Posted on November 1, 2008 by Walter Reaves

Will Senator Stevens be treated differently?

Its not surprising that there is a lot of discussion about the conviction of Sen. Ted Stevens. He's generated a lot of it, by taking the offensive and refusing to accept the verdict. Despite requests to resign, he kept his name on the ballot, and insisted he has not been convicted. The voters apparently weren't too concerned, as he was re-elected with a convincing margin. the big question now is how long can he keep his seat.

The answer to that question depends in part on whether he has  actually been convicted yet A criminal conviction generally involves two things - a judgment and sentence. Right now Sen. Stevens has been convicted, but not sentenced. So currently  there is not a final conviction. Once he is sentenced though, what happens?

There is no doubt he will appeal, and it doesn't look like he is going to lack for issues. At the top will be the juror who was excused after lying about her father's death.

Under the federal sentencing guidelines, he's sure to get penitentiary time; to stay out, he will have to get an appeal bond, which is not automatic in federal court. To obtain an appeal bond, you have to convince the court that there is good chance your appeal is going to be successful. His status as a United States Senator is not supposed to be a factor, but it would be hard to ignore. It certainly worked for Wesley Snipes, who was allowed to stay out while he appealed his conviction.

Whether or not he keeps his seat may depend on whether he stays out - obviously he can't serve if he is in jail. The question will be what happens if he stays out - he will have a conviction, but in most situations it is not considered a final conviction because there is always the chance it could be reversed on appeal. Ultimately it will be up to Congress - although he's been in a long time, it probably isn't going to help that the Democrats took control.

The answer to the question is that he probably will be treated differently. But then, would he have been prosecuted if he had been anyone else?

A few of the posts on this issue are collected at Sentencing Law and Policy.

 

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Posted on September 10, 2008 by Walter Reaves

Improper relationship - so what?

Everyone is commenting about Charles  Hood's case. While its by no means an exhaustive list, below are some of the posts from the last few days. In case you haven't heard, the fomer Collin County District Attorney, and former District Court Judge (later Court of Criminal Appeals judge), finally admitted to having a long standing  relationship. Whether it was going on during Mr. Hood's trial is in dispute, but there is no doubt the two were in a relationship when the District Attorney was appearing before the court. Obviously, that is not proper, especially when no one knows about. The question is what you do about it.

The majority of people are not aware that most errors in criminal cases don't cause the case to be reversed. Before a case is reversed, a court must find the error was harmful. Basically, that means the error had some impact on the proceedings. A problem I have always had with the harmless error rule is that intent is not a factor. That is, a court or prosecutor can intentionally do something they know is improper, and not suffer any consequences. Unfortunately, that is the deciding factor in many rules - whether it is something that will get the court reversed.

The problem with an improper relationship like this it is almost impossible to establish harm. You would have to show the judge ruled a certain way because of the relationship. That is going to be all but impossible to establish. As a result, there are no consequences, other than what the bar or the judicial commission might impose. Of course, that does nothing  for Mr. Hood and the other defendants who appeared in that court.

I have an alternative approach, which I think would have the necessary deterrent effect. Where an improper relationship is established, presume it was the result of the relationship. If a defendant can establish an error, then put the burden on the State to establish the relationship played no factor. If there clearly was no influence, then the case would be affirmed. Otherwise, the defendant would get a new trial, before an impartial judge and prosecutor.

If we want people to have faith in the judicial system, then we must ensure that all defendants are treated fairly. We also must protect the perception of the proceedings. I doubt anyone believes a trial before a judge and prosecutor are involved is fair. Let's do something to ensure that doesn't happen again.

 

Did prosecutor romance taint Texas murder trial?

The soap opera surrounding Charles Hood's case

Hood execution stayed

Prosecutor and judge in capital case admitted affair

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