celebrity sentencings, Sentencing around the world | Permalink | Comments (0)

Thursday, June 09, 2016

Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle

A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:

Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence.  For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”

Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range.  Scott, 555 F.3d at 610.  The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required.  And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts.  Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies.  The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.

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June 9, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Friday, May 20, 2016

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

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May 20, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, May 03, 2016

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.

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May 3, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Wednesday, April 27, 2016

Former House speaker gets black hole of federal prison for 15 months after sentencing supernova

In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:

Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.

Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”

Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.

Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.

Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.

The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.

Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”

Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”

April 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, April 21, 2016

"Slimy Sheldon Silver should serve substantial slammer stint, sentencing statement says"

An awesome, amusing, amazing alliteration about prosecutors' potent politico punishment proposal after federal fraud findings made for too good a title for me not to reuse the headline of this New York Daily News piece.  Here are the serious senetencing specifics:

Disgraced ex-Assembly Speaker Sheldon Silver should serve more than 14 years behind bars for corruption — a longer term than any other state pol convicted of similar crimes, federal prosecutors argued Wednesday.

Silver, a Democrat convicted last November on seven corruption counts, should serve a sentence that reflects the “unprecedented magnitude, duration, and scope of his abuse of power,” Manhattan federal prosecutors said in the sentencing memo.

“It should reflect the immeasurable damage Silver caused to the democratic process and to the public trust. It should punish Silver for the vast harm he has caused and the position of trust that he exploited, deter other elected officials from the temptation towards corruption, and communicate to the public that the rule of law applies even to the most prominent of public officials.”...

Sentencing guidelines for Silver suggest a range from 262 to 327 months — that’s between 22 and 27 years — in a federal lockup. “The guidelines range is high because the United States Sentencing Commission explicitly has recognized the ‘threat to the integrity of democratic processes’ caused by public corruption offenses,” the feds wrote.

Manhattan U.S. Attorney Preet Bharara’s office also said the hefty suggestion stemmed from “the many egregious aspects of the defendant’s crimes — including Silver’s role as a high-level public official, his engagement in multiple corrupt schemes, the millions of dollars in bribe money Silver took in, and his laundering of his crime proceeds.”

Bharara wants Silver, 72, to forfeit the $5.2 million he pocketed in the scheme and cough up “a substantial fine of at least $1 million is appropriate in this case, particularly in light of the defendant’s significant remaining resources and his more than $70,000-per-year pension, paid for by New York State taxpayers.”

Silver’s lawyers maintain in their sentencing memo that Manhattan Federal Judge Valerie Caproni should consider “a term of rigorous community service — whether as an alternative to incarceration, or as a component of an appropriate below-guidelines sentence” due to his age and poor health. "One letter after another — written with full awareness of the jury's verdict - from Mr. Silver's constituents, neighbors, friends, family, fellow Assembly members, and other government officials attest to his outstanding character and unrivaled contributions," they wrote in the memo, filed Wednesday.

Silver's lawyers went on to quote a key staffer who said that Silver "acted with integrity and exhibited a deep, consistent commitment to issues that he felt best served the public interest." They also quoted former Mayor David Dinkins as saying, "Mr. Silver has shown himself to be a person of integrity, committed to working in partnership on the side of New York City's citizenry."

April 21, 2016 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, April 20, 2016

Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case

Dt.common.streams.StreamServerAs reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:

Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.

The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.

The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.

On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.

Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.

The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.

Kenneth Bowen: originally 40 years, now 10 years.

Robert Gisevius: originally 40 years, now 10 years.

Robert Faulcon: originally 65 years, now 12 years.

Anthony Villavaso: originally 38 years, now 7 years.

Arthur Kaufman: originally 6 years, now 3 years.

The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.

April 20, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Saturday, March 26, 2016

Wouldn't (severe? creative?) alternatives to incarceration be the best response to animal cruelty convictions?

Peace_love_stop_animal_abuse_postcard-r136275981620429394a9c237e5c49925_vgbaq_8byvr_324The question in the title of this post is prompted by this local story of a high-profile sentencing of a high-profile defendant convicted of multiple misdemeanor counts of animal cruelty. The piece is headlined "Former Raven Terrence Cody sentenced to nine months in Baltimore County animal cruelty case," and here are the details:

Baltimore County judge sentenced former Ravens player Terrence Cody on Thursday to nine months in jail in an animal cruelty case that drew interest across the country. Cody, 27, was convicted in November of multiple misdemeanors in connection with the death of his dog, Taz, last year, as well as two misdemeanor drug charges.  Prosecutors said Taz starved to death.

Cody faced the possibility of more than two years of incarceration. More than 5,000 people signed an online petition urging Judge Judith C. Ensor to impose the maximum sentence. Ensor said that she did not discount the petition but that she had to make an independent decision based on the case.  "My responsibility is to listen and to make the best decision I can," she said at the sentencing hearing.

Defense attorney Joe Murtha acknowledged that Cody neglected Taz but said that Cody loved the animal and didn't intend for it to die. He said that Cody was emotionally incapable of caring for the dog and that he suffers from depression.  "His level of depression is so significant that he's become just isolated," said Murtha, who added that his communication with his client has been limited because of Cody's depression.

Prosecutor Adam Lippe discounted the idea that Cody was depressed. He argued for the maximum amount of jail time — 905 days.  "I'm sure every defendant awaiting sentencing is depressed," Lippe said.

Lippe said during the trial that the dog starved to death at Cody's former home in Reisterstown over a period of at least a month. Cody testified at the trial that he believed Taz was suffering from worms.

Cody spent $8,000 to buy and import Taz, a Canary mastiff, from Spain. He took the animal to a Reisterstown animal hospital a few hours before it died. The dog, which once weighed at least 100 pounds, was down to less than 50 pounds at that point. Cody — whose nickname at the University of Alabama was Mount Cody — was drafted by the Ravens as a defensive lineman in 2010. The team released him when he was indicted last year.

After the trial last year, Cody was acquitted of two felony counts of aggravated animal cruelty. Ensor, who presided over the bench trial, said Thursday she was convinced that Cody did not torture Taz intentionally. "I remain firm" in that belief, she said.

The judge also sentenced Cody to probation before judgment for illegally possessing an alligator and for possessing drug paraphernalia. Police found a gas-mask bong and a 6-foot-long green glass bong in the home. She imposed suspended sentences for several counts, including a marijuana charge. She also sentenced Cody to 18 months of supervised probation and said he must undergo mental health treatment. During the probation period, he is not allowed to own or possess an animal. Cody will serve the sentence at the Baltimore County Detention Center in Towson.

Cody's girlfriend, Kourtney J. Kelley, 28, was also convicted in the animal cruelty case. She was sentenced last month to 60 days and has since been paroled. She was found guilty of five counts in connection with neglecting Taz. Cody, wearing a black hoodie and jeans, briefly addressed the court, saying he accepted responsibility. He also said he believed Kelley should not have been punished in the case....

Lippe said he was satisfied with the sentence. He said Cody had other dogs that were "fat and happy," but for some reason he treated Taz differently. "I can't explain to you why he decided to kill this animal," Lippe said. "It makes no sense at all."

I am huge aminal lover within a family which has always cared greatly about pets both usual (e.g., my dog and cat are hanging with me as I type this) and unusual (e.g., I have a bunch of parrot, angel fish and hermit crab stories).  Consequently, I fully understand how emotional so many folks get about animal cruelty and why there is often strong support for imposing the harshest possible sentences on those persons who get convicted of animal cruelty crimes.  

Nevertheless, as the question in the title of this post suggests and to parrot the words of the local prosecutor in this case, it really makes so sense at all to me to view lengthy terms of incarceration as the most efficacious response to these sorts of crimes.  Specifically, to focus on this case, did prosecutor Adam Lippe really think the citizens of Baltimore would be better off if former NFL player Terrence Cody served nearly 3 years in a local jail (at significant taxpayer expense) rather than, say, spending the next few years trying to get back into the NFL to make large sums of money that could be donated to animal protection societies or working publicly on helping animals as a part of community service program? 

I fully understand the potential incapacitative benefits of incarceration for dangerous people with a history of seriously risky or harmful behaviors.  But unless there is strong reason to believe Terrence Cody is a real danger to others, I think the the citizens and animals of Baltimore could and would be much better served through severe and creative alternatives to incarceration in a case like this.  But, problematically in the US and as part of our transformation into "incarceration nation," it seems that nearly all prosecutors and most members of the general public embrace the notion that the only way to be tough is through extended (and costly) periods of incarceration.

March 26, 2016 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, December 29, 2015

Interesting Texas state sentencing realities surrounding the future sentencing of 'Affluenza' teen and his fugitive mother

I tend not to blog too much about sentencing stories that are already seemingly getting too much attention in the traditional media. Ergo, I have not recently posted about the fugitive status of Ethan Couch. Couch is the Texas teen who had 15-minutes of infamy in early 2014 when, after having killed four people in a drunken-driving crash, received a 10-year probation sentence from a juvenile judge who may have been influenced by a defense psychologist's statement that Couch suffered from "affluenza" as a rich kid whose parents did not set any limits on him. But now Couch has been caught while on the run in Mexico with his mother, and this new CNN article highlights some interesting sentence aspects concerning what he and his mother are facing under Texas law.

The CNN piece is headlined "'Affluenza' teen caught, but will he get off easy?", and here are excerpts that spotlight some Texas state sentencing details that strike me as now quite interesting:

Will Ethan Couch, the "affluenza" teen, get off lightly again?, Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years probation for a 2013 drunk driving crash that killed four people.

Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy.

As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday. The district attorney explained the dilemma she faces at a news conference Tuesday:

• Ethan Couch was sentenced as a juvenile and violated his probation as ordered by juvenile court system.

• Under Texas law, Couch, now 18, would be punished for his violation in the juvenile system.

• The maximum sentence that a juvenile judge can dish out for a violation of his juvenile probation is imprisonment in a juvenile facility until Couch turns 19, which is April 11, 2016.

• The DA wants to transfer Couch's sentence to adult court. But since this violation happened in the juvenile system, Couch effectively would start with a clean slate in the adult probation system. That is, the adult court judge could not punish Couch for violations he committed as a juvenile.

• At the time a judge reassesses Couch's probation in the adult system, he has the power to put Couch in adult jail for a maximum of 120 days.

The 120 days in jail won't please those who think Couch deserves worse, but as the facts stand now, it is what the law allows. If Couch ends up on adult probation, Wilson said, and violates it as an adult, he could face up to 40 years in jail. Couch could also find himself behind bars for longer if he is found to have committed any new crimes and is charged and convicted as an adult for those crimes.

Ethan Couch's mother, Tonya Couch, has been charged with hindering the apprehension of a juvenile, and if convicted, faces between 2 and 10 years in jail, Wilson said. It's tough to explain the legal maze that stands to benefit Ethan Couch in the form of a light punishment for violating his probation.

The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."...

Couch is wanted by authorities in Tarrant County, Texas, for allegedly violating his probation. His mother, Tonya, was listed by Texas authorities as a missing person after her son's disappearance, and the authorities said they believed she was assisting him.

A warrant was issued in mid-December for Couch to be taken into custody after his probation officer couldn't reach him. He appears to have dropped off the radar after a video emerged that allegedly showed him at a party where alcohol was being consumed, according to authorities. Couch had been ordered to stay away from drugs and alcohol for the duration of his sentence probation.

His sudden disappearance reignited controversy over his case, which attracted widespread attention after a psychologist testified that Couch, who was 16 at the time of the crash, suffered from "affluenza," describing him as a rich kid whose parents didn't set limits for him. His lawyers argued that his parents should share some of the blame for the crash.

Prosecutors had requested that Couch be sentenced to 20 years behind bars. The juvenile court judge's decision to put him on probation for 10 years instead of sending him to prison outraged victims' families It also prompted many observers to question the term "affluenza," which isn't recognized as a medical condition in any formal sense. G. Dick Miller, the psychologist who said the word at the trial, later said he wished he hadn't used it.  And Couch's lawyers have criticized what they say is the news media's narrow focus on the term in relation to his case.

As some regular readers know, I have long been troubled by and long complained about what I perceive as unduly lenient sentences too often handed out for serious and repeat drunk driving offenses. For that reason (and others), this high-profile sentencing case has always annoyed me because it seemed to me it was more reflective of our society's general tendency to treat drunk driving offenders too leniently than reflective of a tendency to give special breaks to serious crimes committed by rich white kids with lenient parents (though I certainly believe the general impact and import of rich white privilege at sentencing also merits attention).

Prior related posts around Couch's initial sentencing:

December 29, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7)

Wednesday, December 09, 2015

Jared Fogle's partner in sex crimes scheduled for sentencing

This Indianapolis Star article, headlined "Russell Taylor turns on Jared Fogle as he awaits sentencing," reports at length on the sad sorted backstory for this week's federal sentencing of the crime partner of a high-profile federal sex offender. Here is how the extended article gets started:

Russell Taylor and Jared Fogle had much different backgrounds, but their lives became intertwined to the point that people started calling them "an old married couple." Fogle was sent to prison last month for more than 15 years on child pornography charges, and Taylor will stand before the same federal judge Thursday to learn his fate.

While degrees of depravity for child pornographers might be hard to accept, the man leading the prosecution used his toughest designation on Taylor. "In every respect, he's a monster," Assistant U.S. Attorney Steven DeBrota said at Fogle's sentencing. But, DeBrota added, Taylor is a monster Fogle helped create.

The sentencing in U.S. District Court for the Southern District of Indiana marks the end of a shocking Hoosier child pornography case that attracted international attention because of Fogle, the former Subway sandwich pitchman.

Taylor, who headed Fogle’s charitable foundation from 2009 until his arrest in April, has agreed to plead guilty to 12 counts of producing child pornography and one of distributing. The production charges involve images of a dozen children between the ages of 9 and 16, including family members, that Taylor secretly recorded in his home and then shared with Fogle.

As part of a plea deal, prosecutors are asking for a sentence of 35 years, while Taylor’s attorneys want a prison term of 15 to 23 years. Taylor has been in jail since his arrest. The length of Taylor’s sentence will be decided by Judge Tanya Walton Pratt, who is not bound by terms of the plea agreement.

Under federal law, Taylor faces a minimum sentence of 15 years. The maximum is 380 years if Pratt issues the longest sentence on all counts — 30 years for each count of production, 20 years on the distribution count — and orders them to be served consecutively, not concurrently.

The sentencing will close the door on the criminal case. Yet questions will linger, including why nobody, especially Taylor's wife, knew or intervened until an Indianapolis woman alerted police in September 2014 to Taylor's interest in child pornography and bestiality.

The facade of Fogle and Taylor promoting healthy lifestyles and helping young people came crashing down months later, revealing two married fathers who sought out strippers and prostitutes, drank heavily and dove into the seamy world of child pornography with virtually no level of depravity too taboo. They were, literally, partners in crime.

The prospect of growing old in federal prison, however, brought an acrimonious end to what Taylor described as a “12-year run” in which he and Fogle lived the high life, traveling the world and meeting celebrities — while carrying on debauched double lives. Since their arrests earlier this year, Taylor and Fogle have turned on each other, admitting their own guilt but attempting to minimize their roles and cast the other as more reprehensible.

The rise and fall of the men is detailed in hundreds of pages of court records from the two criminal cases. How much of their stories are true is hard to tell. Both men were desperately maneuvering to avoid long prison sentences when they submitted their version of the facts to the judge.

December 9, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (0)

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