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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