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Tackling disproportionality

I was down in Athens County a couple of weeks ago. They only have a couple of judges on the Common Pleas bench there, and I've wondered what it would be like to practice in a place like that. Up here, we've got 34 judges. Boy, do we have judges. Judges of every race, color, and creed. Some of them have to carry around a bucket for their bleeding hearts, some of them might as well be sitting at the prosecution table in a criminal trial. Some of them get to their chambers at eight, some waltz in at ten. Some of them are very pleasant to deal with, some of them are fairly brusk.

Every criminal lawyer knows that the result of his case will be determined by three factors: the client (who he is, what he did), the prosecutor, and the judge. When you sit down in the seats in front of the railing in the arraignment room, you know two of those. You don't know which specific prosecutor you're going to be dealing with, but it doesn't matter much, because a floor prosecutor can't even resolve the lowest level felony case here without getting approval from one of three or four supervisors. It's the judge you don't know about. Each attorney walks up to the podium with his client, and the judge invokes the mantra, "not guilty plea entered, order bond continued," and then leans over the computer monitor to see who your judge is going to be. If the draw is particularly good or particularly bad, it will draw murmurs of approval or groans of dismay from the other lawyers.

It's not really supposed to be that way, of course. Sixteen years ago, SB 2 introduced the concept of "guided discretion" in sentencing, with one of the avowed goals being consistency in the sentences judges handed down. That's turned out to be a joke, of course; there is no meaningful appellate review of sentences. But every now and then, a court still takes a stab at it. The 8th District did so a couple weeks back in State v. Sherman, with very interesting results.  

Sherman wasn't complaining about getting too much time; the State was appealing, claiming she didn't get enough. Sherman had been caught up in a mortgage fraud case. She wasn't the main mover in it, but she wasn't an insignificant part, either; she provided the fake title work and HUD statements involving nearly $1.5 million in properties. She was convicted after a jury trial of 24 felonies, the most significant being the 1st degree felony RICO count.

At sentencing, she argued that she wasn't the orchestrator of the crime, and didn't get anything out of it besides the standard title fees. That's where we meet Clarissa Foster, who had just been convicted of mortgage fraud in another case in front of another judge. Her involvement in that scheme had been similar to Sherman's in this one, and the two had similar backgrounds -- about the same age, and no prior convictions. Foster had gotten seven years, so the State argued that Sherman should get at least five. Instead, the judge gave her community control sanctions.

State v. Foster threw out the presumptions for minimum, non-maximum, and concurrent sentences, but it didn't touch the presumption of imprisonment for 1st and 2nd degree felonies, and the State argues that the judge hadn't made the necessary findings to overcome that presumption. That "findings" issue raises the same arguments that have cropped up recently with HB 86's revival of the requirement that judges make certain findings before imposing consecutive sentences.

The big question in these cases is whether the judge's mere recitation of the statutory findings is sufficient, or whether he has to go further and explain the basis for the findings. The 8th has avoided this precise question, and approached it from a different angle: -- as long as the panel can figure out from the record why the judge believed the defendant deserved consecutive sentences, that's enough.

And that's pretty much what they do here: after noting that the judge's statements about why he found the presumption overcome "leave much to be desired," the court decided that "the record here does not clearly and convincingly show that the findings the trial court made are unsupported." That arguably has some nasty ramifications for defendants on consecutive sentencing issue; does this mean they have the burden of "clearly and convincingly" showing that the record doesn't support consecutive sentences?

But remember Clarissa Foster? That brings us back to the State's disproportionality argument, and there's some good stuff here for defendants. The 8th has consistently rejected the comparison-of-cases argument -- "He got six years, so I should get six years" -- going on at length about how different each case can be, and basically blowing off the whole comparison argument by holding that it's not necessary: consistency in sentencing can be achieved simply by properly applying the sentencing factors.

Not here, though. The court concludes that these cases were "so similar that the trial court should have addressed them." The statement in the journal entry that "the court considered all required factors of the law" doesn't cut it. Basically, what you can take from Sherman is that if you can present a case that's pretty similar to your clients, in the important respects -- offenses, criminal history -- the judge has to consider the sentence imposed in that case with the one he's imposing in this one, and explain why he's giving a different one. Even if it's not the same judge. It's hard to understate the signficance of this.

Perhaps the most interesting part of Sherman is the concurring opinion, in which we learn that there was one notable dissimilarity between Sherman and Foster: Sherman is white, and Foster is black. The opinion gives a scholarly discourse on implicit, or unconscious, bias, and there's a lot to be said for that. A couple years back, I wrote about the court's decision in State v. Myrick, upholding a sentence of twenty years for a woman who used her position as a clerk for the welafare department to steal $750,000 over a 14-year period. In doing so, the court rejected a comparison to a woman who got four years for embezzling $500,000 from a private Catholic girls' school. I guess when the panel decided Myrick, none of them took the time to look up on the court's docket what the races of Myrick and the other woman were.

Bet you can figure it out, though.

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