Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction. Continue reading

Directed Verdict Ethics In The The Movies: “Tom Horn” And “To Kill A Mockingbird”

Once again, as I watched the film version of “To Kill A Mockingbird” for the 50th time, I was bothered by the fact that Atticus never asked for a directed verdict, and the kindly, seemingly fair-minded judge never declared one.

A directed verdict is also known as a judgment as a matter of law or JMOL. It means that one side or the other has failed to meet a minimum burden of proof, and is usually declared by a judge  after is a motion made by a party, during trial, claiming the opposing party has presented insufficient evidence to reasonably support its case.  A directed verdict  is similar to judgment on the pleadings and summary judgment. Judgment on the pleadings is  made after pleadings and before discovery; summary judgment occurs after discovery but before trial.

A directed verdict occurs during the trial, and a judge can also render one spontaneously, without a motion. The motion can even  be made after a verdict is returned by a jury, where such a motion is technically for a “renewed” directed verdict, but commonly referred to as judgment notwithstanding the verdict.  In a civil trial, a party must have moved for a directed verdict before the jury reports out its decision. In a criminal trial, as in the fictional Tom Robinson case, there is no such requirement. The court may set aside a guilty verdict and enter an acquittal in the interests of justice.  A criminal defendant is not required to move for a judgment of acquittal before the court submits the case to the jury for the verdict to be overturned. A verdict of not guilty can never be overturned.

In “To Kill A Mockingbird,” black defendant Tom Robinson is convicted of rape despite the primary prosecution witness, the alleged victim, contradicting her own testimony at several points, and despite strong evidence that the beating she claimed was part of the sexual assault was shown to be delivered by a right-handed man—like her spectacularly vicious and creepy father—when the defendant couldn’t use his right hand at all. Atticus Finch never moves for a directed verdict, and the judge never declares one, though he presides over the fiasco of a trial with a disgusted look throughout. Continue reading

Comment Of The Day: “SCOTUS: There is No Right To Be Executed Painlessly”

The Ruth Snyder execution…

Capital punishment is one of those irresolvable topics guaranteed to roil an ethics blog; it has also been a reliably emotional issue that does not break down along partisan lines. The recent Supreme Court decision in Bucklew that rejected, narrowly, a condemned man’s argument that an execution method that would be uniquely painful in his case rendered it “cruel and unusual” in violation of the Constitution was a good bet to produce a Comment of the Day, and sure enough it did, from always provocative Steve-O-in NJ.

Here is his COTD on the post, “SCOTUS: There is No Right To Be Executed Painlessly.”I’ll be back at the end to briefly answer Steve’s question.

What stuck out to me is the penultimate paragraph in Breyer’s dissent, in which he states that as we move forward there may be no constitutional way to implement the death penalty. That, I submit, is one more reason we need to either get that sixth conservative justice on the Court or get Breyer out of there. Breyer already came within one step of saying the death penalty should be outlawed in a 2015 dissent in which only Justice Ginsburg joined (surprise surprise) and which got a pretty severe smackdown from Justice Scalia.

There is something fundamentally wrong with a way of thinking that worries so much about the pain, humiliation, or other bad consequence suffered by a murderer and thinks almost not at all about his victim. It’s that kind of thinking that keeps Peter Sutcliffe (the Yorkshire Ripper) sitting in a UK prison on the taxpayers’ dime, Fowzi Nejad (the only terrorist to survive Operation Nimrod) living in London on the public dole, and means Michael Adebowale (who participated in what I can only describe as the assassination of Drummer Lee Rigby, for no reason other than he was a soldier) will see the parole board in 45 years. It’s also that kind of thinking that enabled Charles Manson to dodge death until the ripe old age of 83 and would have kept William Spengler (the West Webster shooter, who wrote that, “I still have to get ready to see how much of the neighborhood I can burn down, and do what I like doing best, killing people,”[ before setting a fire and ambushing the responding firemen, killing two of them) alive, perhaps to be paroled a second time, since he had already been imprisoned for 18 years after killing his grandmother with a hammer, had he not saved the authorities the trouble by killing himself. Continue reading

Unethical Prosecution, Incompetent Jury: Once Again, “Sorry” Isn’t Enough.

After Archie Williams (above) was released from a federal penitentiary  last week after serving 36 years  not only for a crime he didn’t commit, but  after a false conviction that would have been prevented by decisive exculpatory evidence that was available to the prosecution from the beginning. The district attorney for East Baton Rouge Parish, Hillar C. Moore III, said in court, “As a representative of the state, I apologize.”

I’m sure that makes Williams feel all warm inside. As we discussed here just this month in another case of wrongful arrest, trial and imprisonment, the kind of life-destroying mistakes that send citizens to prison for crimes they didn’t commit must involve accountability for those responsible beyond mere financial damages paid by the State.

This case is especially infuriating. It was known at the trial, and admitted by the prosecution, that  fingerprints found at the scene where a woman had been raped and stabbed in in Baton Rouge, La. belonged to someone other than the man standing trial for the crime.  Under basic prosecutorial ethics, Williams shouldn’t have been charged. The prints guaranteed reasonable doubt.  An ethical  prosecutor is not supposed to decide, “Well, maybe we can convince the jury to ignore those prints.” Prosecutors aren’t supposed to fool juries.  Ethical prosecution demanded that the State acknowledge doubt, no matter how much it wanted to clear the case, The victim of the attack was the wife of a wealthy and powerful man.

Instead, the prosecutor at the trial trivialized the significance of the then-unidentified fingerprints found at the scene.  “How many people come through your house?” Jeff Hollingsworth asked the jury, after suggesting that the prints could have belonged to  a plumber or a carpenter, “The air-conditioning man, people who clean your carpets, the little girl home from school.”

Then it was the duty of the police to determine who those people were, match the prints, and determine that they didn’t commit the crime. Without that due diligence, there is doubt as a matter of reason as well as ethics.

Technicians in a crime lab eventually ran the fingerprints  through a national database, and  within hours there was a match with a serial rapist. That happened last week, however, almost four decades after the prints should have been identified. When Williams  requested that the fingerprints be run against the national database in 1999, prosecutors opposed his request and  no statute required them to comply…just fairness and an interest in justice.

The fingerprints weren’t the only reason the jury should have acquitted Williams. Although the victim was certain that he was her attacker, several aspects of her description of the rapist didn’t match  Williams. His lawyer at the trial, Kathleen S. Richey, accurately told the jury that  the victim had described a  taller man with a scar on his shoulder blade.  Williams did not; he had a scar on his upper arm.

The jury found him guilty beyond a reasonable doubt anyway. He was 22 when police arrested him. Archie is Williams is 58 today.

It was dawning on criminologists by 1983 that eye witness testimony was less reliable than previously thought, and that identification could be negligently or intentionally be manipulated by police. Combined with the mysterious fingerprints, the shaky ID should have assured Williams’ acquittal. Juries, however, don’t know the law, don’t have experience evaluating evidence, and sometimes, as Reginald Rose pointed out in “Twelve Angry Men,” just want to get home, are misled by their biases, or just aren’t very bright.

I hesitate to call for some kind of sanctions or penalties when a jury botches its job like this; after all, the police screwed up, the prosecution was unethical, the judge let it all happen, and they were doing jobs that they had been trained to do. Nonetheless, it seems like some consequences of a bad verdict might focus jurors attention a bit more, to the benefit of justice. What those consequences might be, I have no idea.

I would support a law mandating the resignation and permanent bar from further prosecuting duties any prosecutor involved in sending an innocent man to prison, however.

It’s fascinating that such a case should come to public attention at the same time that activists, feminists and progressives are arguing that the presumption of innocence for men accused of sex crimes should be reduced. Archie Williams graphically shows where that position leads.

Morning Ethics Warm-Up, 3/27/18: Redux And Déjà Vu!

Good Morning.

1 Yes, “enemy of the people” is accurate. I searched all over cable and network news this morning to find an outlet that wasn’t dominated by the breaking news that a President-to-be had an adulterous affair with a porn star 12 years ago. I couldn’t find one. The media-wide effort to undermine an elected President and his respect in the nation and the world at a time of great challenges and peril on all fronts is irresponsible, destructive, and demonstrates the collapse of journalism as a bulwark of American democracy.

Journalists don’t have to behave like this: they have chosen to, because they discern that a critical mass of citizens–bad ones–would rather see the President of the United States humiliated and weakened nationally and internationally based on his past than to permit him the same crucial advantage  that every other President since George Washington has been conceded and used. That is the inherent dignity and honor of the office itself. As I wrote here before, almost every President could have been embarrassed in this way, and some far more.  In the past, the public wouldn’t have tolerated it. A full year of “the resistance” and non-stop media attacks made this President uniquely vulnerable to ad hominem attacks, and the only protection left intact between sensational smears and responsible journalism were ethical standards, which is to say, with today’s journalism, nothing at all.

This is no less than a ruthless, ratings- and bias-driven attack on American institutions, and every future President, and the nation, and our democracy, and the world itself, will suffer for it. Ironically, Trump may suffer from it least of all, since no one who supported his candidacy cared about traditional standards regarding who was fit to inherit the legacy of Washington, Lincoln and the rest. Still, this concerted effort to reduce his tenure to endless character assassination does undermine him, and us.

I don’t know what the President meant when he dubbed the news media the “enemy of the people;” he does not use words with anything approaching precision or consistency. I do know what I mean by the phrase, however: an institution that exists to strengthen American democracy has been deliberately engaging in conduct designed to weaken it. That is the conduct of enemies of the people, and that is what the mainstream news media has become.

2. The next Black Lives Matter bandwagon. The news media was also playing tabloid in the Stephon Clark shooting controversy this morning, showing the dead man’s grandmother weeping, asking why he had to die, and asking why the officers couldn’t have shot him “in the arm.” We won’t see a resolution of this case for a long time, but that hasn’t stopped the NAACP, Al Sharpton, Clark’s family and the large number of police-haters on the left from concluding, before any investigation, that he was “murdered.” The family has also hired the same lawyer, Ben Crump, who represented the families of Trayvon Martin and Michael Brown, neither of whom were murdered, and both of whom are still referred to a murder victims on the Black Lives Matter website.

Déjà vu.

In Sacramento, California, on March 18, two officers responded to a radio call regarding a man who was breaking car windows.  The uniformed officers were checking the area on foot when a Sacramento County Sheriff’s Department helicopter pointed them in the direction of a possible suspect, Clark.

He was seen running through a back yard, jumping over a fence, then looking into a car parked in the driveway of what was later revealed to be his grandmother’s house. The officers approached Clark, guns drawn, and ordered him to show them his hands,  a standard command.  Instead Clark ran, with the officers in pursuit. They ordered  Clark to stop, but he ran around the corner of the house and out of the officers’ view. Again the officers followed, then ducked back behind the house, shouting “Show me your hands! Gun!”, then “Show me your hands!” followed immediately by “Gun, gun, gun!” Both officers opened fire, emptying their guns, killing Clark.

Clark had no gun, just a cell phone. The video is inconclusive. Continue reading

Morning Ethics Warm-Up, 11/27/2017: Gibberish From Congress, Race-Blindness in the UK, Cruel Law Enforcement In Atlanta, And More

Mornin’!

1 “Rarrit!!” You will seldom see or hear as excellent an example of Authentic Frontier Gibberish than this word salad belched out by the leader of House Democrats on “Meet the Press” yesterday. Nancy Pelosi attracted so much negative attention with her “Rep. Conyers is too much of an icon to hold accountable” blather that this masterpiece was relatively ignored. Pelosi was asked by Chuck Todd whether she would support releasing to the public the full information behind heretofore secret settlements of sexual harassment accusations against Congressmen, even indispensable, virtuous icons like John Conyers. She said…

“Well, here’s the thing. It’s really important. Because there is a question as to whether the Ethics Committee can get testimony if you have signed a nondisclosure agreement. We’re saying we think the Ethics Committee can, but if you don’t agree, we’ll pass a law that says the Ethics Committee can, a resolution in Congress that the Ethics Committee can…. But there’s no– I don’t want anybody thinking there’s any challenge here to our changing the law and see how people– when we know more about the individual cases. Well, because you know what our biggest strength is? Due process that protects the rights of the victim, so that, whatever the outcome is, everybody knows that there was due process….”

http://www.youtube.com/watch?v=0_2Npp-euLU

If Chuck Todd wasn’t a partisan hack, he would have recognized his journalistic obligation to say, “That made no sense at all, Congresswoman. Please try again.”

Public pressure is increasing to force Congress to release the names of the members of Congress who paid taxpayer funds to settle with their accusers. Good. Democrats are obviously terrified, and presumably Republicans are as well.

2. That mean Trump Administration insists on enforcing the law. The New York Times had a front page story Sunday about the plight of illegal immigrants in Atlanta. The story, entirely sympathetic to the arrested, deported, and those afraid of being arrested and deported, saying in one headline that “immigrants” (that’s illegal immigrants, NYT editors, a material distinction) fear “even driving.”

“Even driving” without a license.

Here’s a quote to make any rational American’s head explode, about a local journalist who uses social media to warn illegal immigrants when ICE is lurking,

“Asked whether he had any reservations about helping readers evade immigration law, he said he preferred to think he was helping people with no criminal records stay in the country. “Honestly, I believe it’s an honor as a journalist if the people can use your information for protecting their own families,” he said.”

Translation: “I prefer to think of what I am doing as something other than what I am really doing.”

It’s kind of like a newspaper calling illegal immigrants “immigrants.” Continue reading

Morning Ethics Warm-Up: 6/26/17

1. I am puzzled that no respected journalism source—assuming arguendo that there is one—hasn’t taken on the New York Times’ alleged list of President Trump’s “lies,” which was in my Sunday Times and released on-line earlier. I will do it today, but it shouldn’t fall to me, or other similarly obscure analysts. Why, for example, hasn’t the Washington Post taken this golden opportunity to prove how biased, dishonest and incompetent its rival is? Because, you see, the list is disgraceful, and smoking gun evidence of the Times’ abdication of its duty to its readers, except its own perceived duty to give them around the clock Trump-bashing.

The other thing I’m puzzled about is why I continue to subscribe to the New York Times.

2. One possible reason: The Sunday Times is now a weekly collage of the various derangements, false narratives and  obsessions of the Left, and worth reading just to witness how 1) bias makes you stupid and 2) how unmoored to reality one can be and still be judged worthy of op-ed space. Here, for example, is “Black Deaths, American Lies” (the print title), a screed by Ibram X. Kendi, a professor of history at American University in Washington, D.C. (Disclosure: I was also a professor at American University. But I was an honest and apolitical one.)

The first line is, “Why are police officers rarely charged for taking black lives, and when they are, why do juries rarely convict?” This is deceit: an honest scholar wouldn’t have written it, and an ethical editor wouldn’t have allowed it to get into print. The sentence implies that officers are less rarely charged and convicted when they take white lives, and this is not true. In the print version, the article is headed by a touching photo of a street memorial to Mike Brown, whom we now know got himself shot. The Black Lives Matter narrative that Brown was murdered is still carried on by racist activists, ignorant members of the public, cynical politicians  and unethical figures like Kendi, who lend their authority to divisive falsehoods.  Kendi then focuses on the Philandro Castile shooting, as if its facts support his thesis. They don’t. First, the officer was charged, though he shouldn’t have been. Second, we have now seen the video, which clearly shows that after telling the officer that he had a gun, Castile reached into his pocket and began pulling out his wallet as the obviously panicked officer shouted at him not to pull out his gun. Just as the video proves that the officer was unfit to be a cop, it shows that he was in fear of his life and why. He could not be convicted of murder on that evidence. Never mind: The professor writes, Continue reading