Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.
The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.
When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.
One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.
The issues I think the video allows me to explore are these:
The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)
This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.
I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?
Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")
Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?
Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.
If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.
Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):
PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....