April 7, 2008

"Judge's Bizarre Ruling Aids Perv."

NY Post headline about Judge Weinstein's decision in the Polizzi case:
Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long....

Weinstein made his stand in declaring a mistrial in the conviction of Pietro Polizzi, 54, a Brooklyn pizza-shop owner.

Weinstein wrote that he "committed a constitutional error" by not telling the jury about the sentence.

Weinstein declared the mistrial on the top count - receiving child porn - and instead gave Polizzi one year in prison on a lesser count of possession.

At trial, Polizzi argued an insanity defense, claiming he was sexually abused as a child and that he'd downloaded the porn only to research his own past.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.
Does that sound bizarre to you? The bizarreness lies in the deviation from precedent. Orin Kerr, who has read — or at least "looked over" — the 266-page case, explains:
[T]he basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent....

The new cases like Blakely and Booker concern whether the judge or jury finds the facts. By contrast, this case is about whether instructions should facilitate or encourage the jury to ignore the facts. That's a very different set of questions. The fact that one line of cases gives power to jurors and the other keeps it away from them does not make the two lines of cases inconsistent.
But Judge Weinstein has written a book of an opinion (PDF) to show that they are inconsistent. We'll see what kind of reviews his book gets.

20 comments:

Middle Class Guy said...

At trial, Polizzi argued an insanity defense, claiming he was sexually abused as a child and that he'd downloaded the porn only to research his own past.
The old research defense. Researching child porn yada, yada, yada. I wonder how much he paid a consultant to come up with that old canard.

"The maverick judge…"

That line says it all. Sounds like the judge is making his own rules as he goes along.

John K. said...

I don't know whether to feel bad or good about the slim possibility that my comment on your previous post about Brooklyn might have influenced you to post on this. You're doing a fine job all by yourself of selecting topics that are interesting and newsworthy, and you're of course under no obligation to cover what other legal bloggers might be covering. Given my own interest in the concept of jury nullification and noting that this case issued from Brooklyn I fired off without much thought a comment that might have sounded snarky but was not intended to be at all.

Revenant said...

Something seems very wrong about a judge declaring a mistrial because of his OWN supposed mistake, especially when the mistake isn't one generally recognized by the court system. Isn't that sort of thing what appeals courts are supposed to be for?

lurker2209 said...

INAL, but I would think there's some distinction between facts as in the facts of the case, the jury determining what has already happened, and facts as in the facts of sentencing, what will happen in the future.

Salamandyr said...

I'm not a lawyer, and I'm sure this will play merry hell with prosecutor's numbers, but I for one am in favor of it. Juries should know what the consequences of their verdict will be.

dbp said...

It seems odd to me that a judge would want to encourage jury nullification. Insisting that a jury be informed of the sentence can't have any bearing on a defendant's guilt, after all.

Unless it is just that in this case he is perhaps opposed to the manditory minumum sentence of 5 years...

P. Rich said...

One has to deeply appreciate not only the clarity and consistency of the law but also its pristine practice.

We as a nation could simplify things considerably by adopting without dissent the progressive view that there are no criminals, only victims who deserve our sympathy and at worst some cushy "rehabilitation" program. Excuse me as I now go to noisily praise the porcelain bathroom god.

Middle Class Guy said...

I find it amusing that judges get so "constitutional" and weepy and wimpy in cases involving child porn, incest, other child sexual abuse, and other cases involving children as victims. It is as if the are trying to enable the perpetrators of these evil crimes.

Five years was too short in my opinion. One year is a slap on the wrist.

Simon said...

One can see the obvious analogy to the Wisconsin election. Suppose, for sake of argument, that Judge Weinstein's interpretation of recent trends in caselaw are correct, and that properly-construed, the Constitution makes his mistake reversible error. This ruling is dreadful as a matter of justice, but the Constitution allows and even requires all manner of unjust results. Stipulating that this was the right result, with one degree of certainty or another, if Weinstein had to face a retention election, would he have been as willing to reach this result knowing that it might cost him his gavel?

paul a'barge said...

What kind of a review his book gets?

The man let a child molester / pervert off easy.

Mandatory sentences folks. Mandatory sentences. Repeat after me: mandatory sentences.

John K. said...

Lysander Spooner's Trial by Jury is the classic defense of the jury's traditional right to judge not only the facts but also the justice of the laws. Chapter V, Objections Answered, is particularly noteworthy.

Middle Class Guy said...

paul a'barge said...
Mandatory sentences folks. Mandatory sentences. Repeat after me: mandatory sentences.

Oh my. I see you have not partaken of the Kool Aid yet. Haven't you heard? Mandatory sentences are evil. Just ask any Progressive. There are too many Black men in prison because of mandatory sentencing. There was even a book written about it; "Why Are So Many Black Men In Prison".

There are those who do not believe people should be punished for theri crimes so severely. Some even believe in treatment.

Everyone is weeping, rending their garments, and wringing their hands over mandatory sentencing. It is so draconian and not in the least a Progressive way to treat those poor unfortunate criminals. it is not their fault they are criminals, you see.

Now, go to the State Progressive Thought Clinic and get your perscription for the Kool Aid. Drink it down and take a nap. You will change your tune and feel so much better too. It is the Progressive thing to do.

Revenant said...

Excessive mandatory sentences are bad, MCG, for the simple reason that they prevent the judge and the jury -- i.e., the people who have actually heard the details of the crime -- from exercising any judgment. That doesn't just lead to "too many black men in prison"; it can also lead to guilty people going free because the judge or jury feels the sentence a guilty verdict would bring is too harsh.

There is a reason why our legal system bothers to have a sentencing phase. :)

dbp said...

Wasn't manditory sentencing itself a reaction to the perception that judges were letting too many criminals off too lightly?

Joe said...

How does telling a jury about sentencing remotely a constitutional issue. I've read it and find absolutely nothing therein about the issue. Even philosophically it makes no sense; either the guy is guilty or not--sentencing comes AFTER the determination of guilt.

Revenant said...

Wasn't manditory sentencing itself a reaction to the perception that judges were letting too many criminals off too lightly?

I would say that mandatory sentencing is mostly just a reaction to politicians' desire to get re-elected. Once they've already made something illegal (e.g., drugs), the only ways to do the "we're tough on crime" schtick are to spend more money on law enforcement or make the penalties for breaking that law harsher. Of the two options, the one which is easier to enact is the latter. After all, who wants "opposed harsher sentences for crack dealers" on their resume?

AJ Lynch said...

What a great headline! Bet it drew plenty of readers.

paul a'barge said...

I would say that mandatory sentencing is mostly just a reaction to politicians' desire to get re-elected

Plop. Plop. Fizz. Fizz. Out comes the historical revisionism.

Standing waist deep in the muck of moral confusion with this hands over his eyes and ears, Sir Revenant spins a clever yarn. How adroit to blame the politicians. Wow. Cheap shot be damned, one can always shine in one's cynicism by blaming the politicians.

Without a shred of insight.

No sir, what happened was that judges and prosecutors were letting off with a trifle horrible criminals and the people got pissed. And they acted by calling their elected representatives and demanding change, i.e. mandatory sentences.

Re-election? You're damned right, sir. If the politicians don't pass laws that protect us, defeat in re-election is the least of their problems.

Please. Spare us the hooey and repeat after me: Mandatory Sentences. Mandatory Sentences. Mandatory Sentences.

Revenant said...

Spare us the hooey and repeat after me: Mandatory Sentences. Mandatory Sentences. Mandatory Sentences.

"Don't think, just keep repeating the talking points". Thinking of moonlighting for the Obama campaign, paul? :)

Prosecutorial Indiscretion said...

Prosecutors can still let people off light if they want; it's all about what you charge. While I have ethical issues with the current criminal law system, in practice it works phenomenally well at getting people to plead out. Want to avoid the massive mandatory minimum? Plead to these lesser charges and utility is maximized all around. The disparity between a guilty plea sentence and a trial sentence is often ludicrously huge (unconscionably huge?). I feel pretty comfortable even with that huge disparity when a case is thoroughly investigated and there's no doubt that the defendant is guilty, but my version of thoroughly investigated and that of others might vary, and it's easy to think that some prosecutors might be more into the stats and the glory than anything else.

My biggest issue here is with drug sentences, which can be absolutely brutal to peripheral players. God help you if you're a drug dealer's girlfriend who doesn't think you did anything wrong when his bag full of drugs is in your apartment and you knew about it. You will get totally screwed - like 20 years of your life in prison screwed - unless you have a remarkably kind-hearted AUSA.

Mandatory minimums also mean that if we decide to be unreasonable, or if the defendant's (allegedly) done something so naughty that the only reasonable outcome is a life sentence, the defendant is boned. Again, sometimes this is a good thing. It also generally means if you get a kook of a judge - like, on occasion, Judge Weinstein - you can be sure that the defendant will not get off with a slap on the wrist just because your judge disagrees with Congress on the appropriate penalties. The latter point, however, goes out the window when the judge decides to get creative.