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April 26, 2009

Should law enforcement service be an aggravator or mitigator at sentencing?

On Monday, the former sheriff of Orange County, Mike Carona, is to be sentenced in federal court.  This local account, headlined "Legal experts say ex-sheriff likely to serve prison time: Will ex-lawman's badge be benefit or liability?", puts the spotlight on the question in the title of this post.  As highlighted in these excerpts, the use of acquitted conduct at sentencing also is part of the story:

In the end, former Sheriff Mike Carona's punishment may come down to the weight that a federal judge puts on the badge Carona once wore.  The 11th sheriff of Orange County – who hoped one day to run for lieutenant governor – will be sentenced Monday for urging his ex-assistant sheriff, Don Haidl, to lie during a grand jury investigation.

Carona was sheriff at the time of the Aug. 13, 2007, conversation that was captured on audiotape. Defense lawyers are asking U.S. District Judge Andrew Guilford to look beyond Carona's conviction and see the public servant with 32 years behind the badge – years spent advancing the cause of children and homeland security. Federal prosecutors, on the other hand, argue Carona's position as the top law enforcement official in the county makes the crime more egregious.... 

Carona faces a sentence ranging from probation to 20 years in prison.  Several federal criminal law experts said this week that they expect Guillord to sentence Carona to some time behind bars.... Most expected him to get a sentence near the 6 1/2 years recommended in the probation report. They also speculated that Guilford would likely take into account Carona's conduct – even acts for which Carona was not convicted.... 

After the verdict, jurors said they thought Carona was guilty of some crimes, such as accepting illegal campaign contributions.  But they said it was not enough to convict him, given that the five-year statute of limitations had passed on the conduct they thought was criminal.  Judges are allowed to take anything in consideration, such as the defendant's overall behavior, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

April 26, 2009 at 11:24 AM | Permalink


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In practice, it is virtually always a mitigator, particularly for juries.

Posted by: Gritsforbreakfast | Apr 26, 2009 2:01:29 PM

The pity is the story's implication the sheriff's bad act is an anomaly in law enforcement.

In my first newspaper job I covered state and federal courts. The scores of trials I reported on in those days, coupled with the handful of trials I've covered more recently for a book project, lead me to believe the sheriff's misstep is remarkable only because he's being prosecuted for it.

Even overworked public defenders and mediocre defense lawyers I observed never seemed to have much trouble forcing law enforcement officers to retreat from colorfully damning testimony at odds with facts.

In a recent fraud trial three FBI agents testified.

Under cross, the first two agents admitted editing highly incriminating fraud vernacular into quotes they'd attributed to defendants (FBI agents don't record their interviews with subjects and targets). The third agent was dramatically exposed on the stand in a bold lie (perjury? No, apparently not...she wasn't prosecuted at any rate).

Never mind the negative pressures systematic 5K1.1 deals exert on truthful testimony.

My heart bleeds for all but two classes of citizens forced to contend with the "justice system" as it has evolved over the past three decades: lawmakers charged under the sorts of vague, sweeping RICO statutes they helped create and cops caught on tape suborning perjury.

Posted by: John K | Apr 27, 2009 12:51:09 PM

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