The Exculpatory "No"

Walter Olson at Overlawyered has an interesting article on prosecutions for "lying" contrasting these prosecutions with what used to be called "the exculpatory 'no.'" 

Cuyahoga County Common Pleas judge, Bridgett McCafferty (pic, entering court) was scheduled to be sentenced on her conviction for multiple counts of lying to the FBI.  That sentencing hearing was put off to August--her convictions falls well within this discussion.  As I have said repeatedly, this "disgraced" judge was prosecuted for nothing more than "lying" in and of itself.  She committed no underlying crime apart from stupidity and a breach of ethics. Her lies to the FBI were nothing more than an attempt to deny unethical phone calls she had with her political bosses that asked for favors that in and of themselves appear not to have impacted the outcome of a case she supervised.  McCafferty's career is gone, she lost her law license, and reputation but, of course, that's not enough, the federal prosecutor wants her to spend years in the federal penitentiary. 

Judge McCafferty's Sentencing Memorandum

The Plain Dealer, Ohio's largest paper and reporter Jim McCarty provide us with details from the government's sentencing memorandum in the case of Judge Bridget McCafferty (pic) slated to be sentenced in US District Court in Akron Monday on multiple convictions for lying to the FBI in their investigation into influence-peddling and bribery of Cuyahoga County (Cleveland) judges. This is McCarty's account, it suggests that the Judge had some dark secrets (don't we all?):

Federal prosecutors have accused former Cuyahoga County Common Pleas Judge Bridget McCafferty of intervening on behalf of her boyfriend, an employee of the county auditor's office, after he was caught working out in a gym and hanging out at a tavern during work hours.

Prosecutors also accuse her of misleading the Ohio Supreme Court about her backlog of cases, lying to a Plain Dealer reporter and misrepresenting her academic credentials on a campaign website. The new allegations are included in a memorandum that prosecutors filed late Friday with U.S. District Judge Sara Lioi. The memo argues that McCafferty deserves time behind bars for lying to the FBI agents investigating corruption in county government.

Defendant:"I've Suffered Enough, Judge," Judge: "No You Haven't"

Jay Weaver at the Miami Herald covers the sentencing of Dr. Alan Mendelsohn (pic) the Florida opthalmologist and political lobbyist.  The federal prosecution of Dr. Mendelsohn (once again) peels back the cover on Florida's amazingly corrupt political culture.  Mendelsohn's last political fundraiser (while he was under incitment) was for Florida's new Tea Party US Senator, Marco Rubio.  Nice.

Mendelsohn is a dramatic example of how not to approach your white collar sentencing.  This is an excerpt from the Herald account, by Mr. Weaver:

U.S. District Judge William Zloch slammed a respected Broward County physician with a four-year prison sentence on Wednesday, sending a strong message against the corrupting influence of special-interest lobbyists who raise millions for politicians in Tallahassee -- in exchange for favors.

Zloch told Dr. Alan Mendelsohn, 53, a politically connected ophthalmologist, that the hefty sentence was warranted because his pay-to-play misconduct was like a “cancer” with “tentacles” that thwarted good government from South Florida to the state capital.

Mendelsohn was the key figure in a public corruption and tax case that saw him secretly divert $700,000 from campaign donations and other income to himself, his family and his mistress. He did not report that money to the IRS.

Some of the donations were made after Mendelsohn, an unregistered lobbyist, bragged to special interests in major industries about his purported connections to then-Gov. Charlie Crist, lawyers on the attorney general’s staff and state legislators. Mendelsohn served on Crist’s transition team in 2007.

“Most notably, the corruption in this case strikes at the heart of the Florida Legislature,’’ Zloch said. “Dr. Mendelsohn actually facilitated a corrupt democratic process in the Florida Legislature.”

[ . . . ]
At the plea hearing, he told Zloch that if influential insiders didn’t pay political bribes in Tallahassee, they would be “toast.”

On Wednesday, Zloch said the Justice Department’s recommended prison sentence for Mendelsohn, between 2 and 2½ years, and his defense attorney’s bid for probation with no jail time, failed to address the seriousness of his criminal behavior.

The judge, sitting ramrod straight on the bench, condemned Mendelsohn for orchestrating schemes in which political donors contributed hundreds of thousands of dollars to obtain legislative favors behind the scenes.

“A message must be sent to the public that corruption of this scope cannot and will not be tolerated,” Zloch told a packed Fort Lauderdale courtroom, which included some supporters who gasped, “Oh my God” when the judge issued the hefty sentence, along with a $10,000 fine.

[ . . . ]

Mendelsohn pleaded guilty last year to conspiring to defraud the U.S. government by failing to report to the IRS $700,000 in income siphoned from his PACs, his lobbying clients and his medical practice. Mendelsohn, who raised money mainly from Republican donors, pleaded to a single conspiracy charge, which carried a five-year maximum sentence.

Mendelsohn spent the political proceeds on a mistress, as well as his children’s private high school tuition, SAT tutoring, a luxury car and home renovations, according to court records. He also admitted lying to FBI agents.

Before the sentencing, Mendelsohn asserted he had suffered enough from his misconduct. Entin filed 350 letters from supporters seeking leniency for his client.
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The arrogance of this defendant did not play well at his federal sentencing.  It may not seem much when you read about the length of sentences that run to multiple decades or life, but the difference between a 2 years and 4 years is like an eternity for a guy like Mendelsohn.  This was clearly a pissed off judge.

Father Sam Update--Sentencing

Father Sam Ciccolini, the Akron-Canton area priest caught smurfing (or structuring) huge sums of cash; and, who embezzled millions from his "charitable" foundation for alcoholics and addicts was sentenced to 1 day in prison according to a story at Cleveland.com.  Fr. Ciccolini was also ordered to pay $4 million dollars in restitution and fines.  Here's the update from Ohio.com.

Fast Eddie Vrdolyak Re-Sentencing Friday

Reporter Andy Grimm at the Chicago Tribune brings us this update on the re-sentencing of the legendary former-Chicago alderman Edward "Fast Eddie" Vrdolyak:

"Some felons sentenced to community service work end up doling out soup at homeless shelters. Legendary political insider 'Fast Eddie' Vrdolyak worked off many of his court-ordered hours by organizing a star-studded fundraiser at Gibsons steakhouse and driving around in his car while recruiting friends by cell phone to aid a charity.  Handwritten log sheets released Wednesday by his lawyers show that Vrdolyak has logged 1,750 hours on behalf of a DuPage County charity that works with law enforcement to help needy children and veterans, mostly by making phone calls and holding "skull sessions" with donors.

In a controversial sentence last year, Vrdolyak eluded prison for a fraud conviction, but after prosecutors complained, an appeals court ordered he be resentenced. Prosecutors are seeking 31/2 years in prison for him Friday.

In the meantime, Vrdolyak has completed more than two-thirds of the community service he was ordered to perform as part of his probation sentence.  The head of the charity, the Illinois State Crime Commission-Police Athletic League of Illinois, praised Vrdolyak's work, saying his networking helped produce its best year and raised hundreds of thousands of dollars that went toward the purchase of 6,500 coats for poor children.

'He's Ed Vrdolyak, you know what I mean?' said Jerry Elsner, the charity's executive director. 'He's tireless. He's Fast Eddie. He's a legend. He's in a different stratosphere than the rest of us.'

Vrdolyak doesn't make his calls from the charity's offices but instead prefers to reach out to friends by cell phone from his car, Elsner said. 'I don't know if he has an office. He always calls from his car,' he said. Vrdolyak's contacts were on display last year at a fundraising luncheon at Gibsons, a favorite hangout for Chicago power brokers, that was attended by 'all-stars of the legal community including the lawyers on Vrdolyak's defense team, as well as Bears linebacker Brian Urlacher.

'There were many, many millionaires there, and that was all Eddie,' Elsner said.

The records show Vrdolyak worked dozens of hours planning the fundraiser and then credited himself for six hours he spent at the fundraiser as well as two hours making thank-you calls later that night.  Photographs from the event on the charity's web site show Vrdolyak mugging with Urlacher, a friend of Vrdolyak's son who wrote a character reference letter for Vrdolyak's first sentencing hearing.

'He's getting into it,' one of Vrdolyak's lawyers, Michael Monico, a guest at the Gibsons luncheon, said of his client's community-service work. 'He's really enjoying it.' 

Cook County Democratic Party Chairman Joe Berrios, who also attended the luncheon, said he distributed coats at two sites in the city for the charity. 'Eddie asked me to be a part of it, so I went out there to meet with them,' said Berrios, who is running for Cook County assessor.

U.S. District Judge Matthew Kennelly, who will impose the new sentence, will have dozens of character reference letters to read from Vrdolyak supporters — and he can get an earful about Fast Eddie's virtues from Elsner as well.  'I know I'm going to be crucified for saying this, but Ed Vrdolyak is the finest man I've ever met,' Elsner said. 'You just come away from talking to him feeling better about things.'
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By the way this is the link to the Wikipedia entry on Vrdolyak.

"Far Beyond the Heartland of Depravity"

The terrific and beautifully written Blawg, Simple Justice, has an excellent consideration of the 11th Circuit's opinion in the US v. Irey a particularly disturbing child pornography case that I came across at the Orlando Sentinel last week but didn't have Scott Greenfield's presence of mind to address. 

Greenfield's Criminal Defense Blog is always insightful and his discussion of the Irey decision finely dissects problems with the many facets of the crime, the harm, the sentencing and the politics of pedophilia and child pornography and particularly the computer viewing consumers of Irey's vile images.

By way of background, William Irey (mug shot), a construction company owner is serving a 171/2 year sentence as a consequence of child pornography he created as a sex-tourist in Cambodia.  The 11th Circuit Court of Appeals held en banc (meaning the entire court, all the Judges, heard and signed on to the opinion) that the sentence was "unreasonably" short for the crimes committed by Irey which the Court described as "far beyond the heartland of depravity."  The Orlando Sentinel's coverage is at the link.

Sholom Rubashkin Sentenced to 27 Years

The Des Moines Register is reporting that the Kosher food processor, Sholom Rubashkin will be sentenced later today, to 27 years in prison for the financial offenses (i.e. he went too far in arranging loans to keep the family kosher food business afloat and) federal prosecutors demanded "life in prison."  The sentencing memorandum of local federal prosecutors caused an outcry among some of thisi country's leading former prosecutors including former Attorneys General (including: Janet Reno, William Barr, Richard Thornburgh, Edwin Meese III, Ramsey Clark and Nicholas Katzenbach) of the United States.  Since Mr. Ruabshkin is 51, the 27 year prison time gives the local federal prosecutors their wish. 

As reported on Bad Lawyer, Mr. Rubashkin's conviction is problematic, since the federal prosecutors were allowed to make assertions during his trial on the financial crimes about the "general lawlessness" of Mr. Rubashkin's business practices while Mr. Rubashkin was prevented from defending against various allegations includng child labor crimes he did not commit.  It may turn out that Mr. Rubashkin will obtain relief by way of a new trial or a Presidential pardon or commutation.  The New York Times, this morning did an excellent and thorough look at the inequitable treatment of Mr. Rubashkin vis-a-vis Jeffrey Skilling and Dennis Koslowski who received relatively reasonable and moderate sentences for financial offenses seemingly far more fraudulent and self-seeking than Mr. Rubashkin's misguided manipulations to obtain credit to keep his Kosher food processing business open.

I do not understand dietary laws, not the rhyme nor the reason for these laws apart from reading and respecting the Torah, the Talmud and the Zohar and the faith of pious religious believers.  I do know that observing and obeying dietary laws is very serious business among my Jewish and Islamic brothers and sisters who I regard as righteous.  Mr. Rubashkin's situation is Rubashkin's creation just the same as my problems are the product of seeds I planted.  I strongly empathize with him and his situation and I wish Mr. Rubashkin and his family nothing but blessings and light.  Out of great darkness sometimes there is an opportunity for great light.

Compare this story with what we talked about yesterday when Bad Lawyer looked at the story of fabulous wealth transfers, including billions of dollars that would normally be due the federal government under normal estate tax laws.  These amounts are dust in the wind because our lawmakers played political games with the federal taxing scheme.  Ultimately federal building projects, roads, buildings, maybe even court houses will be named after those law makers while Mr. Rubashkin who tried to keep a religious way of life operating, may still be sitting in a penitentiary.  I know these are unconnected matters, but we should not lose sight of the notion of genuine justice, particularly when it relates to the merely material world.