Thursday, January 27, 2011

Mea culpa

A prosecutor known for cheating and misrepresenting the record, accused me, during oral argument in the court of appeals, of misrepresenting the record.  I was royally pissed.  I told the court to read the record and decide for themselves.  The accusation went nowhere.
But facts are hard things.  In court and in court documents, I'm really careful.  But this blog? Eh, not so much when it doesn't matter.
I write disclaimers.  If you've read for a while, you know that I frequently say things like "I'm oversimplifying here but it's close enough for the point I'm making" or "I'm doing this from memory and may not have the details right" or "I don't actually know what happened, but. . . ."
And then I speculate, guess, offer hypotheticals and hypotheses.  I engage in hyperbole.  I overstate.  But sometimes I just make mistakes.  When I do, I try to offer corrections.  (See for instance my recognition that I'd misrepresented DC Superior Court as one where fucking around was prohibited; it's actually the US District Court for DC that doesn't permit fucking, and I posted a correction.)
Well, it turns out that about 18 months ago I wrote about the heinous crime rule and used as an example for part of my point the case of convicted rapist Stephen Boyd.  He'd been sentenced to 20 years in prison.  For reasons wholly irrelevant here, the court of appeals ordered him resentenced. Typically in a case like that, he'd have gotten the same sentence on resentencing that he got in the first place.  But there was a new judge handling the case and she gave him 40 years.  I wrote this.
Back the case went to the trial court. The assumption, and this is what mostly happened in these cases, so the assumption was warranted, was that the judge would simply reimpose the same sentence - this time without an explanation. But there was one difference. Skow was not going to be the judge. While the case was pending on appeal, he'd been elected to and taken his place on the court of appeals. The case was going to his replacement, Stacy Cook.

Boyd had never had retained counsel. He had one lawyer appointed for trial, another for appeal. On remand, he got a third appointed lawyer. (He'll be up to five by the time the story - so far - is over.) And his judge, well, Cook decided she'd do her job right. She'd actually read the record and make an independent assessment of what the sentence should be. Hard to complain about that in theory. It is what she's supposed to do, and it's what few judges in that position actually do unless someone goads them into it.

This time, it was a shame.

She read the record, reviewed the transcript (perhaps consulted with her husband, former prosecutor and now judge Gary Cook, though I don't know that), thought about it, and decided Skow wasn't harsh enough. It was a terrible crime, she said. Each count, she decided, should be run consecutive to each other count. None of this 20 year trivia, she said. Slam the door. 40 years. Before imposing sentence, she told Boyd's lawyer what she was going to do. She gave him time to write a memorandum (sorry, I don't have a copy) explaining why she couldn't do it. She wondered, even as she imposed sentence, whether she had the authority. She decided the court of appeals would tell her. 40 years.
I know Stacy Cook (and her husband Gary, too, but he's largely irrelevant to this post).  I've known her for years, since way before she was a judge, since back when she did some criminal defense work.  I like her.
As I said, she chose to do the job the right way: read the record, think about what was appropriate, review the law, all that good stuff.  (Many judges wouldn't have.)  I admire that and I said so.  I also tossed in that parenthetical remark about how she maybe consulted with Gary.  I said "maybe."  You know, as in "maybe or maybe not."  What the hell do I know.  They're married.  They're both judges on the common pleas court in Toledo.  They might talk about their cases over the dinner table sometimes.
Like I say, that was just about 18 months ago.  I remember writing about the Boyd case and Stacy's decision.  I didn't remember just what I wrote or even what my theme was until I looked it up this afternoon.  (I've written a couple or three hundred blog posts since then, and I really don't remember most of them in exquisite detail.)
But Stacy apparently remembers this one.  (OK, it was partly about her.  But who knew that judges ever read this stuff I write?  Hell, who knew that anyone much reads this stuff?)  Or maybe someone just showed it to her.  I don't know.  Here's what I know.
She told another lawyer (knowing he would likely see me) earlier this week, 18 months after I wrote that post (18 months; 18!), that she did not and would not have consulted with Gary.  Nope. No way.  Didn't happen.
Apparently she's upset.
So let me here set the record straight.
Your Honor.  I apologize.  I spoke out of turn.  I allowed for a possibility without double checking.  I could have just asked you.  I should have.
(You and I, Stacy, Judge Cook, did speak about the case briefly on at least one  occasion that I recall.  Not improperly.  Certainly not you consulting with me.  And I never represented Boyd. I stopped by your courtroom to introduce you to a lawyer from out of county who was interested in taking appointed appeals, and I mentioned that she'd be good for that case.  I also said, as I recall, that I thought you were wrong on the law.  You were friendly and gracious which I would expect of you.  And you appointed someone else.  And the court of appeals affirmed your sentence.  So be it.  I still think I'm right - about who you should have appointed and about the law.)
But I was wrong about case consultation between the Judges Cook.
My bad.


  1. Stable Dressing! In a previous article, you [Jeff Gamso, Esq.] wrote:

    She [Judge Stacy Cook - MJ] read the record, reviewed the transcript (perhaps consulted with her husband, former prosecutor and now judge Gary Cook, though I don't know that)...

    The key word is 'perhaps'. Maybe she did, maybe she didn't. If Stacy did talk to Gary, maybe they spoke over the dinner table, maybe while they were doing the dishes together in the kitchen, maybe in the middle of a little pillow talk right after they'd made the beast with two backs. On the other hand, if Stacy did not talk to Gary, then what exactly do they talk about while doing the dishes? What color socks Gary is going to wear the next morning?

    If this is the worst you have ever said about Judge Stacy Cook, I think she needs to get a life that incorporates a thicker skin. I recommend switching from small glasses of white wine to hundred proof gin and an occasional lungful of Maui Wowie. She's lucky you mentioned her at all without breaking out the barbecue sauce.

    Just my own humble opinion, but there you have it.

  2. I have to agree here. I don't see any reason for her to be so upset. I don't think you have anything to apologize for. Judges being married to other judges can generate a lot worse speculation than you engaged in.

    My take? She upped the sentence to 40 years to give herself a "tough on crime" credential she may otherwise have been lacking. Currying favor with the right people for her next promotion. She knows in her heart that's what it was, and so she's hyper-sensitive to any criticism of what she did.

    It had nothing to do with the facts of the case or the defendant, and everything to do with her "career". This is the way judges think and behave, Jeff. The rest is just dross.

  3. Judges do frequently act for the sake of their careers. And people get hurt for it. Badly.

    But sentencing is very personal. This judge, these facts. Hang out with criminal lawyers and you'll here them saying things like,"Not this judge. Not on this case. Shit." So this one is good on drugs but bad on gun cases while that one is particularly tough on drunk drivers or sex offenders.

    And some judges are just all around tougher than others at sentencing.

    The original judge gave the guy what he figured was appropriate. She marveled that on the facts the guy only got 20 years the first time. Thought he caught a real break.

    Am I saying she's immune from the instinct to play to the voters? Nobody is entirely. But not in this case. Nobody was looking at the case. Nobody was interested. She gave him what she figured was appropriate. And still, by the way, nobody but the prosecutors and defense lawyers paid any attention.

  4. Ah, Jeff. Everybody important pays attention to everything, even when they don't seem to. What they mainly pay attention to when it comes to a judge is this: have you shown that you will bow to power? Have you curried favor abjectly enough, showing that you will cave when push comes to shove?

    Twenty years is not a "break" by any sane measure for anything other than murder. She could not have thought that. What she could have thought was, I can score a few points with the police unions and the prosecutors and the women's groups by dramatically upping this sentence, because nobody cares about this asshole and he may as well die in prison cause he isn't really going to have any worthwhile life anyway even if he gets out after twenty years. I help my career and don't hurt anyone who isn't already screwed. All upside, no downside.

    It's a sensible and relatively benign form of Machiavellian calculus; one thing it isn't, though, is honestly reasoned and principled.