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No New SCOTUS Cases, Part II

Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 


In response, Bill, I will quickly note two thing in response:

1. The Bush Justice Department wanted the Booker remedy of advisory guidelines, the defense asked in Booker for preserving a mandatory system with required jury fact-finding. In the end, the defense has benefited in lots of cases from the guidelines being advisory, but cases like Jones highlights just why the government --- as too often in the case --- will sometimes take every possible bite at the apple to punish someone hard, especially when they have the temerity to claim the jury-trial right you so often say defendants should exercise. Here Jones et al won at a trial and still got slammed by the feds who could talk a judge into think they did all the bad stuff in allegations rejected by the jury.

2. You are right that acquittal does not mean the defendant didn't do it, just like a conviction does not mean that a defendant did do it. Are you now saying we should readily embrace a system with lots of judicial discretion to disregard convictions so that federal judges --- judges like former prosecutor Judge Gleeson and you other pal Judge Weinstein --- get to consider whatever they want at sentencing regardless of what a jury (or prosecutor or defense attorney) concludes?

Dare I assert you --- and other tough-on-crime-types --- are the one who really want your cake to eat over and over again: give no judges discretion to be lenient when a conviction carries a mandatory minimum, but give them lots of discretion to be tough even in the face of a jury acquital. It is fine to define your views in terms of the goal of always throwing the book at all those convicted (except Scooter Libby, of course), but do not claim to be more principled than those who always advocate for more lenient sentences.

Doug --

One quick point for now, which I make only because this statement is so remarkable:

"You are right that acquittal does not mean the defendant didn't do it, just like a conviction does not mean that a defendant did do it."

With all respect, it's mind-boggling that a renowned law professor would make that assertion. It's beyond left field to suggest that a conviction has the same ontological gravity as an acquittal.

A conviction represents the unanimous agreement of twelve neutral people that the defendant committed every element of the charged offense, with the required degree of criminal intent, beyond a reasonable doubt.

An acquittal represents the government's failure fully to meet any one of those exacting tests.

It is true that there are some erroneous convictions, but the standard for convicting in an American criminal case is the highest standard of certainty the law has embodied IN THE HISTORY OF LAW.

The notion that a conviction tells us no more about the defendant's charged behavior than an acquittal does is amazing.

Did you really mean that? Is there any other scholar who takes that view? Got a cite? Was it argued in the Jones petition? Or in Watts? Has it EVER been argued to, much less adopted by, a court?


Let me give a bit more of an answer now that I have been able to steal some time.

1. The Bush Justice Department's primary position in Booker was the mandatory guidelines were constitutional. It asked for ANY remedy only if the Court found against this primary position (which it did by 5-4).

The remedy sought by Main Justice was a blunder, just as the Bush Justice Department blundered (as the Court correctly held) in its impudent and federal-imperialist position in Medellin v. Texas, successfully argued for Texas by its then-Solicitor General, Ted Cruz. The opinion against the Bush Administration was written by none other than Chief Justice Roberts, an appointee of said Administration.

I was a political appointee in the Bush DOJ, but not in the SG's Office, and I did not control the SG's positions, with which I sometimes disagreed.

2. I'm glad Mr. Jones exercised his jury trial right. As you note, I think there's far too much plea bargaining. It's to Jones's credit that, although he's a violent hoodlum (as the sentencing judge correctly found), at least he's not yellow.

3. The allegations were not "rejected" by the jury. The jury found that they weren't proved BRD, which is different from rejecting them. Kent and I have explained this point, which has long been accepted (and continues to be accepted) in sentencing law from SCOTUS on down.

4. The addled Jack Weinstein and the ethically-challenged John Gleeson (who took and decided a sentencing case in which he had an obvious and loudly stated stake) should absolutely have discretion in taking into account the defendant's whole behavior, PROVIDED THEY ACT WITHIN THE LIMITS OF THE STATUTE. If they don't like the statute and want to run for Congress to change it, fine. Until they do, they don't get to cut a co-equal branch entirely out of sentencing.

5. Contrary to your belief, judges have a great deal of discretion even when sentencing under MM statutes. They can sentence anywhere within a range of many, many years. The one thing they can't do is go below the floor. That is a limit on discretion, not an elimination of discretion.

I, for one, favor the Framers' decision to spread (and thus check) power among the branches. Don't you?

6. You say, "It is fine to define your views in terms of the goal of always throwing the book at all those convicted (except Scooter Libby, of course), but do not claim to be more principled than those who always advocate for more lenient sentences."

(a) I don't always want to throw the book at the convicted criminal -- far from it. To the exact contrary, I supported (and still support) the mandatory federal sentencing guidelines, whose ranges are, generally, much, much less that the statutory maximum.

(b) I have learned my lesson never to agree with the defense claim that "first-time, non-violent offenders" (e.g., Scooter Libby) are treated far too harshly and don't belong in jail.

The reason I learned my lesson is that I the defense bar has given me unending grief for agreeing with them. I should know better! I surrender!!!

(c) My principles -- unlike the defense bar, whose "principles" are to conceal the truth in those (zillions of) instances where it's unfavorable to the client -- are to have the WHOLE truth considered both at trial and at sentencing, and to let the judge have a large degree, but not uncabined, discretion.

I have yet to hear what is wrong with those principles.

Couple of quick responses/clarifications, Bill:

1. I did not assert that "a conviction has the same ontological gravity as an acquittal" nor that a conviction does not tell us more about a defendant's alleged behavior than an acquittal.

But at issue in this debate is not pure truth of human behavior --- which I would generally trust to scientists/doctors/psychologists more than lay jurors --- but rather whether a conviction ought to have the the same CONSTITUTIONAL gravity at sentencing as an acquittal. I think, to show proper respect for the constitutional text and its commit to "the people" exercising control through the jury, that all jury determinations (both of guilt and of not guilty) should be afforded significant and special respect at sentencing.

This is why I see acquitted conduct punishment distinctly from uncharged conduct punishment: it is about showing due respect for a process and result the Framers fought a revolution to ensure it gets respect. In contrast, you and Kent are content to let "the Crown" in the form of prosecutors and judges severely punish persons even after the "people" have expressed through a jury verdict an interest in precluding punishment for alleged behavior.

2. I know you dislike advisory guidelines, but to date no administration since Booker has actively sought to undo what the Bush Admin wrought. I suspect this is in large part because many prosecutors continue to enjoy the ease of guideline enhancements that do not require pleading and proof BRD to a jury. And I doubt this will change anytime soon despite the fact that you and I and Kent would prefer a more procedurally rigorous system (though many in the defense bar are more eager to preserve guidelines as only guidelines).

3. If you truly want more defendants like Jones et al to test the government's proof via a trial rather than take a plea, you should join me in opposing various modern laws/rules that make pleas so hard to resist and so punitive to reject --- laws/rules like lengthy mandatory minimum sentencing statutes and acquitted conduct sentencing enhancements. But you support these prosecutorial short-cuts because, I suspect, you care more about prosecutorial power and longer prison sentences than you care about more trials and fewer pleas.

4. I am glad we agree that judges should have "a large degree, but not uncabined, discretion." Our difference, I think, is that I think jury verdicts should be able to significantly cabin that discretion as well as sentencing statutes.

I'm quite sincere in wanting defendants to put the government to its proof. Indeed, I have suggested -- I believe on this blog -- that DOJ initiate a pilot program in a few selected districts for, say, a year, in which plea bargains would be neither offered nor accepted. No shortcuts, not by defense counsel and not by the AUSA. If the AUSA thinks he has the goods, fine, go prove it in court. And if defense counsel actually thinks his client is innocent (which almost none of them do), fine. Put the government's feet to the fire. All you need is one juror; the government needs all 12.

Another point: You wrote, "...acquittal does not mean the defendant didn't do it, just like a conviction does not mean that a defendant did do it."

I simply do not know what the phrase "just like" means if it is something other than an assertion that a conviction has the same ontological gravity as an acquittal.

A third point (sorry to use separate points, but they are all separate concepts):

I would be interested to know your take on the assertion in my comment, and more fully set forth in http://www.crimeandconsequences.com/crimblog/2014/07/john-gleeson-defense-lawyer-in.html, that it was grossly unethical for Gleeson, a sitting federal judge, to be an outspoken advocate for a party in a case, then (and even worse) decide the case rather than recuse himself in favor of an unbiased judge.

On the last point, Bill, can/will you be precise --- perhaps in a separate post --- what you think Judge Gleeson did that was "grossly unethical." I need a specific recitation of exactly what you think Gleeson did/said that was so bad so that I can respond properly.

Thanks in advance.

My full description is in the post linked in the comment just above your most recent one.

Basically, after a criminal sentence (for armed carjacking) had been final for many years, Gleeson started badgering the USAO to move to vacate the conviction. There were absolutely no legal grounds to do so (or to re-open the case at all).

Knowing that it's unwise to rile a sitting judge who hears your cases every day, the USAO succumbed and made the motion.

Gleeson had prejudged the case (to say the least) and had become what the NYT described as an "advocate" for the defendant. Notwithstanding this, Gleeson, having blackjacked the USAO into this baseless motion, THEN SAT ON THE CASE HIMSELF.

That is unethical. If a judge must become an advocate for one party in the case (which is itself unethical), it ventures into grossly unethical territory to then decide the case yourself.

If a judge pulled a stunt like this in favor of the prosecution, you and the entirety of the defense bar would be outraged, and properly so.

The very first rule of judging ethics is that you cannot decide a case in which you have an interest (and it doesn't have to be a pecuniary interest).

But Gleeson makes his own rules, as long as they favor violent criminals.


My apologies. The link I referenced appears not to work. I re-print it below:

John Gleeson, Defense Lawyer in a Robe

July 30, 2014 5:21 AM | Posted by Bill Otis | 2 Comments

A long time ago, in a galaxy far, far away, judges were neutral. Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson. Gleeson is young enough to know better, and I'm sure he does. The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers). His most recent stunt, however, takes pro-criminal huckstering to a new level. I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

We can start with the statement that the judge who decided the case (both in the past and in the current proceeding) was an advocate for the defendant. One need not have read the canons of judicial ethics -- indeed, one need not be out of high school -- to understand that a judge (well, an honest judge) cannot decide a case in which he has been, much less in which he actively remains, an advocate.

It's one thing for a trial judge, during the trial, to make it decently clear he finds one side more persuasive than the other. This is not recommended practice, but it often happens. But it's another for the judge, years after the case is over and the government's position fully vindicated by the higher courts, including the Supreme Court, to use his office to go backdoor to achieve the outcome one side -- the armed felon's side -- has wanted all along.

As the NYT continues (emphasis added):

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway's 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway's behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway's convictions.

The payoff from Judge Gleeson's efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

OK, let's take a timeout here. Again, it's one thing for a judge to express misgivings about a sentence at the time he imposes it. Indeed, he could find the mandatory sentence unconstitutionally excessive, which Gleeson didn't and doesn't. It's also perfectly permissible, in my view, for a judge to write a letter to the editor or petition Congress generally to seek a change in law -- judges have First Amendment rights, too. But to wage his own campaign, using his office, stationery and power in order to blackjack a local prosecutor who regularly appears in his court to genuflect before the repeat, armed felon he/she properly convicted at a trial many years before is astounding.

Indeed, the more pressing (and depressing) question is whether it's ethical. And that question goes beyond merely gross partisanship for one side in a case; it goes to the fact that no sensible person could possibly view what is (I presume laughably) called the "request" to the US Attorney to be anything but a thinly veiled threat that, if the "request" is not met -- "...well, hey Ms. US Attorney, you've got a boatload of cases coming up in my court and, ya know, I can be in a good mood or I can be in a bad mood, day in and day out, for scheduling, for continuances, for a raft of procedural motions that could go either way -- I mean, we're getting the idea here, aren't we, Ms. US Attorney? So I hope you'll look at my 'request' with a, ya know, generous turn of mind, because my being nice is sooooo much better than my being crabby."

Not that that's the worst of it either, not by a long shot.

Having blackjacked the US Attorney into going along with a legally baseless motion to vacate two convictions whose validity is not even questioned (so as to get to the desired dumbed-down sentence), Gleeson then goes ahead and presides over the hearing himself.

At that point, there is simply nothing left of the notion that Gleeson cares about judicial ethics. If he must bully the prosecutor into moving for this hearing years after the fact to vacate valid and properly obtained convictions, you might think Gleeson would have at least the decency to allow a different judge to decide the motion to vacate.

Wrongo. Gleeson's whole gig might get spoiled if a judge who hadn't prejudged this ginned-up motion -- you know, a neutral judge -- were able to decide it. So he put it on his own docket to insure that no hint of neutrality crept in.

But really, so what? When the judiciary turns into the public defenders office, you were expecting something else?

P.S. So much for the emphatically repeated defense bar lie that the attack on mandatory minimum sentences is really about "first-time, low-level, non-violent" offenders. Mr. Holloway's crimes -- and I'm not talking about his drug trafficking offenses, mentioned by the NYT for the first time in 28th paragraph of its article -- were neither first-time, low-level nor non-violent.

But there is one thing to be thankful for: Judge Gleeson and his version of playing it straight have given us a window on what "sentencing reform" is actually about.

I am trying to be VERY clear, here, especially because you call the motion to vacate "baseless" and thus lead me to wonder whether you think the prosecutors acted unethically here as well. Let me try to summarize distinct acts, and see if I understand what you think is unethical:

1. A federal judge speaking/writing to a party/prosecutor in a criminal case due to concerns about motions brought by the defendant.

2. A federal judge finding policy merit, but not legal merit, in what the defendant sought via motions and urging the prosecution to help reach what the judge thought was a better policy result by encouraging the prosecution to make that result legally possible.

3. A federal prosecution responding to the judicial request made in #2 and filing a seeming lawful (but perhaps "baseless") motion to achieve the judge's desired result.

4. The federal judge then, having been given a means to achieve his desired result, completes the loop by granting the seeming lawful (but perhaps "baseless") motion in order to achieve the result he thinks is just which has become legal by virtue of #3.

Do you think #1 unethical?

Or is it #2?

I assume you are okay with the ethics of #3 because you think the prosecutors was "coerced" in some way, though surely no more so (and really a lot less so) than defendants are supposedly "coerced" to plead guilty by prosecutors who threaten MMs if they do not.

Or is it #4 that is the big problem? Would you be okay with all this if some other judge had granted the prosecutor's motion? Do you think there would have been a valid legal ground NOT to grant that motion by another judge?


1. Whether it's ethical for the judge to talk to the prosecutor depends on what the judge is saying.

If he's saying, "Nice weather today," no problem.

If he's saying, "I want you to request a low sentence because the defendant is a friend of my wife," then it's grossly unethical, you bet. The judge's personal preferences and desires cannot properly play any part in his official acts.

2. Assuming arguendo that it's ethical for the judge to try to push the prosecution in a way he wants in order to conform to his policy preferences -- which is very questionable at best -- the time to do it is when the case is being processed, not years after it has become final as a result of review and final disposition BY HIGHER COURTS.

2a. It's the job of the elected branches, not the judicial branch, to decide what policy to pursue. It is the job of the judicial branch to apply the law, and apply it neutrally.

3. It is improper for a prosecutor to file a baseless motion as a favor to ANYONE. That I should even have to type that sentence is mind-boggling.

4. The proper thing for a prosecutor to do when he feels he's being coerced is either (1) go to the FBI, or (2) resign, if he can no longer discharge his duties as he would absent the outside influence.

5. What you describe as prosecutorial "coercion" is what the Supreme Court explicitly approved (over a coercion claim) in Bordenkircher. Would you prefer that prosecutors follow, or flout, Supreme Court law? (And for however that may be, it has no relevance to this case).

6. A judge sitting on a case he has prejudged is not only unethical, IT IS THE DEFINITION OF UNETHICAL.

7. That is true utterly irrespective of the merits of the case. But if a point be made of it, sure, there were grounds to deny the motion. A court is not bound by the fact that the parties agree (something I'm sure you already know). The grounds for denying the motion to vacate the sentence are clear and overwhelming: The sentence was both perfectly legal and -- as if more were needed -- final.

Now here are some questions for you. It was the New York Times, not me, that referred to Judge Gleeson as an "advocate" for the defendant.

Question 1: Is it ethical for a judge to be an advocate for a party?

Question 2: Is it ethical for a lower court to backdoor the judgment of a higher court by re-opening a final judgment whose validity no one questions?

Question 3: Is it ethical for a judge to decide a case in which he has made it extremely clear he has a (non-financial but strong) stake in the outcome?

Question 4: Is it ethical for a court to rule in a case it has prejudged?

Thanks, Bill, as you have confirmed that you think both the federal judge and the federal prosecutor acted unethically in this matter. Especially given that folks on the left are quick to go after judges they dislike with judicial complaints --- e.g., Judge Jones --- I wonder if you plan to file a complaint against Judge Gleeson. If not, why not? Likewise, will you file a complain against the prosecutors involved in this matter based on your view that they also acted unethically?

Now, to answer your questions:

1. I think it unethical for a judge to be an advocate for a party, but I also think it is obligatory for a judge to pursuit justice within the constraints of the law. I am generally inclined to believe that when a judge might sometime appear to be an advocate for a party, more often (if not almost always) it is because the judge's vision of justice parallels a party's advocacy. That is my superficial take on Holloway, but I would need to see all the papers to make an informed judgment.

2. When one party keeps making motions that a prior judgment is not valid, I think a judge has an obligation to keep considering those motions as the law provides. Moreover, as I have written in a recent law review article, I think sentences, as opposed to judgments, should be given less weight with respect to finality interests. That said, I do think it is ethically questionable for judges to be looking for ways to reopen and change judgments absent compelling changes in legal or factual circumstances.

3. + 4.: These are very hard questions as they involve matters of degree that could, by some logic, make it arguably unethical for Justice Thomas to rule on any prison conditions 8th A case because he has clearly indicated since 1992 that he strongly believes the 8th A does not regulate prison conditions (despite established SCOTUS precedent to the contrary). I would be troubled if every prisoner appealing such a claim to SCOTUS could assert it would be unethical for Justice Thomas to consider his case.

That all said, I think you raise a number of reasonable concerns about how Judge Gleeson handled the Holloway case. Interestingly, they are somewhat similar to complaints that have been lodged --- so far with no relief or real response --- by lawyers representing Sholom Rubashkin concerning how Judge Reade handled his trial and sentencing. And I think the lines get real blurry when judges have a strong vision of legal justice and then act in service to that vision.


First things first.

One of the things that makes a coherent discussion impossible is misrepresentation of the other side's position.

Thus, before getting to anything else, please quote my alleged statement that the "federal prosecutor acted unethically in this matter."

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