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.”