Tuesday, June 08, 2010
"Protecting Crime Victims in Federal Appellate Courts"The title of this post is the first part of the title of former-judge and now Professor Paul Cassell's latest article advocating for the federal Crime Victims' Rights Act to be given a broad reading. This article is available here via SSRN and its full title is "Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions." Here is the start of the piece's abstract:
In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”
The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.
Friday, May 21, 2010
Detroit City Council to make a victim impact statement in sentencing of former mayor Kwame KilpatrickThis local article, which is headlined "City Council Writing Victim Statement: Council's Statement To Be Read At Ex-Mayor's Sentencing," reports on an intriguing example of victim input in a high-profile sentencing. Here are the basic details:
Members of the Detroit City Council want their voices heard next Tuesday in the form of a victim impact statement when former Detroit Mayor Kwame Kilpatrick is sentenced for probation violation.
Council members were meeting with attorney William Goodman Friday to draft the statement. Goodman represented the council when it tried to force Kilpatrick from office before he resigned.
Council members said they want the statement, which will spell out the damage they say Kilpatrick has caused the city, to be read before his sentencing in Wayne County Circuit Court next Tuesday morning.
The Michigan Department of Corrections has said it already has finished Kilpatrick's pre-sentencing report.
Last month, Groner ruled that Kilpatrick violated terms of his probation by failing to report assets and turn over tax refunds toward restitution owed the city. Kilpatrick pleaded guilty in 2008 to misconduct tied to his lying under oath about an affair with a staff member in a whistle-blowers' lawsuit. He served almost four months in jail, agreed to give up his law license and his political career and repay the city $1 million for settling an employment lawsuit related to his misdeeds.
He had been making monthly payments of $3,000 while living in the Dallas area and working as a salesman for information-technology company Covisint.
In February, Groner ordered the stepped-up payments of $79,000 within 30 days and another payment of $240,000 within 90 days after a contentious six-day hearing, spanning from October to December -- which was triggered by Kilpatrick’s claim that he had only $6 a month left after living and family expenses in his new home in Southlake, Texas.
During the hearings, prosecutors revealed Kilpatrick and his wife had hidden assets; put money in other accounts, including $240,000 in loans; live in a rented mansion; and drive fancy SUVs....
Kilpatrick's attorney Michael Allen Schwartz has said he doesn't believe Kilpatrick should serve jail time because that would impede his ability to work and pay back the city.
Wednesday, May 19, 2010
Ponzi schemer suggests European losses should be excluded from sentencing calculationsThis local story about a federal hearing from Tennessee highlights some interesting sentencing arguments being made about a ponzi schemer. Here are highlights:
Convicted Gatlinburg swindler Dennis Bolze will testify today in a hearing to determine what factors should be considered in determining his sentence.... Bolze is seeking a reduction in a recommended sentence range of 27 years to 33 years and nine months.
Sentencing is set for June 22. Two of Bolze's local victims testified earlier today. "Dennis Bolze deserves the maximum penalty," said Don Cason, who was a close personal friend of Bolze.
Cason said he and his family have lost nearly everything in Bolze's Ponzi scheme. "He reached into our heart, grabbed it and threw it out," Cason said.
Bolze, hoping to reduce the recommended minimum prison sentence of 27 years, asked to have his dealings in Europe - where most of his victims live - to not be counted against him when his sentence is determined.
Federal prosecutors responded by describing Bolze as a man of "stunning audacity" who should serve close to 34 years in prison.
Documents filed in U.S. District court indicate that Bolze backed off his request to be excused from his European deals after he and his lawyer read letters from victims and reviewed the evidence against him. But he continues to seek a lesser sentence based on other grounds.
Bolze, 60, pleaded guilty in November to running a Ponzi scheme that raked in $21.5 million. Besides the Europeans, his victims include close personal friends in East Tennessee. "Bolze personally traveled to Europe to pitch his Ponzi scheme," Assistant U.S. Attorney Trey Hamilton said in court pleadings. "(His) scheme to defraud had no substantive difference between foreign and domestic investors."...
Hamilton describes as "outlandish" a plan Bolze submitted for making restitution to the victims. And he noted that the seizure and planned sale of Bolze's only known major asset, his 16,000-square-foot custom built home in Gatlinburg, will be of no benefit to his investors because it was used it as collateral to secure several loans.
In their push for a maximum sentence, prosecutors filed as exhibits letters from several devastated and angry investors, whose names were redacted. "I am now 58 years of age and have been in a wheelchair disabled by polio most of my life," one investor wrote. "My mother's money was to help me with my every day living, especially as I got older."
"I personally have lost all of my life savings and all of those of my 85-year-old father," another victim wrote. "Dennis Bolze has robbed me of a contented, financially secure retirement. He has caused my elderly parents great trauma and anxiety."
Sunday, May 16, 2010
Fascinating fight over victims' rights and defense representation in child porn sentencingThis piece in the Detroit News, which is headlined "Lawyer may face sanctions in child pornography case," reports on a fascinating conflict between a judge and a defense lawyer over the process surrounding the role of a victim in a child porn sentencing. Here are the interesting details:
A lawyer faces possible sanctions after filing a motion in a child pornography case that a federal judge described as "a blatant attempt to intimidate the minor victim's mother." But the National Association of Criminal Defense Lawyers has come to the attorney's defense.
U.S. District Judge Bernard A. Friedman said in a May 3 order that a motion from Troy attorney John Freeman seeking formal notice that the victim's mother wished to speak at a sentencing hearing was "unwarranted, baseless and worthy of contempt of court." Friedman said he will hold a hearing on whether and how Freeman -- a former federal prosecutor -- should be sanctioned. A date has not been set.
On April 15, Friedman sentenced former Walled Lake Schools official Craig Aleo to 60 years in prison -- more than double what prosecutors requested -- for crimes that included manufacturing child pornography in which a 4-year-old girl was victimized. Aleo, 64, of Davisburg, has filed a notice of appeal.
Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act. In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond. Friedman said no such requirement exists, and the motion "serves as yet another indication ... of the incredible lack of remorse for the victim in this matter."
In a response filed last week by Freeman and his attorney Martin Crandall, Freeman said his motion was intended to "address a potential conflict between (Aleo's) due process rights and a victim's right to be heard at sentencing" and was "never intended to intimidate a witness, nor prevent a victim from being heard."
Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers. "The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."
As detailed here, the CVRA only provides a right of notice to victims, not a right of notice to a defendant about what victims are likely to say. Consequently, if Freeman cited only the CVRA to support his motion for defense notice, his motion was misguided. But, absent strong evidence that Freeman has some truly nefarious intent, even a misguided defense motion requesting notice hardly seem like a sanctionable action.
Tuesday, May 11, 2010
Notable new note on the CVRA and victims of financial fraudThanks to this post at CO, I see that the May 2010 issue of the Minnesota Law Review has this interesting new student note on the ways lower courts are stuggling with aspects of the Crime Victims' Rights Act. The note is by Julie Kaster and is titled "The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act." Here is the abstract:
The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The CVRA also gives victims the ability to petition for a writ of mandamus if the district court fails to respect the right of allocution. Victims’ rights to allocution are not absolute, however, as the CVRA grants the court the ability to fashion “reasonable procedures” to limit victim allocution. Circuit courts divide over the standard of review that appellate courts should use when reviewing mandamus petitions on issues such as victim allocution. This stark division highlights an underlying tension in the criminal justice system and requires probing analysis into the benefits of allocution, the constitutional protections for the defendant, and the scarce judicial resources of the court. This Note urges Congress to amend the CVRA to empower district courts to limit victim allocution and subject that decision only to the traditionally high standard of mandamus review on appeal.
Sunday, May 09, 2010
What sentence might victim Sarah Palin urge for her hacker?In this postfrom last weekend, I noted that there were lots of interesting and important computer crime sentencing issues raised by the recent conviction of a college student who hacked into Sarah Palin's Yahoo Mail account in 2008. One of those issues concerned whether under the federal Crime Victims Rights Act, Sarah Palin would formally qualify as a "victim" of the criminal hacker. Professor Paul Cassell, who is an expert and frequent litigator under the CVRA, responds via this postat The Volokh Conspiracy with these insights:
[Would] Sarah Palin ... be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced[?] The answer to that question, I believe, is clearly “yes.”...
The CVRArequires that a person be “directly and proximately” harmed by an offense to be protected by the statute. Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status.
Sarah Palin has condemned the crime – and applauded the recent verdict – on her Facebook page. It is probable that the Probation Officer preparing the pre-sentence report will contact her. Perhaps she will want to pass along comments directly to the judge as well. If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.
These helpful points in turn prompt the question that is the title of this current post: what sentence might Sarah Palin urge for her hacker? I suspect she might avoid recommending (at least publicly) a specific prison term, but might she urge (publicly?) some kind of shaming sanction or community service as part of the sentence?
Would it be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking, and might Palin seek to be involved in such a shaming/service project? At the very least, such a video would make for a good Facebook link.
Recent related post:
Saturday, May 01, 2010
Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mailAs detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase. Here are the basics:
David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor. A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.
The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.
Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.
Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."
The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.
The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.
In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.
"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote. "America's elections depend upon fair competition. Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play. As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."
Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case. For example:
1. Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings? Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?
2. Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing? On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play." But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.
3. Should Kernell's age be an aggravating or mitigating factor at his sentencing? On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy. But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.
I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service? is the recommended guideline range really likely to speak to any of the special factors involved in this case? Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?
Saturday, April 24, 2010
"Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"The title of this post is the title of this interesting new piece on SSRN from Regina Austin. Here is the abstract:
Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.
The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies. The common reception of home photographs and moving images affects the interpretation of victim impact videos. As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims.
The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence. He wound up with a judgment of life without the possibility of parole. Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment.
Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder. Finally, the conclusion offers recommendations for the admission of victim impact videos.
It is my understanding that the submission by defendants of mitigating video evidence at sentencing is becoming a quite common in some courthouses. Thus, I wonder if the author here or others who agree that certain kinds of "videos are typically too idealistic and idyllic to be really probative evidence" would also be inclined to preclude defense submission of videos.
Thursday, April 22, 2010
Some notable new developments in the Polanski prosecutionAs detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director." Here's more:
The California Second District Court of Appeal denied the petition by Samantha Geimer without comment.
Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."
Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.
Thursday's ruling is unlikely to have any immediate bearing on Polanski's status. The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad. The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.
Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:
French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.
The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...
The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.
Saturday, April 17, 2010
The significant (and valuable) role of California's death penalty in the Chelsea King case
As regular readers may know, I consider the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be one of the least appreciated and most important justifications for preserving this ultimate punishment. For this reason (and others), I found especially significant and interesting the role that the California death penalty appeared to play in yesterday's plea deal resolution of the high-profile Chelsea King murder.
First, here are the basics from this press report, which is headlined "Sex offender pleads guilty to killing two teen girls: In a deal to avoid the death penalty, John Albert Gardner III admits to the murders of Chelsea King, 17, and Amber Dubois, 14."
A 31-year-old registered sex offender pleaded guilty Friday to murdering two teenage girls in northern San Diego County in a deal that spares him from the death penalty. John Albert Gardner III, who previously served five years in prison for beating and molesting a 13-year-old girl, pleaded guilty to the murders of Chelsea King, 17, and Amber Dubois, 14, both during rape attempts. In exchange for his plea at the hastily arranged hearing, Gardner will be returned to prison for life, without the possibility of parole....
Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families.
In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.
Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder.
Second, consider this effective press analysis, which is headlined "Scholars: Plea deal can work for both sides: Families avoid trail, killer avoids death penalty":
Shaun Martin, a University of San Diego law professor who has been following the case, ... Martin noted that taking the death penalty off the table not only spares prosecutors and family members a trial and the possibility of an acquittal, it also saves the state millions of dollars in legal expenses.
Because death sentences come with an automatic and lengthy appeals process, the state typically spends years on appeals and spends $2 million or more to impose the penalty, he said.
“Look at David Westerfield: He’s still around,” said Martin, referring to the Sabre Springs man convicted of killing Danielle van Dam in 2002. “When you can avoid a trial and have someone put in prison for the rest of their life, that’s not all that different than someone sentenced to death — at least for the next 15 years.”
Finally, let's all reflect on how not only the availability, but also the rareness, of executions in California seems to have been essential to greasing the wheels of justice in this case. Without the prospect of a death sentence John Albert Gardner seem very unlikely to plead guilty (especially in the Amber Dubois case). But without the prospect of 20+ years of capital litigation over a death sentence before an execution, the prosecutors and the family of the victims likely would not have been willing or eager to let Gardner cut this deal.
State prosecutors arguing against rights of victim in Polanski caseAs detailed at this link, tomorrow officially starts National Crime Victims’ Rights Week (NCVRW), which has been a special week designated by the US Department of Justice for "promoting victims’ rights and honoring crime victims and those who advocate on their behalf" each April since 1981. Thus, there is a special and sad temporal irony in this notable news story out of California, which is headlined "Prosecutors argue Polanski victim can't alter case." Here are the details:
Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday.
In a filing to the California Second District Court of Appeal, Los Angeles County prosecutors argue a recent constitutional revision spelling out crime victims' rights does not grant them the power to determine the outcome of criminal cases.
They are also asking the appeals court to reject requests by Polanski's victim, Samantha Geimer, to have the case heard in another county and unseal recent testimony by a former prosecutor.
Prosecutors argue that granting her request for dismissal would "fundamentally alter the way in which crimes are prosecuted." The filing argues that if victims were parties to criminal cases, cases could be dropped either through intimidation, coercion or public pressure.
Geimer petitioned the appeals court to dismiss the case and make the other rulings in a March petition. That filing argued a 2008 constitutional amendment, dubbed Marsy's Law, gives victims more input into criminal cases. Geimer's attorney, Lawrence Silver, has argued twice before that the amendment meant his client's request for dismissal should be considered....
Geimer's filing is a separate appeal from one being pursued by Polanski's attorneys that seeks the appointment of a special counsel to investigate alleged judicial misconduct in the case. The court has not yet ruled on Polanski's appeal.
California voters in November 2008 approved a measure that wrote specific victims' rights into the state constitution, including giving them more notice about criminal proceedings. Geimer has repeatedly sought to have the case dismissed, arguing that renewed interest of the case and media coverage has led to her being repeatedly victimized.
I am troubled, but not at all surprised, that California state prosecutors are aggressively seeking to limit a crime victims' rights when those rights do not serve their interests. Prosecutors are often eager to promote the rights of crime victims when it serves their parochial interests in a particular criminal case, but then are also often likely to disregard or even seek to dismiss the rights of crime victims when it undermines their interests in a particular case.
In light of the official start of National Crime Victims’ Rights Week, I wonder if any officials who work for the federal Office for Victims of Crime-- whose motto is "Putting Victims First" -- have considered filling amicus briefs in support of Samantha Geimer in the Polanski case.
Tuesday, April 06, 2010
The latest "grand" development in the debate over child porn restitution "settlements"
This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:
Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims. Others, not a dime. On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy." The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.
It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney. Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims. "We applaud the judge for what he's done," Marsh said Monday.
The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case. Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country. As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.
Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases. A few courts have ordered millions. Some have ordered nothing....
Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system. Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...
Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case. Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.
The prosecutor replied that Amy was, indeed, entitled to restitution. On Monday, all sides agreed that $1,000 was appropriate. Officials with the U.S. attorney's office declined to comment further.
Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.
It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate." Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense. Still, functionally, this process does not seem like classic and traditional criminal law. Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.
Monday, March 15, 2010
Any pre-game predictions or hopes for today's federal sentencing of Erin Andrews' stalker?As detailed in this new AP article, which is headlined "ESPN's Erin Andrews' stalker to get sentence in LA," a high-profile federal sentencing involving a high-profile victim is scheduled for this afternoon. Here are the basics:
The man convicted of stalking ESPN reporter Erin Andrews and shooting nude videos of her through a hotel room peephole is facing sentencing in a Los Angeles courtroom.
Michael Barrett, a 48-year-old Chicago-area insurance executive, has pleaded guilty to interstate stalking and agreed to a 27-month prison sentence. Barrett is suspected of renting hotel rooms adjacent to Andrews in three cities in 2008, including Milwaukee.
Andrews is expected to address the court and talk to reporters after the Monday hearing. Her attorney has said she did not agree to the sentence outlined in the plea bargain, and a sentencing memo filed last month noted that she wants Barrett to pay her about $335,000 in restitution.
As I have noted in prior posts here and here, both the recommended prison sentence and the requested restitution amount are not without controversy. My gut tells me that Barrett will end up getting slightly more than 27-months as a prison sentence, but will also be required to pay less than Andrews seeks in restitution. But that's just a guess based on no special knowledge or insights (and also based on the assumption that Andrews specifically urges a longer prison sentence in court today).
More fundamentally, this case seems like a perfect setting for some creative, shaming-type sanctions in addition to the traditional prison term. Requiring Barrett, say, to post nude videos of himself on to the internet would have somewhat of an "eye-for-an-eye" kind of appeal, but I fear someone like Barrett might enjoy such a punishment too much. Or, assuming Barrett is a sports fan, how about a lifetime ban on watching ESPN's Sportscenter or on watching the NCAA baskeball tournament would really put a hurt on him. Or maybe Barrett should be required to vote repeatedly for Andrews to help her win on this season's Dancing with the Stars.
- What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?
- Interesting prison and restitution recommendations in Erin Andrews peeper prosecution
UPDATE: This AP report on this afternoon's Barrett sentencing suggests my prediction of the sentence was spot-on:
An Illinois insurance executive who secretly shot nude videos of ESPN reporter Erin Andrews was sentenced Monday to 2 1/2 years in prison before giving a tearful apology that was harshly rebuked by his victim....
Barrett, who has until May 3 to surrender, was ordered to have supervised probation for three years after his release, during which he will be prohibited from contacting Andrews, her family or friends.
He will not be allowed to stay in a hotel without approval of a probation officer and if he accepts employment somewhere, Andrews will be notified. Barrett was also ordered to pay $5,000 in fines and $7,366 in restitution, but the judge said further restitution may be imposed to compensate ESPN.
Tuesday, March 09, 2010
"Restitution for Child Pornography Victims"
The title of this post is the headline given to this local public radio show on an interesting cutting-edge topic which I have covered at some on this blog. Here is the set up:
Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.
Ernie Allen, President and Chief Executive Officer of the National Center for Missing & Exploited Children and the International Centre for Missing & Exploited Children
Steve Kelly, Attorney with the Maryland law firm Miles & Stockbridge and Commissioner on the Maryland Criminal Injuries Compensation Board
Jonathan Turley, Professor of Public Interest Law at George Washington University; practicing defense attorney
Some related recent federal child porn prosecution and sentencing posts:
- More examples of sentencing uncertainty surrounding federal child porn cases
- "Prosecutors seek nearly $200k for child porn victim"
Tuesday, March 02, 2010
Notable First Circuit ruling on CVRA appeals and orders of restituionA First Circuit panel has today handed down a notable ruling concerning crime victim rights and appellate procedures under the CVRA in US v. Aguirre-González, No. 08-1276 (1st Cir. Mar. 2, 2010) (available here). Here is the panel's own summary of its work:
We asked the parties to brief a series of questions pertaining to the right of crime victims to seek appellate review of restitution orders imposed as part of a defendant's criminal sentence. After careful consideration, we hold as follows. First, a petition for a writ of mandamus under the CVRA is the exclusive mechanism for appellate review of sentencing orders affecting crime victims' rights. Next, the 72-hour time limit for mandamus review imposed by the CVRA is precatory, not mandatory, such that appellate courts retain authority, in appropriate circumstances, to consider petitions after the expiration of that deadline. Nonetheless, in this case, we do not exercise our discretion to convert appellant's direct appeal into a mandamus petition, as consideration of the petition on the merits at this late date would be fruitless in light of the CVRA's express concern for finality in criminal sentencing orders. Accordingly, we have no need to address what standard of review applies to timely mandamus petitions under the CVRA.
Monday, March 01, 2010
Another notable CVRA ruling from the Sixth CircuitAs noted in this post last week, the Sixth Circuit disposed of an interesting mandamus petition from crime victims in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010). Another Crime Victims' Rights Act ruling comes from the Sixth Circuit today in the same basic matter involving a criminal antitrust conspiracy in In re McNulty, No. 10-3201 (6th Cir. Mar.. 1, 2010) (available here), and here is a notable snippet:
[W]e agree with the district court’s holding that McNulty is not a victim for the purposes of the CVRA. The alleged harm to McNulty stemmed from his firing for refusing to participate in the conspiracy and his “blackballing” from employment with packaged-ice companies until he stopped working with the government in exposing the conspiracy. If proven, these would indeed be harms to McNulty, but they are not criminal in nature, nor is there any evidence that they are normally associated with the crime of antitrust conspiracy.
To fire an employee and prevent a former employee from being hired by another company may be illegal under the civil law, but they are not inherently criminal actions, nor are they actions inherent in the crime of conspiracy to violate antitrust laws to which Arctic Glacier pled. Civil, not criminal, remedies are available to redress these actions.
Wednesday, February 24, 2010
Off to Miami for National Institute on White Collar Crime
As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute. I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.
Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General. In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule." Here is how my panel is titled and described:
SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.
Tuesday, February 23, 2010
Notable CVRA ruling from the Sixth Circuit rejecting victims' plea to reject corporate plea dealThe Sixth Circuit disposed of an interesting mandamus petition from crime victims this morning in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010) (available here). The corporate setting, and the crime victims' requested relief, make this ruling especially notable, and here are snippets from the opinion:
This petition for a writ of mandamus and a related appeal arise from the proceedings in United States v. Arctic Glacier Int’l Inc., No. 1:09-cr-00149 (S.D. Ohio). In that case, Arctic Glacier International was charged in a criminal information with violating 15 U.S.C. § 1 by participating in “a conspiracy to suppress and eliminate competition by allocating packaged-ice customers in southeastern Michigan and the Detroit, Michigan metropolitan area.” The petitioners describe themselves as “nine consumers and one business that paid too much for packaged ice as a result of Arctic Glacier’s offense” based on purchases both within and outside of the geographic area of the offense. Their civil action for damages is pending in the Eastern District of Michigan. In re Packaged Ice Antitrust Litig., No. 08-md- 1952 (E.D. Mich.). In these criminal proceedings, the petitioners claim to be victims of the crime under the Crime Victims’ Rights Act, 18 U.S.C. § 3771....
Whether these petitioners as indirect purchasers were “directly and proximately harmed” by the actions of Arctic Glacier is an issue that is largely beside the point, because we conclude thatthe district court afforded them the status of crime victims. That is, the petitioners were allowed a full opportunity for participation. That included their appearance through counsel at the arraignment, at the plea hearing, and at sentencing. The district court delayed a decision on whether to accept the guilty plea to allow counsel for the petitioners an opportunity to confer with government counsel. Counsel for the petitioners admitted at the sentencing hearing that upon their entry into the case, the district court had afforded them every opportunity for participation. Notwithstanding that active participation, the petitioners assert a right to an earlier notice prior to filing of the charges and direct involvement with the government’s negotiation of a plea agreement. The petitioners’ right to such notice is uncertain, and based on the record in this case, we do not find this to be grounds for relief in mandamus.
The petitioners disagree with the district court’s final decision, made after hearing from them on multiple occasions, to accept the plea agreement and impose sentence pursuant to that agreement. They object that the plea agreement makes no provision for restitution in deference to the pending civil causes of action. They seek through this petition to vacate the plea agreement, to direct the district court to reopen the proceedings, and to participate as a party to the renegotiation of a plea agreement that will include provisions for restitution in their favor. Although the Act reaffirms the right of crime victims “to full and timely restitution as provided in law,” it does not compel such a result in this case. Upon review, we cannot conclude that the district court abused its discretion in accepting the agreement. The record reflects a consideration of all appropriate factors. The district court reasonably concluded that the difficulty of determining the losses claimed would so prolong and complicate the proceedings that any need for restitution would be outweighed by the burden on the sentencing process.
Wednesday, February 10, 2010
What (precise?) sentence should Erin Andrews advocate for her stalker/peeper?In this post earlier today, I noted the peculiar sentencing recommendation coming from federal prosecutors for the stalker/peeper who followed and filmed ESPN reporter Erin Andrews: only a 27-month prison term and exactly $334,808.27 in restitution. I now see this follow-up story from the New York Daily News headlined, "ESPN's Erin Andrews says 27-month sentence for slimy video voyeur Michael Barrett is not enough." Here's more:
Prosecutors asked a judge to put perv Michael Barrett behind bars for just a little more than two years in new court documents filed with the U.S. District Court in Los Angeles.
Andrews' lawyer Marshall Grossman said that's inadequate. "She is the victim," he told the Daily News. "My strong sense is that she will argue, as she did before, in favor of a tougher sentence."
Thanks to the federal Crime Victims Rights Act, Andrews has a statutory "right to be reasonably heard" at Barrett's scheduled sentencing on March 8. Though I am sure Andrews will exercise that right by urging the sentencing judge to be tough, I wonder if Andrews will (or should) advocate a precise "tougher sentence" for Barrett.
Of course, it is much easier for Andrews (and for victims in other cases)to advocate generally for a "tough" sentence than to propose a precise sentencing term as an alternative to what prosecutors and defense attorneys are advocating. Nevertheless, perhaps Andrews (and other victims in other cases) would be more effective in achieving a desired outcome when putting forward precise recommendations rather than just general advocacy.
Against this backdrop, I wonder if readers have thoughts about whether Andrews should urge a specific sentencing alternative and what such a specific alternative might be — e.g., many more years in prison? severe conditions of supervised release? shaming in the form of a required posting of YouTube video of Barrett naked in his prison cell? More broadly, I wonder if anyone can report on other cases in which a victim's sentencing advocacy was especially useful (or especially problematic) because the victim did (or did not) get specific.
Monday, January 25, 2010
Federal judge rejects plea with long sentencing recommendation because it is not long enoughThis New York Times article from late last week, which is headlined "Plea Rejected in Case of Hepatitis Infections," spotlights the role that victims can sometimes play in getting sentencing judges to reject plea deals even when they include significant terms of imprisonment. Here are the details:
Suggesting that 20 years in prison was not enough punishment for the crime, a federal judge on Friday rejected a plea agreement for a former hospital technician and drug user who admitted that she exposed hundreds of patients in her care to hepatitis C.
The judge, Robert E. Blackburn, said the agreement with the former hospital worker, Kristen D. Parker, inordinately restrained his discretion and did not take into account the views of victims, many of whom submitted anguished written statements. It is unusual, legal experts said, for a judge to reject a plea agreement.
Ms. Parker, 27, admitted to the police on videotape that while working at Rose Medical Center in Denver in 2008 and 2009, she stole pain-medication syringes from operating room trays, replacing them at times with needles she had already used to inject herself with heroin.
Seventeen Rose patients have so far been found to have a strain of hepatitis C linked through genetic sequencing to the strain in Ms. Parker’s blood, according to the Colorado Department of Public Health and Environment. Hepatitis C affects liver function and can have lifelong consequences.
Ms. Parker’s lawyer, Gregory C. Graf, said he had not consulted yet with his client but expected she would probably persist with her guilty plea, giving the judge discretion as to her sentence when the case reconvenes next month. Ms. Parker could also change her plea to not guilty and insist on a jury trial, or try to reach another plea agreement with prosecutors.
Judge Blackburn warned Ms. Parker in the brief hearing in Federal District Court, before a courtroom packed with former Rose patients and their families, that if she chose to continue with her guilty plea, the sentence could be stiffer. “I may dispose the case less favorably,” Judge Blackburn said....
A lawyer representing 13 of the Rose hepatitis patients, Hollynd Hoskins, also specifically argued to Judge Blackburn that the United States attorney’s office was not adequately consulting with her clients as required by the [federal Crime] Victims Rights Act.
The United States attorney for Colorado, David M. Gaouette, in a statement on Friday, said, “The victim issues are vitally important in this case and we will continue to work closely with them to ensure their voices are heard.”
Saturday, January 23, 2010
Roman Polanski's request to be sentenced in abstentia is deniedThis Los Angeles Times article provides the latest news in the Roman Polanski sentencing saga. Here are the basics:
A Los Angeles County Superior Court judge Friday denied Roman Polanski's request to be sentenced in absentia, scuttling the director's latest bid to end his three-decade-old child sex case. Polanski hoped that such a sentencing would allow his lawyers to lay out evidence of judicial misconduct in his case and secure him a sentence of no further time behind bars.
Although a state appeals panel had suggested that Polanski be sentenced in absentia, as the director is facing extradition proceedings in Switzerland, Judge Peter Espinoza said he was not bound by the higher court's suggestion. Espinoza said he would not sentence Polanski as long as he remained a fugitive. "I have made it clear he needs to surrender," Espinoza said. Polanski, 76, is under house arrest at his chalet in Gstaad.
Friday's decision guarantees that the legal saga -- which began in 1977 when a 13-year-old girl accused the director of sexual assault -- will continue for a 33rd year at least.
In his ruling, Espinoza cited the fugitive disentitlement doctrine, a 19th century legal principle that bars a fugitive from calling on the help of a court while he is flouting its authority. The 2nd District Court of Appeal upheld the judge's application of the principle in December, but urged sentencing in absentia or other resolution that would address the misconduct claims.
Polanski's defense quickly vowed to appeal. Attorney Chad Hummel told the judge he was frustrated that the court was more interested in the director's physical presence than investigating the misconduct claims. "What your honor is saying . . . is you're not doing anything unless Mr. Polanski first shows up. And for what? A show," he said....
In his ruling, Espinoza also denied a request by the victim, Samantha Geimer, to order prosecutors to stop extradition proceedings on the grounds that they had not consulted with her before seeking Polanski's return. The judge cited evidence that prosecutors had repeatedly contacted her.
Some recent related Polanski posts (many of which have generated great comment threads):
- Roman Polanski asking to be sentenced in absentia
- The latest news on Roman Polanski sentencing debate
- Rape victim in Roman Polanski case complaining about prosecutors violating her rights
Thursday, January 21, 2010
Rape victim in Roman Polanski case complaining about prosecutors violating her rightsThis new Los Angeles Times article, which is headlined "Victim in Roman Polanski rape case expected to take new legal step on his behalf," reports on the latest fascinating twist in the Roman Polanksi case. Here is how the piece starts:
In the 33 years since she accused Roman Polanski of rape, Samantha Geimer has publicly forgiven the acclaimed director, accused the American justice system of mistreating him and urged a dismissal of his still pending criminal case. On Friday, Geimer is expected to take yet another step on Polanski’s behalf – asking that a Los Angeles court force U.S. authorities to abandon their ongoing attempt to extradite the filmmaker from Switzerland.
In papers served on Polanski’s lawyers Wednesday and expected to be filed in Superior Court this morning, Geimer’s lawyer contends that the L.A. County district attorney’s office violated the state's victims rights statute by not consulting with her prior to making the extradition request.
Now a married mother living in Hawaii, Geimer was 13 when she told authorities Polanski raped and sodomized her during a photo shoot at Jack Nicholson’s house.
Geimer's attorney, Lawrence Silver, wrote that at a Friday hearing he planned to cite Marsy’s Law – a 2008 statute passed by ballot initiative – that specifically guarantees crime victims a number of rights, including the right “to reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding ... the determination whether to extradite the defendant.”
The attorney wrote that in a July letter to the deputy district attorney handling the case, he made clear that Geimer wanted to meet with prosecutors and planned to “exercise every right that she may have under the Victim’s Bill of Rights.”
No one from the district attorney’s office contacted Geimer – whose pro-Polanski feelings were widely known – at that time or in September when the director was arrested in Zurich on a three-decades-old arrest warrant, according to the papers.
Wednesday, January 13, 2010
"Woman sentenced to hold sign: 'I battered a police officer'"
The title of this post is the headline of this article from the Orlando Sentinel, which was sent to me by a helpful reader. My first instinct is to always prefer these sorts of shaming sentences over terms of incarceration, but I know some others have real problems with this kind of creative sentencing approach:
Alexandra Espinosa-Amaya isn't happy about her sentence. For four hours, the 24-year-old stood outside the Orlando Police Department Tuesday with a homemade sign, apologizing for hitting an officer. "I battered a police officer. I was wrong. I apologize," she drew on a blue poster board decorated with flowers.
This is her punishment for pushing Sgt. Andrew Brennan on Nov. 29, 2008, while he worked off-duty near the Dragon Room on West Church Street. "It's humiliating and it doesn't teach my anything," Espinosa-Amaya said outside the courtroom and before she headed to the police station. "But if Officer Brennan is happy and feels a little better, I'll do it."
She agreed to the sign as part of her no contest plea to two misdemeanor charges — simple battery and resisting an officer without violence. Espinosa-Amaya, who is a student at Jacksonville State University in Alabama, also must complete two years' probation, write an apology letter, perform 50 hours of community service and attend an anger-management class.
The sign is an unusual step but the officer wanted some type of unique punishment, said Espinosa-Amaya's attorney, Andrew Chmelir. And the agreement let her plea to misdemeanors instead of her initial felony charge of battery on a law-enforcement officer, he said. She is here on a student visa, but today's sentence will not affect her immigration status.
Monday, January 04, 2010
"Prosecutors seek nearly $200k for child porn victim"The title of this post is the headline of this interesting local article reporting on another case of a child porn victim seeking a significant restitution award from a person who downloaded the wrong dirty picture. Here are excerpts:
Federal prosecutors want Hammond federal Judge Joseph Van Bokkelen to order Portage child pornography convict Mark Ontiveros to pay the victim $193,310.86 in restitution because his computer held images of Vicky before his arrest in summer 2008. Most of that money would be earmarked for her mental health treatment and counseling, according to federal court records.
Ontiveros' attorney, Bryan Truitt, said his client doesn't deny he possessed child pornographic images, a crime that will net the convicted man at least five years in prison. But Truitt said he will argue Ontiveros cannot and should not pay almost $200,000 for the psychological consequences of the girl's sexual exploitation. Ontiveros is not the "proximate cause" of enough harm to warrant that figure, Truitt said....
Prosecutors claim investigators found Ontiveros had collected more than 1,300 images and 18 videos showing children "posing lasciviously" or being raped or molested. Ontiveros admitted to police he viewed child pornography for as many as three hours per day, sometimes when his young son was in the room, according to court records.
At least one ofthe images in Ontiveros' collection is from a series of sexually explicit pictures of the girl referred to in court papers as "Vicky." Nine other children "known to law enforcement" were found in Ontiveros' pictures and videos, but Vicky's lawyer was the only attorney to seek restitution, according to the motion filed by Assistant U.S. Attorney Jill Trumbull-Harris. Vicky's lawyer requested $165,905 for future counseling, $23,205.86 for treatment and "legal-related" costs and $4,200 in attorney fees, Trumbull-Harris wrote....
Vicky will not testify at Ontiveros' sentencing because of "recent severe psychological trauma from attending multiple sentencing hearings" for other offenders, Trumbull-Harris wrote. Federal law mandates a minimum sentence of five years in prison for Ontiveros at sentencing, which is scheduled for Jan. 14. Truitt argues in a sentencing memorandum filed last week that Van Bokkelen should hand Ontiveros the minimum, a term that would fall below advisory sentencing guidelines, to be followed by five years of mental health treatment.
Some related recent federal child porn prosecution and sentencing posts:
Saturday, October 31, 2009
Murder victims' son seeking to advocate against death penaltyA helpful reader forwarded to me this interesting story out of California, which is headlined "Don't execute killer, slain El Cerrito couple's son says." Here is the start of the piece:
The 20-year-old son of a slain El Cerrito couple is fighting to speak against imposing the death penalty on the uncle who killed his parents, testing for the first time a state law that gave crime victims a greater voice in legal proceedings.
Eric Rogers is scheduled to testify for the prosecution next week during the penalty phase of the murder trial of Edward Wycoff, a 40-year-old Sacramento County truck driver convicted Monday of two counts of first-degree murder for killing his sister and brother-in-law, Paul and Julie Rogers, on Jan. 31, 2006.
While legal precedent limits Eric Rogers to testifying only to the impact the murders have had on his life, Rogers said he wants to tell jurors that he doesn't want Wycoff executed. His parents were strongly opposed to the death penalty, as is he, he said. "I think revenge would bring me closer to the status of my uncle and further from the status of my parents," Eric Rogers told the Times. "To be vengeful in their name would be disrespectful."
Rogers hired Berkeley attorney Ted Cassman to argue that he has a right to voice his opposition to capital punishment under Marsy's Law, also known as Proposition 9 or the Victim's Rights and Protection Act of 2008, which voters approved last November. Marsy's Law gives victims the right to be heard at any legal proceeding. Beyond Rogers' belief that the death penalty is wrong, such a sentence would cause Rogers more pain by subjecting him to 10 to 20 years of appeals on Wycoff's behalf, Cassman said.
Wycoff prosecutor, Mark Peterson, argues that case law states that jurors need to decide whether a defendant deserves death, not how a death sentence would impact others.
Thursday, October 29, 2009
Effective new opinion discussing restitution in federal child porn possession casesI posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn. Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):
It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)
A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation. See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction. See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009). Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000. See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009). Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount. See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....
It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm. The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.
Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images. The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims. In fact, there is no mention of Mr. Berk at all....
Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.
Some related recent federal child porn prosecution and sentencing posts:
UPDATE: A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:
Tuesday, October 27, 2009
The latest (beneficial?) litigation front in child porn downloading battlesI just found this effective local article discussing what is becoming an important and very interesting new front in the battle over child porn prosecution and sentencing. The piece is headlined "Victim of child porn seeks damages from viewers," and here are excerpts:
The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony. Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.
In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series....
The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.
Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred. She has described her horror in a letter to courts [which is available here] where she is seeking restitution....
Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year. Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims.
Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified. Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.
In 20 cases, they have had mixed results. A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal. Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.
Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle. The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years.
Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal. Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000. Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim. The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.
The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings.
As regular readers know, I am generally a fan of financial penalties as an alternative to long imprisonment terms. Consequently, my first instinct is to be support of efforts by child porn victims to seek restitution awards from even those who only download these images. That said, I do not think it makes much sense for individual downloaders to be on the hook for huge restitution payments.
Moreover, I hope federal judges eager or inclined to award restitution in this kinds of cases ought also to seriously consider short prison sentences in service to the provisions of 18 USC 3553(a)(7), which require a judge to consider the "need to provide restitution" to victims at the time of sentencing. It seems obvious to me that long prison terms necessarily will diminish the ability of a defendant to be able to make reasonable restitution payments.
Some related recent federal child porn prosecution and sentencing posts:
- More examples of sentencing uncertainty surrounding federal child porn cases
- Judge Adelman operationalizes deconstructed child porn guidelines
Friday, October 02, 2009
"Victim’s letter lessens attacker’s prison sentence"The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:
A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.
Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time. He wasn't bitter, and had compassion for his attackers. "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...
Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison. According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.
Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand. On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:
I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony. She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time. Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried. Instead, she is a footnote in all the commentary, on both sides. No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.
Wednesday, August 26, 2009
Interesting debate over judge's questions to rape victim at sentencing
Thanks to Scott at Grits for Breakfast, I have learned of an interesting debate over how a Texas state judge at sentencing questioned a rape victim. Here are some links to the story and reactions:
- From the Houston Chronicle here: "After rapist convicted, judge grills the victim"
- From Grits here, "Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about you"
These stories raise broader questions about the procedures that are used and should be used when victims are involved in the sentencing process. Because nearly all sentencing proceedings take place in front of the sentencing judge, rarely are the formalities of the adversarial system followed (and, of course, many constitutional and statutory rules applicable at trial do not even apply at sentencing). But, as this story highlights, victims may be surprised and troubled when judges get directly involved in asking probing and challenging questions concerning the nature of the offense.
Thursday, August 06, 2009
NBA's crooked ref results in interesting restitution ruling from Second Circuit
The Second Circuit today has an interesting ruling on restitution awards in US v. Battista, No. 08-3750 (2d Cir. Aug. 6, 2009) (available here). Here is how it starts:
Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association (“NBA”) gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution. The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses. Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.
Tuesday, July 14, 2009
Intriguing Sixth Circuit ruling on victim access to PSR
A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private. Here is how the interesting opinion gets started:
This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants. Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs). The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him. The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages. Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them. The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context. But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.
Tuesday, June 16, 2009
Bernie Madoff's many victims vent in letters to sentencing judge
As detailed in this New York Times article, headlined "Fraud Victims Want Maximum for Madoff," some victim of Bernie Madoff's ponzi scheme have had a chance to tell his sentencing judge what they think ought to happen to their least-favorite white-collar criminal. Here are a few details:
They are widows, retired schoolteachers, electrical contractors and Korean War veterans. Most had a strong message for the judge in charge of sentencing Bernard L. Madoff: impose the maximum sentence allowable by law.
In more than 100 letters and e-mail messages to Judge Denny Chin, victims of Mr. Madoff’s $65 billion Ponzi scheme described how their lives had been forever changed by the actions of a man they had trusted.
The letters, sent to the Federal District Court in Manhattan and released to the public on Monday, come ahead of Mr. Madoff’s sentencing on June 29. Eight of the victims, including one who has known Mr. Madoff personally for more than 20 years, asked Judge Chin for permission to speak at the sentencing.
More than two-thirds of the victims who wrote to the court were retirees or children of retirees who invested with Mr. Madoff more than a decade ago. Many said they had been forced to move in with relatives or look for jobs. Several letters expressed dismay with the Securities and Exchange Commission for failing to discover the fraud after being tipped off numerous times.
Many were brimming with anger directed at Mr. Madoff. “Sentence this monster named Madoff to the most severe punishment within your abilities,” wrote Randy Baird, a California lawyer. “We are too old to make up what we lost. We have to start over.”...
Some took issue with the portrayal of the fraud’s victims in the news media as being among the wealthy and privileged. “Many Madoff victims are elderly individuals or retirees who were saving for the future and they had the misfortune to believe in a powerful Wall Street insider who was repeatedly investigated and given a clean bill of health,” wrote Emma De Vito, 81, a widow from Chalfont, Pa., who lost her entire life savings to Mr. Madoff.
Friday, May 15, 2009
Scholarly concerns about the CVRA
Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act. But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration. Here is the abstract:
The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution. Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants. Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case. Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion. Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant. An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.
Wednesday, May 06, 2009
Another example of victim calling for a reduced sentence
Regular readers know I like to spotlight cases in which a crime victim has been a voice for sentencing leniency rather than toughness. This new article from the Philadelphia Inquirer, headlined "Victim's forgiveness keeps embezzler out of prison," provides another example. Here are the deatils from the start of the article:
Elizabeth "Betty" Greenawalt embezzled more than $900,000 from her long-time employer and neighbor, robbing him of money that he could have taken into his retirement. Ralph Bucci went to Delaware County Court yesterday for Greenawalt's sentencing. Instead of seeking revenge, he offered forgiveness. "I do not seek a prison sentence on my behalf," Bucci told Judge James F. Nilon Jr.
Joan Bucci, his wife, called it a difficult day for her. She mentioned Greenawalt's gambling addiction and said Greenawalt's actions had hurt the family emotionally and financially. The Buccis' two daughters and son also testified that they had no desire to see Greenawalt go to prison, and that they also forgave her.
Greenawalt, who turned 66 yesterday, is in remission from Stage IV ovarian cancer. She was sentenced to nine months of house arrest and more than 19 years of probation, and ordered to pay approximately $636,000 in restitution and serve 300 hours of community service.
Tuesday, April 28, 2009
"Is Crime Victims Rights Law Being Misused in Environmental Cases?"
The question in the title of this post is the headline of this new piece in The National Law Journal. Here is how the effective piece begins:
A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.
To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.
The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.
But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.
It is interesting and notable that this question is being asked right in the middle of National Crime Victims’ Rights Week. As detailed in this new press release from the White House, President Obama has called upon all Americans "to observe this week by participating in events that raise awareness of victims' rights and services and by volunteering to serve victims in their time of need." I suppose that this NLJ article in some ways satisfies this call.
Saturday, March 07, 2009
A victim's perspective on a possible plea deal for Bernie Madoff
This ABC News article provide an effective victim-centered perspective on the developing new that Bernie Madoff may be nearing a plea deal in his prosecution for his record-setting frauds. The piece is headlined " Calling All Victims: Madoff Expected to Plead Guilty; Criminal Case of the $50 Billion Fraudster Nearing Conclusion," and here are some notable excerpts:
In the government's clearest statement yet that a deal in the criminal case of Bernard Madoff is close to being made, a victims' rights motion was filed Friday evening by the U.S. attorney in the case that indicates Madoff will appear next Thursday in a plea proceeding.
U.S. District Court Judge Denny Chin signed an order granting a request that the thousands of victims of the alleged Ponzi scheme will receive online notification of the court proceedings. They will have to periodically check a special web site set up for the criminal case proceedings.
Any victim who wishes to be heard in Thursday's proceeding will need to notify the government by Wednesday March 11th at 10:00 a.m. The internet address for victims to contact is: firstname.lastname@example.org....
It was reveleaed Friday that federal prosecutors have apparently reached a plea deal with the accused con man, in which he will admit to his role in the biggest financial crime in American history. The deal does not specify how much time Madoff would spend in prison, nor does it exclude the prosecution of Madoff's family or former associates, lawyers familiar with case said.
One former federal prosecutor says he doubts the deal will go easy on Madoff and that the disgraced financier will be spending a long time behind bars. "I doubt very seriously whether there would be any concession by the government as to jail time or diminished jail time for Mr. Madoff," said Sean O'Shea. "Given the sentencing guidelines in a fraud of this type, I think you're looking at a man who is 70 years old, I think you're looking at the rest of his natural life."...
Madoff's investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.
"It's not enough" for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. "That's what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children." Von Anhalt also wants to see Madoff's wife, Ruth, and his sons arrested and put in jail. "What nerve she has, to say that she wants to keep all that money. That's our money! Screw her!"
For more details on the possible plea deal, Mark Hamblett at the New York Law Journal has this article, headlined "Madoff Waives Indictment, Set to Plead Guilty."
Tuesday, February 24, 2009
New CVRA circuit filing in big environmental case
Anyone interested in crime victims rights and the scope and application of the federal Crime Victims' Rights Act will want to keep a close eye on the high-profile environmental case involving the the criminal trial of W.R. Grace in Montana. As detailed in this post, titled "Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution," former federal judge Paul Cassell is taking to the Ninth Circuit this mandamus petition arguing that the district court unduly limited the reach of who qualifies as a victim under the CVRA.
As regular readers know, the the Crime Victims' Rights Act calls upon the court of appeals to "take up and decide such application forthwith within 72 hours after the petition has been filed." In other words, it would appear that the Ninth Circuit has to rule on this matter before the end of this week!
Thursday, February 05, 2009
Notable AWA and CVRA rulings
Thanks to the fine bloggers at The Volokh Conspiracy, I can cover two interesting rulings under two interesting federal criminal statutes by links to their posts:
- By Paul Cassell here, "Crime Victim's Victory in the Sixth Circuit"
By Eugene Volokh here, "Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional"
Friday, December 19, 2008
Eleventh Circuit grants mandamus in CVRA case
The Eleventh Circuit issued late today an important CVRA ruling with a short opinion in In Re: Janice W. Stewart And Other Borrower-Crime Victims, No. 08-16753-G (11th Cir. Dec. 19, 2008) (available here). Here is how the opinion starts:
The Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime. The CVRA requires the Government to “make [its] best efforts to see” that the court (in which the prosecution is pending) permits the victim to appear and be heard. If the court refuses to allow the victim to appear, the victim may move the United States Court of Appeals for a writ of mandamus.
Several persons claiming to be victims of the crime charged in United States v. Coon, No. 08-CR-441-T-17MAP (M.D. Fla.), moved the magistrate judge – as he was entertaining, and conditionally accepting, the defendant Phillip Coon’s guilty plea pursuant to an information and a plea agreement – for leave to appear in the case and to be heard. The magistrate judge refused to recognize the movants as victims, and denied their motion. The district court subsequently adhered to the magistrate judge’s ruling. The movants (“petitioners”) now petition this court for a writ of mandamus. We grant the writ.
UPDATE: Paul Cassell, who helped represent the petitioners in this case, discusses the Eleventh Circuit's ruling in this post at The Volokh Conspiracy. Commentors over there spotlight some reasonable concerns about broad application of the CVRA in economic crime settings.
Wednesday, December 03, 2008
Another notable CVRA mandamus petition to watch
I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:
Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process. The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him. The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.
The lengthy petition is available at this link. Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008." I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).
I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision. By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week.
Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit). But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.
Sunday, November 30, 2008
How big is the risk that victim videos are more prejudicial than probative?
This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:
Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.
But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.
As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."
Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.
While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos.
Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief). I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.
Tuesday, November 11, 2008
An example of homicide victim's family asking for sentencing leniency
The Supreme Court's disinclination to consider a pair of victim impact capital cases (basics here) has already prompted some commentors to complain about victims having a role in the criminal justice system. But this local story from Utah provides yet another example of how victims can often be a voice for sentencing leniency even when the defendant is facing homicide charges:
Driving while talking on a cell phone is a dangerous mix for one mom. "Oh it breaks my heart,” said Linda Mulkey. “It’s such a dangerous habit."
Mulkey knows first hand about the consequences of a distracted driver. She lost her only daughter in a car accident. 18 months ago, Lauren Mulkey just graduated from East High. She died when Theodore Jorgensen ran a red light while fidgeting with his cell phone. "You don't get over losing a child,” said Mulkey. “You just learn to deal with the pain. It hurts everyday. My whole future is wiped out."
But Monday in court, Mulkey had the courage to forgive Jorgensen. The 20-year old pleaded guilty to negligent homicide and faced sentencing. But Mulkey asked the judge that she didn’t want him serving at prison time. “It just didn’t make any sense,” she said. Instead, she asked that Jorgensen be required to do community service.
In court, Jorgensen apologized to Mulkey. He turned to face her and said "I'm sorry for the pain I've caused."
“It took me a long time to reach this point,” she said. “But the more I saw him in court I realized he was a young scared man who had loving parents and I didn’t see any point in him sitting in jail.”
The judge agreed placing Jorgensen on probation and ordering him to do 500 hours of community service. “I’m hoping we can make joint appearances at schools,” she said. “His story and my story would make powerful messages to students.”
Some related posts:
- Pondering a victim's role in sentencing
- More on victims at sentencing
- SCJC symposium on "The Victim in Criminal Justice"
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
Saturday, November 08, 2008
Worth reading from the Duke Law Journal
Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences
Victims' Rights in an Adversary System
The Newest Spectator Sport: Why Extending Victims' Rights to the Spectators' Gallery Erodes the Presumption of Innocence
Saturday, August 30, 2008
Cert petition on video victim impact evidence
This new post at SCOTUSblog discusses a very interesting case coming to the Supreme Court concerning victim impact evidence. Here is the start of the post:
Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.
At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.
Thursday, August 14, 2008
Do victims care more about the sentencing process or sentencing results?
I always find interesting the debate over victims' rights at sentencing, and this local story from Illinois highlights that some crime victims may care a lot more about speaking out than about sentencing outcomes:
As the court proceedings against former police officer Jeff Pelo ended Tuesday, the women he was convicted of assaulting and stalking had the last word in statements expressing the impact the crimes have had on their lives. But victims expressed frustration with the limitations placed on their remarks during Tuesday’s sentencing hearing in which Pelo received 440 years in prison.
A woman who was stalked for more than a year criticized Pelo’s defense lawyer, Michael Rosenblat, for asking that portions of victims’ statement be removed. “I am so outraged Pelo and his lawyer chose to rob the victims of our opportunity to say our peace in court that I decided to make my statement public. I refuse to let him silence me,” said Jonelle Galuska, the stalking victim.
All but one of the victims in the Pelo case have asked the news media to use their names....
Associate Judge Robert Freitag explained in his ruling Tuesday that victim impact statements should contain information about how the offense has affected the victim. Remarks about how the community was victimized by Pelo and opinions on sentencing laws were among the things Freitag barred from the hearing.
Some related posts:
- Pondering a victim's role in sentencing
- More on victims at sentencing
- SCJC symposium on "The Victim in Criminal Justice"
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
Tuesday, July 08, 2008
Examining the intersection of victim's rights and juve justice
I just saw this interesting looking piece on SSRN that combines two topics of interest to most sentencing fans. The piece by Kristin Henning is titled, "What's Wrong with Victims' Rights in Juvenile Court?: Retributive v. Rehabilitative Systems of Justice," and here is the abstract:
While scholars have written extensively about the victim's rights movement in capital and criminal cases, there has been very little discussion about the intersection of victim's rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court's priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victim's rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the victim and restoration of communities impacted by crime.
In this article, I contend that victim impact statements move the juvenile court too far away from its original mission and ignore the child's often diminished culpability in delinquent behavior. I also argue that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. To better serve the needs of the victim and the offender, I propose that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child's long-term treatment plan. Interactive victim awareness programs, such as victim-offender mediation and victim impact panels that take place after disposition, allow victims to express pain and fear to the offender, foster greater empathy and remorse from the child, and encourage forgiveness and reconciliation by the victim. Delaying victim impact statements until after the child's disposition also preserves the child's due process rights at sentencing and allows the court to focus on the child's need for rehabilitation.
Tuesday, July 01, 2008
SCOTUS gets first look at CVRA
As detailed in this great SCOTUSblog post, some of the fascinating issues that surround the federal Crime Victims' Rights Act (CVRA) have now come before the Supreme Court in the form of an application for a stay. Here is the start of the SCOTUSblog coverage:
In the first attempt to get the Supreme Court to clarify the rights of crime victims under a 2004 federal law, lawyers for 12 victims of an explosion three years ago at an oil refinery in Texas have asked the Supreme Court to delay a federal judge’s action on a plea agreement that would settle federal criminal charges against a large oil company. The victims contend that the plea deal is too lenient, and that it was worked out without any input from the victims — a claimed violation of the Crime Victims’ Rights Act.
At this stage, the victims are asking the Court to block a Fifth Circuit Court ruling that limits their right to challenge denials of rights under that Act; their lawyers are preparing an appeal to the Supreme Court on that point, and want a delay until that is decided. The application for a stay (Dean, et al., v. U.S. District Court, 08A3) can be downloaded here. BP Products North America Inc. filed an opposition to the stay request, arguing that the 2004 law does not allow for stays.
If a stay is not issued, the victims’ lawyers argued, the plea deal could be ratified by a federal judge, forever scuttling their rights to have taken part in discussions of what such a bargain should include, before it takes effect.
As I have highlighted in a number of prior posts, the CVRA is a really interesting (and really unclear) bit of federal legislation. The nature of the claim and the nature of the case here leave me entirely unsure what the Supreme Court will do, though I am sure it will have to confront a number of CVRA issues in the years ahead.
Some related posts:
- SCJC symposium on "The Victim in Criminal Justice"
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
UPDATE: As detailed here at SCOTUSblog, the Supreme Court turned down the stay request of victims in this case. It would seem that the Justices do not entirely agree with Senator John McCain's recent assertion in his crime speech that "[i]n all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all the rights of victims." No wonder Senator McCain has taken to judge-bashing.
Wednesday, June 04, 2008
A telling example of a victim prompting a lighter sentence
I have often asserted that allowing victims to have a say at sentencing might sometimes prompt a more away from harsh imprisonment terms. And this story from Tennessee showcases this reality:
A man guilty of vehicular homicide will not spend any time in prison following an unusual act of forgiveness in open court. “I do forgive you,” Jana Bice tearfully told Jeremiah Mann, the person who killed her father when his SUV struck Dwight Brooks’ car in March 2004 in Chattanooga. “My father was a wonderful man,” Ms. Bice continued during Mr. Mann’s sentencing hearing Monday. “But I think (Mr. Mann) is remorseful. I don’t think my dad would want him to sit in prison.”
Mr. Mann, 28, instead received a 10-year suspended sentence with the stipulation that he spend the next 30 weekends at the Silverdale Detention Center. He also will lose his driver’s license for three years, is not allowed to drink alcohol and can never refuse a breath-alcohol test. “Make sure you do all of those things,” Hamilton County Judge Rebecca Stern cautioned the defendant. “You’re looking at a long sentence if you don’t.”
Mr. Mann could have been sent to prison for eight to 12 years had Judge Stern chosen to impose her own sentence rather than consider Ms. Bice’s suggestion in court that “he deserves a chance” to get his life together. The testimony prompted Judge Stern to allow the prosecution and defense to hammer out their own sentencing guidelines. “We’ll try to come up with something that works for everybody,” Judge Stern said.
Mr. Mann, who said he always has sought to make amends for his actions, later stood outside the courtroom hugging the victim’s family members. “It’s an amazing day,” he said. Mr. Mann’s mother, Nellie Mann, thanked the Bice family for giving her son a second chance.
Assistant District Attorney Jay Woods said he, too, believes Mr. Mann’s remorse is sincere. “That’s something I don’t see very often,” Mr. Woods said.
Some related posts:
- Pondering a victim's role in sentencing
- More on victims at sentencing
- Jury sentencing and apologies, Texas-style
- SCJC symposium on "The Victim in Criminal Justice"
Thursday, May 08, 2008
Great coverage of Fifth Circuit CVRA ruling in BP case
The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here). Here are excerpts from the article:
A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table. The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.
"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....
In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more. The plea agreement must be accepted by a judge to be final and that has not yet happened....
The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004. They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....
Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act. "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....
The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said. "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."
Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals. In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.
Wednesday, May 07, 2008
Notable CVRA ruling from Fifth Circuit in BP case
Though apparently not yet posted on the Fifth Circuit website, a friendly reader sent me a copy of the Circuit notable decision today concerning the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (available for download below). Here is the start of the opinion:
In the related criminal proceeding, twelve of the victims asked the district court to reject the plea agreement, alleging violations of the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. The district court denied the request. See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008). The victims petition for writ of mandamus with the prayer that “[t]he decision of the district court should be reversed and the case remanded with instructions that the plea agreement [not be] accepted and the parties are permitted to proceed as they determine --- so long as it is in a way that respects crime victims’ rights.” We find a statutory violation but, for reasons we explain, we deny relief.
There is a lot packed into only eight pages in Dean, and thus I may need some times and future posts to comments on what this ruling could mean (and whether it might be SCOTUS material).