Sunday, December 9, 2007

Juror decides extended sentence not judge-Hawaii

Here is the first case in Hawaii where a jury instead of a judge will decide whether an extended sentence will be given.

Killer’s sentence will come from his peers

For the first time in Hawaii, a state jury, not a judge, will decide whether to send a convicted murderer to prison for life without parole.

The same set of jurors who convicted Patrick Lorenzo, 33, of reckless manslaughter last month for killing off-duty deputy sheriff Daniel Browne-Sanchez, will convene tomorrow to decide the penalty phase in the first extended sentencing trial since the new law was passed last month.

Lorenzo faces life imprisonment with parole for Browne-Sanchez's murder, but prosecutors are asking that he receive an extended term of life without parole, the harshest penalty available under Hawaii law.

By Debra Barayuga

Under a new law passed during the Legislature's special Superferry session, jurors -- not judges -- will decide whether to impose an extended prison sentence on a convicted defendant who poses a threat to the public.

The first case under the new law will be heard tomorrow when a jury will hear whether Patrick Lorenzo, 33, should receive an extended sentence of life without parole.

Lorenzo was convicted of reckless manslaughter last month for shooting and killing off-duty sheriff's deputy Daniel Browne-Sanchez on Feb. 10 at the Osake Sushi Bar and Lounge.

Because of the pending penalty phase hearing, prosecutors declined to comment.
To get an extended sentence under the new law, the prosecution must prove beyond a reasonable doubt that it is necessary for the protection of the public.

Under the law, persistent lawbreakers, professional criminals or individuals deemed by the court to be dangerous, multiple offenders, offenders against the elderly, handicapped or minors; or hate crime offenders are subject to extended sentences. The new law was passed in response to a ruling by U.S. Supreme Court in March that Hawaii's practice of extending sentences was unconstitutional because it left it up to the judge's discretion.

The high court overturned the extended sentence imposed on Miti Maugaotega, who was ordered to serve 11 life terms. One of those life terms was without parole for shooting Punchbowl resident Eric Kawamoto when the homeowner surprised Maugaotega as he was burglarizing his home. Kawamoto was critically wounded but survived.
The 10 other life terms stemmed from three other violent burglaries, including one in which Maugaotega raped a 55-year-old woman.

Defense attorney Walter Rodby is expected to argue in the Lorenzo case that life with parole is sufficient. Lorenzo was found guilty a week after the new law, which applies retroactively, was passed.

Defense lawyers say there might be potential problems. "Starting a new policy in the middle of any legal proceeding is always problematic," said prominent Honolulu defense lawyer Brook Hart. "But I think the jury will perform its function without difficulty."

The fact that this jury convicted Lorenzo doesn't mean they will automatically find that an extended sentence is necessary, he noted. The Office of the Public Defender had objected to the retroactive provision. "We felt it was questionable ... it will have to be litigated," said Public Defender John Tonaki.

At trial, the jury rejected a first-degree attempted murder charge stemming from Lorenzo's attempts to shoot at more than one individual. Had Lorenzo been convicted of first-degree murder, he would have automatically faced the statutory life term without parole.

First-degree murder is reserved for individuals who knowingly and intentionally cause the deaths of more than one person, a law enforcement officer, judge or a witness in a criminal prosecution or while incarcerated.

Lorenzo is serving a 30-year term for felony drug and DUI convictions. Prosecutors successfully argued for an extended sentence in that case, citing Lorenzo's history, including 27 arrests and five felony convictions.

Lorenzo was awaiting sentencing in that case when he entered the Osake Sushi Bar & Lounge after closing on Feb. 10 wearing a bullet-resistant vest and a ski mask. He threatened the remaining employees with a semiautomatic pistol equipped with a silencer.

He fired several shots, including one that missed the bar manager, then fired at Browne-Sanchez when the off-duty deputy sheriff approached him. Lorenzo claimed he t did not mean to shoot anyone that night. He said he was forced to hold up the bar and send a message to the owners by two men to whom he owed drug money. He said the men threatened to harm him and his family if he didn't comply.


Saturday, December 1, 2007

The "New Twikie Defense"

Here is a great article for criminology. Criminoloy is basically the study of why people commit crime. It is different from other criminal justice classes in that it is most "theory based". This article is excellent because it takes "Day-to-day addiction and uses theory to explain the behavior.

Addiction ---The New “Twinkie Defenseby Lis Wiehl

Why should a 29-year-old former school teacher from Tennessee, already on probation for having sex with a 14-year-old boy, avoid jail time for sending him sexually explicit photos of herself? Simple — because she couldn’t help herself — she’s addicted to sex.

Pamela Rogers, who was under orders not to contact the boy, reportedly continued to send him text messages as well as explicit photos and video of herself. “What I did was wrong,” Rogers tearfully admitted. “I am willing to do anything to rehabilitate myself.”

Meanwhile, a preacher’s son and former university class president from Pennsylvania is hoping to avoid a jail sentence for bank robbery because, his lawyer argues, the “incident was a cry for help” with his internet gambling addiction. Not to be outdone, a Wisconsin attorney argued that his client should receive a lesser sentence because an addiction to crack cocaine had turned “a hard worker” of 13 years into a bank robber.

And when another Pennsylvania man was sent to prison for conspiring with his wife in her sexual assault of a teenage boy, addiction to alcohol was blamed. So why are so many defendants playing the addiction card? Perhaps because, like the infamous “Twinkie Defense” before it, it just may be crazy enough to work. In legal terms, "Twinkie Defense" refers to a criminal defendant’s argument that some extraordinary factor caused him or her to commit an alleged crime and therefore, criminal liability should be lessened or waived.

The expression comes from the 1979 murder trial of Dan White, a former San Francisco city supervisor who fatally shot Mayor George Moscone and City Supervisor Harvey Milk on November 27, 1978. During the trial, noted psychiatrist Martin Blinder testified that White had been depressed and was thus incapable of the premeditation required for a murder conviction. As evidence of White’s depression, Dr. Blinder stated that White (who was well known to be a fitness buff) had been uncharacteristically eating Twinkies and drinking Coca-Cola. Ultimately, White was convicted of the lesser charge of voluntary manslaughter and sentenced to a mere seven years and eight months in prison.

Another “success” story involves a Chicago woman who stole $250,000 from an employer to finance her “shopping addiction” and was spared from prison by a federal judge who found that she bought expensive jewelry and clothing to “self-medicate” her depression. A bodybuilder who broke into six Maryland homes, set fire to three of them, and stole cash and jewelry, avoided jail time because, it was reported, his “frenzied” use of anabolic steroids had left him suffering from “organic personality syndrome.” A Florida woman was able to avoid jail time for prostitution after she explained that her reliance on Prozac had resulted in her becoming a “nymphomaniac” (the early 90’s version of today’s “sex addict”) which, in turn, caused her to prostitute herself.

But playing the addiction card to mitigate consequences is not only useful in the criminal context; it can be a nifty public relations tactic as well.
Brandon Davis, the wealthy oil heir and Paris Hilton pal (perhaps best known for being caught on video making crude remarks about Lindsay Lohan) was reported to have entered rehab for substance addiction not because he felt he needed it, but for “public relations” reasons. Apparently, his family encouraged the move to offset the considerable damage his antics had caused to his mother’s personal charity.

And who can forget the December 2003 Patriots vs. Jets game when “Broadway Joe” Namath humiliated himself during a side-line interview with ESPN’s Suzy Kolber? In response to Kolber’s question about his former team’s recent struggles, Namath turned to her and slurred, “I wanna kiss you. I couldn’t care less about the team struggling… I wanna kiss you!” Within weeks, Namath was in rehab for alcohol addiction; a month later he was back on ESPN expressing regret for having done the “wrong thing”; by October 2004, Namath was the subject of a flattering USA Today profile entitled, “’Broadway Joe’ Puts Life Back on Track.” With respect to the “I wanna kiss you” moment, Namath’s agent proclaimed “That probably turned out to be one of the best things that ever happened to Joe.”

Pat O'Brien, co-host of "The Insider," announced he was entering rehab for substance addiction just a day after a series of embarrassing phone messages featuring his distinctive voice surfaced on the Internet. One such message stated, "I want to (expletive) go crazy with you. I want to talk dirty to you...get another woman up...Let's get crazy, get some coke." Several days after getting out of rehab, O'Brien appeared in a prime-time special with talk show therapist Dr. Phil McGraw where he expressed remorse for the voice-mail incident and apologized for what his substance abuse had done to his family. O'Brien returned to work on "The Insider" the next day — just in time for sweeps.

Of course, none of this is to say that addictions should not be taken seriously and that those who seek treatment for them should not be applauded for doing so. But for those who invent or exploit addictions or abstract “syndromes” in an effort to avoid real accountability, a Twinkie by any other name is still a Twinkie.

So what’s the moral of this story? The next time you get caught doing something stupid — whether it’s speeding, faking an illness to avoid work, or literally getting caught with your hand in a cookie jar — don’t just stand there foolishly accepting responsibility for what you’ve done. Simply explain that some addiction and/or Twinkies made you do it. It couldn’t hurt — and who knows, it might even get you off the hook!