Armed Robbery case goes to Federal DA for 2nd shot after state conviction

November 15, 2007

After a Carter County District Court Judge sentenced two defendants in state court for their armed robbery of a Grandy’s Restaurant, the United States Attorney for the Eastern District of Oklahoma thought he would try his hand in federal court.  The state court judge ordered a sentence of 75 days in the county jail, followed by 5 years probation and a deferred sentence, to Larry Lamar White and Andron Dyshaun Thompson for their crimes of a Grandy’s Restaurant in Ardmore, Oklahoma.

The United States Attorney didn’t think that was enough time, so he presented the case to a grand jury, and the grand jury handed up an indictment for prosecution in federal court.

Isn’t this Double Jeopardy?  Not according to prior decisions made by federal appeals courts under the “Petite Policy”, where federal prosecutors believe justice has not been served in the state courts.  By United States Department of Justice policy, the local prosecutor’s request must be approved by the Department of Justice in Washington before proceeding to indictment.

Now, with this new federal prosecution, defendants White and Thompson are facing not less than 10 years under the federal Sentencing Guidelines – which is a big difference from the 75 day sentence handed down in state court.

This same federal prosecutor in the Eastern District of Oklahoma has a history of going after state court defendants. He previously took the case of  Kenneth Barrett, after the state court jury in Sallisaw gave Barrett a twenty-year sentence for killing a state trooper as he was delivering a search warrant on Barrett’s land for drug trafficking. Barrett was then found guilty in federal court in 2005 and given the death penalty.

What’s more, this same federal prosecutor is looking at another conviction from the same Carter County District Judge.  The judge gave a 60-day jail sentence to the robber of a convenience store.  The robber used a BB gun for the robbery, but he made things worse after he was arrested.  He kicked out the window of the police car and tried to escape.  This made the police mad, and they were already mad from the sentences given to Thompson and White, so they were demanding a stiffer sentence for the convenience store robber.

Federal prosecution of a state court defendant is extremely rare, so that is not a common issue to watch for.  The state court judge always has sole discretion to decide the sentences in a plea without any agreement, like the sentences in Carter County of  Thompson and White, because the defendants’ lawyers directed their clients to enter “blind pleas.”

A “blind plea” means there is no agreement with the District Attorney, and the decision is completely within the hands of the judge.  If the decision seems too light to the District Attorney, there isn’t much he can do about it. Similarly, if the sentence the judge gives seems too heavy to the defendant or this lawyer, there isn’t much the defendant can do about it.

That is why it is so important for defendant’s lawyer to know the judge well, to know how the judge rules in certain circumstances and what will influence his decisions.  It is still a guess in many ways, but it is an educated guess, and sometimes it is the only way that is practically open to a defendant in those particular circumstances to lessen a potentially severe sentence.

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The Gambling Referee and Double Jeopardy

August 19, 2007

Now that he has pled guilty, it is no longer an allegation. Tim Donaghy admitted to gambling and helping others gamble in the National Basketball Association games which he officiated as a referee. Donaghy’s $260,000 annual salary had no effect on his reported compulsive gambling habit. This has been a huge embarrassment for the NBA and its head man, David Stearn. Stearn and the players’ union have been handling the embarrassment to the league by saying that this referee is an aberration, just one guy who was acting on his own.

Now that he has pled guilty, the news has leaked that the federal prosecutors have done their usual deal. Part and parcel of pleading guilty, especially in federal court, is implicating all others who might be involved. Now the news has leaked that Donaghy has information about the gambling habits of 20 other referees. If this number is anywhere close to accurate, and if the other referees were truly involved in gambling, this is a disaster for the National Basketball Association.

Even if there is no hard evidence that many of the other referees did not try to “fix” the games they called, it would call into question too many things. Twenty referees is about one third of the entire officiating staff for the NBA. If a significant number of these were gambling even on things other than the basketball games in which they were involved or things other than basketball, the problem is nevertheless huge. There is a reason those referees are restricted from any gambling in casinos.

But Tim Donaghy will do whatever it takes to please the prosecutors, because “cooperation” appears to be the only way to lessen his sentence from a possible 25-year maximum. And one may assume he expected to do just that -lessen his sentence – by pleading guilty. Now that Maricopa County, Arizona, prosecutor, Andrew Thomas, has indicated he is considering prosecuting Donaghy in state court, however, Donaghy has probably had a long talk with his lawyer. After his lawyer explained that “double jeopardy” does not save you from being prosecuted for the same acts in both federal and state court. So, Donaghy has a new threat and the possibility of an increased, not lessened, sentence. Just how serious that threat is not clear at this time. Donaghy may not end up with a greater sentence, but you can bet that he considers it a real threat at this time.

Double jeopardy is prohibited by the Fifth Amendment to the Constitution. This provision makes it impossible for a person to be put on trial (to be in “jeopardy”) more than once for the same offense by the sovereign. But the federal government and the fifty states of the union are each separate sovereigns. Therefore, being tried by one sovereign does not prevent the other sovereign government (federal or state) from prosecuting for the same act or series of acts that violate both state and federal laws. Plural state governments could get into the act, depending on where the offending acts take place.


STILL MORE ON THE SENTENCE FOR PARIS HILTON

June 21, 2007

For even those who have not the slightest interest in Paris Hilton, there is still an important issue in the latest news. The issue is: What is an appropriate punishment.? This is always an important issue in public life. It is the issue in every single criminal charge filed or contemplated for filing. It is the issued faced by every jury in Oklahoma because in Oklahoma, it is the jury which decides punishment in every jury trial, that is if the jury finds the defendant guilty at the conclusion of the trial.

There has been a lot of public commentary about whether Paris Hilton deserved a sentence of several months in jail for her arrest for driving with a suspended license. Those who think she is a spoiled brat point to her claim she did not know her license was suspended, that she did not even show up on time for court, that everything about her says she gets preferential treatment all her life and now it’s time for her to face the music. These people are sure that Paris Hilton deserves 90 days in the electric chair.

Those more sympathetic to Paris Hilton’s situation point out that others faced with this charge would ordinarily receive a sentence of straight probation. They say Paris Hilton is being punished excessively for who she is rather than what she did.

Now comes an interesting wrinkle, as there often is where great media attention is focused. The press always seems to find something more when the story is at the top of the news. Now it comes out that the Los Angeles prosecutor who was in charge of prosecuting Paris Hilton for this charge of Driving on a Suspended License has a personal experience with this very charge. At least his wife did. Michelle Delgadillo, wife of Rocky Delgadillo, the prosecutor in the Paris Hilton case, pleaded guilty on June 21, 2007, to the same misdemeanor charge of which Paris Hilton was convicted: Driving with Suspended License. But, unlike Paris Hilton, Mrs. Delgadillo, received a one-year suspended sentence.

Mrs. Delgadillo was not on probation like Paris Hilton was. Instead Mrs. Delgadillo’s license had been suspended for failure to have insurance when she had a wreck. But that was 9 years ago. Mrs. Delgadillo was 9 years late in facing the charge. Mrs. Delgadillo failed to appear in court in 1998, and a warrant had been outstanding since that time. Paris Hilton was only 20 minutes late for court.

So, now who is receiving preferential treatment?