Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

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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How Appealing noted an article in the Houston Chronicle about the investigation of Federal judge Samuel Kent. Kent has been indicted for federal sex crimes. The article notes that Kent is not alone; four other federal charges are facing cages including taking cash from lawyers, abuse of power, using an escort service, and posting nude photos on a web site. It is rare for a federal judge to face such charges; it is even rarer to have this many at the same time.

Federal judges are appointed for life. As a result, they have almost unlimited power. On Congress has the power to remove a federal judge. Although its happened, its been a long time since a federal judge was removed by Congress.

Is there a reason for this, or is it just a reflection of society? I don't have the answer, but I have some thoughts. Federal judges have  a tremendous amount of power. Such power can corrupt some people. You hope the selection process weeds out those who are susceptible to abusing power, but we know it doesn't always. As a society, and as lawyers, we have to monitor the actions of our judges, and not be afraid to challenge them when they are wrong.

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If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.

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Today the Supreme Court decided United States v. Rodriquez, which involved a sentence imposed under the Armed Career Criminal Act. Basically, that Act establishes a 15 year minimum sentence if the defendant has 3 prior qualifying convictions. The issue in the case was whether the defendant had a qualifying conviction for a "serious drug offense" . To qualify, the conviction has to be for an offense that has a maximum term of imprisonment of ten years or more. In the state of Washington, the offense the defendant was convicted of had maximum term of 5 years, unless the defendant had a prior conviction, where the maximum sentence was 10 years. The defendant had a prior conviction, but was only sentenced to 48 months. Thus, the issue was whether the recidivist provision should be considered in determining the maximum sentence.

The court held that you should use the maximum sentence that could be imposed, which was 10 years. The court also pointed out a distinction, which will apply in Texas. Where notice of an enhanced sentence must be given, as in Texas, the enhanced sentence is not applicable unless the notice has been given. For example, a 3rd degree felony can be enhanced to 2nd degree with a prior felony conviction. If no notice is given, then the maximum sentence for purposes of the ACCA would be that for a 3rd degree felony, which is 10 years. Of course, that is still 10 years or more, so it could still qualify if it meets the other criteria.

The bottom line is that  this ruling is going to have little, if any, effect on using Texas convictions.

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