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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


The jurors speak

The sentencing hearing is the single most important proceeding in the criminal justice system, because it determines the outcome in about 98% of criminal cases.  Preparing for the sentencing hearing is just as important as preparing for the trial.  Most of the time, besides you, your client is the only one who's going to be speaking for the defense.  It's usually good, though, to have someone speak on his behalf, like a family member, an employer, a pastor...

Or one of the jurors at his trial.

That's what happened to Deyanira Cuiriz.  In August of 2012, she was celebrating her nineteenth birthday at her home in Richmond, California.  Two men parked their cars in front of the house and got out, and for reasons that were never explained, punched Deyanira's father.  A crowd gathered around the car when the two men got back inside.  Deyanira was part of that crowd, carrying a gun which belonged to her boyfriend.  When Oscar Barcenas, whose friend had thrown the punch, reached for the center console, Deyanira shot him in the cheek.  The bullet hit his spine and left him paralyzed from the neck down.

Given the facts, Deyanira's age, and the absence of any prior criminal history for her, it's a bit difficult to see how she wound up with a 27-to-life sentence on an attempted voluntary manslaughter charge, with various firearm specifications.  (I don't know how they do things in California, but the worst that would get you here is a flat 11 years.)  It was a bit difficult for the jurors, too:  three showed up at sentencing, and one called the sentence too harsh.  Another wrote a letter to the judge, decrying the "unbelievably long sentence," and telling the judge that he felt "totally betrayed by the process, and feel I have been deceived into performing a despicable act while believing a difficult but just disposition would be the result of my guilty verdict."  Deyanira's public defender lambasted the prosecutors, contending that they "didn't take any of the equities of the situation into account."

Then again, Denayira turned down a deal that would have resulted in a seven-year sentence.  That's another one to put in my file for explaining to defendants the bad things that can happen if you turn down a plea deal.

The Cuiriz jury isn't the only one objecting to a sentence that resulted from the conviction they handed down.  Jurors in the recent trial of Douglas Trimmer circulated a petition protesting the 2 ½-year sentence that a Montana judge imposed for a misdemeanor assault conviction -- six months for the assault, two years for use of a gun -- contending that "it certainly isn't justice to send this young man to prison for 2 ½ years."

And here in Cleveland, Federal District Court Judge James Gwin put his mouth where the jury's was:  after they convicted Ryan Collins of possessing child pornography, he polled each one as to what sentence the juror felt was appropriate.  The average was 14 months.  The prosecutor had argued for the statutory maximum of twenty years, which was seven less than the sentencing guidelines would have permitted.  Gwin gave Collins the statutory minimum of five years.  The government has appealed.

In several states, like Texas, they let the jury determine the sentence.  I never cared much for that idea; if you're going to exercise discretion in sentencing, and you have to, it's good to have some knowledge base of other crimes and other sentences.  Jurors don't have that; their only frame of reference is the crime they've just heard about.

But sentences are supposed to reflect the community's standards of appropriate punishment.  They don't.  Instead, they reflect the desire of legislators to appear hard on crime, and to make the term of imprisonment so Draconian that prosecutors can use it to bludgeon the defendant into copping a plea.  When the jurors who heard all the evidence believe that the resulting sentence is all out of whack, maybe it makes sense to take a listen.  


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