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August 25, 2008

Seventh Circuit debates a federal death sentence

Today's read of the day has to be US v. Mikos, No. 06-2375 (7th Cir. Aug. 25, 2008) (available here), in which Seventh Circuit Judges Easterbrook and Posner debate over the legality of a federal death sentence.  While the legal dispute between the jurists concerns vulnerable victims and lack of remorse as aggravating factors, the first paragraph of the majority opinion by Judge Easterbrook reads like a Coen Brothers script:

Medicare does not cover the costs of routine medical procedures.  Ronald Mikos, a podiatrist, performed nothing but routine procedures, such as trimming the toenails of people unable to clip their own.  Yet he billed Medicare for thousands of surgeries. When officials became suspicious, Mikos arranged for some of his elderly patients (many of whom were not mentally competent) to submit affidavits stating that surgeries had indeed occurred (though at trial Mikos’s secretary of seven years testified that he had never performed a single surgery during her time in his employ, and medical specialists who examined these people found no signs of surgery).  Other patients were less obliging, so Mikos wrote affidavits for them and had their signatures forged.  A grand jury issued subpoenas to seven of Mikos’s patients.  He visited them, trying to dissuade each from testifying. None appeared to testify — whether because of Mikos’s persuasiveness or because of their own mental and physical limitations, the record does not show.  But we know why one of the seven did not show up.  Joyce Brannon, who by then was cooperating with the investigators, had been shot six times at close range.  After concluding that Mikos had slain her, the jury sentenced him to death.  See 18 U.S.C. §1512(a)(1)(A). It also convicted him of other crimes, including fraud, obstruction of justice, attempting to influence a grand jury, and witness tampering. 18 U.S.C. §§ 1341, 1347, 1503, 1505, 1512(b)(1).

August 25, 2008 at 03:00 PM | Permalink


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Tracked on Sep 17, 2009 7:05:02 AM


First I find the idea of ordering an offender facing execution to pay restitution to be laughable. Second I find both the victim vulnerability and lack of remorse arguments troubling. However, subverting the process through witness murder is such a powerfully aggrevating factor that the other considerations are almost required to be discounted by default.

It's very telling that only four of the jurors agreed that this creep is even a human being.

Posted by: Soronel Haetir | Aug 25, 2008 4:27:51 PM

This opinion shows that Judge Eatserbrook lives much closer to the real world than does Judge Posner. I have always thought that Posner's opinions, while well-written, sounded as if they were coming from an ivory tower. This proves the point.

Posted by: Da Man | Aug 25, 2008 4:43:46 PM

Link seems to have changed:


Posted by: | Aug 25, 2008 6:08:45 PM

"This opinion shows that Judge Eatserbrook lives much closer to the real world than does Judge Posner. I have always thought that Posner's opinions, while well-written, sounded as if they were coming from an ivory tower. This proves the point."

Interesting. I had the exact opposite reaction.

Posted by: anon | Aug 25, 2008 7:25:41 PM

But there is a difference between a defendant’s arguing for
leniency on the basis of his admitting to having committed
the crime with which he is charged and the government’s
asking the jury to draw an inference of heinousness
from his failure to admit that.

Posner is absolutely correct. It's bad enough to coerce defendants into pleading guilty by denying sentencing credits to those defendants who take their cases to trial, but to infer an aggravating factor beyond a reasonable doubt so as to justify a death sentence merely by a defendant's decision to take his case to trial and not plead guilty (which necessarily means not showing remorse) goes so far over the line it's disgusting and anyone who supports it should be ashamed of themselves.

A defendant who takes his case to trial has entered a plea of not guilty. Perhaps someone could explain to me when the defendant was supposed to have shown remorse in front of the jury? Remorse is inconsistent with a plea of not guilty. The government's position is that this defendant should be sentenced to death because he took his case to trial instead of pleading guilty. Invoking one's Sixth Amendment right to a jury trial is an aggravating factor, beyond a reasonable doubt, so as to warrant the death penalty.

I also think Posner is correct with respect to what a "vulnerable victim" is supposed to be. However, this is where we get into emotion versus logic, and emotion will always win out. Nobody is going to side with a criminal defendant who argues that a little old lady was not vulnerable to the particular crime that harmed her. In practice, society wants certain people to be "vulnerable per se" to all crimes. Looking at the nature of a particular crime and looking at the qualities of the victim to see if they were unusually susceptible to being harmed is how it should be done, but that's just not how people want it. Especially the pro-victim lobby. They don't want to haggle over which victims were vulnerable and which were not. If they were harmed, they were vulnerable, and thus all criminals whose crime includes a victim should receive a vulnerable victim enhancement. In other words, it's a "victim enhancement" not a "vulnerable victim enhancement." All crime victims are vulnerable... that's why they were a victim. It's stupid, and it defeats the purpose of the enhancement by swallowing the whole thing. But that's the way they want it, so they get it.

Posted by: bruce | Aug 26, 2008 6:23:49 PM

Posner's vulnerable victim argument is ridiculous. Surely a morbidly obese individual is less likely to escape a killer than an ordinary individual. True that obesity didn't make the victim more vulnerable to death by bullet but that's not the question. The question is whether the victim was more vulnerable to the crime. Because of her obesity she could not escape once she had notice that there was an intruder. Relative to an ordinary person she was a vulnerable victim.

Any argument to the contrary is a knee jerk reaction of those who object to the death penalty in general. But given that the death penalty is legal, the vulnerable victim analysis is straightforward.

Posted by: j | Aug 26, 2008 7:36:00 PM


But "less likely to avoid harm" than average is not the definition of vulnerable. Moreover, anyone can come up with a reason why a particular person is less/more likely to be harmed by a criminal. A huge Mr Universe body builder is more likely to be hit by a stray bullet than a skinny, famished, six foot tall, 60 pound AIDS patient dying of starvation whose waist is 21 inches around. So Mr. Universe, with bulking muscles on every inch of his body, is more vulnerable than a dying AIDS patient? You say an obese individual is less likely to escape a killer than an ordinary individual... well, I say the obese person can use his weight and throw him/herself onto the killer, drop him to the floor, and sit on him, trapping and suffocating him.

But obese people are more likely to be victimized by fraudsters selling fake diet pills. That's the example Posner gives. That makes perfect sense to me. Are single moms more likely to be victimized by unlicensed, fraudulent day-care providers? Do we only look at physical characteristics of the victim? African Americans are more prone to being harmed by KKK-style racists who want to have a good ol' lynching. Does that mean African Americans are vulnerable victims in that situation? Is a victim "vulnerable" solely because the criminal has targeted said victim? The african american victim might very well be stronger, faster, and in better physical condition than the closest white person.

All of these questions are inherently stupid, but that's what you get when you start punishing crime by focusing on qualities of the victim. Hate crimes are the most egregious case of such stupidity, but "vulnerable victim" enhancements are nearly as pernicious. Especially when they are defined so broadly as to make any and all crime victims qualifications for such enhancements.

J, can you foresee any situation where a crime victim is seriously harmed and yet no vulnerable victim enhancement should be given to the defendant? If so, I hope you don't say all victims qualify except straight white males between the ages of 21 and 55.

Posted by: bruce | Aug 26, 2008 8:25:42 PM

I'm sorry Bruce, but what is the definition of vulnerable victim if it isn't someone who it is easier to accomplish a crime against than an ordinary person?

Your example of hate crimes is also off point. There's a difference between probability of being the target of a crime and vulnerability. Of course african americans are more likely to be the targets of lynching, but that doesn't mean that they're more vulnerable. Vulnerability considers the likelihood of a successful crime given an attempt. You're confusing the likelihood that a crime will be attempted with the likelihood of success given an attempt.

Furthermore, your example of a large person being able to subdue an offender ignores the facts of this case-the victim in Mikos could not get out of her chair and was immobile. The jury found this as a matter of fact.

Finally, your attempt to make this into a middle-aged white male issue is completely out of left field and suggests that not only do you have a knee-jerk reaction against the death penalty but you also have a knee-jerk reaction to play the race card.

Posted by: J | Aug 27, 2008 4:26:27 PM

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