I have a great Criminal Law professor. He's smart, funny, engaging, a fantastic teacher, and an incredibly deep thinker on the subject. He's also a federal judge, appointed by Clinton in his last year in office. Classes are from eight to nine in the morning, Wednesday, Thursday, and Friday. Immediately after class he heads downtown, dons his robes, and judges. Each week about ten students are put on-call, meaning he'll call on them to discuss the cases we read for each lecture. In turn, each Friday he invites all the students who were on call that week to join him for lunch at the federal courthouse downtown. We're also invited to hang around in the audience to observe the proceedings in his courtroom, hearings, sentencings, trials, etc.
I was, as I have mentioned, on call in class this last week, and I decided to take Judge Lynch up on his invitation. I headed downtown after Con Law and entered his courtroom around noon. They were in the middle of proceedings on a hearing, and it was quite an interesting case. It concerned a man who'd been sentenced about two years ago for violating a deportation. He'd apparently been here illegally, was caught on a fairly minor drug offense, and was deported. He then came back and was caught again. In the United States, there's nothing criminal about being here when you're not entitled to be; we just pack you up and send you home. Once you get deported, however, it is illegal for you to come back in violation of your deportation, and if you return you face criminal penalties.
This fellow had been sentenced a couple of years ago by Judge Lynch. Lynch had given the guy the minimum sentence within the Federal Sentencing Guidelines, and had indicated when he passed sentence that he'd have loved to give the petitioner less, but that his hands were tied. Within a year of the sentence, however, the Supreme Court held in the case of Blakely v. Washington that the Federal Sentencing Guidelines were an unconstitutional violation of a defendant's Sixth Amendment right to trial by jury, and therefore should be taken only as guidelines by a judge, and not as binding. Unfortunately for the man before the court yesterday, the deadline for an appeal had long passed.
So instead he filed a Writ of Habeas Corpus. Habea Corpus means roughly "holding of the body." It's a declaration that the prisoner believes the government has imprisoned him unlawfully and a request that some alledgedly defective aspect of the process and imprisonment be judicially inspected. In this case, the prisoner, who can't speak English, insisted that the had requested that his Legal Aid lawyer file an appeal. The lawyer, for whatever reason, didn't do so. At the time (pre-Blakely) the lawyer felt he had no grounds for an appeal, and would have advised the prisoner of this; the concern is that something was lost in translation and that, while the prisoner had requested an appeal, the lawyer never got the message.
When I arrived the Legal Aid lawyer was being examined. The prisoner himself had been examined earlier, and his sister, who was involved as a go-between in filing some of the various petitions, had been examined before that. According to the Legal Aid lawyer's record of the prisoner's case, there had been no plan for an appeal; normally he writes APPEAL in big letters across the front when a prisoner requests an appeal, in addition to checking a box on the form. Neither was on this form. So if the prisoner requested an appeal, the lawyer never heard it. Nonetheless, the lawyer had no specific recollection of the prisoner's case; it's important to bear in mind that, according to the lawyer's testimony, he's handling over 60 cases at a time in all areas of criminal and immigration law, so it's difficult to extract a specific recollection about one case nearly two years ago.
After the lawyer was examined and the two sides gave their summary arguments (punctuated with questions from the judge), Judge Lynch entered his verdict. The petition was denied, and the petitioner was to be returned to prison to serve out the remainder of his five-year sentence. Judge Lynch gave his reasoning from the bench, and he elaborated upon it some more in discussions at lunch. Weighing on the side of the petitioner, the story as presented seemed plausible. The petitioner was dealing with a foreign legal system, he had to work through a translator, and it seemed possible that he had requested an appeal and it had gotten lost in the shuffle. While he was leaning toward denying the petition before the hearing, the judge was nonetheless prepared to be persuaded otherwise, and was trying to formulate a way of granting the petition without making the Legal Aid lawyer look bad, since the judge had heard him argue before and felt him an upstanding member of the legal community. Two big factors weighed against the petitioner, however. First, granting the writ was unlikely to do very much. Second Circuit precedent is that anyone sentenced under the pre-Blakely scheme of using the Federal Sentencing Guidelines has to be re-sentenced using the Federal Sentencing Guidelines. This is to stave off a wave of habeas petitions for re-sentencing now that the guidelines aren't binding. The best the petitioner could hope for was a reduction in the sentence of about 3 months, based on a fuzzy factor within the guidelines. The other major factor was that the petitioner had presented two accounts that, without going into the details, were wildly inconsistent with one another. A very strong argument for a violation was made in the sworn affi davit that went along with the Habeas petition, while at the hearing the petitioner told a completely different, much milder, though still possibly persuasive, story. The judge felt that the difference was beyond a simple mistranslation between the jailhouse lawyer and the petitioner, and that this counted heavily against the petitioner's credibility. This proved fatal in a case in which, really, the petitioner's say-so is the only evidence we have of whether he requested an appeal or not.
After a bit of further conversation about the judge's legal career and advice for future lawyers, we returned to the courtroom. The judge had one further proceeding on the docket for the afternoon: A sentencing. A young man, age twenty, was being sentenced for gun running and armed robbery. He had pled guilty to the crimes, and the defense and prosecution presented evidence for why the sentence should be as low as possible. The defense, naturally, did the brunt of the work in this regard. They argued that he had had a troubled childhood which led him to crime, but that he had the support of his grandmother and a home to return to and rebuild his life after prison (increasing the likelihood that he could become a productive member of society). Evidence was submitted of his intelligence and his promise; he had held a number of jobs, including as a clerk at a large Manhattan law firm, and letters had been submitted from several prominent members of the community attesting to his good character. The defendant was remorseful, it was his first offense, and he had pled guilty and cooperated with prosecution. The prosecution added that his testimony had led them to some others involved in the gun running. Both argued that, while the Federal Sentencing Guidelines were not binding, the judge ought nonetheless to grant the minimum sentence within those guidelines.
The judge passed sentence. It's certainly true that the Federal Sentencing Guidlines aren't binding, but this doesn't work in the defendant's favor in this case. A peculiar quirk of the Federal Guidelines meant that, thanks to the grouping of offenses, the range of sentences for Armed Robbery + Gun Running were exactly the same as the range of sentences for Armed Robbery alone. The defendant was thus, in theory, getting Gun Running for free. But judges are no longer bound by the Federal Sentencing Guidelines, and Judge Lynch has a zero tolerance policy towards gun running. The state of New York takes a very hostile attitude towards guns, and the defendant knew that from growing up here. Moreover, he knew that the guns he ran from Georgia were cheap guns of the kind used in violent street crime. These were not, said Judge Lynch, being used to shoot folks on Park Avenue; these guns were being used in the very neighborhood that the defendant had grown up in. Moreover, the defendant knew exactly who he was selling the guns to and to what purpose they were being put, particularly since he had put one of those guns to that purpose himself. The judge felt that a sentence that only looked at the defendant's armed robbery would fail to account for all the violent crimes that will be the indirect result of his gun running. It is only because of all of the mitigating factors mentioned by the defense and prosecution that the judge had decided not to impose a sentence above the maximum under the Federal Sentencing Guidelines. The defendant was sentenced to 65 months in prison, which I believe was the maximum sentence advised by the guidelines.
All in all, quite an interesting day. Unfortunately, Judge Lynch's commitment to the Federal Government prevents him from teaching many classes at the law school, though apparently he teaches an upper-division seminar on sentencing (that's nearly impossible to get into). Still, I think it's worth trying, and I think I may take some future afternoons off to sit in Lynch's audience.
Oh, interesting side note: Lynch apparently attained some degree of fame a little while ago when he was the judge in the Lil Kim trial. He's responsible for sentencing her for perjury.
