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The Daily Digest, 3/23/11

Sometimes, even judges suffer from the “CSI” effect. It appears that the district court judge in the case today may have missed a few important days of his genetics class in high school or in college. Perhaps they didn’t teach genetics in the late 1960′s?

The case today was published in late January, so I had earlier decided not to blog about it, but since it appeared again in my search results today I could no longer resist.

The Petitioner in this case, who had been convicted of possession of child pornography, was given a long sentence based on the judge’s invented genetic theory that the defendant’s incorrigible genes made him act the way he did, and that there was nothing he could do about it. If for nothing other than entertainment value, I highly recommend reading the Second Circuit slap-down of this case. They took the extraordinary measure of vacating the sentence and remanding it to a different judge. Yikes.

Crazy Genetic Theory, Sentencing, Double-Edged Sword
U.S. v. Cossey, 632 F.3d 82 (2d Cir. 2011)
Petitioner was charged with two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Petitioner pleaded guilty to Count One for possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), pursuant to a Plea Agreement. The Plea Agreement reserved his right to appeal any sentence greater than fifty-seven months. The district court sentenced Petitioner to seventy-eight months’ imprisonment, a life term of supervised release, and a mandatory assessment of one hundred dollars. On appeal, Petitioner asserted the sentence imposed by the district court was procedurally and substantively unreasonable. Petitioner’s principal allegation on appeal, which was not presented at sentencing, is that the court relied on an idea that he would re-offend, based on a notion that Petitioner is genetically predisposed to view child pornography. Petitioner’s allegations concerning the court’s improper consideration of his genetic predisposition to re-offend, and his objections generally to the court’s reliance on his potential to re-offend, were reviewed for plain error. To establish plain error, appellant must show there was (1) error (2) that is plain and (3) that affects substantial rights. Moreover, “the error must be clear or obvious, at the time of appellate review.” In determining Petitioner’s sentence, the district court rejected two separate psychological evaluations that had found Petitioner was at a low to moderate risk to re-offend, explaining that “[t]he opinions of the psychologists and the psychiatrists as to what harm you may pose to those children in the future is virtually worthless here.” The court predicted that some fifty years from now Petitioner’s offense conduct would likely be discovered to be caused by “a gene you were born with. And it’s not a gene you can get rid of.” The court expressed its belief that although Petitioner was in therapy, it “can only lead, in my view, to a sincere effort on your part to control, but you can’t get rid of it. You are what you’re born with. And that’s the only explanation for what I see here.” While a defendant’s propensity to re-offend is a proper consideration under the sentencing guidelines, the court below relied on this single factor, which it linked to its unsupported belief that Petitioner was prevented from controlling his behavior due to a genetic inability to do so. After explaining its personal views regarding Petitioner’s conduct and the reasons behind it, the court concluded “[f]or all of those reasons … I am persuaded that the advisory guideline here, at the minimum, is the appropriate sentence.” On appeal, the Second Circuit found it “impermissible for the court to base its decision of recidivism on its unsupported theory of genetics . . . Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted.” It plain error occurred, and remanded the case “to a different judge” because this was a “rare instance in which the judge’s fairness or the appearance of the judge’s fairness is seriously in doubt.” The judgment of the district court was vacated and the case remanded for resentencing by a different judge.

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