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

The Judicial Persecution Of Jonathan Vanderhagen

It began when Jonathan Vanderhagen petitioned Macomb County (Michigan) Circuit Court Judge Rachel Rancilio for sole custody of his 2-year-old son, Killian, arguing that Killian’s biological mother was unfit to be his son’s  guardian. Judge Rancilio disagreed and the child’s mother retained custody. Not long after the decision,  Killian was dead. Since his son’s death in 2017, Vanderhagen has harshly criticized the Rancilio’s custody ruling on Facebook. 

As a result, he was arrested and charged with a malicious use of telecommunication services , which includes using a telecommunication service with the intention of terrorizing, intimidating, threatening, or harassing someone, in this case, the judge. From Reason:

The case report filled out by Sgt. Jason Conklin of the Macomb County Sheriff’s Office notes that Rancilio was made aware of Vanderhagen’s posts, several of which included screenshots of her own Facebook page and pins on Pinterest. The screenshots are accompanied by captions promising to expose the corruption of the court system and calling Rancilio and Mary Duross, a 14-year veteran Friend of the Court who was involved in the custody case, “shady.”  “At no point does [Vanderhagen] threaten harm or violence towards Rancilio or Duross,” Conklin wrote in the case report.

Apparently some of the “threat” claim comes from the meme above and others like it that Vanderhagen—talented!—has created and posted on Facebook. That shovel! Scary! The caption says, “Dada back to digging [and] you best believe [I’m] gonna dig up all the skeletons in this court’s closet.” “I won’t stop till changes are made, people are held accountable, careers are ended, & these kids get the justice they deserve,” he wrote in another one of his “threatening” Facebook posts.

What’s going on here?

I don’t think its a tough question: what’s going on is a concerted effort  by some Michigan judges of dubious skills and character to take vengeance on a citizen who hasn’t been willing to grovel at the the feet of the Robed Ones. Judges are like that all too often, but this is an unusually ugly example that begs for a serious reckoning with Lady Justice—for the judges. Continue reading

The Scourge Of Technologically Ignorant Judges

The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either.  There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.

Judges, however, often make lawyers look like  cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files.  The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk. Continue reading

The ABA’s Guidance For Judges With Potentially Conflicting Relationships

“Now now, your Honor—that’s the Plaintiff!”

This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.

American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes,  we are enlightened that  “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”
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Why Did A Judge Let A Man Who Was Trying To Kill His Wife Get Off With A Tough, “Now, Now, Don’t Try To Poison Your Wife Again!” [Updated]

[Notice of corrections: This post had way too many typos, and I apologize profusely. Thanks to Crella for alerting me. I think I got all of them.]

I have a theory.

I wish I didn’t.

Therese Kozlowski got a videotape of her husband Brian poisoning her coffee with sleeping pills. Even with this evidence, the poisoner received a sentence of just 60 days in jail, which he will be allowed to serve on the weekends. The prosecutor called the sentence “a slap in the face” of the victim. Oh, it’s much worse than that.

It all started after Therese said she wanted a divorce. Then she noticed that she was feeling drowsy and tired on mornings when Brian made the coffee. She narrowly avoided an accident when she fell asleep while driving to work. So she secretly installed a small video camera by the coffee machine, and sure enough, Brian was putting the equivalent of eight sleeping pills in the morning java.

“Brian’s continuous, methodical, and calculated plot to poison me included a complete disregard for human life, including his own daughter [she also drank some of the spiked coffee], along with hundreds of other drivers who he put at risk every day for weeks,” Therese Kozlowski said in court. “I believe this was attempted murder. Once Brian realized he lost me and there was no getting me to stay in this unhealthy marriage, his goal was to eliminate me.”

This convinced Macomb County (Michigan) Circuit Court Judge Antonio Viviano , he said, to give Brian jail time instead of merely probation, which was his initial instinct. Continue reading

Ethics Observations On Three Recent Judicial Decisions

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I.

An appeals panel throws out the emoluments lawsuit filed by D.C., Maryland.

A three-judge panel of the US Court of Appeals for the 4th Circuit  held that the District of Columbia and Maryland lack standing to sue President Donald Trump over claims related to his hotel in Washington, D.C. The court  ordered a lower court to throw out the lawsuit with prejudice, meaning the lawsuit alleging violations of the Constitution’s emoluments clause could not be refiled.

Good.

The Emoluments Clause nonsense has been one of the more contrived “resistance” theories and this lawsuit was part of the organized plan of harassment against the President. Two Democratic jurisdictions filed this purely political suit as their contribution to the “resistance.”

“Even if government officials were patronizing the hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel,” the 36-page opinion said. “The hotel would still be publicly associated with the president, would still bear his name and would still financially benefit members of his family….Neither [emoluments] clause expressly confers any rights on any person, nor does either clause specify any remedy for a violation.”

The unique conflicts of interest issues presented when a multinational business owner becomes President was never imagined by the Founders, and once Trump was elected it was too late to deal with the problem equitably. The Democrats and the news media, not to mention Trump’s Republican rivals for the nomination and the legal establishment—and commentators like me, all neglected their duty to raise the issue in a timely fashion, mostly because they never thought Trump would win. They are all at fault for their own mistake. At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.

II

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OH! The Teen Who Raped A Drunken Girl And Sent The Video Of Him Doing It To His Pals On Social Media “Has A Good Family!” That Changes Everything, Then! [UPDATED]

A New Jersey Appeals Court has reversed a decision of a Family Court judge who has a claim on the title of “Most Incompetent Judge Ever.”

The facts showed that  a drunk 16-year-old boy raped an even more drunk  16-year-old  in the basement during a party. The boy recorded a video of  himself penetrating her from behind, and then shared it on social media among friends along with a text that said, “When your first time having sex was rape.” The victim could barely recall the incident, and when she confronted her attacker, he denied that he had raped her  even as he continued to circulate the video. When the victim, known only in public records as Mary, an alias, because of her juvenile status, learned this, she had her mother contact authorities.

The Monmouth County prosecutor’s office wanted the boy to be tried as an adult. They applied for a waiver of his juvenile status, arguing that the alleged assailant’s actions were “predatory and sophisticated.”  “At the time he led ‘Mary’ into the basement gym, she was visibly intoxicated and unable to walk without stumbling,” the prosecutor wrote. “For the duration of the assault, the lights in the gym remained off and the door was barred by a foosball table. Filming a cellphone video while committing the assault was a deliberate act of debasement.”

In criminal law, the defendant’s lawyer always tries to get a “good judge,” and in this case, the accused rapist teen hit the jackpot. Judge James Troiano of Superior Court was the ideal judge for this defendant, because he apparently leads his profession in rationalizing idiocy. “Good,” in this case, meant incompetent. Continue reading