Thursday, January 14, 2010
Offender circumstances cited for big downward variance to convicted Refco lawyerThis ABC News report, which is headlined "Chicago Lawyer Sentenced to 7 Years in Prison," reports on the latest high-profile white-collar sentencing in which a below-guideline sentence was imposed. Here are the basics:
A Chicago lawyer was sentenced to seven years in prison Thursday by a federal judge who said his excessive loyalty to Refco Inc. led him to help the big commodities brokerage carry out a $2.4 billion fraud.
Attorney Joseph P. Collins, 59, of Winnetka, Ill., was sentenced by U.S. District Judge Robert P. Patterson in Manhattan after he was convicted at trial of conspiracy and other charges in the huge fraud at Refco.
Patterson cited Collins long history of charitable acts toward friends and his support of Chicago schools and the University of Notre Dame as he imposed a sentence considerably less than the 85 years in prison suggested by federal sentencing guidelines.
Patterson said the lawyer's loyalty to a customer led him to his crimes. "I don't believe Mr. Collins committed these crimes for greed, for money," Patterson said. "I think this is a case of excessive loyalty to a client," he said. "It's an admirable thing but in this case seems to have caused the crimes to be committed."
Patterson said it was necessary to give Collins a significant prison term as a message to lawyers that they can be held responsible if they are complicit in their client's crimes. He said he wanted "to deter other lawyers from doing this."
Tuesday, January 12, 2010
Eighth Circuit reverses above-guideline sentence for embezzing police officer
The Eighth Circuit has an interesting little sentencing ruling today in US v. Molnar, No. 09-1326 (8th Cir. Jan. 12, 2010) (available here). The simple fact that the Eighth Circuit reversed a sentence on a defendant's appeal is itself noteworthy, and the facts of the case add to the intrigue.
In Molnar, the defendant was a police officer who pleaded guilty to embezzlement of seized drug money. Though his calculated guideline range was ten to sixteen months, the district court varied upward and sentenced Molnar to sixty-months' imprisonment. The Eighth Circuit find a "procedural" error in one of the factors that the district court used to justify the above-guideline sentence, but the panel decision also indirectly suggests that the appeals court was troubled that this defendant was sentenced so severely for what seems to be a relatively minor crime.
Sunday, January 10, 2010
Some local (and international) coverage of sexting issues
This morning I noticed via the news feed a number of notable stories on "sexting" and the ways in which criminal laws try to deal with this issues:
- From Kentucky here: "Bill targets youth who send 'sexts': Richards’ proposal would lessen penalty for sending sexually explicit messages"
- From Pennsylvania here: "York County DA backs sexting reform: With two proposals in Harrisburg, legislators are hopeful the law could be changed this year"
- From Canada here, "'Sexting' nude photos a concern among teens: Is it criminal behaviour or just today’s version of spin the bottle?"
The story from Kentucky nicely summarizes the diversity of legal and policy responses to this new "sexting" phenomenon:
Legislation regarding sexting was introduced in at least 11 states in 2009, with six passing the bills, according to the National Conference of State Legislatures. The bills were a mix of increased penalties, decreased penalties and the creation of educational programs about the dangers of sexting....
The juvenile court system in Warren County has had an increasingly difficult time in deciding how to deal with sexting cases. “(They) are struggling how to handle it because it’s such a sensitive issue,” Warren County Attorney Amy Milliken said.
Wednesday, January 06, 2010
Off to war, rather than prison, for military marriage scammerA helpful reader sent me this notable local sentencing story, which is headlined "After marriage fraud, soldier will serve in Afghanistan, not in prison." Here are the basics:
A former Fort Bragg soldier who married a Russian woman in order to get her into the United States and claim higher benefits for himself was sentenced to probation Monday for the fraud.
Robert L. Cooper, lawyer for Stephen Schneider, argued that his client has been recalled to military service in Afghanistan and could only do so if he was not serving time. The judge agreed and sentenced Schneider to five years probation.
Schneider pleaded guilty in December to conspiracy to commit marriage fraud. Authorities said Schneider and another man, Sgt. Wesly Farris, 23, each married Russian women in order to get higher pay and move off post. After a civil ceremony, the women returned to New York, while the soldiers filed immigration papers for the women and personal requests for increased living allowances from the Army, authorities said.
Cranky convicted corporate cooperator complaining about prosecutorsThis Bloomberg report, which is headlined "Ex-UBS Banker, Informant Birkenfeld Seeks Probe of Prosecutors," provides the latest news on a white-collar case that has the feds and their corporate cooperator in a fight. Here are the details:
Bradley Birkenfeld, a key informant in a U.S. investigation of offshore tax evasion aided by UBS AG, claimed in a complaint that federal prosecutors made false statements to a judge who sentenced him to 40 months in prison.
Lawyers for Birkenfeld, a former UBS banker, claimed prosecutors made “inaccurate, misleading and incomplete” statements about him at his Aug. 21 sentencing hearing and in an interview on CBS Corp.’s 60 Minutes television show aired Jan. 3. Birkenfeld, 44, must report to prison on Jan. 8 and can’t extend his surrender date as he requested, a judge ruled Jan. 4.
Birkenfeld asked for an internal probe in a letter yesterday to U.S. Attorney General Eric Holder and the Justice Department’s Office of Professional Responsibility, which investigates allegations of attorney misconduct. Birkenfeld began telling U.S. authorities in 2007 how UBS helped Americans hide assets in secret Swiss accounts. He pleaded guilty in 2008 to helping California billionaire Igor Olenicoff and others evade taxes.
“It is one thing to hold Mr. Birkenfeld accountable for wrongdoing,” Birkenfeld’s lawyers wrote. “It is another thing altogether to imprison Mr. Birkenfeld on false information, especially when he is treated far more harshly than the wrongdoers who actually profited from the illegal tax schemes that Mr. Birkenfeld disclosed.”
Justice Department spokeswoman Tracy Schmaler said in a statement that Birkenfeld pleaded guilty to conspiracy to defraud the U.S. and admitted criminal wrongdoing. “At his sentencing in August, Mr. Birkenfeld made arguments for leniency,” Schmaler said. “In a motion filed in December, Mr. Birkenfeld requested a resentencing hearing citing the same issues raised in his letter to the Justice Department Office of Professional Responsibility. After consideration of these issues, that request was denied by a federal judge.”...
At his sentencing hearing in federal court in Fort Lauderdale, Florida, Justice Department prosecutor Kevin Downing said the U.S. couldn’t have unraveled the bank’s “massive tax fraud scheme” without Birkenfeld’s cooperation. Downing also recommended a 30-month term for Birkenfeld, saying he wasn’t initially truthful about Olenicoff. U.S. District Judge William Zloch, who could have imposed as many as five years, instead gave Birkenfeld a term of three years and four months.
Olenicoff, who pleaded guilty in 2007 to filing a false tax return, got two years’ probation and paid $52 million in back taxes, fines and penalties. Last year, six former UBS clients pleaded guilty....
The letter was sent yesterday by attorneys Stephen Kohn and Dean Zerbe of the National Whistleblowers Center in Washington.
"Juvenile Injustice"The title of this post is the headline of this editorial in today's New York Times. Here are excerpts:
Gladys Carrión, New York’s reform-minded commissioner of the Office of Children and Family Services, has been calling on the state to close many of its remote, prison-style juvenile facilities and shift resources and children to therapeutic programs located in their communities. Her efforts have met fierce and predictably self-interested resistance from the unions representing workers in juvenile prisons and their allies in Albany.
A recent series of damning reports have underscored the flaws in New York’s juvenile justice system and the urgent need to shut down these facilities. The governor and the State Legislature need to pay attention....
Not surprisingly, these institutions do a terrible job of rehabilitation. According to a study of children released from custody between 1991 and 1995, 89 percent of the boys and 81 percent of the girls were eventually rearrested. New York’s facilities are so disastrous and inhumane that state officials recently asked the courts to refrain from sending children to them, except in cases in which they presented a clear danger to the public.
Mr. Paterson’s task force was rightly impressed with Missouri’s juvenile justice system. It has adopted smaller regional facilities that focus on rehabilitation and house troubled youths as close to home as possible in order to involve parents and community groups in the therapeutic process. Missouri also has cut recidivisim rates by smoothing re-entry and helping young people with drug treatment, education or job placement.
New York clearly needs to follow Ms. Carrión’s advice and adopt a Missouri-style system. That means the Legislature will finally have to put the needs of the state’s children ahead of the politically powerful unions and upstate lawmakers who want to preserve jobs — and the disastrous status quo — at all costs.
Monday, January 04, 2010
Notable new study about juve sex offendersToday's USA Today includes this notable article, headlined "Study: Third of juvenile sex offenders target other kids." Here is how it starts:
More than a third of sex crimes against juveniles are committed by juveniles, according to new research commissioned by the Justice Department. Juveniles are 36% of all sex offenders who victimize children. Seven out of eight are at least 12 years old, and 93% are boys, says the study by the Crimes Against Children Research Center at the University of New Hampshire.
The report comes as states toughen penalties for adult sex offenders and wrestle with how to handle juveniles. "They are different from adult sex offenders," says study co-author David Finkelhor. They are more likely than adults to commit sex offenses in groups, and their victims are younger and more likely to be male.
Finkelhor says only about 10% of juvenile offenders have signs of "sexual preoccupation," an indicator of a pedophile. He says teen offenses include date rape. In the case of offenders age 12 or 13, it is often sexual experimentation with younger kids. Early sex education is key to teaching boundaries and preventing such experimentation, Finkelhor says.
The study, based on 2004 law enforcement data, finds that juvenile sex offenders commonly target children younger than they are. Their numbers increase sharply at age 12 and plateau at 14. Female offenders are younger.
Saturday, January 02, 2010
Latest story of sports stars and guns creates great con law issue spotter
Regular readers know that I am giddy when I can "work" while reading the sports pages or listening to sports talk radio. Thus, whether the issues involve famous athletes getting seemingly lenient sentences for drunk driving (see Donte Stallworth) or seemingly harsh sentences for the poor exercise of Second Amendment rights (see Plaxico Burress), the intersection of sports and crime always gets me going. And the latest sports story making the police blotter has me thinking that constitutional law professors should be excited about the latest news coming from DC. This New York Times piece, headlined "Wizards Gun Inquiry Focuses on Dispute," provides some key details:
The National Basketball Association and law enforcement officials are investigating the circumstances in which Washington Wizards guard Gilbert Arenas carried unloaded firearms into the team’s locker room, and whether he presented any guns during an argument with his teammate Javaris Crittenton....
Arenas acknowledged storing three firearms in his locker and said he took them to the arena because he did not want them in his home after the birth of his third child. When asked if he had showed the weapons to anyone, Arenas said: “Yes, I showed them to someone. I showed them to team security when I handed them to them and said give them to the police. Yes, I took them out of this locker room. I had to take them out to get them out of here to give to security. You see they didn’t take the whole locker out of here.”
The District of Columbia police and the United States Attorney’s Office opened a joint investigation into the incident. Their inquiry centers on whether Arenas produced any of the guns in a dispute with Crittenton before a practice at the Verizon Center on Dec. 21, according to Yahoo Sports. The New York Post reported that both players drew weapons, which Arenas denies. “I wake up this morning and seen I was the new John Wayne.” Arenas wrote on his Twitter account, adding. “Media is too funny.”
The District of Columbia has a zero-tolerance weapons possession law similar to that of New York City, and it is a violation of the N.B.A.’s collective-bargaining agreement to carry weapons into an arena or facility owned by the league. Charges have not been filed against Arenas, but if they are, he may face steep disciplinary action from the league....
Arenas, once the author of a popular blog, originally vowed not to interact on Twitter until his account reached one million followers. Far short of that mark, his feed featured a flurry of activity in a 24-hour span that began on New Year’s Eve before news broke of the argument with Crittenton. “i understand this is serious...but if u ever met me you know i dont do serious things im a goof ball this story today dont sound goofy to me,” Arenas wrote....
Arenas signed a six-year, $111 million contract in 2008. Before this season he played in only 15 games the last two years while battling injuries.
He pleaded no contest to misdemeanor weapons and vehicle charges in 2003 after being charged with carrying a .40-caliber handgun and driving without a license during a traffic stop in California. Shortly after, Arenas left the Golden State Warriors and signed a six-year, $64 million contract with the Wizards. The N.B.A. suspended Arenas for the first game of the 2004 season because of the charge. Arenas said he had registered the weapon in Arizona, but not in California.
Based on just this simple account of the facts, I can spot dozens of constitutional issues now surrounding this incident. Obviously, Second Amendment issues are in play since Heller declared a constitutional right to possess guns (at least in the home) for self defense. But how about the potential First Amendment issues involved in Arenas blogging about this on-going criminal investigation? Or how about Fourth, Fifth and Sixth Amendment issues raised by whether the police can now search the Wizards' locker room and Arenas's home and by how police can question Arenas and his Wizard teammates? And let's not forget all the structural constitutional questions in light of the overlapping local, state, and federal police-power interests in the District of Columbia. Of course, the NBA is a private actor subject to few constitutional constraints on how it responds to this incident; but I think contract and labor law could become constitutional law if the NBA were to, say, forever ban Arenas from the league.
Of course, for sentencing fans, one needs to assume a crime before getting too invested in thinking about all the interesting legal questions this case raises. Still, it is already fun to contemplate whether what Arenas says on Twitter could provide a valid basis for a sentence enhancement in some future sentencing. Also, if Arenas gets quicky and severely "punished" by the NBA, how should that impact formal prosecution and sentencing decisions? And what about the fact that Arenas appears to be a repeat offender (as well as a responsible father)?
I am sure there are even more great legal issues worthy of discussion as thoughts slowly turn from football to basketball during this time of the sports year. Readers are, of course, encouraged to join in this game of fast-break criminal justice issue spotting.
Thursday, December 31, 2009
"Judges Consider New Factor at Sentencing: Military Service"The title of this post is the headline of this new article in today's Wall Street Journal. Here are excerpts from the effective piece:
A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.
As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.
That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.
Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.
Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.
There are no special courts for veterans in the federal court system.... But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.
The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing. After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....
Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service. "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"...
Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.
Sympathy for new veterans aided John Brownfield of Cañon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.
The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.
In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision. The Brownfield opinion can be accessed at this link, and it starts this way:
I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006). This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).
Some recent related posts:
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
UBS whistleblower complaining that he is only person headed to prisonReuters has this interesting new article previewing what sounds like an interesting upcoming segment of 60 Minutes. The piece is headlined "UBS whistleblower asks why he is going to prison," and here are excerpts:
The key informant in the U.S. tax fraud case against Swiss bank UBS AG says he does not deserve the federal prison term he is due to start serving next month, according to an interview to be broadcast on Sunday.
Bradley Birkenfeld, a 44-year-old U.S. citizen, has been hailed by whistleblower advocates and U.S. prosecutors alike as pivotal to the case against UBS, his former employer. The bank was targeted in a wide probe by U.S. authorities for helping U.S. tax cheats to hide assets in UBS accounts.
Speaking in an interview to be broadcast on CBS television's "60 Minutes" on Sunday, his first since he began providing insider information to U.S. prosecutors in the summer of 2007, Birkenfeld seems both angered and stunned by the fact that he is due to enter prison on January 8 for a 40-month term.
Birkenfeld was handed his sentence by a Florida district court judge in August, two days after U.S. and Swiss authorities signed a pact in which Switzerland agreed to reveal the names of about 4,450 wealthy American clients of UBS to U.S. tax investigators.
No other UBS bankers have been jailed in connection with the massive tax fraud case. Birkenfeld's former boss, a Swiss citizen and an alleged mastermind of the conspiracy, was detained in the United States in 2008 and held for four months on a material witness warrant before he was quietly allowed to leave the country. "I gave them the biggest tax fraud case in the world," Birkenfeld says in the interview, portions of which were released by CBS on Wednesday. "I exposed 19,000 international criminals and I'm going to jail for that?" he asks.
Birkenfeld pleaded guilty to a single fraud conspiracy count in June 2008, when he acknowledged helping his largest U.S. client hide assets from the Internal Revenue Service. In a claim disputed by Birkenfeld's lawyers in a December 7 letter to U.S. Attorney General Eric Holder, Justice Department officials say the jail time was justified because he was not initially forthcoming about the tax fraud committed by his billionaire U.S. client Igor Olenicoff.
In the "60 Minutes" interview, Birkenfeld, who says he was sometimes asked to "cater" to his U.S. clients by shopping for things like cars, chalets or expensive Swiss watches on their behalf, was reminded by journalist Steve Kroft that he was an enabler for people breaking the law. "And I am the only one going to prison. Out of 19,000 accounts and no Swiss bankers," Birkenfeld responds.
Sunday, December 27, 2009
The same old debates about a new federal sentencing billA helpful reader forwarded to me this effective local newspaper article reporting on two "classic" sentencing perspectives concerning a new federal sentencing bill. The piece is headlined "Gang-prevention bill hits a snag with a co-sponsor's criticism," and here are excerpts:
U.S. Rep. Bobby Scott's two-year effort to refocus the battle against juvenile and gang crime to prevention programs that would cost billions of dollars appears to be picking up steam. More than half the members of the U.S. House — 234 lawmakers — have signed on as co-sponsors of his bill.
The Newport News Democrat's legislation would spend $2 billion over five years to underwrite what he calls "evidence-based prevention programs" to reach high-risk youths before they turn to gangs and crime.
But U.S. Rep. Randy Forbes, who had signed on as a co-sponsor, is now raising a red flag, saying the bill won't work. The Chesapeake Republican, who has tried for years to get a tougher anti-gang sentencing bill passed, said he became a co-sponsor in June in the hopes of getting his proposals included in Scott's bill.
Scott, however, said calls for tougher sentencing do not address the continuing cycle of gang crime. "You can say things as often as you want. The research is absolutely clear.... Mandatory minimums are a waste of taxpayer money," said Scott, who contends that the public wants the attention shifted to prevention. "They're sick and tired of watching people shout simple-minded slogans and pass it off as crime policy."
Scott's Youth PROMISE Act — an acronym for "Prison Reduction through Opportunity, Mentoring, Intervention, Support and Education" — involves steering federal grants to local agencies or groups that can demonstrate they use proven methods to prevent young people from joining gangs or turning to crime. The legislation also would provide millions to local police for victim- and witness-assistance programs in neighborhoods or cities with gang problems.
Scott said that despite considerable research and examples of successful community prevention programs, government funding mostly has focused on capturing criminals. If young people can be steered away from crime, the financial savings to policing and the justice system will more than pay for the prevention programs, he said....
Forbes said he doesn't oppose crime prevention programs but doubts that the Youth PROMISE Act will weed out wasteful and ineffective spending. "I guarantee you that with Bobby's bill, every group in America is going to say it's a prevention program," Forbes said. "You're going to have hundreds of groups line up... because for most of those groups, this is about dollars."...
Earlier this month, the bill was approved, 17-14, by the House Judiciary Committee, with Forbes joining other Republican committee members to vote against it. The vote came after the committee rejected Forbes' attempt to add his gang-sentencing plan to the legislation.
Forbes has argued that tougher sentencing laws are needed for gang members — including the younger members. He proposed a so-called "gangbusters" bill that would make gang-related crimes of murder, violent assaults and kidnapping all federal crimes that could require sentences up to life in prison or, for murder, execution.
Forbes' bill would allow the prosecution of 16- and 17-year-old gang members as adults in federal court. The measure passed the House in 2005 but failed in the Senate. He has reintroduced it since then, but it has not progressed to another floor vote.
Tackling prevention by itself would bring nothing but frustration, Forbes said, whereas requiring harsh sentences for younger gang members would force them to turn on their older leaders, undermining the criminal operation. "If you do not go after 16-, 17-year-old kids, what happens is the gang network will continue to let them do the dirty work," Forbes said. "We're talking about hardened criminals who are killing people for no reasons at all. I'm not saying we don't need prevention money. What I'm saying is what this will do is miss the meanest of the mean and the toughest of the tough.... It will also put all our resources in one direction."
Tuesday, December 22, 2009
Was justice done in the New York state sentencing of Astor's heir?I have not followed closely the crime and prosecution of Brooke Astor's son Anthony Marshall for stealing for his rich mother. But, yesterday's sentencing of Marshall leads me to wonder aloud in this space whether justice was done. For some background, here is the New York Daily News coverage of the sentencing:
Brooke Astor's 85-year-old son is going up the river for one to three years. Whether he comes back is anybody's guess. Frail and white-haired, Anthony Marshall looked stunned Monday when a Manhattan judge sentenced him to state prison for looting his late mother's $185 million fortune.
Blinking behind his glasses, the ailing son of New York's beloved grande dame stood slack-jawed as Supreme Court Justice Kirke Bartley gave him a tongue-lashing. "It is a paradox to me that such abundance has led to such incredible sadness," the judge said. "What would your mother say if she were here? Would she blanch at the spectacle? Would she despise you for the breach of trust?"
Marshall, who has been free on bail since his arrest in November 2007, will be allowed to stay home for the holidays. He must report to the big house on Jan. 19. He faced up to 25 years in prison.
His lawyer buddy Francis Morrissey, 66, was also sentenced to one to three years in prison, for forging Astor's signature on a will....
Close behind him was Marshall's much-maligned wife, Charlene, her eyes wet with tears. She was not charged with a crime, but prosecutors claimed her greed drove Marshall to rip off his senile socialite mother.... Meanwhile, Marshall's son Philip, whose elder abuse allegations sparked the criminal probe of his father, sent out a mass e-mail with a simple message, "No comment from Philip Marshall."...
Marshall was not called to the stand during the epic trial where he and Morrissey were convicted of fleecing Astor out of millions. She died two years ago at age 105.
Bartley noted that Charlene Marshall — who everybody agrees was loathed by Astor — could inherit at least some of her millions. He said a "Solomon-like decision" would be to give all of Astor's money to charity. "However, I am constrained to follow the law," he said.
Bartley said he believed Marshall loved his mother, but he then added, "While justice may be blind, I most certainly am not.... The forces at work here are abundantly clear to me."
In lowering the boom on Marshall, Bartley dismissed an earlier plea for leniency from Marshall's lawyer John Cuti, who asked the judge if there was a way "to avoid some of the horrors of incarceration" for Marshall. "He's not some venal credit card thief or pickpocket," Cuti said. He argued that prison time would kill Marshall, who suffers from heart problems and had quadruple-bypass surgery last year.
Prosecutors asked Bartley to sentence Marshall to up to 4-1/2 years in prison and accused the 85-year-old of engaging in "grand theft Astor." "He didn't steal from his mother to give to the Coalition for the Homeless," said Assistant District Attorney Joel Seidemann. "He didn't steal from Brooke Astor to give to the poor and downtrodden."
Anyone interested in Anthony Marshall's backstory should be sure to check out this New York Times profile, which further reminds me during this holiday season that money, possessions and happiness are often only casual acquaintances.
Saturday, December 19, 2009
Should autism provide a basis for a reduced federal sentence?The question in the title of this post is prompted by this news story about a prominent cyber criminal, which is headlined "Hacker claims form of autism, seeks lean sentence." Here are the details:
One of the world's most notorious hackers claims he may have a form of autism and has asked a judge to be lenient in sentencing him for helping mastermind the biggest identity theft in U.S. history.
The judge has delayed sentencing Albert Gonzalez in Boston federal district court for three months, to give prosecutors time to assess the hacker's claim that he may suffer from Asperger syndrome.
Gonzalez's attorney hired a psychiatrist who determined that the hacker's criminal behavior "was consistent with description of the Asperger's disorder" and "Internet addiction," according to court documents. Asperger syndrome is a mild form of autism. Sufferers' interests in specific subjects may border on the obsessive, according to the Autism Society.
Prosecutors assert that Gonzalez led a group of hackers who broke into computer systems and stole more than 170 million payment card numbers from data processor Heartland Payment Systems as well as retailers TJX Cos Inc BJ's Wholesale Club Inc and Barnes & Noble.
Tuesday, December 15, 2009
"Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"Thanks to a reference from Death Penalty Information Center, I just came across this commentaryby By Karl Keys and Bill Pelke which has the title that appears in the heading of this post. Here are excerpts:
Mental exhaustion. Battle fatigue. PTSD. Whatever it's called, many of our soldiers who served in wars over the years came home with combat-related mental illness, traumatized by the carnage and destruction they saw and experienced.
Unfortunately, too many veterans' mental conditions have fueled criminal behavior resulting in their imprisonment. Dating back to the Civil War, veteran incarceration rates increased after each conflict.
This is not a small, marginal problem. Government statistics for the 1980s show that 21 percent of state prison inmates then were Vietnam veterans. The U.S. Department of Defense and the Veterans Administration estimate that two of every five of the 800,000 new Iraq and Afghanistan war veterans exhibit post-traumatic stress disorder (PTSD) symptoms....
As veterans ourselves, we believe that people who commit crimes as a result of severe mental impairments should not be executed. In 2006, the American Bar Association's House of Delegates adopted that recommendation, which was officially endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness.
The piece discusses the cases of two Vietnam veterans — James Floyd Davis and Manny Babbitt — who were sentenced to death for murders after their return from war. (Davis is still on death row and Babbitt was executed a decade ago.) Unfortunately, the piece does not discuss or try to document how many of the 3200+ persons now on death row are veterans with (or without) direct experiences in a theater of war.
Of course, some of the most notorious modern American murderers have military service on their resume — including Tim McVeigh and the Fort Hood shooter,
Monday, December 14, 2009
Fascinating report on New York's broken juve prison systemAfter beating up on the New York Times' editorial work here, I must give the Old Gray Lady props for this potent front-page story about New York's prison system for juvenile offenders. The piece is headlined "New York Finds Extreme Crisis in Youth Prisons," and here is how it begins:
New York’s system of juvenile prisons is broken, with young people battling mental illness or addiction held alongside violent offenders in abysmal facilities where they receive little counseling, can be physically abused and rarely get even a basic education, according to a report by a state panel.
The problems are so acute that the state agency overseeing the prisons has asked New York’s Family Court judges not to send youths to any of them unless they are a significant risk to public safety, recommending alternatives, like therapeutic foster care.
“New York State’s current approach fails the young people who are drawn into the system, the public whose safety it is intended to protect, and the principles of good governance that demand effective use of scarce state resources,” said the confidential draft report, which was obtained by The New York Times.
Thanks to the NYTimes, everyone can access the referenced (not-so-)confidential draft report at this link.
Saturday, December 12, 2009
Can downloading of child porn be blamed on post-traumatic stress disorder?This local story from Virginia, which is headlined "Navy officer gets 40 months for child porn," reflects recent debates over both the federal child porn sentencing guidelines and showing leniency for those who served our country in the military. Here are the details:
A Navy lieutenant commander who served in Iraq with an elite Riverine unit was sentenced today to 40 months in prison after admitting he downloaded child pornography. John J. Hall blamed his actions in part on post traumatic stress disorder, a claim that the judge in the case took into account in granting leniency.
The U.S. Attorney’s Office asked for a 70-month prison term, but U.S. District Judge Mark S. Davis cited Hall unblemished record and achievements in uniform in sentencing Hall to well below federal recommended guidelines.
Hall pleaded guilty in July to one count of possessing child pornography. He admitted that he downloaded child pornography in the fall of 2006 and then again upon his return from Iraq in 2007. Authorities discovered 288 child porn images on his computer. Hall has just shy of 20 years of service.
Some recent related posts:
- "Judge suggests more sentencing options for war veterans"
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- ABA Journal covers the controversies over federal child porn sentences
- Potent DOJ response to ABA Journal article about federal child porn sentencing
- Potent response to DOJ account of federal child porn sentencing
- Strong sentencing opinion noting disparities in federal child porn downloading cases
- "Federal judges argue for reduced sentences for child-porn convicts"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
Friday, December 11, 2009
"Judge suggests more sentencing options for war veterans"The title of this post is the headline of this new article in the Denver Post. Here is how it starts:
John K. Brownfield Jr. returned from tours of duty in Iraq and Afghanistan abusing alcohol and suffering from mood swings, anxiety, depression and insomnia. "He was exposed to children being blown to pieces by explosive devices," said his lawyer, Vaughn McClain. "His job was to go pick up body parts."
Brownfield broke down in U.S. Senior District Judge John L. Kane's courtroom recently as he testified about the turmoil in his life during a hearing about his federal criminal court case.
Brownfield pleaded guilty to bribery of a public official in a case stemming from accusations that during his tenure as a correctional officer at the U.S. Penitentiary in Florence, which began in 2007, two years after his military service, he smuggled tobacco products to at least seven inmates in exchange for $3,500 in bribes. He faces as much as a year and a day in prison for the crime, court records show.
Kane, who has not issued a sentence in Brownfield's case, in October testified before the U.S. Sentencing Commission, saying he would like to see alternative sentencing options for military veterans. "I presently have cases involving veterans, and I have to ask myself, is this the way we treat our heroes?" Kane said.
This piece does not mention the recent Supreme Court ruling in Porter, but it would seem to give Judge Kane's concerns even more heft.
Some old and new related posts:
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- Lovely Rita, SCOTUS case...
- Why isn't there a prior good works guideline?
Thursday, December 10, 2009
Seventh Circuit questions probation sentence for political fraudAs detailed in this local report, which is headlined "Appeals judge rips Vrdolyak sentence: Posner says probation ‘depreciates the significance of the crime’," it sounds like a panel of the Seventh Circuit might be on the verge for finding a lenient sentence substantively unreasonable. Here are the details:
An appellate judge ripped into the probation sentence of former Chicago Ald. Ed Vrdolyak at a hearing today, saying it “depreciates the significance of the crime.” Appeals Judge Richard Posner extensively questioned why Vrdolyak got no prison time even though he pleaded guilty to fraud involving the sale of a Gold Coast medical school building.
When he sentenced Vrdolyak, U.S. District Judge Milton Shadur said he gave the 71-year-old probation in part because of an overwhelming number of letters the judge had received offering character references, including one from Bears linebacker Brian Urlacher. “A sentence like that really depreciates the significance of the crime,” Posner said in court today. “It just makes the crime seem trivial.”
The comments came during arguments before the Seventh U.S. Circuit Court of Appeals. Assistant U.S. Attorney Christopher Niewoehner, who initially asked that Vrdolyak receive up to 41 months in prison, appealed the sentence. In court today, Niewoehner asked the appeals judges to send the case back to Shadur for resentencing....
Vrdolyak pleaded guilty to charges stemming from the $15 million sale of a Gold Coast building belonging to the former Chicago Medical School, now called the Rosalind Franklin University of Medicine and Science.
Vrdolyak schemed with school board member Levine to split a $1.5 million kickback from the sale of the building to Smithfield Properties Development. Levine became a cooperating witness in the government's probe of the deal and wore a wire on Vrdolyak. The sale went through, but the kickback never happened once Levine’s cooperation became public.
Interesting sign of the modern high-tech sentencing timesI came across this interesting and telling press release, titled "Leading Strategic Litigation Communication Firm Now Producing Pre-Sentencing Video Biography," when scanning the news this morning. Here are snippets:
Colton Creative, the national leader in strategic litigation communication, announces that the firm is now offering pre-sentencing biography production. Recognized as the leading producer of "day in the life" and "video settlement brochures" in the United States, Colton Creative President Andrew Colton says pre-sentencing mitigation videos is a logical product offering of his company.
"We've been asked several times by clients if we could apply the broadcast network news magazine style we use for our litigation videos to documentaries showing the good things that people facing jail or prison time have accomplished in their lives."...
Colton Creative's pre-sentencing videos are custom made and can run anywhere from a few minutes to half an hour -- following rules set by the specific Judge running the case in question. They feature interviews with family, friends, and provide an in-depth look at why incarceration is not appropriate.
I think it makes sense for me to file this post in my "white-collar sentencing" archive, as I doubt all that many defendants other than those involved in white-collar offenses are likely to have the resources to hire this firm.
Friday, December 04, 2009
Interesting take on SCOTUS Porter and Van Hook rulings and "selective empathy"The New York Times' "Opinionator" blog today has this fascinating piece by Linda Greenhouse titled "Selective Empathy." Here is how it starts and ends:
In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?...
Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.
I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.