tag:blogger.com,1999:blog-8597101.post2875002503292581599..comments2024-03-15T05:45:01.402-05:00Comments on Grits for Breakfast: Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about youGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger30125tag:blogger.com,1999:blog-8597101.post-29389174238938928222009-08-29T16:53:36.031-05:002009-08-29T16:53:36.031-05:00Sentencing was straight by the guidelines with the...Sentencing was straight by the guidelines with the exception that a 21-24 month sentence was reduced to 15 because the judge "liked" the comments of the family. No consideration was given to any other testimony.<br />Bottom line, what should have been, what we had been led to believe for over a year would be a probated sentence became 15 months in a Federal camp and a young family, with children ages 5 yrs and 1 yr, destroyed for no good purpose. There was no justice done here, there was nothing gained other than another notch on the AUSA's gun and more un-necessary expense to the taxpayers. Subsequent investigation has revealed that defense was ill equipped as his previous experience was largely insurance related. He had never tried a case in this district and had little federal experience. Conversations with several criminal defense lawyers within this district revealed an almost unanimous consensus that this AUSA is not an honorable person and will do anything, tell any lie, misrepresent any fact to gain a conviction and that he is not satisfied unless the defendant serves time in prison. This seems to be further evidenced by the information provided at the links in my original post. I have no real explanation for the actions of the USPO in his collusion with the AUSA but in hindsight, I am hard pressed to believe that there was ever any real intent for any outcome other than the one that resulted. <br />Pissed, bitter, disgusted by system that I once swore to "protect and defend" so corrupted by scum like these? "You betcha," to borrow a quote.<br /><br />Again, my apologies for digressingHadEnoughnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-61374128928446811802009-08-29T16:52:04.294-05:002009-08-29T16:52:04.294-05:00Despite objections by defendant to many of the spe...Despite objections by defendant to many of the specific statements in the agreement, particularly dates and amounts, defendant signed the agreement based on the recommendation and advise of defense attorney that with the "promised" reductions, the offense level would be such that a probated sentence would be the most likely outcome. (Please understand that I only became privy to most of this information well after the fact when it was far too late to change anything.)<br />At the plea hearing, immediately after the signing we were approached by the USPO who introduced himself as the party responsible for preparation of the PSR. Defense attorney immediately engaged him in a conversation regarding the "safety valve" and other considerations to which the USPO stated that he saw no problem with any of them. In a subsequent conversation the USPO told me directly and I quote "I don't see anything here but probation, it's too bad he can't just plead guilty to stupid" to which I agreed and we went on to discuss just how little his actual involvement was and that if the case was state rather than federal it would have been handled via pre-trial intervention and that just having federal felony on his record was pretty stiff punishment and would be difficult to overcome.<br />I have already written concerning the withdrawal of the "promised" reductions prior to sentencing which was approximately five months after the plea hearing. Actually, at this time only the "safety valve" was withdrawn but this would have assured a prison sentence as opposed to the "promised" probation. During this time AUSA was unavailable due to military service requirements and no one else in the U.S. Attorney's office would discuss the case with defense and defendant in a panicked effort to have the truth told, contacted co-defendants father whom he had known for many years. Defense attorney when asked if the call was ok, did not know the proper answer. There was no effort to threaten or coerce which was later admitted to in court by the father. After the phone call a second revised PSR was issued removing all previously listed reductions and adding two levels for "obstruction." All efforts to discuss these events and circumstances with prosecution were rejected and the only response to inquiries to USPO were that the AUSA had ordered it.<br />At sentencing, AUSA approached defense and stated that perhaps he had acted in haste due to being away from his office may not have complete information. He then made the suggestion that another proffer be done and if defendant were to come forward with complete honesty and full cooperation that, in all likely hood, the reductions in offense level would be restored. Of course defendant agreed as he had already given all of the information that he had and really had nothing more to offer. AUSA was looking for something that just was not there. However defendant was told by USPO, in my hearing, that if he did what was requested that, and once again I quote, "things are looking good for you." <br />A proffer meeting was subsequently held via conference call and when it became evident that defendant had nothing new to offer, AUSA terminated the call and refused to honor the re-instatement of the reductions. <br /><br />Cont.HadEnoughnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-90016036247800082902009-08-29T16:51:07.478-05:002009-08-29T16:51:07.478-05:00Sugabear: Once again thanks for the comments. Yo...Sugabear: Once again thanks for the comments. You probably hit the nail on the head in your first paragraph when you spoke of the difference between vague promises and formal agreements. Let me clearly state that I am not trying to argue with you. As I stated in my initial post I am not a lawyer and am well aware that I am ill equipped to "argue" with a pro. Rather I am a senior citizen and retired engineer who tends to look at things from a logical perspective and my limited knowledge of these issues is mostly from an attempt to self educate over the last few months. There are not many shades of gray in the engineering world. Things work or they don't, buildings stand or they collapse and I come from a time when a handshake was as good as a written contract and a man's word was taken at face value. Naive? Yes we were but I also come from a time when Doctors and lawyers were looked up to and trusted. I am sure that I have erred in my references to "minimums" as opposed to "guideline" ranges and there are many details that I have left out and I apologize for digressing so far from the original topic of the original post.<br />You mentioned a proffer and there were actually two, and BTW, the defendant I am describing was never arrested or charged only questioned by law enforcement about his knowledge of another individual and his involvement in a marijuana growing operation. There was never any denial of involvement only the degree. The first proffer was at the suggestion of the so called top notch defense attorney and the "understanding" was that anything said would be held in strict confidence (first lie by AUSA). Defendant in effect "spilled his guts" but in truth had little to offer that the AUSA did not already have from several other much more involved parties. Defense allowed this conversation with absolutely no written "promises" or commitments from the AUSA and bear in mind that there were at this time still no charges against the defendant. As was later reveled AUSA, within a matter of days, divulged the entire text of the proffer statement to co-defendant who, as it turned out was looking at a third strike and serious consequences to say the least. There were never any written instructions to defendant as to what he may or may not do or who he may or may not talk to.<br />Nothing was heard from the AUSA for more than six months at which time defendant was notified that he was being charged with conspiracy to manufacture and distribute based on the testimony of co-defendant who had of course, since AUSA had divulged information that he had "promised' to keep confidential, made a counter statement claiming defendant was his "main" distributor. This from someone looking at a third strike speaking against a person with an absolutely clean history. In his sworn statement co-defendant contradicts himself on numerous occasions yet defense never questions the accusations. The most glaring, a statement concerning amounts sold which are in direct conflict with amounts produced. He claimed to be selling a far larger amount than he was producing and defendants objections to these statements were brushed off as not significant. Defendant was then offered the opportunity to accept a plea agreement or be charged, indicted and tried. The plea agreement held out the "carrot" of reductions in offense level based on "substantial assistance" under 3553(e) and 5K1.1 among others but made no written commitment that any would actually be granted. <br /><br />cont.HadEnoughnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-54283211925517471922009-08-29T09:20:05.239-05:002009-08-29T09:20:05.239-05:00Well I had to laugh over some of the debate on def...Well I had to laugh over some of the debate on defense lawyers and prosecutors and their “responsibilities” in a trial. It wasn't a good laugh. <br /><br />How much time does the general public think the average defense lawyer, especially a public defender, spends with the accused before a trial? Even if you've hired your own lawyer, a defendant can be lucky to get one or two five minute meetings in which one of the more deep questions is “Do you have a suit for court?” Or the defense attorney's big strategy is to avoid a trail and “take the deal” because it doesn't matter what evidence a defendant may have to support his case, with the charges brought it's guilty before the case is even heard. Remember, in Texas it doesn't matter if the defense sleeps through half the trial in court, it still doesn't add up to insufficient counsel. But even if you go through the trial, there's no guarantee your defense lawyer will actually do anything or ask the questions you tell him will prove you didn't do it. <br /><br />Some prosecutors are no better. Got an alibi? No prior offenses of any kind? Was the act consensual until she had a change of mind weeks later? No big deal, by the time the State is done painting the defendant a sexual deviant and ignores all evidence to the contrary, it doesn't matter if you were sitting in church when the alleged act is supposed to have happened, a jury will convict just on the chance a man might be as bad as he has been painted.<br /><br />And good luck with the court of appeals, especially if you've run through all your funds and the court appoints a lawyer who goes on to work for the prosecutors office to handle your appeal and uses points of law that have been changed but he really wasn't paying attention to the changes made in the last few years. Which leaves you in prison, broke, unable to hire counsel and trying to learn enough in a prison law library to file your own papers on a long sentence for something you didn't do. Then heaven forbid anything you might be able to throw together yourself might be hampered by any one of a hundred things that can happen in prison and your paperwork hits the court of appeals a day after the deadline cause it'll be rejected without even being read as “untimely”or a small technicality will have it rejected because you were stupid enough not to have gotten yourself a legal degree before you were incarcerated. <br /><br />No, this surely is not the case in every trial, but it was in at least one that put a coworker in prison for the rest of his natural life. He was in a consensual relationship with a woman who I would kindly call, less than stable. When he broke it off, she filed rape charges against him and from the moment he was charged, his life went to hell. The DA could care less that she had a very “interesting” psychiatric background and the defense attorney seemed pissed he didn't just take the deal and insisted on going to court because he didn't do it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-1617141068705448932009-08-29T08:41:43.860-05:002009-08-29T08:41:43.860-05:00Grits,
No, I am not saying that if the judge has...Grits, <br /><br />No, I am not saying that if the judge has any questions that it is always improper for him to clear them up before sentencing. <br /><br />I am saying if the judge's questions are based on prejudice (rape doesn't seem possible with victim on top, for example) that it is improper for a judge to inject personal prejudice into the case in the name of fact finding. <br /><br />Cases must be about evidence not bigotry. This is true whether the bigotry which comes up in a case is against the alleged victim or the defendant.<br /><br />Past injustices against innocent defendants don't mean that this judge's questions were in support of justice. Judge Fine had to listen to the 911 recording six times before whatever prejudice he had was eliminated by the evidence.Marcella Chesterhttps://www.blogger.com/profile/00131036408163541788noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-91924887612937660252009-08-29T07:50:50.960-05:002009-08-29T07:50:50.960-05:00Marcella, I appreciate your work on this topic and...Marcella, I appreciate your work on this topic and recognize that, for the reasons Prof. Kahan describes, we may inevitably disagree. But are you really saying that if the judge still had questions about the crime or the jury verdict it's improper for him to clear them up before sentencing?<br /><br />That's just not a credible position to take given the number of innocent men convicted and later exonerated of rape charges in this state. It's not as though false rape allegations are utterly unprecedented. If the judge has questions before sentencing and has been charged with that duty, IMO that's exactly the time to ask the questions.<br /><br />Yes, sometimes courts get it wrong, but if that's your beef then you can't fault him for doing the best he could to make sure all his own questions were answered. Keep in mind, after he asked his questions, he then sentenced the guy to 25 years.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-13465936685933562492009-08-29T00:42:35.537-05:002009-08-29T00:42:35.537-05:00Nicole wrote: "And judges and defense counsel...Nicole wrote: "And judges and defense counsel should definitely be allowed to look into an alleged victim’s prior record of reporting rape, or “the number of men she has leveled the accusations against,” as you say."<br /><br />The problem with this is that rape isn't something which can only happen twice or three times to the same person. <br /><br />The raw number of previous reports is meaningless as evidence of a defendant's innocence or the innocence of anyone previously accused. But these raw numbers can bring up significant prejudice.<br /><br />If the defense team wants to make a criminal allegation in court against the alleged victim then they must have the burden of proof related to their allegation.Marcella Chesterhttps://www.blogger.com/profile/00131036408163541788noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85967578951205741702009-08-28T23:01:48.855-05:002009-08-28T23:01:48.855-05:00Grits wrote: my first thought about the case was &...Grits wrote: my first thought about the case was "Good, I've known way too many men wrongly convicted of rape who lost decades of their lives to false convictions. I'm glad the judge is making sure he gets it right."<br /><br />The problem is you are assuming judges harsh questioning of alleged rape victims automatically helps to get it right and to protect the innocent. This overlooks the reality of how often innocent rape victims are harmed and the guilty are helped because of actions which are defended because they allegedly protect the innocent. <br /><br />The action of judges which are defended as helping to get it right can also directly contribute to getting it wrong. The questioning in this case reminds me of the Italian judge who decided that women wearing tight jeans could not be raped.<br /><br />If it weren't for the 911 call placed the night of the rape this judge may have assumed that his lack of understanding equaled reasonable doubt.Marcella Chesterhttps://www.blogger.com/profile/00131036408163541788noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-63706082798280239982009-08-28T14:10:54.449-05:002009-08-28T14:10:54.449-05:00And Please don't start in with the 'what a...And Please don't start in with the 'what about the victim' lines either. I was very specific about the sexual deviants that actually harm someone for sexual gratification. They earn no pity, however they are also the minority of sexual offenders. a 20 something guy sleeping with a willing 16 or 17 year old is not a sexual predator. A dumb ass maybe, but not a sexual predator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-69923702811416448892009-08-28T14:03:56.691-05:002009-08-28T14:03:56.691-05:00Personally, I find it disgusting in a court of law...Personally, I find it disgusting in a court of law how attorneys are afraid to question a 'victim' on the stand. My belief, as well as the written law, states that a person is innocent until proven guilty, and that the 'crime' must be fleshed out before we assign names such as sex offender, rapist, or even victim. I believe the judge was very thoughtful of all to talk to the 'victim' before he ruins someone's life. I find it a direct affront to the founding fathers to treat any accuser with kid gloves, and that if a woman or man goes in front of a judge and jury as the accuser wanting to end someone's freedom, they too must be put on the flame and answer the questions. If they were truly victimized, it will come out in court and be judged. However if she really wasn't a 'victim' but instead had a change of heart or what not, that too would come out. <br /><br />America's newest whipping pot are sexual offenders. While some of them are warranted such treatment, a great deal of offenders are railroaded, or are the actual victims of lies and mis-deeds of a woman/man who decided that they weren;t happy with whatever aspect of the accused life.<br /><br />Now this does not hold for those that grab, rape, kill their victims, and it is a hard thing to drum up any sort of pity or support for that sort of sexual deviant. However, for the guys/gals that were presented a fake ID, met someone at a bar, or trusted in a story spun at the whim of a just under-aged young person who thought it would be exciting.. I say the under 18 should be the ones to bear the blame. I find it very hard to believe that a 16 year old (fe)male who willingly becomes sexually active with an above 18 (fe)male is totally innocent of any wrong-doing. I also find it despicable for law to treat the 19+ person as a hardened criminal. <br /><br />Seeing as our soon to be former governor Perry decided it was bad politics to sign the Romeo and Juliet clause into law, I guess when his successor fills the seat we'll have to try again. Because as humans, we must ask ourself. When does a civil remedial law, like the registry, become punitive? After a person spends 10,15,20 years being unemployed and without hope or support? The tentacles of such law must be chopped off and looked at for what they are. Revenge alone. And that is the REAL crux of the matter.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-19827479111960360852009-08-28T09:38:38.578-05:002009-08-28T09:38:38.578-05:00Had Enough: Clearly you've had a bad personal...Had Enough: Clearly you've had a bad personal experience with the system, and clearly a lawyer who hasn't heard of Booker and would allow his client talk to people while he or she was cooperating has no business in a federal courtroom, but there is a difference between vague promises made by attorneys and formal agreements for cooperation. <br /><br />I would be interested to know more about any agreement since it's odd that you mention mandatory minimums and probation in the same breath. If anyone promised the defendant probation for an offense that carried a mandatory minimum they were more than just a little wrong unless, as you seem to suggest, "cooperation" was discussed. I'm getting the feeling this was a cooperation situation.<br /><br />While it's pretty pathetic if the lawyer did not expressly tell the defendant that he or she shouldn't talk to witnesses, co-defendants, or ANYONE (at all, under any circumstances) in a situation where they were actively cooperating, I find it very hard to believe the AUSA would not have clearly admonished the defendant not to talk to anyone both by formal agreement and during any debriefing. <br /><br />The US Attorney's Manual directs AUSA's to follow certain procedures involving cooperation agreements. When a defendant offers cooperation which may lead to reduction below a guideline sentence, including mandatory minimums (commonly called "5K1.1"), such agreements should be memorialized in writing (commonly called a "proffer letter"). That letter, which would have required the defendant's signature, would also set out very clearly that speaking to anyone, let alone a potential witness or a co-defendant's relative, is an absolute deal breaker. <br /><br />I've worked on many cases both in Texas and elsewhere that involved proffers and I have yet to come across a case where the government doesn't require such a letter before an agreement is reached. Such letters are signed and sealed long before PSR's are written and often even before an indictment or information is filed against the defendant.<br /><br />It's clear you have strong emotions about this, but perhaps you don't know everything that transpired. Perhaps the defendant has failed to mention to you the agreement letter that he or she may have breached by contacting witnesses. This is not to say that some prosecutors aren't out for scalps, but to "offer probation" simply to trap a defendant would be a breach of ethics and pretty extraordinary. <br /><br />None of this is to discount your feelings, but given what you are telling me about cooperation I suspect there was a proffer letter involved that specifically warned about the consequences of breeching that agreement.<br /><br />Again, it is always the duty of the defense lawyer to explain this early and often, and perhaps the defendant in this case has a claim for ineffective assistance of counsel, but I can't say I've never seen a defendant screw up a deal before because they can't follow the plain rules - it happens. <br /><br />Also, you mention Booker in the context of a mandatory. You should know that Booker has no effect on the use of mandatories. There are still only three ways around a mandatory: cooperation under 5K1.1, something called "safety valve" for drug offenders with little criminal history, and Rule 35 of the Rules of Criminal Procedure which allows a judge to reduce a sentence up to a year (longer in rare cases) after imposition if the defendant has further "cooperated". Given the disastrous results of what sounds like a failed 5K1.1 in this case, a Rule 35 may be a difficult route, but if the defendant hasn't looked into it yet, they should.<br /><br />If a mandatory was involved and there was no reduction for cooperation (or safety valve) it is impossible to get a sentence below the mandatory, especially probation.<br /><br />-Sugabear-Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-58980096760312105462009-08-27T17:15:42.400-05:002009-08-27T17:15:42.400-05:00Sugabear: Thanks for the very insightful comments...Sugabear: Thanks for the very insightful comments. My only response is that you must have a far better class of USPO's in Texas than we do around these parts. <br /><br /> I am "pissed off", as you so eloquently put it, with the state of sentencing as it pertains to the mandatory minimums but that is another issue. I am more "pissed off" at those who abuse their position of power and mislead and lie to pad their conviction/incarceration rate.<br /><br />I am pissed off at the prosecutor who leads a person to believe that if they jump through all of the hoops that their "cooperation" will result in reduced offense levels, etc. <br />I am pissed at a USPO who looks a family member in the eye and says "I don't see anything here but probation" then, two weeks prior to sentencing, issues a revised PSR removing all reductions in offense level, adding two levels and a charge of obstruction because the defendant made a phone call to a co-defendants father, who BTW he had known for nearly 20 years. <br />I am pissed that the only explanation offered is that the AUSA ordered it done. <br />I am pissed at an incompetent defense attorney who, when asked if it was ok, did not tell the defendant not to make the call. (He was not aware of the obstruction provision in the guidelines) <br />I am pissed at an AUSA and a USPO who used an innocent no harm, no foul mistake to remove all of the "carrots" and wield the stick only for their own gain. <br />I am pissed at an AUSA and a USPO who told all involved that mandatory minimums were inviolate and that the judge was allowed no option but to apply the guideline sentence. (This story took place less that a year ago) <br />I am pissed at an incompetent defense attorney who apparently never heard of "Booker" and never challenged any of this. <br />I am pissed at a Federal Judge who sat on his throne at the sentencing hearing and ignored testimony proving that there was no "obstruction" and that all of the "promised" concessions were deserved, then taking the easy way out by generally following the recommendations of the revised PSR and furthering the perception that he was limited by the guidelines to any other course of action.<br /><br />You say that " The prosecutor and the USPO just implement the law" and while I will acknowledge that is the way is should work I have seen them twist an manipulate both the law and the people involved to insure that their conviction and incarceration rate is maintained at the highest possible level.<br /><br />You make reference to AG Holder. I submit that, not withstanding the fine USPO's of Texas, he should began any effort regarding reform with a general cleaning of his own house.HadEnoughnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-61730281402066665292009-08-27T14:00:55.071-05:002009-08-27T14:00:55.071-05:00While this area is obviously something of a minefi...While this area is obviously something of a minefield for the sentencing judge, it is refreshing to see a degree of scepticism from the bench. As a defense lawyer I've seen too many case where a woman's allegations against a man were accepted as being true simply because of her gender and his. That included a case where the wife was claiming her husband had twisted her arm so badly that the bone was fractured and there was nerve damage. She was fighting like a demon to get him out of their house (which he had paid for before he even met her) on the grounds of his "violence". Lo and behold! Her medical records revealed no actual injury to her arm (in spite of the sling she was wearing to court!) and a history of what I can only describe as serial gold-digging. Police, prosecutors and victim's rights people had been fawning over her for months at that point ... The detail I really loved was that she had claimed she could not raise her (supposedly injured) right arm to swear the oath during the proceedings concerning the house. Since her arm was actualy just fine, that meant that she was perjuring herself in the very act of taking the oath!<br /><br />Obviously, not all alleged victims are faking it, and there are too many real victims who suffer terribly. What I would like is a legal system that does a better job of sorting out the genuine ones from the fakes, and that requires adjustments to the thinking of all the players in the system.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-29414592684158800632009-08-27T13:43:47.611-05:002009-08-27T13:43:47.611-05:00cont.
Obviously, while the judge may have found it...cont.<br />Obviously, while the judge may have found it odd that the victim was “on top” during the rape, he found her answer to his question enough to sentence the man to 25 years. We are not privy to a transcript of the trial and have no idea if the violence the rapist threatened was brought out during questioning. What we have are cherry picked opinions that seem to be designed to create controversy. I also question the reporters need to point out that the judge was “newly elected Democratic judge who previously worked as a defense attorney“. The article in question is opinion. The reporter with the benefit of the transcript and an interview with the victim, shared her opinions without giving us the benefit of the full picture. The comment section brings up issues like the woman went with the accused to a bar and the knife never left his pocket. If true, while that alone does not indicate he did not rape her, threaten violence I am sure he was well capable of or that she did not have good cause to fear for her life, it does open the door to more questions.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-58287951223691112652009-08-27T13:43:03.103-05:002009-08-27T13:43:03.103-05:00Nicole,
As a young woman I fought to have the law...Nicole,<br /><br />As a young woman I fought to have the laws changed regarding the treatment of rape victims in direct response to sitting through a rape trial and watching my best friend be eviscerated by a defense attorney after her violent rape because she wasn't “lily white” in her past behavior. Her rapist walked out of court and raped again. It should happen to no one. <br /><br />I did not fight to see over thirty years later a society in which innocent men go to prison for crimes they didn't commit because of the way shield laws are used in some courtrooms or a society in which once an accusation is leveled the accused is assumed guilty or a climate in which defense attorneys cannot defend their clients because they are afraid to upset a jury by asking hard questions. For as many women went through the trauma of those early days, we can now see men going through an equally traumatic event as their lives are destroyed by false accusations they cannot fight. Neither situation is acceptable.<br /><br />With such a heinous crime with the possibility of life sentences, we must achieve a middle ground in which we can find that truth and justice we desire for all involved. The little relief a woman finds after going through the devastating violation of rape and the trauma of a trial means nothing if the wrong man is convicted which seems to happening all to often these days. <br /><br />In this particular case, it might seem cruel to you to that the judge asked the questions he did. I really don't think there's a tactful way to ask that would have not resulted in some controversy over the asking given the subject, but as difficult as it may have been to go through such questions, the treatment of victims today in no way compares to what it was before the laws were changed when the admission alone that she was on top would have been enough to acquit despite any threats or violence used. <br /><br />If you believe the questioning was traumatic, try comparing it to the trauma of finding out years later that after going through a trial, the man that was sent to prison was the wrong man and the little comfort you had thinking the one who violated you was behind bars walked free on the streets to offend again while an innocent mans life was destroyed. In both instances we cannot give back what was lost. The womans life before the rape or the years lost when the wrong man is convicted. <br /><br />There is a fine line to getting it right and I don't believe we have achieved that place where a victim can be treated with dignity and respect in a traumatic situation and the accused can be said to have a fair trial for something he may, or may not, have done. We may never achieve it, but in the interests of both the victim and the accused, we must stop sending sending innocent men to prison for crimes they did not commit. If that means difficult questions are to be asked in the courtroom, then they must be asked. I don't make light of the victims pain or the attempt to lighten it, but it must not be at the expense of convicting an innocent man and allowing the guilty the freedom to re offend.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-42871307780981607602009-08-27T11:10:16.559-05:002009-08-27T11:10:16.559-05:00HadEnough: You are 100% correct about some lawyers...HadEnough: You are 100% correct about some lawyers not being up for the task. Luckily in most drug cases the defendant is represented in federal court by the federal public defender's office. A bad FPD is not completely unheard of, but typically they don't snore on the job like a few of their Texas state court counterparts. <br /><br />However, let me say a word about US probation officers. During my professional career I've probably worked directly with a few hundred USPO's from around the country both in my capacity as a defense lawyer and otherwise. While the defense bar's perception is sometimes that the USPO's feel they are junior AUSA's, I can tell you that is rarely the case. Most USPO's understand their duty is to deliver the Judge the best most accurate advice possible and if that means telling an case agent or a prosecutor to go hang then they do that without a second thought. They answer to the Judge not the litigants. <br /><br />The fact that a USPO disagrees with a defense attorney's argument regarding, for example, a guideline calculation doesn't mean they are acting on behalf of the government, usually it only means that they, unlike the defense lawyer, have bothered to read the circuit court precedent on the issue. <br /><br />I can't say I've never come across an unprofessional USPO, but I can say, without exception, I've come across many, many, many more unprofessional lawyers both sides. <br /><br />While anyone viewing the current drug prosecution scheme in federal court has to shake their head in wonder, the current state has very little to do with USPO's or Judges. Honestly, the local US Atty, while he or she could just refuse to enforce certain laws, is really only a pawn as well. <br /><br />The drug laws are Congress' doing. <br /><br />The mandatory minimums that drive the insane sentences for some drug offenses are Congress' stamp on the criminal justice system. The sentencing guidelines, and the calculations USPO's make based on the them, simply reflect Congress' will on this issue. Congress has been told for well over two decades by the US Sentencing Commission, the Federal Judicial Conference, and scores of others, that mandatories make no sense and are contrary to the aims of the Sentencing Reform Act - and they still refuse to rescind them. Even Atty. Gen. Holder now says that mandatories for crack cocaine are too high. <br /><br />Even Department is against them and what do we have from Congress? Nothing.<br /><br />So if you want to be pissed about the state of drug sentencing (or child porn, or immigration) in federal court you need to direct you anger to your local Congressmen - he or she is the responsible party who insists on draconian directives such as mandatories. The prosecutor and the USPO just implement the law.<br /><br />-Sugabear-Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-72417195949675857962009-08-27T11:01:44.400-05:002009-08-27T11:01:44.400-05:00Falkenberg is wrong this time.
The comments are m...Falkenberg is wrong this time.<br /><br />The comments are mostly from folks who assume facts that are simply not in either article by Grits or Lisa F.<br /><br />The judge's comments are sufficient to justify his questioning: "sending an innocent man to prison in the name of law and order is the greatest injustice this society can do.”<br /><br />ATTICUSAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-28594314569042006542009-08-27T10:44:14.994-05:002009-08-27T10:44:14.994-05:00Someone above me stated: "Of course a judge s...Someone above me stated: "Of course a judge should be asking those hard questions and no, it's not the victim being further violated in the course of the search for the truth and justice, as difficult as having to answer those questions may be." <br /><br />I agree with you that a judge who will be determining the Defendant's sentence should ask questions of the victim in order to improve his/her own understanding of what happened. However you are MISTAKEN in saying that the "victim is not being further violated ... as difficult as having to answer those questions may be." In rape trials the victim is almost always put on trial herself to a certain extent by the Defense (i.e. the Defense will often seek to discredit the alleged victim by highlighting instances of unchaste behavior, drug use, etc. in her past, or will question why the victim reacted the way she did when the alleged act was happening). To be discredited in this way is very traumatic, demoralizing and humiliating for a rape victim to endure. <br /><br />Yes there are women who play the system … plenty of them. And judges and defense counsel should definitely be allowed to look into an alleged victim’s prior record of reporting rape, or “the number of men she has leveled the accusations against,” as you say. But if you go back and read the article, the Judge was not undertaking that specific kind of questioning. And the questions he did ask were rather indelicate and insensitive, as he realized later (“the judge acknowledged he could have used more tact in questioning the victim”). To say that he finds it “odd” that the woman was on top during the rape is just good old fashioned sexism. If someone is holding you captive, threatening to kill you, and particularly if there is a weapon involved, you do exactly what that person tells you to do, whether it is getting on top, providing oral sex, or any of the other myriad sexual acts that a rapist might demand.<br /><br />Rape trials are a balancing act. As a judge you have to allow certain information to be presented to the jury in order to ascertain the truth, but you also need to avoid (to the extent possible) re-victimizing the alleged victim.Nicolehttps://www.blogger.com/profile/15572253605801771209noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-2306820994247175222009-08-27T10:21:11.189-05:002009-08-27T10:21:11.189-05:00This does not directly relate to the questions con...This does not directly relate to the questions concerning Judge Fine's actions but as fuel for conversation.......<br /><br />RE: PSR’s. Anon/”Sugabear” has one thing right in that, not only in Texas, many defense lawyers not only do not involve themselves in the PSR process but are in many cases so ill equipped and incompetent that they allow their clients, especially first time offenders who are often very naïve, have watched to much “Perry Mason” and think that they have competent representation, to be completely steamrollered by less that honorable, lying Federal prosecutors and their also less than honorable, lying buddies in the probation office. Don’t believe it? Check these links for a poster boy. http://tinyurl.com/mbnvzs http://bit.ly/2tuwi<br /><br />In some Federal District Courts, the preparation and wording of the PSR is used as both “carrot” and “stick” to convince a defendant to take a plea deal. At the end of the day, after the plea is accepted and before sentencing, all of the “carrots” are withdrawn and nothing is left but the “Stick” and the defendants never know what hit them. The incompetent defense has also, in all likely hood, allowed the defendant to sign away his right to appeal. In effect, the “author” of the PSR becomes Judge, Jury, etc.,etc. because, in spite of what you think and say about “Post Booker” rulings, many judges are to lazy to do the work and so take the path of lest resistance and follow the recommendations of the PSR to the letter. <br /><br />These types of actions are particularly rampant in drug cases where the government uses the “Conspiracy” provisions to cast a large net. Many that fall into the net would, in many state courts, be given the benefit of pre-trial intervention or misdemeanor options that do not exist in Federal Statutes. Rather, even the most minor involvement often results in a Federal Felony conviction that, in effect, becomes a life sentence that will haunt the defendant forever under current law. Sadly, no one has bothered to explain the collateral consequences of a Federal Felony and the defendant generally does not have the resources to fight the unlimited resources afforded to the Federal Prosecutor.<br /><br />I am not a lawyer thank god, just a careful observer.HAdEnoughnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-24698558362482598822009-08-27T06:49:34.106-05:002009-08-27T06:49:34.106-05:00I am adamently opposed to any form of "Star C...I am adamently opposed to any form of "Star Chamber" proceedings in order to "flesh" anything out.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-60023622237133928052009-08-26T23:22:15.485-05:002009-08-26T23:22:15.485-05:00"Fine said he should have expressed his conce..."Fine said he should have expressed his concerns with the case in private and let counsel for both sides “flesh it out.”"<br /><br />This is what I meant by private, Rage. Exactly what the judge said he thought he should have done.gravyrugnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-86317947941100492872009-08-26T22:24:44.393-05:002009-08-26T22:24:44.393-05:00Those questions, however, should be handled with t...<i>Those questions, however, should be handled with the utmost tact, and in private.</i> <br /><br />Private sentencing? Have you read the Constitution?Rage Judicatahttps://www.blogger.com/profile/04765188025349228048noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-58053494982972814042009-08-26T17:51:24.057-05:002009-08-26T17:51:24.057-05:00Here in Texas, we don't need no stinkin" ...Here in Texas, we don't need no stinkin" trials or punishment hearings for alleged sex abusers: The allegation itself is proof enough! And I'm in favor of roadside executions by the police on "reasonable suspicion" of DWI, too!Raoulhttps://www.blogger.com/profile/14865035634316582821noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-62973058689301356362009-08-26T17:10:28.030-05:002009-08-26T17:10:28.030-05:00I can understand a judge needing to ask questions ...I can understand a judge needing to ask questions if he or she has doubt. Those questions, however, should be handled with the utmost tact, and in private. Anything else comes very near victim-blaming, and is one of the major reasons so many rapes go unreported. I think Judge Fine had good intentions, but handled it badly.gravyrugnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-73345672850201851932009-08-26T16:27:09.766-05:002009-08-26T16:27:09.766-05:00"But, in a statement published earlier this m..."But, in a statement published earlier this month on the Houston Press' Hair Balls blog, the judge acknowledged he could have used more tact in questioning the victim.<br /><br />Fine said he should have expressed his concerns with the case in private and let counsel for both sides “flesh it out.”<br /><br />Even the Judge knows he screwed up.Anonymousnoreply@blogger.com