[Vision2020] Fw: Sentence Appropriate?
Art Deco
deco at moscow.com
Mon Jun 21 18:51:56 PDT 2010
First of all, I don't think "hired gun" witnesses who present very biased testimony are limited to the defense. In the 1st district there was a so-called expert who only testified for the prosecution. I thought this witness was wrong sometimes almost to the extent of perjury. I think the testimony from this witness wrongfully convicted several people. Someone finally caught on and I do not think this witness is used much anymore.
I have tried to look at several files lately in the courthouse where there was a withheld judgment given. Only the original complaint, part one of the Judgment of Conviction, and some other very trivial documents were available, everything else was sealed.
I'll see in July what's available in the Heustis file.
When I speak of expungement, I speak of what goes on in some other states like California. Kenny Piel's conviction for assaulting a prisoner was expunged in California, for example. I mentioned expungement because it works in other places similarly to a withheld judgment in Idaho.
The old saying "When all you have is a hammer, everything looks like a nail" often applies to the world view of attorneys who specialize in criminal defense work and to prosecutors. Each has mission in the advocacy system, and each tends to see the world in such a way to be successful in their mission, and to live with themselves. Do not think I'm advocating a different system, probably nothing else would work better, but to say that the advocacy system is without problems would be delusional.
Our country has not dealt very successfully with keeping a low crime rate when compared to other developed countries. While this is a very complex matter, and not all related to what happens in the criminal justice system, the element of personal responsibility seems to play a role in such matters. We ought to do what we can to foster it including having people acknowledge their actions.
As for prosecutors being Old Testament in Latah County: What a joke! Latah county is a defense attorney's paradise -- like Boundary County is now.
W.
----- Original Message -----
From: Sunil Ramalingam
To: vision 2020
Sent: Monday, June 21, 2010 5:56 PM
Subject: Re: [Vision2020] Fw: Sentence Appropriate?
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
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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
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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
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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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serving the communities of the Palouse since 1994.
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