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September 7, 2009

A remarkable concurrence in the affirmance of a long mandatory minimum sentence

Late Friday the First Circuit affirmed the application of a 20-year mandatory minimum sentence in a single-page per curiam opinion in US v. Cirilo-Munoz, No. 08-1830 (1st Cir. Sept. 4, 2009) (available here). The opinion in Cirilo-Muno is blog-worthy because of a remarkable five-page concurrence by Judge Torruella, which starts and ends this way:

This case, and its outcome, is a notorious example of oppressive injustice culminating in an outrageous adjudication.  It is a stain on the robes of American justice.  Appellant Cirilo-Muñoz was convicted of aiding and abetting the murder of an on-duty police officer.  He was convicted even though his co-defendant Lugo- Sánchez, the murderer himself, who initially tried to pin Cirilo-Muñoz for the murder and was the government's star witness, "testified unequivocally that Cirilo[-Muñoz] had no advance knowledge about his plan to murder . . . and did not assist him in committing the murder in any way." United States v. Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J., dissenting).   We are now called upon to affirm the imposition of a harsh mandatory minimum sentence, which only compounds the injustice caused by Cirilo-Muñoz's conviction.  Because I have taken an oath to uphold the law irrespective of my personal views, I am left without a principled choice in this appeal other than to concur, and, in the process, register my most vehement disagreement with the warped outcome of this case....

A series of coincidences have laid bare a system of law, which in Cirilo-Muñoz's particular circumstances has failed to protect him from the oppressive power of government and its bureaucracy.  The result is that a seventeen-year-old adolescent has been condemned to spending his entire adult life incarcerated in a federal prison.  To this wrongful outcome have contributed all three branches of government, with Congress making its contribution on this appeal through its draconian mandatory minimums.

Our prior decisions and the laws passed by Congress command this result, which I must obey. I write this opinion so that this injustice is not forgotten in our otherwise summary disposal of Cirilo-Muñoz's appeal.  His case calls out for clemency and relief, and should serve to remind us both of the flaws in our system of adjudicating guilt and the dangers of mandatory minimums.

I am not familiar with this case or the reasons why Judge Torruella sees the case as "a notorious example of oppressive injustice culminating in an outrageous adjudication."  But I am familiar with the reality that homicide defendants sentenced to something less than the death penalty often get overlooked by abolitionist activists eager to assail cases involving oppressive injustices.  I wonder if those activists might take up the defendant's cause as urged by Judge Torruella in this opinion.

September 7, 2009 at 03:40 PM | Permalink


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I'm glad the concurrence spends so much time arguing the inadequacy of the original conviction. That would honestly seem to be the only basis for not invoking the minimum sentence here. Either the defendant was culpable and therefore gets the 20 years, notwithstanding the co-defendant's testimony, or as the co-defendant claims this defendant did not know or assist.

I don't subscribe to porportionality review in any form, so the 20 years itself does not bother me. 1-2-3-d seems like a fine idea.

Posted by: Soronel Haetir | Sep 7, 2009 4:17:42 PM

Entire adult life?

Posted by: Chris | Sep 7, 2009 4:49:17 PM

Here's a brief summary from the sufficiency appeal which Torruella so strongly disdains:

Lugo's uncontroverted testimony, together with the four Cirilo prints lifted from the hood of the Suzuki itself, were sufficient to establish, beyond a reasonable doubt, that Cirilo was standing “real close” to the Suzuki as Mangual and Ramirez searched for the Mejias weapon at Lugo's direction. See supra Section I. Moreover, there was no evidence and no contention that Cirilo departed from the immediate vicinity of the Suzuki until it exited the El Ideal parking area immediately after Mejias was abducted by Lugo, at which point Cirilo, without hesitation, got into the driver's seat of the Ramirez Oldsmobile and followed the Suzuki onto the highway fronting El Ideal.

Consequently, the jury reasonably could find that Cirilo witnessed the events which took place at this critical juncture: first, as Lugo suddenly ordered Officer Mejias to get into the driver's seat of the Suzuki “and not come around there anymore;” then, moments later, as Lugo-in an abrupt about-face following immediately on the heels of the Papilin warning to “take” (“kill”) Mejias “because he might come back”-ordered Mejias at gunpoint to get out of the front seat and into the back seat of the Suzuki. See supra note 5. Whether the jury considered Papilin merely the messenger or something more, at that point it reasonably could conclude that the message itself- that Mejias was not going to be released after he had been abducted-hardly could have gone unheeded by Cirilo. See Spinney, 65 F.3d at 237 (“Jurors are ‘not expected to ignore what is perfectly obvious,’ but, rather, ‘to take full advantage of their collective experience and common sense.’ ”) (citations omitted). Finally, after Lugo got into the Suzuki beside Mejias, revolver in hand, Mangual replaced Mejias in the driver's seat. Whereupon Cirilo in turn promptly got behind the wheel of the Ramirez Oldsmobile and followed the Suzuki onto the highway.

Even assuming Cirilo had not become consciously involved earlier, the jury therefore reasonably could have found that what transpired in his immediate presence, before the Suzuki departed El Ideal, undermined any inference of innocent participation thereafter, particularly in light of Cirilo's unchallenged presence among the other defendants throughout almost the entire pre-capture period and his unhesitating aid to their criminal enterprise during the post-abduction and post-murder stages.FN29 See, e.g., Batista-Polanco, 927 F.2d at 18 (“ ‘understanding of human behavior’ may ground reasonable inference from circumstantial evidence”).

U.S. v. Mangual-Corchado, 139 F.3d 34, 47-48 (1st Cir. 1998).

Posted by: Nick | Sep 7, 2009 10:37:55 PM

Doug: Why is it always the "abolition activists" who get shit from you when we fail to sufficiently (in your mind) address injustices in other cases? On what planet do you live? We're the problem? I mean seriously.

Most death penalty opponents I know are helping to bring fairness to the system more broadly. Racism, inadequate representation, innocence, snitches, bad science -- the very issues abolitionists highlight in death cases -- apply equally to non-death cases. Calling attention to those issues in death cases helps brings attention to those issues in non-death cases.

Furthermore, in a literal sense, many of the same organizations that defend those on death row -- the Southern Center for Human Rights, Equal Justice Initiative, the Innocence Project, countless public defense offices around the country -- represent non-death row clients as well.

But on a more basic level, how about giving shit to the millions of Americans who show utter indifference. Why is it the death penalty opponents on whom the burden falls? Correcting those terrible injustices isn't the province of liberal groups. It's on YOU my friend, just like its on all of us. BE the change you want in the world.

Posted by: dm | Sep 7, 2009 10:54:06 PM

I do have lots of problems with the government being able to rely on someone who has already lied under oath, letting the jury decide whether the guy is now telling the truth. I see that situation as significantly different than someone who changes what they say under police questioning.

The research has simply shown that people are all too willing to believe government witnesses even when there are strong reasons to not believe the witness. To then allow someone who has already lied to a grand jury to testify to yet something else in trial for the case-in-chief strains reason.

And to credit jurors with being able to detect such falsity is madness.

Even worse, this appears to be yet another case of the most culpable defendant getting the least sentence. That too is madness.

Posted by: Soronel Haetir | Sep 7, 2009 11:09:39 PM

Well said SH. Can a jury reasonable believe the moon is made out of green cheese? Yes, if two judges on a court of appeals court say they can.

Posted by: Daniel | Sep 8, 2009 1:00:02 AM

dm, put down the hookah and read the post again. No one's saying that death penalty abolitionists are the problem.

Posted by: anonymous | Sep 8, 2009 8:49:05 AM

What is 1-2-3-D?

Posted by: Def. Atty. | Sep 8, 2009 11:14:45 AM

Def.Atty., 1-2-3-D is a personal policy of S.Clause. It means third strike and dead, so the death penalty for any three crimes. S.Clause even applies it to those non-violent "predators" who might be released under California's reform plan.

I think he really works for the ABA and wants more lawyer make work through more death penalty cases. Just kidding.

Posted by: George | Sep 8, 2009 11:43:13 AM

"I wonder if those activists might take up the defendant's cause as urged by Judge Torruella in this opinion."

Whether they do hardly matters since nobody in power listens to them anyway.

And of course no one with the power to change things will speak up...might wake up the demagogues.

Posted by: John K | Sep 8, 2009 4:14:53 PM

per anonymous

"often get overlooked by abolitionist activists eager to assail cases involving oppressive injustices"

doesn't quite seem neutral

Posted by: Joe | Sep 8, 2009 6:54:37 PM

anonymous: I think you need to read dm's comment in the context of a history of similar remarks. Doug has a solid underlying point about the distorting effect of the death penalty on criminal justice resources (including defense resources), but he has an irritating habit of making this point via disparaging comments seemingly directed at the straw man of the single-issue DP abolitionist who cares nothing about any injustice that does not involve the DP. Folks with experience in the field know that almost all capital defense types are involved in broader reform efforts, and many represent non-capital clients as well. They are also often subject to the realities of small staffs, overwhelming demand for services, and limits on foundation and individual funding---funding which, incidentally, may be harder to come by for non-capital projects. We have a massive societal (and constitutional) failing in indigent defense services, and Doug often seems to be blaming some of the only folks who are trying to help.

Posted by: Observer | Sep 15, 2009 11:16:53 AM

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