[Vision2020] Fw: Sentence Appropriate?

Sunil Ramalingam sunilramalingam at hotmail.com
Mon Jun 21 17:56:52 PDT 2010


So apparently predictability only exists on my side of the aisle, which is also the only place where a 'hired gun' expert might be found, according to you.  And the world is good when the judge is always biased in favor of the state.

A withheld judgment in no way closes the file. Your claim could not be more wrong. The defendant goes on probation, and if he or she does not perfectly comply with probation, loses the ability to get the case dismissed. A probation violation exposes the defendant to the same range of punishments the judge had at the time of sentencing. The case stays open the entire time the defendant is on probation. 

Moreover, it is NOT treated as an expungement by many judges. I don't think any of the judges in this district consider it an expungement, though I would be delighted to find myself wrong on this.

Of course you found prosecutors to agree with you. Like you, they're very Old Testament.

Sunil

From: deco at moscow.com
To: vision2020 at moscow.com
Date: Mon, 21 Jun 2010 17:39:58 -0700
Subject: [Vision2020] Fw:  Sentence Appropriate?










 
----- Original Message ----- 
From: Art Deco 
To: Sunil Ramalingam 
Sent: Monday, June 21, 2010 5:39 PM
Subject: Re: [Vision2020] Sentence Appropriate?


I haven't attended yet a felony sentencing hearing in the 2nd 
district.  I attended many when I lived in the 1st district.  Withheld 
judgments were not handed out there like party favors, but only when the judge 
seemed convinced that the person at issue would be unlikely to commit further 
crimes.  All this occurred before 1990.  
 
In the 1st district one of the criteria most often argued and mostly 
unsuccessfully by the defense was the probability of some kind of further 
offenses.  Priors are obviously evidence to be taken into account when 
making such a judgment about this probability.  
 
In addition, in my experience in the 1st district, it was not uncommon for 
a judge in the role of trier of fact to reject/express great 
skepticism claims made in presentence reports and by defense attorneys and 
particularly those made by psychologists and similar kinds of witnesses/claims 
makers and of claims of remorse by the defendant.  In the case of some 
defense attorneys it was very predictable, almost word for word, what kind of 
statements of remorse would be offered by their clients.  In addition, 
certain "hired gun" so-called "expert"s could always be counted on to give a 
very rosy recommendation/excuse for the lapse at issue for the 
defendant.
 
In the case of the present crime under discussion where a virtual 
13 year old was attempted to be enticed for sexual favors, a very serious matter 
in my opinion, I would hope the judge would not grant a withheld judgment 
because it effectively closes the file and sends a counter-deterrence 
message.  I'll test this theory about the file being sealed sometime in 
July.
 
In this case, it doesn't seem to make sense to require the convicted person 
to register as a sexual offender but conditionally remove the conviction from 
his record and out of sight from the public.
 
Of course the newspaper doesn't provide all the defendant's statements, but 
this one was provided:
 

"It's been a long two years," Heustis 
said. "I've learned a lot from it. A lot of things happened because of what I 
did on the computer, and I'm paying the price for 
it."
 
This doesn't sound very remorseful to me, but more like someone feeling 
sorry for themselves.  One element I'd expect a judge to consider when 
looking at a withheld judgment application is if there is true 
and sufficient remorse expressed by the defendant (not his attorney).
 
 
Here's another opinion, one that you will like even less 
as a defense attorney:  I think the option of withheld judgments and 
record expungements (except in cases where innocence is subsequently 
demonstrated) should be abolished except for infractions/nonviolent misdemeanors 
committed before the age of 16.
 
I have argued this with many law professionals in the 1st district with 
predictable results:  Defense attorneys are generally against it, 
prosecutors for it, and judges, not absolutely, but generally in favor of it, 
particularly magistrates who see much recidivism.
 
As a matter of opinion which I cannot prove except by offering 
consequential evidence, I think this is true:  Except in the case of a very 
serious mental illnesses where a person has basically completely or very nearly 
completely lost their ability to understand the consequences of their actions, 
that people ought to hold themselves responsible, and be held responsible by 
others for their actions.  It's called personal responsibility.  

 
All most all crimes and many torts occur because of the lack of personal 
responsibility.  Hence, as a society, and particularly in the criminal 
justice system, we ought do all we can to encourage/promote personal 
responsibility.  In my opinion withheld judgments and record expungements 
are counter-productive to fostering personal responsibility.  Part of 
taking responsibility for one's actions is to acknowledge, not hide them, 
and to demonstrate that learning/reform has taken place and continues to take 
place.
 
As a corollary, I'd agree the sentencing options in Idaho are meager 
and ought to be expanded, especially where treatment or other constructive 
options are likely to be successful.  However, the penal element ought not 
be completely removed form a sentence, and certainly not the continued 
acknowledgement of past lapses of personal responsibility.
 
Wayne A. Fox
1009 Karen Lane
PO Box 9421
Moscow, ID  
83843
 
waf at moscow.com
208 882-7975
 
 
----- Original Message ----- 

  From: 
  Sunil Ramalingam 
  To: deco at moscow.com ; vision 
  2020 
  Sent: Monday, June 21, 2010 3:42 PM
  Subject: RE: [Vision2020] Sentence 
  Appropriate?
  
Sure it's discretionary, but there's nothing uncommon about a 
  person with priors receiving a withheld on a felony, particularly where the 
  priors are misdemeanors.  So I'm not sure why you're so emphatic about 
  this defendant being unsuitable. 

Sunil


  
  From: deco at moscow.com
To: vision2020 at moscow.com
Date: Mon, 21 
  Jun 2010 15:32:16 -0700
Subject: Re: [Vision2020] Sentence 
  Appropriate?


  

  Having visited various criminal files, many are sealed or specific 
  documents are sealed without a written order or even a notation in the 
  minutes.
   
  Isn't a withheld judgment within the discretion of the judge, especially 
  when there are priors?
   
  W.
  
    ----- Original Message ----- 
    From: Sunil Ramalingam 
    To: vision 2020 
    Sent: Monday, June 21, 2010 3:18 
    PM
    Subject: Re: [Vision2020] Sentence 
    Appropriate?
    
I don't see an order sealing the file on the 
    repository.

What's the code section making him ineligible for a 
    withheld judgment?

Sunil


    
    From: deco at moscow.com
To: vision2020 at moscow.com
Date: Mon, 
    21 Jun 2010 13:19:41 -0700
Subject: Re: [Vision2020] Sentence 
    Appropriate?


    

    Given the information in the news article and the Idaho Repository, 
    Heustis did not cop a plea:
     
    
    "During the sentencing, 
    Michelle Evans, senior deputy prosecuting attorney for Latah County, asked 
    for 10 years probation and a 90-day jail sentence.
    "I think that it's appropriate 
    to impress upon Mr. Heustis ... the seriousness of what he did," she 
    said."
    Heustis pled guilty as charged, and the 
    sentencing was determined in a normal sentencing process and hearing, the 
    same as if he was found guilty in a judge or jury trial.  See:
    https://www.idcourts.us/repository/caseHistory.do?roaDetail=yes&schema=LATAH&county=Latah&partySeq=1684&displayName=Heustis%2C+Kendall+Wayne
    Notice also the following actions:
    Order for Evaluation
    Presentence report
    Addendum to Presentence Report
    Paul writes:
    "A couple of days later, he's in jail and scared for his 
    life.  He's sees how many people out there assume he 
    rapes babies on a daily basis, and he desperately doesn't want to go to 
    prison for 15 years labeled as a sex offender because he knows that could 
    very well happen if the prosecutor plays the "think of the children!" card 
    and the jury is not very sophisticated about this whole online thing.  
    So he cops a plea and gets off with a reduced sentence and carries the "sex 
    offender" brand on his forehead for the world to see and gets to read about 
    how it's a crime that he was let out so soon and that he should be made to 
    suffer more on a local mailing list."
    Heustis was originally charged on 05/05/2009.  
    His guilty plea was entered on 04/09/2010.  Hardly a couple of days 
    later.  He agrees to plead guilty and go through the normal sentencing 
    process where an evaluation is made and both the prosecution and defense 
    make their recommendations to the court.  
    Paul's hypothetical case has vanished based on 
    the facts.  In addition, if someone pleads guilty to something they did 
    not do, that would be perjury.
    The problem now is that most of the case has been 
    sealed since Heustis was given a withheld judgment.  The original 
    complaint and part of the Judgment of Conviction may be available. 
    The part of the Judgment of Conviction which deals with the meat 
    of the matter has probably been sealed.  The public is now prevented 
    from examining the facts of the case in order to judge the actions of the 
    prosecution (which also recommend a weak sentence) and of the judge. Very 
    convenient.  A CYA move by the judge and prosecution since a 
    withheld judgment is hardly appropriate for Heustis given his prior criminal 
    convictions.
    W.
    
 
    
      ----- Original Message ----- 
      From: 
      Paul 
      Rumelhart 
      To: Garrett Clevenger 
      Cc: vision2020 at moscow.com 
      Sent: Monday, June 21, 2010 12:12 
      PM
      Subject: Re: [Vision2020] Sentence 
      Appropriate?
      

We know absolutely nothing about this particular case 
      ("jack shit" is, I 
believe, the technical term).  Yet we're 
      willing to judge the leniency 
of his sentence and to call him a 
      pedophile and a creep on a public 
mailing list.

Here's a 
      hypothetical situation:

Maybe this guy went to an adult chatroom, 
      where adults talk with other 
adults about sex.  This guy strikes 
      up a conversation with a person who 
later claims that they are 
      13.  Since he's on an adult chatroom, he 
figure that this person 
      is role-playing, so he goes along with it.  The 
conversations 
      continue, and he make some remark about how they should 
both get 
      together and have sex, never intending to actually go through 
with 
      it.  He was just role-playing, not making an actual date.  A 
      couple 
of days later, he's in jail and scared for his life.  He's 
      sees how many 
people out there assume he rapes babies on a daily 
      basis, and he 
desperately doesn't want to go to prison for 15 years 
      labeled as a sex 
offender because he knows that could very well happen 
      if the prosecutor 
plays the "think of the children!" card and the jury 
      is not very 
sophisticated about this whole online thing.  So he 
      cops a plea and gets 
off with a reduced sentence and carries the "sex 
      offender" brand on his 
forehead for the world to see and gets to read 
      about how it's a crime 
that he was let out so soon and that he should 
      be made to suffer more on 
a local mailing list.

I don't know 
      that it went down that way, but I don't know that it didn't 
go down 
      that way.  I, personally, would rather have more facts before I 
      
condemn this guy and rage about his lenient 
      sentence.

Paul

Garrett Clevenger wrote:
> Paul 
      writes:
>
> "this law as it stands sounds to me like thought 
      crime."
>
>
> It's one thing to have fantasies about 
      whatever, quite another to try to sexually engage with someone you think 
      is 13.
>
> This isn't a thought crime cause the guy actually 
      went out of his mind and out into the real world (even if it's a virtual 
      computer world)
>
> This guy's a pedophile and should be 
      locked up.
>
> I'm not a big supporter of entrapment mostly 
      because it's probably a waste of resources but at the same time this guy 
      pled guilty to enticing a 13 year old.
>
> That's dangerous 
      and unacceptable in our wired world.
>
> When I read this 
      story in the paper I too thought the sentence was way to light for this 
      creep.
>
>
> I'll hesitatingly give you a Stegner story 
      that may give you an idea of Stegner:
>
> 3 years ago, we 
      brought our baby to a restaurant after he was born. He was sitting in his 
      car seat in the restaurant when up walked a guy who asked if he could hold 
      him. I said sure while my wife had a horrified look on her face.  I 
      guess I wasn't as cautious as I should have been letting a stranger pick 
      up our baby.
>
> The guy walked outside with our baby. My wife 
      ran after him and asked for her baby back.
>
> It turned out 
      the guy was Stegner.  His wife came up later to apologize for him and 
      said he really likes kids.
>
> It was one thing to want to 
      hold a baby, quite another to leave the restaurant with him.  We were 
      all taken back by this and wondered why a judge, someone who probably sees 
      all kinds of creepy things, would be so thoughtless as to think leaving 
      the restaurant with someone else's baby wouldn't freak the parents 
      out.
>
> I don't know Stegner, but that incident left me 
      wondering about his judging capabilities.  Seeing his sentencing 
      reaffirms that.
>
> Garrett Clevenger
>
> 
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