Wednesday, August 26, 2009

Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about you

I couldn't disagree more with Lisa Falkenberg's take on the much-ballyhooed instance of Harris County District Judge Kevin Fine ("After rapist convicted, judge grills the victim," Aug. 25), who Lisa criticized for asking questions about possible consent of a rape victim recently during the sentencing portion of a trial in which he would be required to set a penalty.

More interesting to me, though, is why Lisa and I disagree. She's a knowledgeable person and I generally find her work smart and credible (though I also know from personal experience that anyone who writes so often is bound to have a few off-key moments, and she has, too). But Lisa and I don't disagree because one of us is "wrong," we disagree because we have, or at least prioritize in this case, different values that we apply to the facts.

Just as interesting to observe was her article's comment section, which evidenced a strident clash of values and strongly held belief systems. The most widely recommended comment responded to someone who'd announced, "I think it's great that the judge had his concerns. Isn't that what justice is all about?" The response was "You are as despicable as the judge."

Lisa believes that questioning the victim about details of the crime amounts to the judge "re-victimiz[ing] the victim." She thinks the judge should "leave the defense to the defense" and sentence the offender without interrogating the source of any doubts he may have about the alleged crime or the jury verdict.

By contrast, having just left a gig as Policy Director of the Innocence Project of Texas, 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."

These sharp differences in point of view about whether Judge Fine's questioning was appropriate reminded me immediately of an interesting academic piece I read recently (identified thanks to CrimProf blog) by Yale University law prof Dan Kahan on the topic of "Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases," which has been accepted for publication next year in the Pennsylvania Law Review.

I became aware of Dan's work a few years back after attending a talk he gave at UT-Austin on the subject of shaming punishments. One of the key elements of his theoretical approach is the concept of "cultural cognition," which is a high-falutin' way of describing the "influence of group values on individuals’ perceptions of facts." "Cultural cognition is a form of identity self-defense. It is threatening to be confronted with the claim that behavior revered in one’s community is detrimental to society and behavior detested within it benign or even beneficial." The theory aims to explain why, "even when [people] are exposed to the same sources of evidence—eye witness statements, expert opinions, even videotaped recordings of key events—individuals of diverse cultural values can hear and see very different things."

In this recent paper Kahan analyzes the demographics, values and ideology of public opinion in reaction to a well-known acquaintance rape case in a northeastern university setting, interviewing 1,500 people on the topic who all read a 16-paragraph summary of the facts from a court opinion. I called Dan because, though the allegations in Houston were of forcible rape (which the defendant claimed was consensual), the reactions to the Judge's questions struck me as similar to the dynamics identified in his paper.

Upon reading the story and comments, he agreed the reaction to the judge was a good example of his theory at play, noting that "people project into it because there are a couple of gaps caused by incomplete information. ... For starters, 'what happened?'" The story really didn't give much detail about either the specifics of the crime or what the judge said, he noted, leaving readers to fill in all the gaps with their imagination and personal perspsectives.

He also found it remarkable that "People have such strong opinions about why other people might disagree with them. We assimilate an incomplete picture and fill in details from prior experience," he said, "but then we're so confident that if people disagree with them they know what was their motive."

Some readers thought the case evidenced the predictable result of electing "liberal Democratic judges." One reader suggested the judge's questions demonstrated that, "The liberal, which most defense attorneys and many Democratic judges are, does not have any love for women or their rights." Someone else, presumably a liberal, by contrast, thought the Judge was biased as a "white male." Yet another replied that "I can't agree with [Lisa] on this one. Juries make mistakes all of the time. OJ was acquitted, remember?" All of these views are projections based on the commenters' personal history and experiences - they tell us more about the speaker than they illuminate the facts.

Kahan compared commenters' reactions to Barack Obama's press-conference statement on the Henry Louis Gates' story, suggesting that the President's initial comments drew on his personal history, perspective and values filling in gaps in a narrative that, in reality, he knew very little about.

Kahan acknowledged that even among Chronicle commenters, "There were some sensible reactions. That was heartening, actually. That judge didn't have much of a chance to give account for himself, of course, and he did give the guy 25 years." He said the judge should be "mindful of the contribution the jury makes," but "You want the judge to give the right punishment ... the system was not set up by accident that it gives a judge independent judgment on this issue."

His paper points out that the public doesn't even agree on the purpose of the law, much less how it should be applied in an individual case. Some may think the law should acknowledge cultural norms and accommodate them, while others see the law as a change agent to impose their values on others who don't share them, what Kahan refers to as "coerced norm reconstruction." Indeed, Kahan found that the exact wording of the law hardly matters when people decide whether they think someone was raped, while their cultural background matters a lot.

Contrary to those who blame Judge Fine's questioning on "liberalism," Kahan's research found that liberals and those with "egalitarian" values were more likely to empathize with victims in acquaintance rape cases where defendants claimed consent (though he emphasized general trends can never explain the decisions or actions of an individual judge). By contrast, those with more hierarchical values that emphasized traditional gender roles, particularly among older women, oddly enough, were more likely to side with the defense.

Kahan's paper also supplies an interesting background discussion of what he calls the "no means ...?" debate, contrasting norm-changing feminist advocates of a "no means no" interpretation of consent compared to scholarship on the concept of "token resistance" where women may resist sexual intimacy initially in circumstances where, sometimes, "no means yes." While the "standard [feminist] critique views the common law of rape ... as one means by which the state enforces male domination of women," he writes:
in the eyes of the those who subscribe to the conventionalist defense, it's the claim that common law reflects a “male point of view” that is ideologically motivated. The reality, according to the conventionalists, is that “no” does not always mean “no” in the minds of women either. Studies of college-aged women, they point out, show that a substantial proportion—some 40% overall, and over 60% of nonvirgins—report having engaged in “token resistance,” or saying “no” even though they “had every intention to and were willing to engage in sexual intercourse.” In one such study, “68.5% of the total sample reported saying no when they meant maybe."
Feminist reformers often see the purpose of the law as changing those norms, writes Kahan, while "conventionalists" think the law should accommodate how women behave in the real world. Somewhat anticlimactically, Kahan's article concluded that "beliefs about the significance of verbal resistance to sex are culturally polarized."

I'm not sure what if any point I have to make at the end of this rambling adumbration other than to express fascination with how iconic such debates quickly become and how they often reveal more about the debaters than they do the facts at hand.


Anonymous said...

It isn't just the public at large that fail to understand the role of the Judge in sentencing versus the guilt/innocence portion of the trial, as you note, most judges are unaware of their proper role as fact finder as well.

What's especially interesting in Texas state court (as compared to many states and the Feds) is the relative rarity of a pre-sentence report being prepared by the probation department.

The more formalized sentencing process in Federal Court allows a Judge to get a much better picture of the offender and the offense that most Texas Judges lack.

Most Texas advocates on both sides would balk at the idea, and most defense lawyers think of the PSR in Texas state court as tantamount to poison, but the process is more deliberative and, I think, would give some Judges pause before handing down disproportionate sentences.

Just an idea.


Gritsforbreakfast said...

Actually, a PSR might be MORE useful in state court bc judges here have much more discretion. Interesting thought, SB.

Anonymous said...

Grits: The big practical PSR issue in Texas courts is, like a muscle that's never hardly flexed, the probation department is sometimes not very good at making such reports - or interested in doing it. Unless they become mandatory (as they are in most cases federally) this is likely a problem that'll continue. We all know that testimony isn't the best method to contemplate criminal history or the facts of an instant offense, but there is a real distaste for PSR's among the defense bar particularly.

On the federal side, I don't see how a PSR could be more integral to sentencing in Federal court, especially post-Booker. Really, with the exception of mandatory minimums (particularly drugs), federal judges have just as much discretion as Texas judges now, just better resources from the probation department and, sadly, often much better advocacy from the defense.

The problem now, as before Booker, a surprising number of Texas defense lawyers who practice in federal court fail to involve themselves in the process until the report is already prepared. The game is over at that point and it's per-se ineffective assistance in my book - but nobody listens to me. ;)


Sulo said...

Judge has to make a decision about how long the guy stays in prison. Judge has to live with that decision. If judge has a question he should ask.

Anonymous said...

Well if no one else will go there, I guess I will.

How many rape exonerations have we read about in the last few months? How many stories about women who falsely accused husbands during a divorce of sexually abusing children in order to get what they want? I could go on, but the point is that women are just as capable of manipulating the system for reasons of anger, revenge and an after the fact change of mind if they wish to.

As a woman, I feel that rape is one of those unforgivable crimes and rapists should be punished. I also feel that it's grossly unfair to automatically assume that every man accused of rape is guilty and every woman who claims she was raped is telling the truth. For example,

is just one of a number of current news articles that can be found on the subject. How many women who are proven to have filed such charges are later charged and jailed for their actions?

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. It's not allowable for the defense to bring up the victims prior sexual history and use it to paint her as a slut, but is it not unfair to not be able to bring up how many times she has reported that she has been raped or the number of men she has leveled the accusation against?

“In 2003 Ralph Taylor, a defendant in an Arkansas rape case, discovered and tried to introduce into evidence the fact that his accuser had falsely accused others. The court excluded this evidence on the ground that it violated the plaintiff's rights under the Arkansas rape shield law, arguing that the plaintiff's prior false accusations of rape constituted sexual conduct within the meaning of the rape-shield statute. The Arkansas Supreme Court subsequently affirmed the lower court's reasoning and ruling, Taylor was convicted and is now serving a 13-year sentence.”

Lying and falsely accusing a man of rape is just as vile and despicable as the act of rape itself. Unfortunately, rape shield laws which were created to protect victims stack the deck against those who are falsely accused. Societal attitudes that women wouldn't bring false accusations for rape are being shown to be statistically wrong and just for the record, those who think women are not capable of lying about such a heinous crime to suite their own purposes are either incredibly naive and really need to get out more or really know nothing about women.

If a man can do it, a woman can do it better. That includes the bad things human beings do. I guess I'd fall under the category of the “conventional feminist reformer”. The laws did need to be changed to protect women, but not so far that they don't take how “women behave in the real world” into account or allow us to create our own class of victims, the falsely accused man who doesn't stand a chance against the system one the accusation is made.

Anonymous said...

"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.

Fine said he should have expressed his concerns with the case in private and let counsel for both sides “flesh it out.”

Even the Judge knows he screwed up.

gravyrug said...

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.

Raoul said...

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!

Rage Judicata said...

Those questions, however, should be handled with the utmost tact, and in private.

Private sentencing? Have you read the Constitution?

gravyrug said...

"Fine said he should have expressed his concerns with the case in private and let counsel for both sides “flesh it out.”"

This is what I meant by private, Rage. Exactly what the judge said he thought he should have done.

Anonymous said...

I am adamently opposed to any form of "Star Chamber" proceedings in order to "flesh" anything out.

HAdEnough said...

This does not directly relate to the questions concerning Judge Fine's actions but as fuel for conversation.......

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 na├»ve, 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.

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.

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.

I am not a lawyer thank god, just a careful observer.

Unknown said...

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."

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.

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.

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.

Anonymous said...

Falkenberg is wrong this time.

The comments are mostly from folks who assume facts that are simply not in either article by Grits or Lisa F.

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.”


Anonymous said...

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.

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.

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.

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.

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.

The drug laws are Congress' doing.

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.

Even Department is against them and what do we have from Congress? Nothing.

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.


Anonymous said...


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.

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.

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.

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.

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.

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.

Anonymous said...

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.

Anonymous said...

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!

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.

HadEnough said...

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.

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.

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.
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.
I am pissed that the only explanation offered is that the AUSA ordered it done.
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)
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.
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)
I am pissed at an incompetent defense attorney who apparently never heard of "Booker" and never challenged any of this.
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.

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.

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.

Anonymous said...

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.


Anonymous said...

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.

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.

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.

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.

Anonymous said...

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.

Marcella Chester said...

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."

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.

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.

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 Chester said...

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."

The problem with this is that rape isn't something which can only happen twice or three times to the same person.

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.

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.

Gritsforbreakfast said...

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?

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.

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.

Marcella Chester said...


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.

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.

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.

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.

Anonymous said...

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.

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.

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.

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.

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.

HadEnough said...

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.
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.
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.


HadEnough said...

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.)
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.
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.
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."
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.


HadEnough said...

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.
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.
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.

Again, my apologies for digressing