Ruminations

July 31, 2013 by Russ Bensing

What's the difference between God and a Federal judge?  Cleveland's Ariel Castro is not the only one who will have to achieve virtual immorality to see his release from prison.  Gemase Lee Simmons was on the receiving end of an 898-year sentence handed down by a judge in Texas.  Surprisingly, a Federal judge in Texas:  at the conclusion of a bench trial (very rare in Federal court; the prosecution has to agree to it), District Judge Fred Bierry found Simmons guilty of 39 charges, mostly running the gamut of child pornography offenses:  not only receipt and possession of it, but production, distribution, and transportation as well.  Over a period of several years, Simmons convinced numerous young women, some of them minors, that he was seeking participants in a modeling reality show, which of course didn't exist, and recorded them engaging in sexual activity.  (The case is a lot more sordid than that; you can read the details here.)

The opinion finding Simmons guilty, which you can read here, is a bit over the top; Biery seems intent on cramming as many literary references -- to current pop culture, as well as the Golden Oldies like Dante's Inferno -- as he can into his opinion.  (He notes Simmons' explanation for his confession to the FBI -- "I was being facetious" -- and footnotes it, "LOL.").  

That's the nice thing about being a Federal judge, though; you can do or say just about anything you want, and there's not a whole lot people can do about it.  Two of Bierry's fellow judges popped up in the blogosphere recently.  One was Judge Richard G. Kopf, who also writes a blog, and who recently wrote a post entitled "Top ten legal writing hints when the audience is a cranky federal trial judge."  "Cranky" is  an understatement:  Tip No. 10 includes the advice, "Never send me something unless someone less dumb than you has read it first."  But while Kopf aims at those below him, he also takes shots at those above:   back in 2008, he wrote an article entitled, "The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall," which included gems like, "some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi." 

But speaking of pop culture allusions, you have to take your hat off to Judge Stephanie Rose of the Southern District of Iowa.  Rose had gotten into several scraps with the District Attorney's Office over their alleged failure to provide Rose with information that could have increased defendants' sentences, culminating in this brouhaha, as reported in this article:

In a case involving convicted drug dealer Bryan Holm, Rose ordered prosecutors to provide evidence that could extend Holm's prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated.

Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was "a lesson" there for attorneys: "You won't like me when I'm angry."

All of which provides the punch line for the question posed above:  the difference is that God doesn't think he's a Federal district judge.

Clothes make the man.  I've been practicing criminal law for a long time now, and most things I understand.  I understand why people commit murders, rapes, robberies, why they break into houses, and although the thought to do so has never crossed my mind, why they hit women.  (That's not a defense of hitting women; I'm just saying that I understand that some people have significant "anger issues."  Frankly, I find that less difficult to understand than women who stay with men who beat them.)  I don't understand some things, though, like child pornography and child sexual molestation.  Simply can't fathom that.

I also don't understand what possesses criminal defendants to come dressed for court in attire that might be scandalously inappropriate at a beach.  True, it's rarely as bad as the guy at the right, who showed up dressed in a Nazi uniform at his New Jersey court hearing on getting visitation with his 2-year-old son, Heinrich, but I've seen people show up for felony sentencings dressed in shorts and a tank top. 

I'm equally baffled by clients who don't remember their felony convictions.  Not that they don't remember how many they had; for some, that would be a mnemonic feat comparable to trying to recall the names of the fellow students in their sixth-grade homeroom.  I'm talking about clients who don't' remember whether they had a felony conviction.  Me, that would be a formative event in my life:  standing in front of a guy in a robe who told me I was going to prison or be put on probation for X years.  I'd remember that.  Of course, then there are the clients for whom a felony conviction doesn't count if it doesn't involve a prison sentence.

Sequestration and the right to counsel.  I mentioned a couple weeks back that sequestration -- the failure of Congress to come to an agreement last year on budget cuts, forcing implementation of a plan that cut discretionary Federal spending across the board -- had impacted the Federal public defender program, but I didn't realize how much.  This article from the Huffington Post gives the grisly details:  the director of the Federal public defender's office in southern Ohio quitting after 18 years on the job rather than forcing layoffs of lesser-paid colleagues, the Federal public defender in Louisiana who reluctantly retired after 35 years -- if she'd stayed on, the other employees would have been forced to each take 50 days of leave without pay.

Our cranky Federal Judge Kopf posed a solution for that on his blog:

Unless the House Judiciary Committee is run entirely by hypocrites, I think the Committee ought to fire one of its lawyers every time a federal public defender gets the axe as a result of the sequester. Perhaps Mr. Branden Ritchie, Deputy Chief of Staff and Chief Counsel for the House Judiciary Committee, would be a good candidate for the first sequester generated pink slip.

I don't know anything about Mr. Ritchie. I assume that he is a very competent lawyer and a really good person. But, hey, shit happens.

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