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What's Up in the 8th

Some interesting juxtaposition on sentencing.  On Sunday, Nicholas Kristoff had a story in the New York Times about Edward Young.  Young committed some burglaries in his mid-20's, but had married after his release from prison in 1996, married, gotten a steady job, and stayed out of trouble.  While helping a neighbor widow sell her husband's belongings, he found seven shotgun shells and set them aside so the children wouldn't find them.  Young became a suspect in some local robberies, and the police searched his home and found the shells.  He was cleared of the burglaries, but the seven shells and a prosecutor looking to do nothing beyond putting another notch on his belt were enough to earn Young Armed Career Criminal status and a 15-year minimum mandatory sentence in prison.

Here in Cuyahoga County, the 8th District remarked upon an "extremely light" sentence for child pornography, and a judge gave Walter Cooperwood near-maximum consecutive sentences of 22 years -- on a plea, no less -- for crimes he committed as a 17-year-old. 

The light sentence -- six years on 28 second-degree felony counts of child pornography -- comes in State v. Marton.  Marton contends that the judge didn't make the necessary findings to support consecutive sentences, which were imposed on two of the counts, and the State concedes the error, so it comes back.  The case mainly serves as an example of selection bias on the appellate level.

I mentioned that problem back in this post, when the 8th was reviewing sentences to determine whether they were within the "mainstream of judicial practice."  The problem is simple:  which sentences get appealed?  If the only people you ever saw were basketball players, you'd probably believe that the average height of a person was 6'6".  Similarly, if you're an appellate judge and the only child porn sentences you ever review are ten or fifteen years, you begin to believe that that's the norm.  It's not.  Martin's appeal is actually a rarity; most defendants charged with child porn would be happy with a six-year sentence, especially coming from a judge who was a former prosecutor.  Still, there are defendants in those cases who get three and four years, and even probation.  The appeals court never sees those, which goes a long way in explaining why in two places in the Marston opinion the panel marvels at the "extremely light" sentence meted out to him.

One other notable point in Marston.  He contends that his lawyer was ineffective for failing to object to the judge's not making the required findings for imposing consecutive sentences.  This brings up a valid point:  does the lawyer have to object?  There have been a few appellate cases which have held that failure to object to this requires plain error view, but it's hard to see how this would work out other than, "Your honor, I object, you didn't make the necessary findings to support consecutive sentences."  "Hey, know what?  You're right, let me do that now." 

I've represented over a thousand criminal defendants, and I can think of maybe ten who I've believed were truly evil.  If I'd represented Cooperwood, it'd make one more.  In July of 2011, Cooperwood stole a car and sped away when the cops attempted to pull him over, finally crashing into the side of a house.  Two weeks after that, Cooperwood and lured a woman he'd met on an Internet dating site to a house where he and a friend raped her at gunpoint.  While the juvenile court was pondering whether to turn him over for trial as an adult, Cooperwood started a riot at the detention center, knocked down another inmate, and kicked him in the face, telling guards afterwards, "I might as well have my fun."  After he was bound over to the common pleas court, he pled guilty to a bevy of charges, including attempted rape, aggravated robbery, attempted felonious assault, and failure to comply.

His appeal of those sentences goes for naught in State v. Cooperwood, and the case serves mainly to demonstrate the importance of a judge building a record.  Cooperwood complained that he shouldn't have been bound over, and shouldn't have gotten consecutive sentences, but both the juvenile and common pleas judges made explicit and lengthy findings supporting those decisions.  And Cooperwood made it easy:  he had five previous incarcerations in juvenile court, he was placed under administrative supervision in the county jail for making threats to other inmates, and the psychological evaluations and his history make it clear that he's a sociopath.  On the TV show Lockup, Cooperwood boasted that his life aspiration was to be "the head nigger in charge of the Heartless Felons prison gang."  I don't know if Cooperwood is going to last twenty-two years in prison, but if he goes out, he's going to take some people with him.

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