Just spitballing here

Had a very interesting conversation with a relatively new prosecutor yesterday. We were discussing a case on the trial docket and he was suggesting my client consider a pretrial intervention. I told him I had some questions about the legitimacy of the stop that ended in my client's arrest. He told me he thought the stop was okay and that, should my client be convicted, that she would get a longer sentence than the 12 months she'd be in the pretrial diversion program.

Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.

What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.

Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.

But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?

Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?

I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.

There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.

These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.

Caged up like animals

Never underestimate the ability of a politician to take an idea and run it so far into the ground that the end result isn't even recognizable. Take the slavish fascination state legislators around the country had with the notion of being tough on crime.

Mandatory minimums. Three strikes and you're out. The war on drugs. And supermax prisons.

You see, believe it or not, some folks behind bars aren't the most well-behaved people on the planet. Just to prove it was no fluke that they got locked up they go and terrorize those around them. Why not? Some of them are in for life - what more could the state possibly do to them.

But the state legislators had an idea. Let's build some prisons just for the really bad guys. We'll lock 'em up in individual cells and keep them there 23 hours a day, seven days a week, 52 weeks a year and how ever many years we can hold them.

Of course new prisons had to be built and, since they were only housing the baddest of the bad, they had to have the same staffing as the regular prisons - even though they could only hold a small fraction of the population. All those construction costs. All those maintenance costs. All that overhead. And all that staff.

Illinois is about to close its supermax prison because the state can't afford to spend the $62,000 a year it costs to hold a prisoner (almost three times the amount it costs to house Joe Inmate). Just think how many school teachers the state could hire with that money. Just think of the improvements that the state could make to schools and other public facilities with that money.

But there's more to the problem of solitary confinement than the cost of running supermax prisons. There is also the psychological toll complete isolation takes on an individual. We are social beings. We crave to be in the company of others. Just imagine living in your bathroom and only being allowed to leave for one hour a day. How many minutes could you stand before you'd start beating your head against the wall?

Now imagine the effect years of isolation could have on an individual being released back into society. Now let's be honest about this aspect of the problem - most of the individuals in supermax prisons are already serving life sentences and stand very little chance of ever experiencing life on the other side of the walls again. But does that make the punishment any less inhumane?

The Eighth Amendment forbids cruel and unusual punishment. How can complete isolation be considered anything but cruel or unusual? Is there a time and a place for isolating inmates? Yes, of course there is. But, should it be the norm or should that be the outlier?

Prisoners, even the most violent and depraved, are still people. They have families. They have needs and wants. Our prison system does us all a grave disservice when it treats inmates like animals.

Making an example

"We were hoping for the maximum," he said, "to make an example."


Yesterday R. Allen Stanford was sentenced to 110 years in prison after being convicted of multiple counts of defrauding investors by selling phony CD's in an offshore bank.

Mr. Stanford is 62 years old. The sentence, imposed by US District Judge David Hittner, went way overboard. Mr. Stanford will never set foot outside prison again as a free man. He will die behind bars. He would die behind bars if the sentence were 30 years -- probably even much less than that.

A 110 year sentence serves no useful purpose. It gives the prosecutor a big number to put on his resume; maybe white-shoe firms like big numbers. It makes Judge Hittner look like a real tough guy. But why bother?

So what if the federal guidelines - they're advisory, you know - mandate a ridiculously long sentence? Are our federal judges nothing more than clerks who plug in numbers and trace their finger along a column or row in a book? Shouldn't these jurists who were placed on the bench for life have a little discretion at their fingertips?

The quote at the top was from Jaime Escalona, a defrauded investor from Venezuela, who "represented" the Latin American victims of Mr. Stanford's pyramid scheme. The maximum he speaks of was 230 years (an even more absurd big number). What's the example you wish to set, Mr. Escalona?

Those who lost their money will likely never see a penny of it. It's gone. Even those who thought nothing of a high interest rate on a CD, should understand that. It doesn't matter if Mr. Stanford lives to the ripe old age of 172 -- they're never getting paid.

And, as an added bonus, as Mr. Stanford ages and begins to suffer from those maladies that affect older folk, guess who'll be footing that bill. That's right. Us. We'll be the ones on the hook for the increasing medical costs of caring for an aging man.

Mr. Stanford didn't do his case any good when he refused to acknowledge that he defrauded the investors. The judges who like to run their fingers along the columns and rows of the advisory sentencing guidelines tend to take a dim view of someone who refuses to accept responsibility for his actions. They like to use the term upward departure.

Well, sometimes juries convict the wrong person. If Mr. Stanford believes he was wrongly convicted and is looking to appeal, confessing his guilt to the court isn't the best course of action. Harmless error, anyone?

Mr. Stanford ran a pyramid scheme. He promised outrageous returns for supposedly safe CD's which wealthy folks hungry for more money ate up. When he couldn't convince enough people to cough up money he could use to pay the earlier "investors," his company collapsed. He stole nearly $6 billion.

And, lest I forget, Judge Hittner also made Mr. Stanford personally responsible for restitution. Excuse me, Judge Hittner, how the hell is a man sentenced to life in prison supposed to come up with that kind of dough?
And what would the penalty be for not paying it back? Would he have to sit it out for $100 a day?

Mr. Stanford was found guilty. He stole a lot of money. He should go to prison. But the sentence handed out by Judge Hittner was ridiculous.

Just what kind of example did he make?

Bully in a robe

Last June Michael Giacona got behind the wheel of his van after drinking and ended up in an accident that claimed the life of Aaron Pennywell. Mr. Giacona was charged with a misdemeanor DWI because investigators could not determine who was at fault for the accident.

As part of a plea, Mr. Giancona was sentenced to one year in the Harris County Jail. After 90 days, Judge Michael Fields ordered that Mr. Giancona be released from jail and placed on probation. The terms of that probation included standing at the intersection where the accident occurred on four consecutive Saturdays wearing a sign that said "I killed Aaron Pennywell while driving drunk."

On the first Saturday of his public humiliation, Mr. Giacona was confronted by hostile passers-by and passing cars. It seems that Judge Fields' idea of punishment was to expose Mr. Giacona to bodily injury. Sanity later prevailed in County Criminal Court at Law No. 14 and Judge Fields suspended the public humiliation.

As part of the terms of probation, Judge Fields also ordered Mr. Giacona to write a letter to Mr. Pennywell's parents apologizing for killing their son. This past Wednesday, Mr. Giacona told Judge Fields that he would rather return to jail than apologize to Mr. Pennywell's parents.

Now let's remember that the Harris County District Attorney's Office didn't charge Mr. Giacona with intoxication manslaughter because they couldn't prove that the accident was the result of Mr. Giancona driving while intoxicated. In other words, no one could determine - beyond a reasonable doubt - who was responsible for the accident. While his refusal to apologize does not make Mr. Giacona a sympathetic figure, following the judge's order would result in an admission of fault for the accident. That admission of fault would (all but) guarantee a recovery in a civil suit for wrongful death.

But that's nothing to ordering a man to humiliate himself and expose himself to injury. Judge Fields' order that Mr. Giacona must stand at the intersection holding a sign announcing that he killed Mr. Pennywell does nothing to further justice. The purpose of punishment in our criminal (in)justice system is to rehabilitate, deter or punish. It is not to humiliate a person. The order to carry the sign was gratuitous. It was a way of telling a defendant that I can make you do whatever I want you to do - and you can't do a damn thing about it. Judge Fields was angry that Mr. Giacona couldn't get more than a year in the county jail. Oh well. A judge's job is to act as an impartial arbiter at trial and, if requested, to order a punishment that is appropriate under the circumstances.

Whether the judge approves of the charge filed against the defendant is of no concern. Imposing a harsher punishment because you think someone should have been charged with a more serious crime is wrong. Ordering someone to humiliate themselves is the act of a bully.

Humiliation for the sake of what?

I had to take a detour this morning to the Family Law Center to wrap up a divorce case. As I approached the courthouse I saw a man walking down the sidewalk carrying a sandwich board. On the back of the board was the message "Dead Beat Dad."

My curiousity was piqued. I approached the man and asked him whether a judge had ordered him to wear the sign. He said yes.

The front of his sign stated that Judge James Lombardino was behind it.

I didn't know anything about Judge Lombardino. Seeing as how I didn't recognize the name I figured he must have been one of the Republicans swept into office this past November. So I decided to look him up on the internet.

Wouldn't you know it -- he promoted himself as being the "Conservative" in the race. (As an aside, if anyone can tell me why being conservative has anything to do with sitting on the bench, please let me know.) He aligned himself with such nut jobs as Dan Patrick and Ted Poe. And then the bell went off. When he sat on the bench, Ted Poe was known for shaming those who came before him.

In his blog Res Ipsa Loquitor, Jonathan Turley wrote about Ted Poe all the way back in 2005:

As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as “The King of Shame” for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because “[t]he people I see have too good a self-esteem.” Poe was so popular for what he called “Poe-tic Justice” that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.

And just what purpose is served by shaming someone? Does it stoke the ego of the judge? Does it allow a judge to feel better about himself because he's embarrassed someone else? Does it change what happened?

I much prefer Harris County Criminal Judge Larry Standley's approach. Instead of trying to humiliate someone who comes before his bench pleading guilty, Judge Standley treats the person with respect. He will tell someone they might be guilty of something but they shouldn't be ashamed. He will tell them to walk out of the courtroom with their head held high.

I don't know the name of the man ordered to walk up and down the block in front of the Family Law Center for four Fridays. I don't know the details of his case other than he was behind in his child support payments. I do know that Judge Lombardino's idea of "justice" doesn't change the fact that the man was behind in his payments.

It shows that Judge Lombardino is a very petty man who is more concerned about stoking his ego and drumming up support for the next election than he is about doing what's fair and equitable. Judge Lombardino and other judges who dole out humiliation from the bench are nothing more than black-robed bullies.

Out of whack

You can get deferred adjudication for murder, rape and burglary in the State of Texas -- but not for the heinous offense of driving while intoxicated.

Deferred adjudication, sometimes referred to (tongue-in-cheek) as deferred prosecution, is a carrot-and-stick sentence in which a citizen is placed on probation for a period of time and, should he complete the terms of that probation, the case is subsequently dismissed. The citizen then has the right to an order of nondisclosure of all records related to the case and can deny, under oath, that he was ever charged with the offense. It must be pointed out, however, that some offenses are not eligible for non-disclosure.

Deferred can offer a first-time offender a "do-over" should he or she get back on track -- though the penalties for screwing up can be quite severe.

But if you're unfortunate enough to be arrested for DWI -- a misdemeanor -- that option is unavailable and, unless the case is dismissed or you are found not guilty at trial, you will forever be labeled as a CRIMINAL by the State of Texas.