Breakdown in the system

I went a few rounds on Twitchy yesterday trying to explain to people some difficult legal concepts pertaining to a certain high profile case that went to sentencing this week.  I’m not going to name either the defendant nor the judge involved, both have received more attention and notoriety than they deserve and I’m not going to add to that, but this is the case involving the United States Gymnastics Team and the long running abuse inflicted upon them by their physician.  I was genuinely encouraged to see that the points I was trying to make were getting through to a lot of folks despite the emotionally-charged nature of this case so I thought it would be worth doing a post about it.

As a foreword, I want to make something very clear: this defendant is human garbage and deserves to be punished harshly and removed from society.  I am in no way whatsoever defending him, nor am I “crying” about someone “being mean to him.”  That ought to be clear from what I’m about to write but some folks have a hard time with the idea that you can condemn the defendant and also criticize the judge.  Make no mistake, this judge deserves harsh criticism for multiple reasons.

This case came back to national attention as the trial proceedings moved through a guilty plea pursuant to some kind of plea deal and as part of that deal the defendant was obliged to sit in court and listen to a parade of his victims berate him.  I question whether that spectacle was necessary at all, but some folks think that helps the victims heal.  Okay, he agreed to it, he’s getting the ride he signed up for, fine.  What I do not agree with are the cameras in the courtroom.  Public pillorying has nothing to do with victim healing and in fact is exploitative of the victims.  But that was just the tip of things to come from this judicial circus.

I want to take a moment before we get into the meat of what the judge did to talk about what the lawyers did.  As I have said many times, I am a criminal defense attorney myself and I know how the system works.  I cannot for the life of me figure out this “plea deal.”  I will admit I do not know what the terms were or what if any consideration the defendant received, but I do know that the ultimate sentence ended up being multiple life sentences, plus forfeiture of literally everything the defendant owns and ever might own, plus this weeklong public beatdown expressly demanded by the terms of the agreement.  I am not suggesting that is not what he deserved, but holy mother of res ipsa loquitur, that deal was not a deal.  That’s the kind of “deal” that would have me going back to the client and starting the conversation with “okay, well, it looks like we’re going to trial, ’cause this is what they’re offering…”  I can understand long sentences when even worse is on the table.  I’ve counseled clients to agree to plead in matters where they’d get years or even decades in prison when the option was a no-win fight likely to put them there for life.  I can even countenance pleading to a life sentence with all these attendant miseries in a capital case (which this was not, nor should it be, but that may be an argument for another day).  But for God’s sake, the only remaining reason to plead out when you’re looking at a sentence like this would be to spare yourself or your family from the ordeal of the trial and listening to all the evidence of what you did being paraded out in public.  He didn’t even get that.  Which is, again, not a failure of the system, not “unfair” to him, but for the love of habeas corpus, what the hell did these lawyers do?

Then there was the letter.  The defendant has the right to make a statement, and he chose to do so via a multi-page written letter which the judge reviewed…but apparently the lawyers did not.  You see, the defendant chose after a week of his victims venting in his face to protest his innocence and blame the victims as if they were scorned paramours.  You see what I mean when I say I’m not defending him?  But I’m also seriously wondering what the everlovin’ hell his lawyers were thinking, letting him present that to the judge.  Declaring you’re innocent at this stage in the game is one thing.  Makes me wonder why he took a deal in the first place but hey, no one’s claiming this guy’s gears all mesh.  Blaming your victims, especially in a case like this?  A first-year law student ought to know that is something you should never let your client do.  I know, I know, the client can do whatever he wants in the end, but seriously, if his lawyers didn’t tell him he’d be better off saying nothing than saying that, they were committing serious malpractice.

Their performance, however, was far upstaged by the judge in this matter.  People all over social media on both sides of the spectrum have been swooning over her for being “tough” and “sassy” and all sorts of other adjectives that are blind to the real fact that this judge did not do her damn job.  The cameras in the courtroom were just the first indication.  When the defendant gave his written statement, the judge read over it, rolled her eyes, and then tossed it aside like trash.  This has been made into a .gif that has gone viral, but what people don’t realize is that that act may have endangered the whole case.  That statement is part of the court record, NOT just a scrap of note paper that can be chucked like an old candy wrapper.  More than that, the defendant has a right to make his statement at sentencing, and like every one of his other rights he is entitled to them no matter how much of a monster he is.

The judge followed that little display of pique with a long tirade that I honestly have not listened to in its entirety, but from the quotes and outtakes it was not only overwhelmingly about HER and how SHE felt about the defendant, but it was rife with things that I find horrifying as a defense attorney (and really should have been making the prosecutor cringe too).  She made this matter personal in so many ways, recounting her own history, sounding like she took particular interest in this matter because of her past (hint: that’s cause for recusal you know!), unnervingly inserting feminist language like “sister victims” into her diatribe, and most repulsively, she declared at the end of it all that it was her “honor and privilege” to sentence the defendant.  I cannot tell you how unprofessional this is.  By their canon of ethics judges are expected to avoid even the appearance of impropriety, because it is their entire job to be impartial, unbiased, and dispassionate.  That does not mean they cannot or do not ever thunder at particularly incorrigible defendants but their indignation is supposed to be restrained and on behalf of the court, the law, and the community, not their own.  Yes, it can be hard for any human being with feelings and a heart to look into the dark end of society and not have their own feelings about it, but seriously, nobody takes a job as a judge and expects it to be easy.  It’s not just sitting up on a bench sending people to prison and banging a hammer.

The judge expressed her disdain for the defendant throughout the sentencing.  When she was told he was using his medical training to treat people in the jail, she spitefully shot back “I don’t see how, he’s not a doctor.”  Uh…so you’re saying the U.S. Gymnastics Team let this guy get that close to these girls and he wasn’t even a doctor?  Of course not.  His license has been pulled, sure, but the training is still there.  Dr. Josef Mengele is one of the vilest monsters to walk the face of the planet but he was still a doctor.  Frankly this guy’s medical training and his ability to help his fellow inmates out with minor ailments and injuries will probably be the only thing that keeps him alive in prison.  It’ll make him useful.  Again, none of this should be construed as support of the heap of dung in the jumpsuit, but rather as illustrative of how the judge behaved.

Possibly the worst statement she made (not sure if this was worse than “it is my honor and privilege to sentence you”), however, was when she told the defendant that she wished she could sentence him to cruel and unusual punishment.  There is no excuse for that.  It is perfectly fine and even expected for literally everyone else anywhere to feel that way, but NOT the sentencing judge.  Seriously, a litany just like that was used in a comedy movie to show a judge being influenced by hate-producing ectoplasm to go completely off the rails (the important part is the first minute, but feel free to watch the rest if you need a break):

The judge rounded out this travesty by giving an inspirational speech from the bench to all the assembled victims, all while the cameras were rolling of course, and then in response to requests for interviews declared she would not do any interviews until after the appeal and then only if accompanied by the victims.  Some people have tried to spin this as “see!  It’s not about her!”  They’re wrong.  She wants to be associated with the victims.  She wants them with her looking at her like their adored hero, singing her praises for the press.  She has effectively fused herself to this case as if she were an active participant, not the detached arbiter she is damned well supposed to be.  If she wanted to give a speech, a private meeting would have been far more appropriate.  But then that wouldn’t have gotten the same kind of media coverage now would it?

What the people fawning over this judge with choruses of “you go girl” are just flat-out not getting is how much real ammunition she gave the defendant for a successful appeal.  And by “appeal,” I mean any of what we attorneys commonly refer to as “post-conviction” relief, including but not limited to habeas corpus petitions.  Matter of fact, I see the habeas petitions as having some real legs.  You see folks, the right of habeas corpus applies whenever your civil rights have been violated in a criminal proceeding, and the two big ones jumping out at me are ineffective assistance of counsel, and violation of right to a fair and impartial trial.  I’ve gone on about how these lawyers apparently never even had the ball in hand to drop it, and an ineffective assistance claim might actually have some weight.  That said, IA is generally the go-to claim for anyone who is not happy with the outcome and is an uphill battle under the best of circumstances, and I have nothing more than a deal that, from the outside, looks like crap to judge the attorneys’ performance by.

But denial of the right to a fair trial, THAT has potential.  If you plead guilty because you know the court is going to screw you no matter what you do, that’s a violation.  The judge’s behavior makes it clear that she was not even trying to maintain judicial detachment, and her contempt for the defendant going back to his early requests to not have to listen to the victims yell at him shows a thread going back well before the sentencing date.  Again, he deserved it, and yes, I know judges often make statements that are borderline or cross the line of propriety.  No one is saying it doesn’t happen.  But with all the eyes on this case you would think that a judge who is aware she has an ethical obligation to avoid the appearance of bias would not throw that obligation to the wind so callously.  By making it not only personal on multiple levels but also about a dozen different kinds of vindictive, the judge called into very serious question the fundamental fairness of the proceeding.  The system does not work if the foundation breaks and people cannot trust that they will be treated fairly in a court of law.  Even the most horrendous monsters do and MUST have the right to an unbiased judge.  For pity’s sake, if their guilt is so overwhelming then why would anyone not want them to be found guilty by someone who doesn’t care?  This has a very real (by which I mean about a 50/50 shot, which in criminal law is about the best you ever get) chance of getting this conviction remanded, which means all these aggrieved victims will have to go through a do-over, and a small but present chance of getting this case overturned entirely.  Now, the defendant’s already looking at a substantial federal sentence so maybe the grandstanding judge figured it was okay to gamble with this one to promote herself.  I wonder how the victims singing her praises would feel about that.

Even if this behavior did not have the potential to undo the result of the prosecutors’ work and make the victims go through all this again, can anyone tell me why the judge’s behavior ought to be acceptable?  Can anyone tell me how this doesn’t undermine confidence in the legal system, when you have the right to be judged fairly and impartially but end up being persecuted by an inquisitor?  Yes, I know, he was a monster, no one is arguing that, but if you take rights away from the monsters then no one has them.  I don’t know what this judge is putting on a show for, but are you folks praising her really okay with her exploiting these victims for her own aggrandizement?  Is there any good reason for her making this case personal and wishing she could sentence the defendant to torture?  Don’t give me this “the victims need someone in authority to speak up!” nonsense, people in authority are speaking up all over the place.  The damned law itself condemns the defendant’s behavior in the harshest of terms and it does so completely clinically.

If the system is not seen as fair, it falls apart.  The judge’s whole job is to set her own feelings aside and judge even the worst criminals impartially and dispassionately.  This judge didn’t.  Don’t praise her because you’re happy the victims got justice, because her own self-promotion may yet undo everything they worked for.  If you want this guy to spend the rest of his miserable existence in a concrete box, then you ought to be disgusted with this judge.

P.S. If you’re going to try to tell me Judge Judy is a real judge and an example to emulate, I’m sorry, I just won’t be able to take you seriously.  At all.

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