Sunday, July 14, 2013

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

July 14, 2013 in Blakely Commentary and News, Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack

Thursday, July 11, 2013

With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution?

I have a strong feeling that lots of readers have lots of strong feelings about the on-going George Zimmerman trial.  As is my tendency, I do not post much (or even think much) about high-profile cases unless and until their is a conviction and a sentencing proceeding in the works.  But perhaps there are insights to draw from the Zimmerman-Martin events and subsequent prosecution even before we get any verdicts, and I thought it might be valuable to provide this opportunity for readers to express any such insights.

I will be off-line much of the day, so I hope commentors will try real hard to keep comments respectful and on-point, while also still feeling free to express genuine opinions and perspectives.

July 11, 2013 in Celebrity sentencings | Permalink | Comments (42) | TrackBack

Tuesday, July 02, 2013

Does postponement of Jacksons' sentencing suggest big rulings are in the works?

High-profile white-collar federal sentencing proceedings always intrigue me, especially when they involve a cocktail of dynamic doctrinal and policy issues as is the case in the upcoming sentencings of former Rep. Jesse Jackson Jr., and his wife Sandi. But , as reported here by the Chicago Tribune, it now appears we will have to all wait a bit longer for the Jacksons' day of sentencing reckoning:

The South Side Democrats had been scheduled to learn their fates Wednesday, until the delay was announced by U.S. District Judge Amy Berman Jackson, who is not related to the pair.  A court spokesman said neither the prosecution nor defense asked for the postponement.

"The matter was rescheduled to accommodate the court's schedule and workload — neither side requested a continuance," said Jenna Gatski, a spokeswoman for the U.S. District Court.

Jackson Jr. pleaded guilty to misusing about $750,000 in campaign cash. Sandi Jackson, a former Chicago alderman, pleaded guilty to failing to report about $600,000 on income tax returns over several years.

The postponement was announced after a telephone conference call between the judge and the Jacksons, the court said. Bill Miller, a spokesman for the U.S. attorney for the District of Columbia, said the sentencings would not take place this week.

Jackson Jr., 48, faces 46 to 57 months in prison under federal sentencing guidelines, which are not mandatory. His lawyers want a sentence lower than what the guidelines suggest and assert that Jackson Jr., who reportedly has bipolar disorder, could not get proper medical care in prison. Federal prosecutors want him to serve a four-year sentence and to be placed on supervised release for three years after that.

Sandi Jackson, 49, faces one to two years in prison. Her attorneys want her sentenced to probation, saying the couple's two children, ages 9 and 13, need their mother. Prosecutors want her imprisoned for 18 months and put on supervised release for a year.

The question in the title of this post is my reaction to report that neither side sought a postponement and the indication that the change was "to accommodate the court's schedule and workload."  I would be very surprised if Judge Amy Berman Jackson had a trial or lots of other litigation matters crop up in the middle of this summer holiday week; reading these latest tea leaves now has me wondering (and weirdly excited) that this postponement is based in part on the judge's plans to issue a significant written opinion on federal sentencing law, policy and practice along with her sentencing ruling. (Or maybe the judge just has tickets to see Bryce Harper back playing again for the Washington Nationals during their homestand this week, and she decided it was more fitting to catch a baseball game than to deprive liberty right before we all celebrate Independence Day.)

Related posts:

UPDATE:  This local article now reports that the Jacksons' sentencings have now been set for August 14.

July 2, 2013 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, July 01, 2013

"Will the Jacksons get a slap on the wrist, or will their heads be mounted?"

The question in the title of this post is the headline of this recent Chicago Tribune commentary, which gets to the heart of the highest-profile federal sentencing story for the coming holiday week.  This commentary was authored by John Kass, and he makes a sassy argument for throwing the book at the Jacksons.  Here is how his commentary gets started:

The two stuffed elk heads of Chicago politics — former U.S. Rep. Jesse Jackson Jr. and his wife, former Ald. Sandi Jackson — are scheduled for sentencing in their corruption and tax cases on July 3.

Our government often delivers bad news at the beginning of a three-day weekend, or before a long holiday like the Fourth of July, so that we taxpayers will have something else on our minds.

So what am I worried about in this case?

That Jackson Jr. gets a light kiss on the wrist and a mere few months at a Club Fed, and that upon his release, he and his father, the Rev. Jesse "King of Beers" Jackson — the hustler who made his career playing the race card — decide to open a restaurant. With Paula Deen.

What should they call it? Butter & Bud.

Prosecutors are asking for four years for Junior, and 18 months for his wife. And although all cases are different, let's not forget another case involving a guy they knew: Former Gov. Rod Blagojevich. He's rotting in prison.

It was Blagojevich who was convicted of trying to sell the U.S. Senate seat that once was held by President Barack Obama. Now Blago is sitting on 14 years. And who was supposed to be the beneficiary of the deal? None other than Stuffed Elk Head No. 1, Jesse Jackson Jr.

But Jackson wasn't charged. He walked away from it, cocky, until, finally, he was hoisted on the horns of his own elk head. Those absurd his-and-hers stuffed elk heads were just two of many ridiculous items the Jacksons purchased when he pilfered $750,000 from his campaign fund.

Most was junk, from the Michael Jackson fedora to shiny wristwatches and jewelry, a list of ostentatious nonsense demonstrating appallingly bad taste. What frosts most of us is that when he was finally caught, Jackson's camp explained it all away by saying he suffered from a bipolar condition.

Yes, he may be ill. But isn't it remarkable that crooked politicos seem to contract a terrible illness just as they're hit by the heartbreak of Feditis?

Some become alcoholics and drug addicts, others develop heart conditions. One guy even lifted his orange jumpsuit to show the judge his terrible belly rash in a plea for mercy. Most recover, miraculously, the moment they're free. And if Jackson's mouthpieces get their way, he won't do any time. They argue that he's mentally ill, but that federal prison psychiatrists aren't good enough for him.

I'm no psychiatrist, but if I were, I'd prescribe four full years in prison, with another four added to help him clear his head.

Related posts:

July 1, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Monday, June 17, 2013

After an apology and less than a week in jail, ex-NFL star Chad Johnson gets out

As reported in this new local news and AP report (which includes a video), "Chad Johnson apologized Monday for disrespecting a judge when the former NFL star slapped his attorney on the backside in court last week, and his immediate release from jail was ordered."  Here is more:

Broward County Circuit Judge Kathleen McHugh accepted Johnson's apology and cut his 30-day jail term for a probation violation to the seven days he had already served since the rear-swatting incident. Johnson, a flamboyant wide receiver formerly known as Chad Ochocinco, said in court that he'd had time to think about why his flippant attitude was wrong — especially in a domestic violence case.

"I just wanted to apologize for disrespecting the court last time," said Johnson, wearing a tan jail jumpsuit with his hands shackled at the waist. "I apologize.  I did have time to reflect on the mistakes I made in this courtroom."

McHugh noted that in a previous hearing Johnson had put his arm around a female prosecutor's shoulders, prompting the prosecutor to tell him twice not to touch her.  The judge also pointed out that when Johnson head-butted his then-wife, Evelyn Lozada of the reality TV show "Basketball Wives," she suffered a three-inch gash on her head that required eight stitches. The judge called those injuries horrific.

McHugh also said Johnson failed to appreciate "the gift of probation" after pleading no contest to battery in the altercation last August with Lozada, which prompted her to quickly file for divorce. Johnson, 35, was in court because he had failed to meet with his probation officer for three straight months. "I find that's an arrogant disregard for a court order," the judge said.

McHugh ordered Johnson to perform 25 hours of community service and attend domestic violence counseling sessions twice a week during probation, and she extended his probation an extra three months through mid-October.

The attorney who had his backside slapped, Adam Swickle, said Johnson will fully comply with all probation conditions and hopes to resurrect his NFL career.... "He understands that this is the kind of situation that can derail a person's career," Swickle said. "We're very confident he will do what he should do."

Recent related post:

June 17, 2013 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Thursday, June 13, 2013

Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death

As reported in this Reuters article, a "top Arizona prosecutor said on Wednesday that the state still plans to seek the death penalty for convicted murderer Jodi Arias for killing her ex-boyfriend, after a jury deadlocked last month on whether she should be executed." Here is more:
[T]he same eight-man, four-woman jury that convicted Arias of murder and quickly ruled her eligible for the death penalty subsequently failed to reach a consensus as to whether Arias should be executed, prompting a penalty phase mistrial.

The state of Arizona now has the option of retrying the sentencing phase of the trial, which would require a new jury be empanelled. If there is another deadlock, a judge would sentence Arias to natural life in prison, or life with the possibility of parole after 25 years.

Maricopa County Attorney Bill Montgomery told reporters prosecutors would ask a new sentencing jury to do what the previous one could not - put Arias to death. "At this point, we are still preparing to move forward to retry the penalty phase," Montgomery told a news conference.

After the jury failed to reach a unanimous verdict on May 23, Montgomery said that his office would assess its next steps, but was proceeding "with the intent to retry the penalty phase." A status hearing has been scheduled for June 20. A July 18 court date was set to select a new jury in the case.

Recent related posts:

June 13, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, May 30, 2013

Non-prosecution deal worked out for Chuck Hagel's son on state marijuana charge

As reported in this Washington Post piece, the son of a notable political figure just managed to avoid pursuit of a criminal prosecution on minor marijuana charges.  The piece is headlined "Chuck Hagel’s son, Ziller Hagel, has marijuana charges dismissed," and here are the details:

Ziller Hagel, the 20-year-old son of Defense Secretary Chuck Hagel, was in Fairfax County District Court Wednesday morning, where charges stemming from a marijuana arrest last year were dismissed, records show.

Hagel, who attends college in the Chicago area, was arrested on the misdemeanor charge last June, but his case was continued several times last year and earlier this year....

Nina J. Ginsberg, an attorney for Hagel, said the arrest happened after police officers spotted him in a parked car near a park area at night, listening to music by himself. “They searched his car and found a tiny amount of marijuana, but no evidence whatsoever that he had used it or where it came from,” she said.  “We had a real issue of whether they could prove it was there and whether there was a legitimate right to search the car.”

Hagel was ready to fight the charges; instead, he worked out a deal with prosecutors to complete 100 hours of community service, after which charges could be dropped. Ginsberg said his first hearing last summer was deferred pending results of a lab test, others to give him more time to finish a community service project slowed by an illness.

May 30, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 21, 2013

Jodi Arias now pleading for a life sentence before sentencing jury

As reported in this new USA Today piece, "Jodi Arias, who said after her murder conviction she would prefer death to life imprisonment, stood before the jury Tuesday and pleaded for her life instead, asking them not to punish her family for her actions."  Here is more on today's action in a high-profile capital case:

Speaking as the only witness on her behalf in the penalty phase of her trial, she also referred to the family of her victim, onetime lover Travis Alexander, saying, "I never meant to cause them pain."...

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Alexander's brother and sister as they described how his killing has torn their lives apart.

Arias acknowledged that her plea for life was a reversal of remarks she made to a TV reporter shortly after her conviction, when she said she preferred the death penalty. "Each time I said that, I meant it, but I lacked perspective," the former waitress said. "Until very recently, I could not imagine standing before you and asking you to give me life."

She changed her mind, Arias said, to avoid bringing more pain to members of her family, who were in the courtroom. "I cannot in good conscience ask you to sentence me to death, because of them," Arias said, pointing to her family. "I think death is tantamount to suicide. Either way, I will spend the rest of my life in prison. It will either be shortened, or not. If it is shortened, the people who will be hurt is my family. I am asking, please, please, don't do that to them."

After she finished speaking, the judge told jurors they can consider a handful of factors when deciding what sentence to recommend, including the fact that Arias has no previous criminal record. They also can weigh defense assertions that Arias is a good friend and a talented artist. Arias, wearing glasses, looked at the jury from time to time, but largely read from notes on a sheaf of papers she clutched in her hand.... At one point, she held up a white T-shirt with the word "survivor" written across it, telling the jurors that she would sell the clothing and donate all proceeds to victims of domestic abuse. She also said she would sell her hair to charity while in prison, and had already done so three times while in jail.

At one point in her remarks, Arias said she regretted how her trial, which drew national attention, had become a spectacle. She said she especially regretted testifying to the "darker elements" of her relationship with Alexander and how the "graphic, mortifying, horrific details" got into the public arena.

She said she had tried, instead, to avoid a trial. "I got on TV and lied about what I did and lied about the nature of my relationship with Travis," she said. "It has never been my intention to malign his name or character. In fact, it was a goal of mine to protect his reputation."

Recent related posts:

May 21, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, May 19, 2013

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

I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences.  But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:
O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.

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

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

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

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

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

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

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

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

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

A few recent related posts on Lafler and Frye:

May 19, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 15, 2013

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

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

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

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

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

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

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

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

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

Recent related posts:

May 15, 2013 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, May 11, 2013

Taking note of some notable federal tax sentences

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

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

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

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

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

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

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

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

May 11, 2013 in Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

May 8, 2013 in Celebrity sentencings, Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (8) | TrackBack

Tuesday, May 07, 2013

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

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

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

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

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

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

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

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

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

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

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

Related post:

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

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

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

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

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

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

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

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

May 7, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 06, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

May 6, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, May 01, 2013

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

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

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

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

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

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

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

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

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

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

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

May 1, 2013 in Celebrity sentencings, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, April 30, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related recent posts:

April 30, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

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

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

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

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

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

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

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

April 30, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, April 26, 2013

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

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

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

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

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

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

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

Recent related posts:

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

Wednesday, April 17, 2013

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

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

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

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

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

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

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

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

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

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

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

Recent related posts:

April 17, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, April 11, 2013

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

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

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

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

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

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

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

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

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

April 11, 2013 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 28, 2013

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

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

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

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

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

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

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

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

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

Recent related posts:

February 28, 2013 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, February 21, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related post:

February 21, 2013 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (44) | TrackBack

Wednesday, December 19, 2012

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

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

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

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

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

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

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

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

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

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

Prior posts concerning Cameron Douglas's federal sentencings:

December 19, 2012 in Booker in the Circuits, Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Saturday, December 08, 2012

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

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

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

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

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

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

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

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

December 8, 2012 in Celebrity sentencings, Offense Characteristics, Who Sentences? | Permalink | Comments (18) | TrackBack

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

Healthscan13aThe question in the title of this post is prompted by this notable story out of Florida covered by NBC Sports concerning the state sentencing of former NFL player (and OSU Buckeye) David Boston.  The piece is headlined "David Boston gets six months in jail, concussions cited at sentencing," and here are the details:

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

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

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

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

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

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

December 8, 2012 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, December 04, 2012

Nails does not get nailed at federal sentencing for bankruptcy fraud

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

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

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

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

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

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

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

December 4, 2012 in Booker in district courts, Celebrity sentencings, Offense Characteristics | Permalink | Comments (1) | TrackBack

Thursday, November 08, 2012

Jared Loughner sentenced to seven consecutive life sentences plus 140 years

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 8, 2012 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, October 26, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

Related prior posts on Gupta sentencing:

October 26, 2012 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10) | TrackBack

Wednesday, October 24, 2012

Rajat Gupta gets 24-month prison term, $5 million fine at sentencing for insider trading

The early news reports from US District Court in downtown NYC indicate that former Goldman Sachs director Rajat Gupta was sentenced to two years in prison and a $5 million fine for his insider trading, and that he is scheduled to report to prison on January 8, 2013.

This sentence is between the extremes of th 8-10 years sought by prosecutors and the "rigorous community service" sought by the defense. And it should come as no surprise to regular readers based on my comment in this post after seeing the sentencing submissions: "I will (boldly?) predict that Judge Rakoff will impose a sentence somewhere between these recommendations. I will even set my current betting-line over/under at two years in prison." Though I have no actual experience as a bookie, I think the fact that my betting line hit the actual outcome on the number means that the house keeps all bets. Maybe I should look into the (federal sentencing)bookie business.

UPDATE:  This new Wall Street Journal account of the sentencing includes these excerpts and quotes of note:

"I think the record, which the government really doesn't dispute, bears out that he is a good man," said Judge Rakoff during the hearing. "But the history of this country and the history of the world, I'm afraid, is full of examples of good men who do bad things."...

Mr. Gupta, who was accompanied to court by his wife and four daughters, apologized to his friends, family and the charitable institutions that he helped to found. "The last 18 months have been the most challenging period of my life since I lost my parents as a teenager," he told the judge before sentencing. "I lost my reputation that I built over a lifetime. Much of the first year seemed surreal to me. However, since the trial I've come to accept the reality of my life going forward," he said....

Prosecutors had argued that Mr. Gupta should receive up to 10 years in prison under the federal sentencing guidelines, which in insider-trading cases are largely based on profits, or losses avoided, because of the illegal tips. But the guidelines are advisory and Judge Rakoff often sentences below them....

Manhattan U.S. Attorney Preet Bharara said in an emailed statement: "With today's sentence, Rajat Gupta now must face the grave consequences of his crime — a term of imprisonment.  His conduct has forever tarnished a once-sterling reputation that took years to cultivate.  We hope that others who might consider breaking the securities laws will take heed from this sad occasion and choose not to follow in Mr. Gupta's footsteps."

October 24, 2012 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (11) | TrackBack

Tuesday, October 23, 2012

New Slate commentary on upcoming Gupta sentencing

Harlan Protass has this new commentary at Slate headlined "Rajat Gupta Could Go to Prison for 10 Years for Insider Trading: Even though he wasn’t a major player — is that fair?". Here are excerpts:

On Wednesday Rajat Gupta will appear in Manhattan federal court to be sentenced for passing secrets he learned, while serving on the board of directors of Goldman Sachs, to Raj Rajaratnam, the former chief of hedge fund giant Galleon Group. Rajaratnam himself was convicted in May 2011 of being the center of the biggest insider trading ring in decades. He’s serving 11 years for his crimes, one of the longest sentences ever for insider trading.

Like Rajaratnam, Gupta, the former head of McKinsey & Company, deserves punishment. He was convicted of a type of securities fraud, and fraud is a form of theft. He wrongly used his position of power and influence for personal advancement, corroding Main Street’s trust and confidence in Wall Street.

Still, Gupta is no Rajaratnam. Gupta tipped inside information about one company to Rajaratnam, while Rajaratnam traded on confidential information collected from many sources. So you’d expect that Gupta would be treated differently when he appears for sentencing. Federal sentencing guidelines, however, suggest a prison term for him that’s similar in length to the 11 years Rajaratnam is serving. And prosecutors want a sentence within those guidelines, just as they want for the hundreds of defendants sentenced in federal courts nationwide every day. Because what Gupta and Rajaratnam did is so different, though, sentencing Gupta to anything like the time Rajaratnam is serving undermines the whole purpose of the sentencing scheme that prosecutors say they want to uphold....

Gupta and Rajaratnam are like the kingpin and corner street dealer who do roughly the same amount of time for drug dealing, as happens to a disturbing degree in narcotics cases (which accounted for almost 30 percent of the 80,000-plus cases resolved in federal court in 2011). Because drug sentences are fixed by drug type and quantity, not role, defendants in distribution rings face the same potential penalty, whatever their actual position and conduct. That’s what happened to Jamel Dossie, a small-time, street-level drug dealer’s assistant who was an addict. In New York in March, he received a five-year mandatory minimum sentence for his role as a go-between in four hand-to-hand crack sales for a total gain to himself of $140.

Luckily for Rajat Gupta, his sentencing judge is Jed S. Rakoff, who has said that where the federal guidelines “provide reasonable guidance,” they “are of considerable help to any judge in fashioning a sentence that is fair, just and reasonable,” but also argued that when the guidelines “have run so amok that they are patently absurd on their face,” courts should rely more on general sentencing principles. Judge Rakoff faced this dilemma in the case of Richard Adelson, who was convicted of participating in a conspiracy to overstate the financial results of Impath Inc. (a laboratory services company) and artificially inflate its stock price. The guidelines recommended life imprisonment for him, even though other people had concocted and operated the scheme for years before Adelson joined it. Judge Rakoff gave him 42 months, describing the life sentence recommended by the guidelines as “patently unreasonable.”

It’s because of Judge Rakoff that Gupta is widely expected to receive a sentence considerably less than what federal guidelines recommend, no matter what the government’s lawyers say. (Gupta’s own counsel have asked for probation.) But the approach of this judge is the exception. The reality of federal sentencing means that it should be closer to the rule.

Related posts on upcoming Gupta sentencing:

October 23, 2012 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Tuesday, October 09, 2012

"Sandusky sentenced to 30 to 60 years"

The title of this post is the headline from this AP report of today's high-profile child sex abuse state sentencing in Pennsylvania.  Here is how it begins:

Former Pennsylvania State University football coach Jerry Sandusky was sentenced to 30 years to 60 years in prison for charges of child sex abuse that involved 10 boys and spanned a decade and a half.

Legal observers said the sentence ensures that Mr. Sandusky, 68 years old, will almost certainly spend the rest of his life in a state prison. He had faced a minimum of 10 years and a maximum of more than 200 years. Experts said the chances of Mr. Sandusky successfully appealing his conviction is remote.

Mr. Sandusky, wearing a red prison jumpsuit with "Centre County" printed on the back, stood motionless in a crowded but hushed courtroom as Judge John Cleland read a list of individual sentences for 45 counts related to child sex abuse that Mr. Sandusky had been convicted of in June.

"The tragedy of this crime is that it's a story of betrayal," Judge Cleland said before handing down the sentence. "Those who have never encountered a pedophile can hardly begin to understand the anguish of those who have been so expertly deceived….The crime is not only what you did to their bodies but what you did to their psyches and souls."

Judge Cleland said to Mr. Sandusky, "When I say to you that you're sentenced to spend not less than 30 years to 60 years in prison, that has the unmistakable impact of saying clearly 'for the rest of your life.' "

Judge Cleland also addressed Mr. Sandusky's victims, several of whom were in the courtroom and had read statements about being sexually abused. "The fact that you were assaulted is no cause for embarrassment or shame," Judge Cleland said. "It is for your courage and not for your assault that you will be remembered. And it is that on which you must focus if you are going to become whole and healed."

Mr. Sandusky, who chose not to testify during his trial, read a lengthy statement in the courtroom. A weary-looking Mr. Sandusky maintained that he is innocent. "Others can take my life. They can make me out as a monster," Mr. Sandusky said. "They can't take away my heart, and in my heart I know that I didn't commit these alleged disgusting acts."

Mr. Sandusky spoke about the victims who he said had wrongfully accused him, as well as about football, prison life, his dog and missing his family. His wife Dottie looked on, holding the side of her face with one hand. At the end, his voice cracked with emotion as he spoke of being separated from his family.

Three young men read statements in court and said they were still suffering from the abuse they suffered at Mr. Sandusky's hands. "I will never erase the filthy images of his naked body against mine, but he must pay for his crimes which he has now been convicted of," said a young man identified as Victim 5, who testified that he was molested in a Penn State shower by Mr. Sandusky. "He took away my childhood the day he assaulted me. He should be sentenced accordingly."

October 9, 2012 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Guest Post on Jerry Sandusky's expected exercise of his allocution right

Mark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post.  Here it is:

Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison.  Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement.  The real question is not what he’ll get, but what, if anything, he says.

Reports indicate he will use his right of allocution to claim his innocence.  In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner.  That was after marriage.”

Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence.  Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt?  Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.

Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse.  But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement.  And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.

So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded?  Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance.  It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.

But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging.  Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.

Some prior posts on Sandusky case:

October 9, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Monday, October 08, 2012

Would any prosecutors throw challenge flag for plea deal cut for sexual misconduct with student?

Though the MLB playoff have me in more of a baseball mood this week, I cannot avoid this football-related AP story about a notable plea deal struck by a former NFL cheerleader.  The story is headlined "Ex-Cincinnati Bengals cheerleader pleads guilty to having sex with former high school student," and here are excerpts:

A former Cincinnati Bengals cheerleader pleaded guilty Monday to having sex with her 17-year-old former student while she was a teacher at a northern Kentucky high school, a move that will allow her to avoid jail time.

In a tearful admission in Kenton County Circuit Court in Covington, Ky., 27-year-old Sarah Jones pleaded guilty to sexual misconduct and custodial interference in place of more serious charges as part of a plea agreement with prosecutors. “I began a romantic relationship while he was a student and I was in a position of authority,” Jones said, her voice cracking as her family members wiped their own tears.

Jones said the relationship began in February 2011 when the boy was 17, saying that the two had sex, that she sent him sexually explicit text messages and lied about the relationship to police.  The teen had been in Jones’ freshman English class in 2008, and she was his peer tutor in 2010 and 2011 before he graduated at the age of 17 this year, according to Monday’s plea agreement, signed by Jones.

In accepting the plea agreement, Judge Patricia Summe granted prosecutors’ recommendation to sentence Jones to five years of diversion but no jail time, and she won’t have to register as a sex offender.  The diversion requires Jones to report to a probation officer and undergo drug tests.

Prosecutors said they were willing to make the deal because the teen, now 18, and his family were uncooperative with them and on Jones’ side.  “We feel that it is a just and it is a fair result,” prosecutor Sara Farmer said.  “It’s certainly difficult when a victim and his family don’t cooperate by not providing information, but it makes our case a lot harder when they’re actually proactive for a defendant, and in this case, the family was more than supportive of the Jones (family).  They were proactive for them.”...

Part of the reason defense attorney Eric Deters said Jones was willing to plead guilty was because Summe had denied his request to keep the text messages that she sent to the teen out of the trial. “They’re embarrassing,” Deters told reporters after the hearing. “They were steamy.”

He also said that now that the teen is 18 years old, he and Jones “are free to be together” and pointed out that they left the courtroom together.  Deters declined to discuss details of their current relationship, saying that the pair would discuss it on the “Today” show and “Dateline” on Friday.

He said that Jones will not try out to be a Bengals cheerleader in the future, and that for now, she’s working as a legal assistant in his office.  Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test, he said....

Jones’ mother, former school principal Cheryl Armstrong Jones, also pleaded guilty Monday, to a misdemeanor charge of attempted tampering with evidence.  She admitted to the judge that she sent the teen a text message telling him to get rid of his phone and also avoided jail time.

As the question in the title of this post suggests, I am curious to know if any prosecutors (or others) are troubled by this plea deal.  Because this story gives me little reason to suspect that the defendant here poses any serious threat to the public, I am not especially troubled she was able to cut a sweet plea deal and has appearances now slated for the "Today" show and "Dateline."  But perhaps others have a different take on this matter.

October 8, 2012 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Sunday, October 07, 2012

Upcoming Sandusky sentencing generates little suspense, but lots of stories

Jerry Sandusky is scheduled to face sentencing this Tuesday.  At this stage, the case holds has seemingly limited suspense; I cannot imagine this serial child molester now could or would get anything less than a functional (if not an actual) life sentence. Still, the high-profile nature of the defendant and his crimes ensures that there will be plenty of press stories about the sentencing.  For example, here are some stories from the AP and UPI appearing in many papers today:

I doubt I will be eager to blog much about this high-profile state sentencing, in part because we can count on the mainstream press to give it plenty (too much?) attention. But perhaps readers can convince me via comments that there is something especially worthy of special blog attention as the Sandusky sentencing day approaches.

October 7, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Monday, September 17, 2012

Jerry Sandusky's sentencing scheduled for October 9, 2012

This Reuters article reports on the latest scheduling information for what seems likely to be a closely watched, but somewhat unsuspenseful, forthcoming state sentencing in Pennsylvania.  here are the basics:

Convicted child molester Jerry Sandusky will face sentencing immediately after an October 9 hearing to determine if the former Penn State assistant football coach is a sexually violent predator, a judge said on Monday.

The hearing will be held at the Centre County Courthouse in Bellefonte, Pennsylvania, Judge John Cleland said in an order published online. A sentencing conference will be held October 8.

Sandusky, 68, was convicted in June of 45 counts of child molestation as part of a scandal that shook college football and focused national attention on child sex abuse. He faces up to 373 years in prison for sexually abusing 10 boys over a period of 15 years, including while he was the highly regarded defensive coordinator at powerhouse Pennsylvania State University.

Designating Sandusky a sexually violent predator would put him under stringent reporting requirements if he is put on probation after release from prison. The court will consider the recommendation of the state Sexual Offenders Assessment Board. Normally a determination hearing takes place the same day as sentencing, but the scale of Sandusky's case could mean sentencing would take place later.

Dan Filler, a law professor at Philadelphia's Drexel University, said Cleland had options in sentencing, but the outcome would be the same for Sandusky. Cleland could have the 45 sentences run one after the other or at the same time. He also could impose the maximum or minimum under sentencing guidelines, and take Sandusky's lack of prior convictions into consideration, Filler said.

"In the end, however, judges are very politically sensitive in cases like this. Whatever the guidelines call for, I believe the judge will impose a sentence that is functionally life without hope of parole," he wrote in an email before the hearing date was set.

I will be truly shocked if Sandusky does not get a sentence that ensures he will die in prison. The only real suspense will be how the state judge in this case chooses to structure the sentence and whether, like the federal sentencing judge in the Bernie Madoff case, considers maxing out the sentence in order to try to "send a message" to both the victims and society concerning this kind of offense.

September 17, 2012 in Celebrity sentencings, Scope of Imprisonment, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, August 07, 2012

"Jared Lee Loughner Pleads Guilty to Federal Charges in Tucson Shooting"

The title of this post is the heading of this press release coming today from the U.S. Department of Justice.  Here are excerpts:

Jared Lee Loughner, 23, of Tucson, Ariz., pleaded guilty today in federal district court to charges stemming from the January 8, 2011 shooting outside a supermarket that killed six people and wounded 13 others.  Under the terms of the plea agreement, Loughner will be sentenced to life in prison with no eligibility for parole.

“It is my hope that this decision will allow the Tucson community, and the nation, to continue the healing process free of what would likely be extended trial and pre-trial proceedings that would not have a certain outcome.  The prosecutors and agents assigned to this matter have done an outstanding job and have ensured that justice has been done,” said Attorney General Eric Holder.  “In making the determination not to seek the death penalty, I took into consideration the views of the victims and survivor families, the recommendations of the prosecutors assigned to the case, and the applicable law.”

“Given the defendant’s history of significant mental illness, this plea agreement, which requires the defendant to spend the remainder of his natural life in prison, with no possibility of parole, is a just and appropriate resolution of this case,” said U.S. Attorney John S. Leonardo.  “I hope that today’s resolution of this case will help the victims, their families, and the entire Tucson community take another step forward in the process of healing and recovering from this sad and tragic event.”...

Through a plea agreement, Loughner pleaded guilty to 19 counts of the superseding indictment handed down March 3, 2011....  Under the terms of the plea agreement, Loughner will be sentenced to seven consecutive life sentences, followed by 140 years in prison....

Convictions for the attempted assassination of a member of Congress, the murder of a federal employee, and causing the death of a participant in a federally-provided activity each carry a maximum sentence of life in prison ( or death in the case of murder), a $250,000 fine or both.  A conviction for the attempted murder of a federal employee carries a maximum penalty of 20 years in prison, a $250,000 fine or both. A conviction for injuring a participant in a federally-provided activity carries a maximum penalty of 10 years in prison, a $250,000 fine or both.

In determining an actual sentence, U.S. District Judge Larry A. Burns will consult the U.S. Sentencing Guidelines, which provide appropriate sentencing ranges.  The judge, however, is not bound by those guidelines in determining a sentence.  Sentencing is set before Judge Burns on November 15, 2012, at 10:00 am in Tucson.

August 7, 2012 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, July 10, 2012

"Are Our Sex Crime Laws So Radical They Deter Reporting?"

The provocative question in the title of this post comes from Professor Dan Filler via this post at The Faculty Lounge, which in turn links to this extended op-ed also by Dan Filler appearing in today's Philadelphia Inquirer.  The op-ed carries the headline "Penn State scandal shows sex-abuse laws can backfire," and here are excerpts:

[T]here is another lesson to be learned from this horrible [Sandusky] story, and it's time we acknowledged it.  Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it.  Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime....

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse.  The resulting panic has had serious consequences.  It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses.  In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification.  Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders.  Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit.  They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program.  But they were also trying to protect Sandusky and themselves from the tsunami that would follow.  I take [former Former Penn State president Graham] Spanier at his alleged word that he feared an inhumane result.  He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives.  There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse.  But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger.  This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing.  But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes.  When laws become so radical that they work against the protection of victims, they are inherently inhumane.

July 10, 2012 in Celebrity sentencings, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

Saturday, June 30, 2012

Will Lauryn Hill raise novel 3553(a) issues at her tax evasion sentencing?

HillThe question in the title of this post is prompted by this AP report, headlined "Lauryn Hill Tax Charges: Singer Pleads Guilty In NJ, Faces Jail Time."  Here are excerpts:

Eight-time Grammy-winning singer Lauryn Hill pleaded guilty Friday to not paying federal taxes on more than $1.5 million earned over three years.  Appearing in U.S. District Court in Newark, Hill admitted failing to file tax returns from 2005 to 2007.  She faces a maximum one-year sentence on each of the three counts. She was charged three weeks ago.

Dressed in a dark jacket, white button-up shirt and a long reddish-orange skirt, Hill declined to comment after Friday's hearing.  During the hearing, attorney Nathan Hochman indicated that Hill planned to pay back the taxes she owes. U.S. Magistrate Michael Shipp initially scheduled sentencing for early October but agreed to delay it until late November to give Hill time to make repayment....

After the charges were brought, Hill posted a long statement on her Tumblr page that decried pop culture's "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism."  She explained that she hasn't paid taxes since she withdrew from society to guarantee the safety and well-being of herself and her family.

Hill hinted Friday that she might expand on those comments at her sentencing. When Shipp asked her if anyone had directly or indirectly influenced her decision to plead guilty, she replied, "Indirectly, I've been advised my ability to speak out directly is for another time, at sentencing."

I look very much forward to seeing how Hill and her lawyers might be able to incorporate the faults of pop culture and its "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism" into an argument via 3553(a) that a low sentence would be sufficient to avoid the miseducation of Lauryn Hill.

June 30, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (8) | TrackBack

Friday, June 29, 2012

"Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"

The title of this post is the headline of this ABC News story, which gets started this way:

Former Penn State football coach Jerry Sandusky will likely receive his $58,898-a-year state pension while in prison, unless a bill stalled in Pennsylvania's senate finance committee is quickly passed by the legislature and signed by the governor.

The bill would prevent employees convicted of sexual offenses related to their jobs from receiving their state pensions, said Cameron Kline, a spokesperson for State Sen. Larry Farnese, D-Philadelphia, who introduced the bill before Sandusky was charged with sexually abusing boys in his Second Mile program.

"This was introduced on Oct. 18, 2011, well before Sandusky's crimes came to light," Kline said. "It's something we think would be very appropriate for a case such as this. Now that it's over, we're a little concerned, confused and angry it's still stuck there. Apparently it's not a priority so the legislation still stays in committee."

Under current law, the pensions of public employees can be seized when a member is convicted of an Act 140 crime. That act includes crimes such as extortion, perjury and bribery but does not include sexual abuse, according to the Pennsylvania State Employees Retirement System website.

Pam Phile, spokesperson for the Pennsylvania State Employees Retirement System, said she could not speculate on whether Sandusky will have to forfeit his pension under the existing law, which was passed in 1978. "SERS reviews the sentencing documents in reaching a forfeiture determination and there has been no sentencing yet in this particular case," Phile said.

Kline said there are potentially other ways Sandusky could be stripped of his pension, but said passing a law at the state level would probably be the most logical. "There could be things at the Penn State level," he said. "[But] I really think it has to be a state law issue. This is the only thing that is at the ready to move. To my knowledge this is the best option."

June 29, 2012 in Celebrity sentencings, Collateral consequences, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Thursday, June 28, 2012

Second Circuit panel now affirms Lynne Stewart's (way below guideline) 10-year prison sentence

One of many noteworthy legal developments today sure to be overshadowed by the Supreme Court's health care ruling is today's Second Circuit panel opinion upholding the 10-year prison sentence of (in)famous defense lawyer Lynne Stewart.  The lengthy unanimous opinion in US v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (available here), covers a lot of interesting sentencing ground, though the most extensive discussion concerns Stewart's claim that enhancement of her sentence due to her initial post-sentencing public comments violated the First Amendment.   Here are a few paragraphs from the start and end of the panel ruling:

Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment [of affirmance]....

Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months.  She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court . . . supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101.  She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc.  Def.'s Br. at 103.  And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable....

It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court.  Rigas, 583 F.3d at 123.  In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence -- particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them."  Stewart I, 590 F.3d at 147-48.  But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar.  When confronted with these transgressions, she lied repeatedly under oath.

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.  We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.

June 28, 2012 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (6) | TrackBack

Friday, June 22, 2012

Jerry Sandusky found guilty on 45 counts

and now seems all but certain to get a functional life sentence. My understanding is that he faces a 60-year minimum prison term based on certain counts of conviction, and he was taken immediately into custody following the reading of the verdict.

UPDATE: This AP article, headlined "What's next for Jerry Sandusky after the trial?," provides a road map concerning the legal process still to come. Here are how the piece begins:

The jury took less than two days to find Jerry Sandusky guilty of 45 of 48 counts of child sexual abuse, but the judge will need substantially more time to decide his punishment.

Judge John Cleland ordered a pre-sentencing report, which will take anywhere from one to two months to complete. During that time, Sandusky will be examined by the state Sexual Offenders Assessment Board to decide if he should be treated as a sexually violent predator, and prosecutors could ask the judge for a hearing.

The judge determines whether someone is a sexually violent predator — it carries stiffer reporting and treatment requirements once someone is out of prison — and can use information from the board's investigation in a sentencing decision.

If he's sentenced to state prison — which appears to be certain in this case — then Sandusky will be transferred to Camp Hill, in south-central Pennsylvania, which has 3,000 to 4,000 inmates, about 1,000 of whom are held temporarily for classification.

June 22, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Clemens' counsel says client was offered plea deal for probation term

This new AP article, headlined "Clemens risked prison when he rejected plea offer," confirm my suspicion that the feds offered Roger Clemens a plea deal which would have taken any prison term off the table.  Here are the basics:

Roger Clemens rejected a plea deal that would have spared him prison time, and instead took his chances by going to trial.  Clemens lawyer Rusty Hardin said in a telephone interview Thursday that prosecutors offered to let the former pitcher plead guilty to one count of lying to Congress when he denied using human growth hormone.  In exchange, Clemens would have received probation.

The seven-time Cy Young Award winner was indicted in August 2010 on six counts for allegedly lying to Congress for denying he used HGH as well as steroids.  At the time, Hardin revealed that his client had rejected a plea offer, but the lawyer declined to provide the details.  In the interview Thursday, Hardin said his client was offered the deal in December 2009 and immediately rejected it.

"His reason was, 'I didn't lie to Congress,'" Hardin said.  On Monday, a jury in Washington acquitted Clemens on all counts.

This story provides some further support for my fear that often only the most confident, strong and wealthy of defendants can reasonably be expected to put the federal government to its burden of proof.  If Clemens had any personal doubt about his innocence or had reason to worry about the reputational and economic impact of putting up a trial defense, it would have been extra hard for him to turn down a plea deal that would ensure he would not face any prison time.  (Indeed, I continue to wonder just how much Clemens' acquittal has "cost" him in terms of attorneys' fees.)

June 22, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

Thursday, June 14, 2012

Judge unmoved by undefeated boxing champ's claim prison is defeating him

As reported in this AP article, "Floyd Mayweather's demands that he be released from jail because the poor quality of the food and water has threatened his health were denied by a Las Vegas judge who says he should eat and drink what is being given to him behind bars."  Here is more about the ruling which denied the boxing champ's request to get out of jail early:

Justice of the Peace Melissa Saragosa wrote in her late Wednesday decision that water has been made available to Mayweather around the clock and the only reason he isn't eating properly is because he refuses to eat the provided meals.  Saragosa said Mayweather's complaints that he is unable to exercise in jail also are invalid because he has been "provided sufficient space and time for physical activity if he so chooses."

"This court finds, and the defendant admits, there is nothing illegal about the defendant's sentence in this case," Saragosa wrote.

A mere 12 days after Mayweather turned himself in to begin his three-month sentence, his legal team filed an emergency motion Monday asking the court to put him under house arrest or move him into the general jail population -- something that jail officials had avoided to protect the celebrity fighter.  The motion claimed the undefeated champion might never fight again because he was getting out of shape in solitary confinement....

Mayweather pleaded guilty last year to reduced domestic battery charges stemming from an attack on his former girlfriend while two of their children watched.  The plea deal allowed him to avoid trial on felony charges that could have gotten Mayweather up to 34 years in prison if he was convicted.  Mayweather was sentenced Dec. 22, but was allowed to remain free long enough to make a Cinco de Mayo weekend fight.

Mayweather's legal team told the court this week that his personal physician, Dr. Robert Voy, visited the jail Friday and determined that the fighter appeared to have lost muscle tone.  Voy estimated Mayweather was consuming fewer than 800 calories a day instead of his usual 3,000 or 4,000 calories.  Mayweather also wasn't drinking enough because he wasn't allowed bottled water and doesn't enjoy tap water....

Prosecutor Lisa Luzaich scoffed at the complaints during a court hearing Tuesday. "It's jail," Luzaich told the court. "Where did he think he was going? The Four Seasons?"

Though perhaps not quite as catchy as "That's a clown question, bro," I sure like the idea of the sports world giving us the phrase "It's jail, not the Four Seasons."

June 14, 2012 in Celebrity sentencings, Prisons and prisoners | Permalink | Comments (2) | TrackBack

Thursday, June 07, 2012

Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights

This Boston Globe story, headlined "Plea deal may force Catherine Greig to forfeit intellectual property rights," reports on the unique terms of a plea deal in a unique federal sentencing case. Here are the specifics:

Federal prosecutors are asking a judge to order Catherine Greig, the girlfriend of notorious gangster James “Whitey” Bulger, to waive the right to profit from her story, which she agreed to do in March when she pleaded guilty to helping Bulger evade capture for 16 years.

In a Wednesday filing seeking the forfeiture order on Greig’s intellectual property rights, prosecutors also noted that she agreed to waive any claim to property seized from the apartment she shared with Bulger in Santa Monica, Calif., where the couple was apprehended in June 2011....

Bulger, 82, is scheduled to face trial in federal court in Boston in November on a sweeping racketeering indictment charging him the murders of 19 people.

Greig, 61, is scheduled to be sentenced on Tuesday in the same courthouse and faces up to 15 years in prison, but family members of some of Bulger’s alleged victims have said prosecutors warned them she could face as little as 32 months under federal sentencing guidelines.

I cannot recall hearing of any other plea deals involving this kind of forfeiture, though I understand completely why the feds are eager to preclude the defendant here from ever profiting from her high-profile criminal behaviors.  That said, I wonder if others think there might be First Amendment issues implicated here or other reasons to be concerned about a plea deal with these kinds of distinctive terms.

June 7, 2012 in Celebrity sentencings, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Could (and should) public disapproval impact sentencing appeal in Ravi case?

11140878-largeThe question in the title of this post is prompted by this local story headlined "Poll: More than half of N.J. residents find Dharun Ravi sentencing too lenient."  Here are excerpts:

Just over half of New Jersey residents believe the 30-day jail sentence given to Dharun Ravi for spying on his gay roommate was "not tough enough," according to a Rutgers-Eagleton poll.  That view held consistent across the normal divides of politics, gender and race.

Another 39 percent found Ravi’s sentence of jail time plus probation, a fine and community service to be "the punishment he deserves," while just 7 percent called it "too tough."

"It suggests with all the discussion about bullying, people are taking this much more seriously than they did before — and that maybe the judge should’ve too," said poll director David Redlawsk.  The case — which triggered an impassioned national debate about bias laws, gay rights and sexual privacy in the internet era — was followed by an astonishing 97 percent of respondents....

The more people knew about the case, the more likely they were to say Ravi should have received a tougher sentence.  "Wow," said Stephen Russell, a University of Arizona expert in anti-gay bullying, when told of the results.  "It’s a bit of a surprise, because I might have imagined more people thinking the sentence was ‘too tough.’"...

The telephone poll of 1,191 adults was conducted May 31-June 4 just as Ravi apologized for his actions and surrendered to begin his jail term.  His apology was rejected by the parents of Tyler Clementi, the roommate who committed suicide shortly after learning Ravi had made his assignations with a male visitor the subject of dorm gossip.

Prosecutors are appealing the sentenced handed down by Superior Court Judge Glenn Berman, who deviated from state guidelines which mandated a lengthier prison term because he said he felt Ravi’s actions didn’t warrant going to prison with those convicted of murder, armed robbery and rape.

I am not sure if New Jersey sentencing law makes community sentiment a relevant consideration on appeal. I do know that, were this case in federal court, prosecutors could cite this poll as part of a claim that the short Ravi prison sentence was not sufficient "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" as required by 3553(a).

June 7, 2012 in Celebrity sentencings, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 02, 2012

Protests in Egypt after sentencing of Mubarak and other former leaders

I never quite know how to react to sentencings in other nations of international figures, but this New York Times story indicates that Egyptian are not reacting especially well to the sentencing of its former leader.  This new piece is headlined "New Turmoil in Egypt Greets Mixed Verdict for Mubarak," and here are excepts:

An Egyptian judge on Saturday sentenced former President Hosni Mubarak to life in prison as an accessory in the killing of unarmed demonstrators during the protests that ended his 30 years of autocratic rule.

For many Egyptians, the conviction — the first of an Arab leader detained after last year’s uprisings — might have been one of the most important achievements so far of the revolution that stunned the world 16 months ago but has stuttered ever since. The country is still awaiting the ratification of a new constitution, the election of a new president and the hand-over of power by its interim military rulers.

Even that victory, however, appeared tenuous. Lawyers critical of Mr. Mubarak warned that the verdict was vulnerable to appeal. The judge, Ahmed Rafaat, seemed to leave an opening for reversal, stating that the prosecutors had presented no evidence that either Mr. Mubarak or his top aides had directly ordered the killing of protesters. Instead, the judge found that Mr. Mubarak was an “accessory to murder” because he had failed to stop the killing, a rationale that lawyers said would not meet the usual requirements for a murder conviction under Egyptian or international law.

The judge sentenced Mr. Mubarak’s feared former interior minister, Habib el-Adly, to the same penalty for the same reason. But he acquitted several lower-ranking officials in the chain of command responsible for the police, raising more questions about responsibility for the killings.

Mr. Rafaat also dismissed corruption charges against Mr. Mubarak and his deeply unpopular sons, Alaa and Gamal, on technical grounds. By late afternoon, thousands of protesters angry at the limits of the decision were pouring into the streets in Cairo, Alexandria, Suez and elsewhere.

Against a backdrop of military rule, in which the generals, prosecutors and judges were all appointed by Mr. Mubarak, the degree of judicial independence is impossible to know. Lawyers and political leaders called the decision political, and demonstrators denounced the ruling as a sham aimed at placating the street with a seemingly tough verdict that would collapse on appeal....

Mr. Mubarak, 84, was housed during the trial in a military hospital where he enjoyed visits from his family, according to news reports, and a daily swim. After the verdict, a helicopter flew him to a Cairo prison.

June 2, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 30, 2012

NJ prosecutors now say that Ravi should have received five years in webcam spying case

The New York Times has this fascination new report on some "post-game" (but in-court) comments by various players involved in the sentencing of Dharun Ravi, the former Rutgers student convicted of multiple crimes in the high-profile New Jersey webcam spying case.  The article is headlined "Judge Defends Sentence Imposed on Ex-Rutgers Student," and here are excerpts:

A judge on Wednesday offered a spirited defense of the sentence he imposed on Dharun Ravi, the former Rutgers University student convicted of using a webcam to spy on his roommate having sex with another man.  Mr. Ravi was convicted in March of all 15 charges against him, and sentenced last week to 30 days in jail, 300 hours of community service, three years’ probation and $10,000 to be paid to a fund that helps victims of bias crimes....

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”...

Prosecutors had been visibly angry when Judge Berman declared the sentence last week, and almost immediately appealed it, arguing that the convictions demanded more time behind bars.  But their memo before sentencing had not indicated how much time they wanted Mr. Ravi to serve, only that they did not believe he had to serve the maximum sentence of 10 years that was attached to the most serious charges, of bias intimidation.

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate.  The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice.

Mr. Ravi appeared in court to tell the judge that he would report to begin serving his sentence Thursday. That sentence has been on hold pending the appeal from the prosecution, and one from the defense, which has argued that it was denied evidence, including a suicide note, that could have helped Mr. Ravi at his trial.

While Mr. Ravi was not charged with causing Mr. Clementi’s suicide, many defenders argued that he was essentially — and unfairly — convicted of it.  Judge Berman received more than 100 letters and e-mails before sentencing, most of them arguing against a harsh punishment for Mr. Ravi. On Wednesday, he said that his in-box continued to fill up with complaints about the sentence he imposed.

He defended the sentence as the product of great consideration.  “It was anything but spontaneous,” he said.  Judge Berman noted that the punishment was harsher in some ways than what was recommended in a report by the corrections official who did the presentencing interview with Mr. Ravi.  That report recommended against any incarceration or fine.  It also recommended more extensive community service, and that Mr. Ravi tour schools to discuss his experience, and bias crimes.

But the judge, who last week lambasted Mr. Ravi for not once apologizing for what he had done, said he would not be an “appropriate” spokesman against bias, given that he had barely acknowledged any wrongdoing.  Mr. Ravi, 20, issued a statement late Tuesday to offer his first clear apology for his crimes, saying, “I accept responsibility for and regret my thoughtless, insensitive, immature, stupid and childish choices.”

While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing.  Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend.  Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.  But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.”  That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail....

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”  He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.  “I also know his age,” Judge Berman added, calling it a mitigating factor.  “I believe justice compels me to deviate from the guidelines,” he said.  However, Judge Berman also said, “I admit that people can disagree with me.”

Recent related posts on Ravi case:

May 30, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

"Jury divided in Edwards corruption trial?"

The title of this post is the headline of this new Fox News report, which gets started this way:

As jury deliberations in the John Edwards trial continue well into their second week, legal analysts are beginning to wonder whether the panel has become deadlocked.

Judge Catherine Eagles extended Wednesday's deliberations by a half-hour and plans to do the same the next day in order to allow jurors to recess early Friday -- to attend high school graduations and other family events.  Jurors have provided Eagles with schedule requests through next week.

Kieran Shanahan, a former federal prosecutor who's been watching the trial, said that could be a signal from dissenting jurors to other members of the panel "that they're resolute in the position and they'll stay as long as necessary."

"Initially, it looked like the jury was just going to walk through each count," Shanahan said. "They asked for every document associated with each count. But we're now in day eight. And I think it suggests there's division as to guilt or innocence among the jurors."

I wonder if all the media awaiting an outcome from the jury have a pool going on the timing or the verdict.  Gosh knows I am ready for an outcome, and I have not had to hang around a federal courthouse for the last few weeks. 

I am still predicting a split verdict, but every day that goes by suggests that a hung jury may be in the cards.  Is it too early to speculate as to whether the feds would try to retry Edwards if no verdict is reached?

May 30, 2012 in Celebrity sentencings, Offense Characteristics, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, May 28, 2012

Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign

At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example).  This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:

The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.

There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.

"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved.  Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it.  If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."

Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing.  Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.

Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received.  Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.

Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."

The Ravi case is, of course, unique in many ways.  Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.

Recent related posts on Ravi case:

May 28, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, May 24, 2012

Any thoughts on what jurors have been discussing for 25 hours in Edwards case?

The question in the title of this post is prompted by the latest dispatch from reporters in North Carolina who continue to wait for the jury in the Edwards federal criminal case to return a verdict.  Here are snippets from this new ABC News report:

After nearly a week of deliberations jurors in the John Edwards trial have yet to reach a verdict, methodically working their way through six criminal charges and a month's worth of testimony about how the former presidential candidate allegedly used campaign donations to cover up a torrid illicit affair.

Jurors today requested exhibits concerning counts 4 and 5 of the indictment, both of which deal with funds from millionaire political donor Fred Baron that were used to help hide Edwards' mistress Rielle Hunter.

Among the evidence jurors are reviewing is a note Baron wrote to Edwards' aide Andrew Young, accompanying an envelope full of cash. "Old Chinese saying: Use cash, not credit cards," read the note, which Baron wrote in December 2007, weeks before the Iowa caucuses. The cash was sent to a Florida hotel, where Young was staying with Hunter to keep her out of view from an increasingly inquisitive press corp....

Jurors also requested Young's bank statement, in which he had received a $20,000 deposit from Baron and another $725,000 from another wealthy Edwards supporter, millionaire heiress Rachel "Bunny" Mellon....

After doling out exhibits piecemeal as the jury requested them, Federal Judge Catherine Eagles today gave the jury all the evidence in the case, a move that could help speed deliberations.

The jury has spent more than 25 hours deliberating since it was charged last Friday. They have taken breaks only for lunch. Edwards was spotted earlier this week, pacing around a second-floor room of the courthouse, occasionally peering at the press gathered outside....

If convicted Edwards can face up to 30 years in prison and be fined more than $1 million, although it is unlikely he will face the most severe penalties.

Especially in white-collar cases of this nature, I tend to assume that a lengthy period of jury deliberation suggests lots of mixed opinions.  And mixed juror opinions, in turn, suggests a higher likelihood of a split verdict (which would, in my self-serving view, make a subsequent Edwards federal sentencing proceeding even more interesting).  But, not having followed the actual trial here all that closely, maybe there just is lots and lots of stuff for the Edwards jury to discuss in order to sort out all six counts.

May 24, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack