Just Consequences

There was an interesting criminal case out of Fairfax, Virginia the other day, involving a young lady named Sandra Mendez Ortega who stole some jewelry from Lisa Copeland while cleaning her house. The Washington Post lays out the events this way:

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept. The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said. Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.

Fairfax City police investigated and interviewed the three women who had cleaned the home. All three denied taking or seeing the rings, court records show, and no one was charged.

But after the interviews, Mendez Ortega reportedly felt bad about the theft, admitted to her boss that she had the rings and turned them over to him. The police were contacted and Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. The police had her write an apology letter to Copeland, in Spanish, which said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

The case went to trial, and the jury found her guilty. But in Virginia the jury is not only the finder of facts, but also has the job of deciding the sentence. I’ve heard Virginia criminal defense lawyers complain that this can lead to very harsh sentences, because jurors lack the sense of proportion that a seasoned criminal judge would have. In this case, however, the jury went the other way:

What the jury did was extraordinary. They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony. But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

Naturally, this has pissed off some law-and-order types. Gatewaypundit hilariously lives up to the stereotype by blaming the whole thing on liberal jurors who are just looking for a chance to hurt America by granting special favors to illegal immigrants:

AUTHOR’S NOTE: Fairfax County residents are some of the best educated, most worldly and wealthiest and liberal people in the nation. They can spot an illegal alien right away as they have willfully turned the D.C. suburb in to a haven for illegals. Mendez Ortega’s appearance on the witness stand during the penalty phase after her conviction made it clear she fit one of the profiles of illegals-she doesn’t speak English and worked as a a maid.

Fox News also leads with the illegal immigrant angle, and runs essentially the same story under the headline “Couple’s fury as jury pays illegal immigrant maid’s fine after jewelry theft conviction.”

That’s referring to the victim, who comes across as remarkably unsympathetic in news reports. I don’t mean that she has no sympathy for the woman who stole from her (although she doesn’t seem to), but that after reading her statements to the media I have very little sympathy for her. Obviously, stealing from her was wrong, and it was also a crime, but in the aftermath of the trial, she comes across as disturbingly vindictive. For example, regarding the letter of apology that Mendez Ortega wrote to her:

Copeland said she has never seen that letter, and that Mendez Ortega has never apologized to her in person. “Never saw it,” Copeland said. “Never heard about it until the trial, during sentencing.”

Well, the reason Copeland never saw the apology letter has nothing to do with Mendez Ortega. Copeland never saw the letter because the Fairfax police never gave it to her. That’s because they were deceiving Mendez Ortega when they got her to write a letter to Copeland. It a trick to strengthen the case against her, since almost anything she’d say in an apology for the theft would also be an admission of damaging facts. It’s a confession in the defendant’s own hand, which will be damning in court.

Nevertheless, Sondra Mendez Ortega most certainly did apologize for what she did. It’s not her fault that the police never delivered it. And as for an apology in person before trial, I’m pretty sure that’s an insanely bad idea. At the very least it would be another confession, and it could easily be construed as witness tampering.

“I was outraged,” Copeland said. “I was just flabbergasted. I didn’t think $60 equated to the crime at all.”

That was my first reaction too, but when I think about it, the outrage seems overblown. After all, this was

• a non-violent crime
• by a first-time offender
• who turned herself in,
• returned everything she took,
• and showed up to face her trial.

Given all that, the jury’s sentence of time-served with a nominal fine (and the collateral consequences of a felony conviction) doesn’t seem completely out of line. Many judges are aware of what jail can do to people, and they’re reluctant to put first-time offenders through the system for fear it will make everything worse.

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her. But the legal standard was very clear.” Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.

I’ve been on a jury that convicted someone of a felony. It’s not a fun experience, signing that verdict sheet and knowing I’m saddling them with a felony record and possibly consigning them to a cage for a long time. Just because they deserve punishment doesn’t mean it feels great to dish it out. All things considered, I’d rather I never have to do that again. Which is why this bit makes me so crazy:

Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her? I don’t get this. That’s basically saying it’s okay to steal.”

Good God. The jury may have said they didn’t want to convict her, but they did in fact convict her. So the victim is basically angry because the jurors didn’t enjoy it enough. What the hell?

(Obviously, she’s the victim here, and therefore she deserves some slack, but I can’t help wondering if one of the reasons for the light sentence was that the jury somehow picked up on her vindictiveness, found it as ugly as I do, and decided they didn’t want to give her what she wanted.)

Still, the most frustrating response comes not from the victim or Fox News or Gatewaypundit, but from ethicist Jack Marshall at Ethics Alarms, whose post first brought my attention to the case.

As is usual, I have a number of quibbles with Jack’s analysis. For example,

“Justice had to be done,” said another juror, Janice Woolridge, explaining the guilty verdict. “But there’s also got be some compassion somewhere. Young people make bad decisions. We just couldn’t pile on any more.”

[…]

(Note to juries: your job is to determine the facts and guilt or innocence. Compassion should be left to judges.)

The parenthetical comment is not how things work in Virginia, where jurors are given the responsibility for determining not only the facts but, in the event of a guilty verdict, the sentence as well. Thus considerations of compassion are entirely appropriate.

One of Jack’s commenters explains this to him in a comment, to which Jack responds,

In this case, the judge should have rejected the jury’s fine and imposed one they’d really have to dig down deep for.

That’s also not the law in Virginia. When a criminal jury recommends a sentence, the judge can only lower it, not raise it.

I’m not a lawyer, so I shouldn’t throw too many stones, but since Jack teaches legal ethics for a living, it would be nice if he got the law right. To be fair, this was a free blog post, not professional advice, so he definitely deserves some slack for shooting from the hip. But he’d make his point more effectively if he focused on the jury’s decision making instead of ranting about ordinary Virginia criminal procedure.

However, as I mentioned in a comment (which Jack called “obnoxious and unfair, as well as ignorant”), in the unlikely event that anyone ever asked me if they should hire Jack to teach legal ethics, I would point them to these two statements:

If she had confessed and was remorseful, why did she plead not guilty?

[…]

If you are guilty and admit it, then you don’t try to get lucky with a jury.

Jack is certainly not the only lawyer to think it’s unethical to plead not guilty. (As far as I can tell, it’s pretty much criminal defense lawyers v.s. everyone else — which is practically a criminal lawyer’s job description.) But I think this is the result of confusing the legal meaning of a “not guilty” plea with the common everyday meaning, as Illinois lawyer Jeremy Richey explained some time ago:

Those words do not operate in a vacuum; they are part of our legal system. Our legal system establishes a presumption of innocence for every person charged with a crime and places a burden on the government of proving the accused guilty beyond a reasonable doubt. When a person utters the words “not guilty” in court, all the players (such as the judge, prosecutor, and defense lawyer) understand that the person is requiring the government to carry its burden.

In other words, pleading not guilty is the mechanism by which you secure your constitutional right to a jury trial. And in Virginia in particular, pleading not guilty is a necessary step in claiming your right to be sentenced by a jury instead of a judge. There’s nothing unethical about asserting your rights.

In the comments, Jack attempts to draw a careful line between the ethics of a lawyer and of the client:

An ethical lawyer tells a guilty client that he or she has a good chance of being acquitted, and lets the client decide, after advising the client on the right thing to do. An ethical law-breaker turns himself in, pleads guilty, and accepts the just consequences of wrongdoing.

I see what Jack is getting at here, but it’s nonsense. First of all, on a practical level, how would this work? Is the defendant supposed to meet with her lawyer, discuss her case in detail, listen carefully to his wise counsel, and then just go ahead and ignore everything he recommended? Or do I misunderstand, and when Jack talks about “advising the client on the right thing to do,” does he mean that the lawyer should tell his client to plead guilty? Not for tactical reasons, but because it’s “the right thing to do”?

But why would it be the right thing to do? Owning up to your sins and accepting “the just consequences of wrongdoing” is great ethical advice for, say, a child apologizing to his mother for breaking a vase full of flowers, or a husband explaining to his wife how he lost the rent money at the track. But is has nothing to do with what goes on in a criminal proceeding. Jack is trying to smuggle an awful lot of bullshit into his argument on the backs of the words “just consequences.”

Pleading guilty isn’t the same as accepting the “just consequences.” Pleading guilty means accepting whatever consequences the prosecutor can convince the judge to impose, and there’s no basis for believing those consequences will be just. In an ideal world, the judge will be a neutral party, but the prosecutor will always be your adversary. At best, he’s going to be a stern by-the-book guy, and at worst he’ll be a fucking monster. In any case, the decision will be made by a system that is now biased against you.

So what happens if you feel a 90-day sentence is a just consequence, but the prosecutor is thinking more like five years? Contrary to the implications of Jack’s argument, there’s no a priori reason to assume the prosecutor’s preferred sentence is a just one. Normally, this would be resolved in plea bargaining, where you (through your lawyer) and the prosecutor negotiate to a sentencing plan that is acceptable to both of you. That won’t work, however, if you’ve already committed to a guilty plea, because your only bargaining power comes from your ability to walk away from the bargaining table and demand a trial.

(We can’t be sure, because the news stories don’t say, but it’s quite likely that this case went to trial after an unsuccessful plea bargaining stage. Ms. Mendez Ortega was probably willing to accept consequences for her actions, just not the consequences the prosecutor was willing to offer.)

It’s not sensible to believe that “just consequences” will result from an adversarial system where one side agrees in advance to the other’s terms, and it’s not unethical to refuse to accept such one-sided terms.