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November 12, 2009

Balloon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming from last month's Balloon Boy hoax, the couple's lawyer said."  Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor.  Richard Heene's charge — attempting to influence a public official — is a felony.  The deal stipulates a probation sentence for both charges. The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said.  "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."  Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

November 12, 2009 at 10:48 AM | Permalink


I like the plea rather than the trial--if the defendant(s) committed the offense to *get* publicity, then there is something to be said for trying to avoid the publicity that would inevitably accompany a trial. However, I would hope the sentence would include restitution to the agencies that expended resources responding to the call, or at least a hefty fine if determining restitution is not practical. My admittedly very uninformed impression is that he was likely far more culpable than she was (it seemed like he planned it but maybe I am wrong), so allowing her to plead to a lesser charge and avoid deportation makes sense.

Posted by: USPO Esq | Nov 12, 2009 11:10:54 AM

Accept the deal for Mayumi Heene. Reject it for Richard, as he should receive more than probation.

Also, like USPO Esq, I would like to know if restitution is involved in the plea deal.

Posted by: DEJ | Nov 12, 2009 11:55:37 AM

Accept the deal for Mayumi Heene. Reject it for Richard, as he should receive more than probation.

Although he was more culpable, they actually had a stronger case against Mayumi, because she confessed to authorities. Her confession cannot be used against him, since they are married.

His probation deal reflects the fact that the government would have a tough time getting a conviction. He probably wouldn't plead at all if they didn't have the threat of deportation hanging over Mayumi.

Posted by: Marc Shepherd | Nov 12, 2009 1:09:08 PM

So, the guy had a good chance of beating the charges, and the mother didn't, so they used the emotional connection of the mother and her family to coerce the husband into pleading guilty to a felony. Putting aside his guilt, does anybody think this is wrong? I know a men who was involved in a drug distribution ring through his trucking company, and when they feds arrested him, they arrested his entire family, just to put pressure on him.

Posted by: E | Nov 12, 2009 1:12:15 PM

In the grand scheme of Disgusting Things Prosecutors Do, this one strikes me as relatively minor, because the guy is still getting off pretty easy.

Posted by: Marc Shepherd | Nov 12, 2009 2:18:25 PM

IIRC, Henee is a long time legal U.S. resident married to a U.S. citizen, and of course, her children are U.S. citizens. Is it approppriate to make deportation an option in cases where someone is a long time legal U.S. resident with significant family ties to the U.S.?

Deportation is a remedy that is very mild, less than a probation sentence really, for short term U.S. residents without significant family ties (particularly if they are not legal U.S. residnets) who don't face asylum concerns (certainly Japan would not pose such concerns). But, for many long time U.S. residents with family ties, deportation is a very harsh collateral impact of a sentence.

The U.S. government itself, which had made the process of naturalization time consuming and costly bears some of the blame; many countries more or less automatically award citizenship upon a bona fide marriage subject only to annulment of the marriage. Also, while many young immigrants easily become fluent in English very quicky, making the testing requirements immaterial, age barriers to language learning can make it very difficult or impossible for immigrants who come later in life (such as non-citizen spouses) to every pass naturalization tests.

Historically, in the proto-citizenship rules of early city-states, there was a statute of limitations after which someone who had lived in a jurisdiction long enough (often a year and a day) could no longer be deported from the jurisdiction.

If I were to use an unexercised threat of deportation to gain advantage in a civil matter, I would face professional discipline as an attorney for that. Private parties who are not lawyers who did that might realistically face the prospect of conviction on blackmail charges. Here, prosecutors did use this level to their considerable advantage and were allowed to do so. It is likely that they could not have gotten the deal that they did except for the accident that the mother had a green card instead of naturalized citizenship. The risk of rolling the dice would have been much lower, because even a felony conviction would have likely produced only a probation sentence in this case. The collateral impact of felony convictions is what gives them that leverage.

Most likely the prospect of long time legal residents being deported didn't receive a lot of consideration when the general rule was written. But, is it really right to apply this general rule to long time residents when its primary effect is to give prosecutors leverage in completely unrelated cases that would otherwise be unethical or illegal?

One also wonders if this isn't a case where a civil fine or restitution claim for making false reports would be a more appropriate sanction than a criminal one. The harm is that a lot of police resources were used on a false alarm. But, the risk of a felony conviction in the face of disputed facts, buttressed by the risk of deportation of a family member has the potential to undermine public cooperation in cases where it is needed. Generally, we afford legal privileges to people who act though the ordinary proper channels to encouarge people to use them.

It is ironic that prosecutors are quaking in their boots of the possibility that they might have only qualified immunity when they frame someone with false evidence in pre-indictment activities and then go on to prosecute a case knowing that the evidence is false, putting innocent people behind bars for more than two decades, but have no problem prosecuting people criminally for causing embarassment and disorder but hurt no one for reports made to police that were false and possibly knowingly false on the person pleading to the felony.

Posted by: ohwilleke | Nov 12, 2009 5:00:46 PM

ohwilleke. I general I agree with you but in this case I don't. I think that a major reason they decided to peruse criminal charges was because this became a national media event. And why did it become a national media event? Because the family wanted it too. As far as I see they have been hoisted on their own petard, which mutes any sympathy your logical argument has for me.

Posted by: Daniel | Nov 12, 2009 7:46:31 PM

i feel this little hoax,cost money ,time , and a lot of emotions. the only thing the parents were intrested in is themselves, they should have to pay for the time and resources that they so selfishly used. community hours helping children that have been hurt because of stupid mistakes from their parents , might teach these greedy , self-centered idiots ,how many people were truly praying and very concerned for the safty of their children and their mental wellbeing. Richard is moran and the only show i would like to see him on is "LOCK-UP EXTENDED STAY"..

Posted by: george | Dec 14, 2009 2:57:47 PM

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