Are Some Lives Worth More Than Others?: Only Your Prosecutor Knows

Today, two people will be sentenced for killing innocent others. One person will have made a series of very bad decisions while intoxicated ending in her killing a young girl age 11. The other will have made a conscious decision to kill 11 people. The former will receive a sentence of 12 years in jail. The latter will be released after only doing 8 years while he awaited sentence. The former is a young mother of a pre-teen girl, the latter was a mob hitman. The former, the mom who killed an 11 year old by driving recklessly while intoxicated, spawned a law that makes it a felony to drive intoxicated with a child in the car. The latter Mob hit-man will reinforce the idea that you can kill at will as long as you are willing to give up others, even if you lie to do it.

The young mother is Carmen Huertas. She made a decision to get into a car with 6 children (one was her own) and drive them home from a slumber party after she had embibed enough alcohol to blow a .13 BAC. (Not that I think BAC's are the least bit accurate but given her other behaviors that night I would think there was enough other evidence of intoxication to prove she was guilty. You can read the story here and decide for yourself. She was sentenced to a indeterminate sentence of 4-12 years in jail. She could theoretically be eligible to get out on parole in three years and five months
but given just the fact that this was a DWI and the fact that it was the type of death that brings out everyone against the defendant, she will likely do the whole sentence before she is released less any "good-time" she may accrue (about 1.8 years off the top number or 10.4 years in prison so far.)

The mob hit man is Sal (Good Looking Sal) Vitale, former underboss of the Bonanno crime family. Sal was an early follower of another neighbor Joe (Big Joe) Massino, the boss of the Bonnano crime family. Both men grew up in my old neighborhood in NY. Sal was always noted for how good his hair looked. I should know, he used to go to get his hair cut in the same barbershop as I did. He was a big deal there among the Italian barbers. They all knew who he was. I blissfully did not. I did notice he seemed like any other guy who went there. Slightly pampered and otherwise kind of nice. He always went with friends.

About 10 years ago, Sal and his Brother-in-law childhood hero Joe Massino got indicted. Joe was pretty jealous of Sal's popularity among the other under bosses in "the family". He was afraid that Sal may be so much better liked than he, that he ordered someone kill him. The feds moved in to save Sal's life. Sal was infuriated and so he turned on Joe and everyone in the old life. He had enough information to identify over 500 men as either members of or affiliates to the five families of NY. He also had enough information to put 50 of these men behind bars for a long time, some even for life.

Sal Vitale was a cold blooded killer. He didn't have to be. He had smarts. He was a former corrections officer, and he owned a series of small businesses that would have made money for him with or without patronage from Joe Massino and company. Instead, he helped end the lives of at least 11 men and maybe more. He made it possible for others to kill without being punished. He ran loan-sharking and illegal gambling operations. He provided protection for drug dealers and houses of Prostitution. He also however danced to the Governments tune. He turned and he will be rewarded. Is he sorry he was a creep, a killer, a monster? Only he knows. He knew however he created that man. If he could, would he turn down the life he led? Would he walk away from the jaunts to Vegas and Atlantic City? Would he give up his house in Dix Hills for all those years. Would he not have had the fancy haircuts and manicures he got that earned him the nickname "Good looking Sal"? If he knew he would never get caught would he? Or would he have preserved that life even if it meant killing eleven more people. Eleven more fathers brothers sons?

Carmen Huertas, a 31 year old mother who would like to take back about 2 hours of her life. Whether she was found guilty or not, the taking of that child's life would have stayed with her forever. Her chance of ever getting behind the wheel of a car drunk again, would be less than zero.

Jail is supposed to be for punishment and corrections. I fail to see the sense in this today. Carmen Huertas should have been sentenced to 1-3 years and should have been ordered to a program to address her drinking issues. Sal Vitale should have been sentenced to at least a long long period in jail. He could have gotten Death had he not cooperated. His getting a free pass calls into question every detail to which he testified. His testimony was bought and paid for by the government. He knew if he danced to their tune he would walk away, a free man, new identity, new home, new business.

As she addressed the court she said ""I am not a monster," "I am a loving mother who made a terrible decision that caused the death of a wonderful child."

She is right, her behavior was monstrous, but she herself is not a monster she just in fact made a horrendous decision that will forever effect the world of Leandra's family and her own.

Does anyone wonder if Sal Vitale could make the same statement? Is it fair that the prosecution can make these decisions based on how much they were helped? Is it fair that Vitale's victims should get nothing in the way of satisfaction for the loss they suffered?

Huertas is in jail, mostly because of who her victim was, and what that victims family wanted. Vitale is free despite what his victims want and despite what fairness dictates. She is sorry. Given the chance she would not be likely to repeat her poor judgment. He, well you decide: is he sorry or sorry he got caught? Given the chance, would he have turned down all the things his life gave to him and his family or would he have killed again and again, knowing he would never get caught?

The lives of poor people and the lives of rich have different values in a court of law. The lives of people who die at the hands of those that can give the prosecution what it wants, and the lives of those killed by someone who has nothing but remorse to give, have different values. Neither of these are fair, they just are.

If you ever serve on a jury however, when one of these rich powerful guys testifies, and he says he is not getting anything for his testimony, remember, that is just not true. Never was, never will be. They are just monsters who the government is paying to be tell they government's story, whether it be true, or not. Whether they be monsters... or what?

Here is the NY Post's coverage of the sentencing hot off the presses.

Tony(c) Award for Best Criminal Law Blog for 2008 and an Honor: Professor Doug Berman Sentencing Law and Policy Blog

Thinking of words and phrases to describe out Tony(c) award winning Best Criminal Law Blog is easy: Informative, cutting edge, authoritative, well written, incisive, thought-provoking. The one I like the most is consistant.

The 2008 Tony(c)Award for Best Criminal Law Blog is Professor Doug Berman's Sentencing Law and Policy Blog. The reason for the award? This blog is consistantly the best place to go to begin to research the latest issues in Federal sentencing. Professor Berman is not only a blogger extrodinaire but his blog is cited to on a regular basis by courts and in briefs at the highest (read SCOTUS) levels of advocacy.

Doug is also a real giver. In addition to writing a blog that is a readers delight he also often authors briefs and amicus briefs on behalf of positions he believes in dealing with Sentencing law. Doug is generous with his time and is a frequent lecturer on all thing USSG and USSC. His insights have helped me over and over again in getting fair sentences for my clients. If a young practioner (or an old one for that matter) wants to learn the ins and outs of the USSG, get a copy of the USSG and then start reading the archives of Sentencing Law and Policy Blog.

An extra honor from me to Doug and his great Blog: This Tony(c)Award is being named for its winner. Hereinafter the Tony(c) Award for Best Criminal Law Blog will hereinafter be known as the "Prof. Doug Berman Memorial Tony(c)Award for Best Criminal Law Blog"

Thank you Professor for all you do.

Happy New Years to all of my readers.
TLD.

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Tony(c) Award For Best NY Blawgger: JaneAnne Murray for NY Federal Criminal Practice Blog

The Tony(c) Award for the "Best NY Blawgger" (that is a writer who blogs about legal topics in NY) goes to JaneAnne Murray for her blog "NY Federal Criminal Practice Blog." JaneAnne's writing is crisp and understandable. The Blog reads like a law schoolstudent's recitation brief on a casebook case. Her analysis of the cases is clear and understandable. It is also a great niche blog.

I loved the way JaneAnne Murray covered Judge Weinstein's decision in US v. Polizzi which I covered in a post yesterday. She took a complex, 288 page, tome on sentencing and other issues, and whittled it down to a few paragraphs laid out brief style. The facts, holdings, and synthesis is clear to any attorney having to work with this case.

The fact that the blog is a little light on links and analysis on some of the bigger cases leaves room to improve. Covering the large amount of decisions she covers in the circuit (a circuit that has 2 of the most cited US District Courts and one of the top 3 cited US Circuit Courts of Appeal) Ms. Murray has a lot of cases to comb through and brief. Additionally, unlike most state court decisions(which generally run a few pages) these decisions are long and often tedious. I think her blog is a useful tool for research, and a definite worth-while read if one is just trying to keep up with criminal practice in one of the busiest US Circuits in the country.

Thus The Tony(c) Award for the Best NY Centric Legal Blog goes to NY Federal Criminal Practice Blog. Congratulations.

Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct

Earlier this year US District Court Judge Jack Weinstein of the Eastern District of NY, one of the most reviled and respected judges on the US District Court Bench, issued a Magnum Opus of a decision. The 288 page tome has been roundly criticized by academics, politicians and prosecutors (as if there was really a difference) as a waste of judicial assets and paper. The case, United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008) held that Judge Weinstein erred when he failed to tell the jury of the potential effects of a guilty verdict in a case of possession of child pornography under the US Sentencing Guidelines. Weinstein reasoned that a jury in colonial times would have known what the potential sentences would have been, and an originalist view of the US Constitution would permit that jury to ignore the law and manipulated the verdict if it felt the law did not reflect the view of society as reflected by the jury. (Today we call that Jury Nullification See the John Peter Zanger verdict)

Many so called conservative (but I note not libertarian) bloggers were unhappy with the decision. Many think that the case will be overturned in the Second Circuit. Weinstein however makes a point however; juries do play with verdicts.

This "playfulness" comes in two forms, the aforementioned Jury Nullification (which is uncommon but works in favor of an accused) and the more common "Jury Compromise" (where the jury is otherwise deadlocked between guilt and not guilty so to appease one side or the other the jury "compromises" and convicts of something less than charged. This usually although doesn't always work against the accused), but it is still however a conviction on less than a reasonable doubt standard. An accused is owed the benefit of a doubt, not a compromise.


Now prosecutors and other "law and order" types hate Jury nullification. Yet somehow these clarions of justice find it just fine for the jury to act on less than proof beyond a reasonable doubt in convicting an accused.

On the other hand, it is wrong to mislead the jury as to facts. In other words, if a lawyer knows a fact to be untrue, he is forbidden to argue it to a jury. Hence recently a lawyer was sanctioned very severely for telling a jury that her client was "mild mannered" when in fact she had kept his actual violent behavior out of the case through a Motion in Limine.

Notwithstanding that, Judges in Federal cases mislead jurors all the time (see the Bazelton dissent) by not telling them about their power to nullify. Not telling a jury that their failure to acquit a defendant of all related conduct exposes the defendant to having the conduct for which he was acquitted used against him to enhance his sentence. In fact, the judge can use the acquitted conduct to enhance the sentence so much, that the resulting sentence can be high enough to render the acquittal a nullity. In other words, we are not telling jurors that their decision to acquit doesn't count for sh.... well you can rhyme it yourself.

We tell jurors that serving on a jury is an important and that their voice counts, but we yet through the use of acquitted conduct, we lie to them. Dress it up any way you want to, when jurors find out that defendants are sentenced to far more time in jail than they thought was appropriate for the crime the accused was actually convicted, they feel like their work didn't matter. To them it doesn't matter how we lawyer types word it, they were ignored.(My colleague and "blog as marketing" sparring partner Scott Greenfield has a great step by step explanation of how we lawyer types "explain" such nonsense)

Continued use of acquitted conduct hurts jurors even more when a jury works hard to come to a decision. If it is deadlocked, we demand it return to come to a decision. If it then decides to compromise, an activity we know they partake in, only to find that their compromise meant nothing and they were better off to just hang their verdict they feel cheated (almost as much as the accused does).

We have been at this charade for better than 20 years. Acquitted conduct is part of the USSG but the advent of the Internet makes this kind of behavior really well known. How long before jurors refuse to sit, or catch on and lose all respect for the criminal justice system altogether?

One way to handle this, is to explain to the jury, that compromise verdicts are not legal.Compromises that are based on less than every juror believing that every element of every charge was proven beyond a reasonable doubt is cheating the parties of a fair trial. Tell them that a conviction on any related count will result in the court being allowed to use the acquitted related behavior to enhance the sentence of an accused to what it would have been if the accused had been convicted of the higher charges in the first place. And let's add to the Allen charge the following: a compromise verdict is not what we seek. We would rather you return as a hung jury, than reach a compromise that left anyone unconvinced beyond a reasonable doubt that a charge was proven.

To do anything less than tell that to a jury, cheapens the work that they do, and frankly cheapens the verdict they render.

Avvo.com Legal Guides: A Few Quick Articles to Help You Navigate the Legal System

I have been publishing legal guides at www.Avvo.com. I thought I would give you a way to link to my Publications there and also link you to some good articles by others on AVVO.com.

Avvo.com offers two types of Legal Guides. The easiest to publish is the How to Guide. I have published a couple of those.
You can find out How to Determine Your USSG Criminal Sentencing Guideline in what was my first Practice Guide.

You can learn How to Help a Friend Who is Arrested in the Middle of the Night. (Actually any time.)

Then I wrote an article entitled How To Conduct Yourself When Involved in a Car Accident

My Latest Legal Guide for AVVO.com is entitled Understanding New York Statutory Rape Laws: The Age of Consent

Periodically I will update you on other guides I am publishing, and will feature a few guides that others have written. Take a look at these, I think you will learn a lot.