Sentencing a bad cop

I’m going to have a busy day today. Blood tests at the clinic followed by a short meeting with a nurse to discuss the numbers.  Then off to the southwest on United through Denver. But before I leave, I urge you to go over to the Southern District of Florida Blog and read point 3 of news and notes. It describes a bad cop’s sentencing in federal court. This cop falsely arrested a woman. Why?

The local newspaper gives this account of what happened to the victim, Ms Romeo:

Benjamin did it as a favor to Rothstein [a lawyer, banker and fraudster] and Romeo’s ex-husband, Douglas Bates, who was trying to gain the advantage in a custody battle over Bates’ and Romeo’s children. Bates, who had his own law firm, has been disbarred and is now serving five years in prison for his role in the fraud.

Also in court was the couple’s son, Andrew, who has autism. His prescription medication was among the pills that Poole and Benjamin used to set up Romeo’s arrest. State prosecutors later declined to prosecute Romeo because the pills were all legitimately prescribed for her and her son.

“They utilized my autistic son’s medication to pull this off,” Romeo told the judge. “I don’t understand how educated men can abuse their powers so grossly.”

I am not much for beating up defendants at sentencing. The huge majority of the time I merely recite my standard litany on the section 3553 factors to satisfy the Court of Appeals, and exit the bench quickly. Other judges use sentencing to berate the defendant for his or her crimes. That’s simply not my style. But, I’m not saying it is wrong to do so.

In the Florida case, Judge James I. Cohn imposed the maximum sentence (five years), lashed the defendant verbally and then had the ex-cop handcuffed behind his back in the courtroom. The victim and everyone else saw justice being done in a very stark way and the judge made clear that the handcuffs-in-the courtroom routine was intentional.*

All of this brings me to the question of the day? When, if ever, is it proper for the federal sentencing judge to whip up on the defendant (verbally, of course) at sentencing?

RGK

*This case reminds me that there really are bad cops. I know. Duh! While claiming to be a realist, at times I think more like a silly romantic. Oh, well, I have plenty of time to change–for the uninformed, that’s ironic.

19 responses

  1. Practice in the rough and tumble real world leaves even the most silly romantics badly jaded about the system. It isn’t that there there are no good cops, it is that the system by and large punishes the poor and racial minorities. We are in dire need of reform.

  2. Abuse of power and misconduct under color of law are prime areas where the public needs to see justice at work and deterrence doing its dirty work.

    Bring on the whipping.

  3. Rich:

    I’m keenly aware of the situation. This plea came out of a Ponzi scheme, run by a flamboyant lawyer, and supposedly taking in more than a billion bucks. The lawyer is doing 50 years federal, and his law partners are also doing time. Obviously, all have been disbarred. Non-lawyer employees of the firm are in prison for helping this mastermind. The whole scheme was based on buying out structured settlements in employment discrimination and sexual harassment cases. Ludicrous!

    This “cop” may have been worse than all others but the mastermind. He was the executive officer in one of the largest sheriffs offices in the country, one with more than 6000 employees. Not only did he set this woman up for a false arrest as a favor to her ex-husband, who is also disbarred and in prison, but he became the bodyguard for the mastermind. When the mastermind decided to flee the country, this “cop” took him to the plane, carrying millions in loot. According to filings, he also benefited to the tune of about $170,000 in graft. This is a very bad public servant.

    For my money, berating a convicted defendant doesn’t happen often enough. Our system glides along for the benefit of those involved. That is, the manner in which proceedings occur is for the ease of the lawyers and judges on the case. That, for the most part, is fine in civil trials, as the stakes are not the same. Sure, civil cases can have disastrous effect, but is not the same as being the victim of some crimes.

    Crime victims deserve more than a plea and a negotiated sentence. They need to know that someone gets what happened to them, especially when it happens at the hands of someone with power. Who better to let them know than the sentencing judge?

    Anyone who has ever been in front of Judge Cohn would never doubt his fairness and would know that he rolls on a very even keel. In what might be the busiest federal district, he took a little extra time to give the victim a measure of peace.

    I say good for Jimmy Cohn!

  4. Having already expressed my views with regard to the question posed, I offer them for what they’re worth:

    http://blog.simplejustice.us/2010/06/20/an-intemperate-judge/

    http://blog.simplejustice.us/2010/08/06/she-just-plays-one-on-tv/

    The job of a judge is to impose sentence, not to be the personification of society’s moral scold. Indeed, if the latter was part of the job description, more than a few judges might be stripped of their robes as unqualified.

  5. As to when it’s appropriate to give a lecture to somebody convicted of a crime: it depends on what you’re trying to do. Personally, I doubt the lectures ever have much effect, unless they’re of the “if you do this again, the punishment will be much worse” kind (e.g., part of the sentence is suspended).

    But I don’t think many judges care whether the lecture has an effect on behavior. I suspect that most judges do it as a way to let off steam (“that guy was a bad guy, and I really let him know it”). If asked, they would probably say they hope to deter other people, because if prison won’t deter you from a life of crime, getting told off sure will.

  6. I think it depends on the content of the lecture. It’s a given that the lecture is not going to have an impact on the defendant, especially when we’re talking about the kind of amorality that creates cause to give a lecture.

    But the content of the sentencing colloquy can be useful as a tool for reassuring the public that justice can be done. That seems to be, from the brief description on the SD Florida blog, what happened here. No purpose is served by telling the defendant how awful he is, but there can be a public purpose in describing in calm terms why the defendant’s conduct was unusually awful, and why the court intends to sentence harshly. This also serves the public purpose of making the courts more open, when there is a genuine public accounting of the court’s decision making process.

    Much, if not most, of this can be satisfied through the 3553 statements, but it can serve the public for the court to, in reasoned terms, stand up and say “This conduct is deplorable — it is unconscionable.” This is especially the case when the defendant acted under color of law. It serves the public to reassure that the law does not* permit such conduct under its guises.

    *Or ought not to, anyway.

  7. Everyone with power will succumb to the temptation to abuse it eventually, and some of the worst offenders wear black robes.

    Only a serious threat of punishment (and the more severe, the better) can restrain them.

  8. Judge:
    IMHO Judge Cohn was correct to impose the maximum sentence, make the sentencing statement that he did, and have the defendant handcuffed in the courtroom. The defendant’s abject failure in maintaining the public trust he once had as a police officer brings shame to himself, his fellow officers and the community. This fact, coupled with the harm done to a truly innocent victim, justifies both the maximum sentence and what might be described as court-authorized public humiliation.
    Robert

  9. Sentencing is complex because society is complex. Each case rests on its own merits and general rules generally help but each Judge must be free to exercise an exception for exceptional cases.

  10. I had a somewhat parallel situation many years ago. I was a prosecutor out of Washington, D.C., trying a husband and wife for tax evasion. They were classic “tax protesters,” whose responses to the legitimate efforts by the IRS to get them to pay their taxes involved claiming that the law didn’t apply to them, using a variety of excuses that would be laughable to most sane people. My trial partner and I were the “away team” in a courtroom in the Pacific Northwest, so convictions were not a foregone conclusion. We were in front of an excellent trial judge, who did a terrific job keeping a poker face, despite the occasional courtroom antics by the defendants. I truly had no idea whether she thought that we had a meritorious case and were just causing a colossal waste of time in her courtroom.

    In any event…. Once the jury returned its guilty verdicts, the judge gave what I assumed was her standard “thank you for your important service” speech. At the end, she pointed out that the jurors were now free to sit in the back of her courtroom, or any other courtroom, to observe judicial proceedings, just like any other citizen. I thought this was an interesting twist on the standard “thank you,” and a nice reminder of our civic duty to watch our courts in action.

    Well, it turned out that this particular comment was not part of the standard speech. When we turned to the next order of business–continued release or detention pending sentencing–the jurors were all scrambling into the gallery. The defendants were quickly detained as a “danger to the community” (I thought flight risk was the better argument) because they weren’t going to quit their antics. I never heard what the judge’s thinking was, either directly or indirectly, but I surmised that it was her (very effective) way of telling the jury that it had done justice, and that the case was important.

    (As full disclosure, the court of appeals eventually overturned the detention order, although both defendants eventually spent a meaningful period in the custody of the Bureau of Prisons once sentence was imposed.)

  11. Does your parenthetical suggest that you find nothing wrong with a judge imposing some personal “rough justice” on defendants by making a dubious decision to detain them, just to make sure they suffer just a little extra to reflect the “excellent” judge’s personal sense of moral outrage?

  12. Like most things, there is not a black or white answer here. A lecture could certainly be useless in many instances, but there are certainly times when it can serve a purpose. Here, the abuse of public trust is egregious. The lecture and the symbolic message of the handcuffing are useful not only for the victim’s peace of mind, but also for starting a conversation about how we deal with bad cops and (optimistically) sending a message to cops before they go “bad.” In any event, here I am thinking about it and talking about it when I otherwise wouldn’t be.

  13. Fair question. As always, there was more to the story–the risk of flight was the better argument, and there also was obstructive conduct that occurred during the trial (witness tampering). But the judge clearly made a calculated choice to base the detention strictly on what boiled down to a finding of danger of economic harm. A legitimate, although clearly expansive view, based on the state of the law at the time. That the appellate court had a different view didn’t affect the integrity of the judge. The judge’s decision to do this in the presence of the jurors, rather than whisking them out the back door, was certainly unusual, but twenty or so years after the fact I can’t fault her for making that call under the circumstances as they presented themselves.

  14. Max,

    With rare exceptions, when I am moved to brow beat a defendant at sentencing I’m letting off steam. So you hit it on the head for me. Oh, yes, I can use the old “my ranting will deter the defendant” argument but that is typically not what is really going on. I don’t like myself when I succumb but I do succumb.

    All the best.

    RGK

  15. “Disgraced former Wayne County Circuit Judge Wade McCree, who had an affair with a woman while presiding over her child custody case, got some good news from a federal appeals court this week: He can’t be sued by the child’s father.

    That’s what the U.S. 6th Circuit Court of Appeals concluded in a 24-page decision Monday, stating that while McCree’s actions were “often reprehensible,” he is immune from lawsuits under the long-held doctrine of judicial immunity…..

    King, the child’s father, disagrees. In his lawsuit, he alleges McCree gave favorable rulings to the mother because of his “desires for sexual gratifications.” For example, he alleged, McCree unfairly ordered high child support payments and forced him to wear a tether to please the mother.

    The scandal, meanwhile, didn’t sit well with two courts. Both a lower court judge and the 6th Circuit noted in their opinions that just because they gave McCree immunity from a lawsuit didn’t mean they condoned his behavior.

    Casual readers of this opinion … may erroneously conclude that … we are somehow endorsing Judge McCree’s conduct or going out of our way to protect one of our own,” U.S. 6th Circuit Judge R. Guy Cole wrote in Monday’s opinion, adding “We do nothing of the sort.”

    Cole went on to credit the Michigan Supreme Court for — as he put it — rendering “the best justice possible” in the McCree case: It removed him from the bench in March and suspended him without pay for six years, just in case he is re-elected to office this fall.”

    http://www.freep.com/article/20140722/NEWS01/307220150/judge-wade-mccree

    A felony civil rights violation, and all he gets is a suspension??? Why wasn’t he disbarred? Of course, you judges are covering for each other. We hate it when you judges lie to us.

    I will ask again: WHERE do you find the doctrine of absolute judicial immunity in the Constitution? Crickets on standby.

  16. Thanks for your reply. If the decision was legally justifiable (and I agree that the Circuit’s reversal doesn’t mean it wasn’t justifiable), then I agree that serving a dual purpose doesn’t make it wrong. It might not be what I would prefer, but then, the Senate never confirmed me.

  17. SHG,

    I agree with you, almost entirely. However, I can’t tell you how strong the gravitational pull is to rant rather than just plain sentence in some cases. I try really hard not to do so, but there are times when when I can’t resist. I plead guilty.

    There are good exceptions to this bad practice, I think. I gave big breaks to a bunch of doctors who played games with our tax codes. To avoid prison, I sent one (on probation) to serve the underserved in Saipan the largest island of the Northern Mariana Islands, a commonwealth of the United States in the western Pacific Ocean. I also layed into him (and the other doctors) and said doctors possessed an entitlement mentality that was undeserved. I suggested that medical schools ought to do something to address that mentality. I did that intentionally to deter other doctors and med students from flipping of the IRS. I pissed off the medical profession and med students, but I think I also got a the deterrence message across to a few of them. See Judge Says Med Students Need Teaching, The Student Doctor Network (Feb 11, 2012.)

    In sum, you are correct in the vast majority of cases. The judge should comply with the sentencing laws and say little more. There are legitmate exceptions, but those exceptions are few. Just ’cause you are an Article III judge does not give you the right to express your personal moral condemnation of the behavior that brings the defendant before you. But judges are human and we sometimes succumb to the desire to express our own personal sense of outrage. We should work hard to resist that urge.

    As for whether the judge who sentenced the “bad cop” in the post acted properly, I think this is one of those few cases where general deterrence warranted the judge’s verbal lashing and “hand-cuff-behind the back” routine, not to mention the maximum sentence.

    RGK

  18. Judge,
    In answer to your question, as you know, there’s often a chance that a sentencing issue will arise on appeal. It would probably help an appellate court to put something on the record about whether you would have given the guy less time if you could have, or if you think the guy is the type that you’d want to lock up and throw away the key.

  19. How do you take your newspaper judge?

    Nothing at all but I sincerely hope the ink within the human interest stories never rubs off.

    What do “newspapers” do these days?

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