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June 20, 2009

Should a governor be writing a sentencing judge urging a harsh sentence?

The question of this post is prompted by this local article from Pennsylvania, which is headlined "Judge blasts Gov. Rendell's letter about sentencing."  Here are some of the particulars:

From the bench Wednesday afternoon, county President Judge William E. Baldwin criticized Gov. Ed Rendell’s recent interjection into the sentencing of Shenandoah-area teens Brandon J. Piekarsky and Derrick M. Donchak. “I’ve never before heard of a head of state giving a suggested sentence for a specific criminal case. I am not giving consideration to the governor’s recommendation,” Baldwin said, referencing a letter Rendell sent to county District Attorney James P. Goodman on May 28....

In that letter — the second time the governor has weighed in on last July’s high-profile death of Luis Eduardo Ramirez Zavala, an illegal Mexican immigrant — Rendell asks for the highest possible sentences for Piekarsky, 17, and Donchak, 19. “I also believe ... the maximum sentence is warranted given both the sheer brutality of Piekarsky’s and Donchak’s deadly attack and that the crime appears to be racially motivated,” Rendell said in the letter, which Goodman later shared with Baldwin and defense counsel.

On May 1, Piekarsky and Donchak were acquitted of the most serious charges in connection with Ramirez’s death. On Wednesday, they were sentenced for simple assault charges and alcohol-related charges. Piekarsky must serve six to 23 months, while Donchak must serve seven to 23 months in county prison.

Rendell had previously urged federal charges against the teens in a May letter to the Department of Justice — a move that drew harsh rebukes from county Commissioner Francis V. McAndrew and U.S. Rep. Tim Holden, D-17.

Goodman said such a letter from a sitting governor is “clearly unusual,” while Frederick J. Fanelli, Piekarsky’s attorney, echoed Baldwin’s opinion. “I’ve never before seen a head of state interject himself in a case like this,” Fanelli said in court Wednesday, adding Rendell’s comments amount to “unprecedented intervention.”

Before handing down the sentences Wednesday, Baldwin blasted Rendell’s involvement. “I can only conclude he must have been misinformed about the nature of the verdict,” Baldwin said.

While Rendell again stressed in the letter he does not wish to “second guess” the jury, he specifically cites charges Piekarsky and Donchak were acquitted of. “This kind of senseless criminal behavior and ethnic intimidation is never appropriate,” the letter states. Piekarsky and Donchak were each found not guilty of ethnic intimidation.

Baldwin said he “could not nullify the jury’s verdict” by considering any sort of ethnic or racial components during sentencing, since the jury acquitted the teens of such crimes.

In addition to the questionable nature of Governor Rendell's involvement, this case also raises the issue of the consideration of acquitted conduct in state sentencing.  As all sophisticated federal sentencing fans know, federal sentencing judges frequently "nullify a jury verdict" by imposing increased sentences based on acquitted conduct.  Perhaps because Governor Rendell's wife is a federal judge, he may have thought it just fine to urge an increased sentence despite a jury's acquittal.

June 20, 2009 at 08:56 AM | Permalink


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Rendell is a former prosecutor. He continues to have a lawyer license.


Then go to Rule 3.5, on page 60.


Posted by: Supremacy Claus | Jun 20, 2009 11:46:12 AM

Are state prosecutors independent of the Governor somehow? It seems to me that in every sentencing that a judge does, the judge hears from the executive branch of the government and also from the defendant, and then decides what makes the most sense. It's a bit unusual for the governor to do it this way instead of through subordinates, but I don't see what's wrong with it.

Also, don't people send in letters all the time when someone is going to be sentenced? The defense attorney rounds up letters of support, and the prosecutor rounds up letters from victims and other affected people... no?

Regarding the acquitted conduct, I suppose this is why we have statutory maxima.

Posted by: anonymous | Jun 20, 2009 2:29:59 PM

"It's a bit unusual for the governor to do it this way instead of through subordinates"

Unlike the President appt'ing his AG, many (most?) states have a separate elected office of AG, such that the AG acts independently of the Gov.

Posted by: . | Jun 20, 2009 3:31:34 PM

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