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Friday, January 21, 2005

Panel 1: Prosecutorial Discretion and Its Challenges

The panels is made up of Ronald F. Wright, Professor at Wake Forest University School of Law; Nancy King, Professor at Vanderbilt University School of Law; Michele Hirshman, First Deputy Attorney General, New York State (said to be first in line for Attorney General if Spitzer's run for governor succeeds); Martha Coakley, D.A. of Middlesex County, MA.

Wright: If you take a public choice view of regulation, there are imbalances everywhere. Even in the 1800s, dairy farmers were interested in regulating margarine and leaving butter alone. This is true with criminal law as well.

Regulatory Imbalance
- police as regulated parties -- patchy
- judges as regulated parties -- more comprehensive
- parole boards, regulated out of existence


- prosecutors as regulated parties -- code limits relaxing

The imbalance lies at the bottom of the frustrations facing the state sentencing commissions.

Kansas and Minnesota: We're not going there.
- Legislative instructions, recognize the sentencing impact of prosecutor choices
- Other priorities override
- Linguistic impossibility
- Political impossibility

Kansas is a nice example of where a committee got together, thought about, decided there were too many political barriers to regulating prosecutors. One problem was what Wrights calls a linguistic impossibility; how to make meaningful rules to guide prosecutor's discretion, when prosecutors' jobs are so difficult to define narrowly? [Wright says he sees the same problem with regulating judges, however.] Hard to find a legislature enthusiastic about regulating prosecutors, especially as criminal codes grow more prolix and the choices available to prosecutors multiply.

Washington: We're been there, and we can go back.
- Christopher Bayley and Norm Maleng catch guideline fever.
- Evidentiary sufficiency, for property and personal crimes.
- Factor list.
- Legislation (with prosecutor blessing) requires commission to create guidelines
- Cf. "descriptive" sentencing guidelines for judges.
- But aren't these limited expectations to place on prosecutors?
When the legislature said it would regulate the prosecutor along with the judges, the prosecutors went along with the standards of evidentiary sufficiency and factor list.

New Jersey: We're going where no prosecutor has gone before.
Not known as a hotbed of sentencing reform. Until recently, there was no sentencing commission.
- Super-potent mandatory minimums, based on school zone proximity and drug amounts. The prosecutor could reach a plea agreement and the judge was required by statute to impose the sentence agreed upon.
- Judges push back in 1992, State v. Lagares, saying as a matter of separation of powers, judges' power includes selecting sentences and the statutes that cut judges out of the deal were unconstitutional. T
- County-level guidelines: the remedy was for the state attorney general to issue guidelines to the prosecutors.
- Brimage 1 (1998): prior record, offense features. Supreme Court said the guidelines varied too much from county to county. New Jersey attorney general issued state-wide guidelines that look quite a bit like sentencing guidelines. They even speak in terms of "departures" from the prosecutor guidelines. It was revised to a 104 page guideline, to allow for more consideration of "relevant conduct."
- Brimage 2 (2004): more "relevant conduct." If someone had a gun, or was in a gang; if someone cooperated with the government.
- Legislature tolerates this, even embraces it to extend to juvenile sentencing.

Imagine a little bit of New Jersey in a commission state...
- Incremental development, guidelines for particular problem areas.
- Rounds initiated by prosecutor's office.

The Commission Advantage
- Clearcut legitimacy through delegation
- Informational advantages (cf. Nancy King's project) to identify next target
- Political capital
- "Abuse of discretion" standard to review application
- "Arbitrary and capricious" review of rule content

Scanning the Regulatory Horizon
- "Collaborative governmance," involving the "regulated" party
- Cf. endangered species, workplace safety, EEOC
- Iterative process
- End point: regulation leess comprehensive than for judges, but more coverage than for police.

King: Major purpose of guidelines has been to remove disparity among defendants who commit similar crimes: racial disparity, disparity among judges and districts. One thing wee've noticed less is disparity among modes of conviction. When a sentence doesn't differ because of skin color, or judge's political party, but because he chose a bench trial rather than jury trial or chose to plead guilty, sentencing guidelines doen't regulate those kind of differences. There's this gigantic disparity that isn't quantified or regulated closely.

She did a study to look not just at the plea vs. trial difference, but also the jury vs. bench sentence. One of the reasons to look at this is that a commission that would like to regulate this disparity first would need to know what the patterns are. The economic prediction is that the most expensive kind of trial would have the highest sentences.

The study covered several years in Pennsylvania, Maryland, Minnesota, Kansas and Washington, and showed fewer bench trials in states with mandatory guidelines than in ones with advisory guidelines. King put up several graphs that I can't reproduce, but that went into detail about dispositions in the various states, for various degrees of drug cases, etc.

Are we interested in regulating what goes on with sentencing given a certain charge? More bench trials and voluntary guidelines makes for strong differences in bargaining power over the sentences. In other states, they bargain over the charge, not the sentence, because there's not enough room in the mandatory guidelines to bargain over the sentence.

Guidelines are designed to replicate the average sentences given for particular crimes, but those averages include those given for guilty pleas, which adjusts the average downward from what it would be if it were based only on the sentences given after trials (with no bargaining over the sentence).

Hirshman: She said that she wants to challenge some assumptions by Wright and King, and particularly outline how prosecutors already are constrained in ways both healthy and unhealthy. We should encourage an ethos among prosecutors to seek justice, while permitting them discretion early in the process, and judges discretion later in the process. The constraints on state prosecutors that exist within New York state law serve as a check on discretion and ability to move a case in a certain direction -- with which Hirshman disagrees, and for which reason she claims that she would not run for office.

For example, in New York State, unlike the federal system, our grand jury places enormous restrictions on what a prosecutor can do; we cannot get evidence from an individual unless they are prepared to waive their automatic immunity. This makes it difficult for a grand jury prosecutor to build a case. Elaborate evidentiary rules constrain how prosecutors can prove a case.

Although Hirshman disagrees with the substance of these rules, she believes that the basic underlying theme is a good one: the test of your discretion is your ability to build cases that are strong, fair and just. In any prosecutor's office, the test of whether the prosecutor is doing a good job is whether they are enforcing the law with appropriately obtained evidence that actually captures what happened in the crime. Consider whether what goes on in the "shadows" of plea bargaining, where prosecutors are challenged by defense counsel, does produce more and better justice than we sometimes get after a full-blown trial.

Coakley: Promises to keep it short, because "a lecture is a long answer to a question nobody asked." If the system needs fixing, what are the most efficient ways to do it? Why aren't we talking about defense counsel? don't they have an obligation to ensure that the accused's rights? Michael Dukakis's loss in the 1988 presidential election due to Willie Horton is just the most high-profile instance of MA's turf battles about sentencing. Coakley's former boss says, "It's hard to get into jail in MA." She feels strongly about the need for an adversarial system with high-quality representation; case-by-case sentencing will provide better justice than sentencing guidelines.

State prosecutors are dealing with murder, armed robberies, child abuse; they lack the federal prosecutors' discretion over which charges to bring. In MA, one rule permits judges to reduce sentences if they just think the jury's decision was unfair, as in the notorious Woodward nanny-baby-shaking case. Coakley believes that our attention is better spent on improving criminal representation and ensuring that judges do their job than on guidelines to limit prosecutors' discretion.

One academic and criminal lawyer says that there is a polarization between defense counsel and assistant DAs, there is little room for bargaining. Another person points out that there are multiple forms of discretion, and Wright agrees, saying that the critical question is how much discretion the prosecutor has versus the judge.


Coakley: There is a formal review process within her office. There are several criteria for where bringing a charge has to have a nexus to what the evil that the statute is meant to punish.

Wright: Lack of enforcement and visibility. How consistently is this happening in various offices? This is a deeper question about democracy, and a hope that if people can see the rules, they'll insist on their being just.

King: Rules are overrated. Rule-based enforcement to avoid disparity means that if we depend on appellate review, we must look at the federal system, where almost all cases waive appellate review as part of the agreement.

One person asks about drug cases, and Wright says that with the density of schools, a very large number of people who aren't selling to kids still get charged under school zone laws.

Someone from the New Jersey Sentencing Commission puts in his two cents.

King says that there's a phrase called "law school charging," in which prosecutors look around for whatever they can find to put against the defendant. (The reference presumably being to students' being given a fact pattern and told to pull out every issue they can find.) Coakley says MA judges have a normative response who can exercise their discretion to counter that of prosecutors; the system has a way to correct unfairness.

Lynch stepped in to talk about the local cultures of prosecutors, judges and defense attorneys; there are different ways these are done in different places, and this may account for the patterns.

Moderator Shechtman thanks the panel and praises King's empirical work, which he says doesn't happen enough. He notes a Florida guideline where the state legislature requires that a certain charge be filed in conjunction with another; this elimination of discretion for both prosecutors and judges means that unlike New York, where such charges are left up to the prosecutors to file, there is no room to bargain over it.


Anonymous Anonymous said...

I was recently convicted of 5 felony counts for reading opened email. I am facing 22 years in prison and thousands of dollars in fines. I lost my job due the the FBI publicizing my arrest. My family and I have lost our health insurance, income, AND retirement benefits.I am now a "felon", my reputation is shot, I have lost the right to bear arms, travel, vote, use the Internet, be payee on son's SS check. We are broke and facing bankruptcy and/or foreclosure.

This result could not possibly be the intent of congress, to "felonize" peeking at email by suing a password (purloined or guessed). Nor does the punishment fit the crime.

I have a rule 29 (acquittal) hearing, so time is of the essence. The judge may or may not dismiss my case.

Count 1:
Conspiracy (to look at AOL email)
My girlfiend was idendtified as a co-conspirator but not indicted. She was subpoened by the government but not called. Defense called her but she pled the fifth and is still subject to prosecution at the whim of the prosecutor.

Violation of 18 USC 371

Counts 2 and 4:
Computer intrusion (accessing a protected computer (AOL email account) in furtherance of the crime of looking at aol email (USC 18 2701)
All in violation 18 USC Sections 2, 1030(a)(2)(C) and (c)(2)(B)(i)

Count 5:
Harassing phone calls
Violation of Title 47, USC 223(a)(1)(C)

Count 6:
Unlawful access to stored communications
USC Code Section 2510(15)
In violation of 18 USC 2701(a)(1), (a)(2) and (b)(1)(A)

I am a wife and mother. I was gainfully employed until September of this year. Prior to November 19, 2007 ,the date on which the federal government entered my life, I enjoyed a stellar reputation both personally and professionally.

I am claiming that the government did not prove it's case beyond a reasonable doubt, e.g., accessed protected computers,read "unopened" email , intercepted a wire communication. The FBI and the government violated section 18 USC 2702(a)(1) and (a)(2) by presenting evidence (content of wire comunnications) illegally. They had neither a subpoena or search warrant for content or recorded phone calls.

History: I was sexually harassed by and subsequently had an affair with my married former boss who works for a politically connected firm. For reasons too salacious to delineate here, I derailed as a result of the relationship and made some phone calls that he considered harassing. I made these calls during and after the affair. He did not know it was me at the time. These calls were recorded. Our affair ended in August of 2007. The calls ended in November of 2007 of my own accord due to remorse and guilt. I wanted desparaely to move on and I had.

My ex-boss believed his work computer had been compromised due the caller's knowledge of personal information. In September of 2007 ,when local authorities could not provide assistance, his company's law firm requested a political favor and brought the FBI in to find out who was making the calls and who broke into the firm's computer. The FBI involvement was unbeknownst to me at the time. Note that the affair had ended in August and we were no longer in contact.

The law firm and the FBI used the thin pretext of "interstate calls" in September to become involved. (Ironically had I not moved out of the state to get away from him an d start my life over with my child and husband, the calls would not have been interstate and thus no felony).I did not access or attempt to access his firm's computer. I had personal knowledge of his life due to a two-year affair and a lot of "pillow talk."

From November 2007 through May of 2008, the FBI issued 60 subpoenas and spent in excess of $500,000 (in excess of $1,000,000,by now). I learned I was under physical surveillance at home and at work. My phones were tapped. I suspect keystroke-like software was installed on one of the computers in my home since curiously, the FBI left it behind in my home. I suspect they are reading this email. They took my lap top and cell phones.The FBI unlawfully used a pen register tap and trace on my home, work and cell phones. They accessed and printed all of my email without a warrant or supbpoena.

When I was contacted by the FBI in November of 2007 regarding the the phone calls, I contacted my former boss. He told me the FBI was working for him, that the affair would not be disclosed, we would not end up in court and that he could stop the investigation. When the investigation continued, I told him that I would expose the affair to his superiors and his wife if he did not stop the investigation.

In summary:
On 5/22/2008, my computers at home and work were seized by the FBI. Our home and personal effects were invaded.
On this same date ,I was given a target letter from the federal prosecutor with a deadline of 6/6/08 to "work it out" or be indicted. I relied on this letter to my detriment.
On the dame date of 5/22/08 I called and left messages for my former boss and his boss and told him I was going to expose him for having the FBI search and seize and publicly humiliate me at my work place.
On 5/30/08, I was arrested (at the direction of the federal prosecutor in another state) for calling my boss and his superior and charged with harassment even though they never told me not to call nor did they obtain a restraining order. I was simply trying to reslove the problem and avoid federal and civil court.
On 6/2/07, I called the prosecutor's boss in an attempt to resolve based on target letter deadline of 6/6/08 and he hung up on me.
On 6/5/08, the FBI published the arrest and the affair in my local small town paper and I lost my job and my husband learned of the affair from he publication
On 6/11/08 I was indicted for accessing the firm's computer (among other things) of which I was not guilty.

The FBI subsequently determined through their forensic analysis that not only had I not accessed the firm's computer, but that it had not been comprised at all by anyone. They did learn however that I had accessed his wife's AOL account. Please note that I was not charged with accessing her account in the first indictment.

The district attorney has admitted in front of witnesses that he should not have had me arrested. He stated he did it at the behest of my former boss and the firm's attorney to "send me a message" to stop calling my ex-lover and his superiors and threatening to expose his extramarital activity. The prosecutor stated he needed a felony conviction to justify the expense of the investigation. When I would not admit to committing this felony ,he threatened to charge me with aggravated identity theft (of which I was not guilty) and that it carried a mandatory 2 year prison sentence.

When he couldn't call my bluff he dismissed the indictment and brought a superceding indictment charging me with 6 felonies in violation of USC 1030, USC 2701, USC 47, and USC 371. He dropped one count. I was recently convicted on the other 5 counts by a jury.

An example of one of the felony charges is:

Count 4:
"...did intentionally attempt to access a computer without authorization and exceed authorized access to a computer and thereby did seek to obtain information from a protected computer used in interstate...commerce, and such conduct involved an interstate communication in furtherance of criminal acts... That is...intentionally attempted to access without authorization, a protected computer operated by AOL....and obtain information contained in...electronic mail account by means of interstate electronic communications....in furtherance of violations of Title 18, United States Code, Section 2701. (accessing a protected computer (aol) in furtherance of the crime of accessing email).

As you can see, the prosecutor perveted legislative intent by elevating a misdemeanor to a felony, He charged me with accessing email in furtherance of the crime of accessing email. As you can imagine the jury did not have benefit of the history, prosecutorial motivation (abuse of discretion in my opinion), the first indictment, nor did they grasp the complexity of the charges. Congress intented to apprehend and punish hackers who break in to protected networks (e.g. federal goverment, finance companies) and commit a crime after they break in, e.g, steal identities, credit card numbers, social security numbers.

Surveys and internet blogs demonstrate that 44% to 56% of Americans look at email without authorization or approval. This is a reasonable number, since one-half of Americans are divorced, or boyfriends/girlfriends suspect cheating and spy on each other during emotional and turbulent times. Therefore, equitable, consistent and universal application of this felony appellation would mean that 50% of the voters in the U.S. would be disenfranchised by this decision. It would mean that the incarceration rate would jump from the (already) high of 751 per 100,000 to an astounding 39,500 per 100,000. If probation is given in lieu of prison, then the number of probation officers overseeing such a hoard would exceed the number employed by the automotive and the aircraft industry combined.

Obviously, this is an unattainable and an untenable outcome, and since it cannot and will not be applied universally and equitably, it's obvious that I have been singled out by the District Attorney to get a felony conviction strictly to justify his horrendous expense in pursuit of a crime that did not happen. In non-legal terms, I must suffer in order to cover his butt.

I discharged my attorney in November and filed a motion to go pro se. I attended a hearing on the matter and the judge, after much wrangling, talked me out of it in open court. By not going pro se I bought myself justice in the form of 5 felony counts which carry a potential prison term of 22 years plus fines.
If these charges stick, I suffer the unwarranted stigma of 5 felony convictions, loss of right to vote, forfeiture of employment related retirement benefits, loss of the right to bear arms, restricted travel, etc. My marriage is forever damaged by the public disclosure of the affair. Surprisingly and thankfully he has stuck by me and is my staunchest supporter and advocate.

ln all likelihood I will never work in HR again or any other job in this town. I have lost my income and health insurance benefits on which my family relies. We are facing bankruptcy and foreclosure. My reputation is shot all because I made some phone e calls to my ex-lover and peeked at his wife's AOL email.

As you can see, time is of the essence.

10:03 AM  
Anonymous Anonymous said...

Sounds like this proscutor is trying to make a name for him or herself.

The legislature should address this type of activity as oppossed to true "hacking", that is outsiders who hack into a computer using sophsicted computer skills.

Also, this issue sounds domestic and shouhd have been handled in state court. Why did the feds target you? Are the taxpayers going to fund wholesale spying on couples to find email readers when a partner is suspected of cheating? The prison will fill up with teenagers and scorned lovers.

This is frighenting. What other cases are out there where an email peeker was charged and conviced of a felony?

10:17 AM  
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