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March 24, 2016

Fascinating issues emerging in run up to federal sentencing of former House Speaker Dennis Hastert

This new Politico article, headlined "New Hastert accuser emerges: Judge acknowledges that the case against the former House speaker involves alleged sex abuse," flags some of the notable issues emerging as the federal sentencing of a notable former member of Congress approaches. Here are the details:

A previously unidentified victim of alleged sexual abuse by former House Speaker Dennis Hastert has come forward to federal prosecutors and may seek to testify next month when Hastert faces sentencing in federal court in Chicago. The new accuser, labeled as "Individual D" in court papers, is not the "Individual A" to whom Hastert agreed to pay $3.5 million, setting off a series of events that led to the former speaker pleading guilty to illegally structuring $900,000 used in payments to the man.

Up until now, public court records and courtroom proceedings in the case have danced around the fact that the case stems from alleged sexual impropriety, reportedly from Hastert's years as a teacher and wrestling coach. But U.S. District Court Judge Thomas Durkin gave up that pretense Tuesday and made clear that the case is linked to the widely reported allegations of sexual misconduct.

"Let's not beat around the bush. If 'Individual D' wants to come in and talk about being a victim of sexual abuse, he's entitled to do so because that informs my decision about the history and characteristics of the defendant. It's that simple," Durkin said, according to a transcript POLITICO reviewed of a brief court hearing.

Hastert entered his guilty plea last October, acknowledging that he withdrew nearly $1 million in cash in increments of less than $10,000 to avoid reporting requirements, paying the money out to a longtime associate. The indictment against Hastert doesn't name the person he was paying, referring to him only as "Individual A."

Durkin agreed Tuesday to delay Hastert's sentencing by about three weeks at the government's request so that a witness who may wish to testify at the hearing can appear. "Individual D" is "not 100 percent certain he wants to [testify] but has been moving in that direction," prosecutor Steven Block told the judge.

The government apparently did not know of "Individual D" when the indictment was filed against Hastert last May. But sources said investigators were aware of at least two living victims at that time. Since the indictment, Hastert has been mum about the sexual abuse allegations that have swirled in the press. However, Hastert defense attorney John Gallo said Tuesday that the former speaker doesn't plan to contest "Individual D"'s claims.

Durkin also said he's willing to hear at sentencing from a Montana woman, Joanne Burdge, who claims her late brother had a sexual relationship with Hastert while her brother was an equipment manager on the wrestling team Hastert coached. "If the sister of a victim of sexual abuse wants to come in and talk about her interactions with her brother and talk about that, that is something that would inform my decisions about the history and characteristics of the defendant," the judge said.

Hastert's lawyers opposed delaying the hearing and said the proposed witnesses aren't victims under federal law because the crime Hastert pled guilty to was a bank reporting violation. "They're not classic victims, and so they have no statutory entitlement to appear," Hastert attorney Thomas Green said during Tuesday's hearing. He also said their submissions should be taken in writing, not through live testimony.

But Durkin rejected that position. "If they want to come in and they're willing to testify as live witnesses, they're absolutely entitled to do so, and the government's entitled to call them as live witnesses," the judge said.

In an interview, Burdge confirmed her desire and plan to speak at the sentencing. "I'm going to it. I feel like it's crossing the finish line and I need to do it," she told POLITICO Wednesday. "I've waited over 30 years for this."

In Hastert's plea deal, the defense and prosecutors agreed that sentencing guidelines call for the former speaker to receive between zero and six months in custody. However, after his guilty plea last year, the 74-year-old Hastert suffered a stroke and sepsis. Given the health issues, it's unclear whether Durkin will sentence Hastert to any jail time at all.

Some prior related posts:

March 24, 2016 at 03:44 PM | Permalink


See, this is why we can't have nice things. I'm all for victim's rights. But how is the sisters, brother's uncle of an *alleged* victim testimony relevant to anything. Bring in his barber, bring in his dog, bring in his priest for crying out loud. The judge is an idiot.

Posted by: Daniel | Mar 24, 2016 6:57:00 PM

See, this is why we can't have nice things. I'm all for victim's rights. But how is the sisters, brother's uncle of an *alleged* victim testimony relevant to anything. Bring in his barber, bring in his dog, bring in his priest for crying out loud. The judge is an idiot.

Posted by: Daniel | Mar 24, 2016 6:57:00 PM

Unless the dog is Mr. Peabody, not going to do much to inform the judge.

But, just what is the boundaries of "something that would inform my decisions about the history and characteristics of the defendant" here? Just "claiming" you or more so a FAMILY MEMBER is a victim is something of a reach. In fact, seems to have constitutional difficulties since you are being penalized for unindicted crimes.

I found this -- https://www.law.cornell.edu/rules/frcrmp/rule_32 -- don't know how relevant it is. Perhaps, those who practice in this area have some insights.

Posted by: Joe | Mar 25, 2016 12:33:58 AM

Under Pepper v. United States, Judge Durkin can, and arguably is required to, consider this information. While he can certainly screen information for relevance, redundancy, and efficiency pursuant to Fed. R. Crim. P. 32 (and likely his general authority to run his courtroom), the Supreme Court has approved the notion that information at sentencing should not be limited if it concerns the "background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." The same idea is codified in the Sentencing Reform Act and the Guidelines. Post Booker, the barber, the dog, and the priest may be heard if the judge deems it relevant to sentencing, much like in the pre-Guidelines days and how many state courts sentence. But, remember, this works both ways--I'd be shocked if Judge Durkin wasn't wading through 200 sentencing letters submitted on behalf of Hastert, many of which will have less relevance than the live witnesses.

Posted by: TJH | Mar 25, 2016 10:57:57 AM


Thanks for the reference to Pepper, I had not noticed that case. I skimmed it and I disagree with it. My main concern is that this approach ultimately results in indeterminate sentencing and indeterminate sentencing, over the long haul, benefits the powerful far more than the powerless. So while the criminal in Peppers may have been sympathetic, it is an excellent example of a case where good facts make bad law.

Posted by: Daniel | Mar 25, 2016 1:10:41 PM

If the judge increases sentence on the basis of character evidence of prior behavior then there are a slew of witnesses who will testify as to good character. It can go on and on. Someone comes in and says he porked a kid forty years ago? So what?
Dogs have better aspects of justice than you human creatures. Tank Dog I am a Dog.

Posted by: Barkin Dog | Mar 25, 2016 5:12:46 PM

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