Personal and Confidential to @CBSAndrew: Details Matter

If you’re not @CBSAndrew, you should not be reading this.  Didn’t you see the “personal and confidential” thing in the title? Yeah, you won’t listen to me. Dang. Never mind.

I’m not only appreciative of Andrew Cohen’s articles at The Atlantic, but a huge fan. Cohen is one of the handful of journalists who addresses the ugliness, the nastiness, the wrongfulness, of the criminal justice system with depth and thoughtfulness.  While I may not always agree with him, I appreciate him. I hope that makes sense.

But I have a nit to pick.  While he’s writing for a non-lawyer population, and is thus constrained to simplify his content so that it can be understood and digested by those who may be unable to appreciate the subtle nuances of the law, he also writes at sufficient length and depth as to provide a far greater understanding of problems than most people will find elsewhere.  In other words, his writing is too good, too deep, to forgive its occasional lack of nuance.

I know, it sounds a bit petty to nitpick, especially given all the good he does through his choice of subject matter and perspective.  An article from yesterday on the pending cert petition by Clarvee Gomez before the Supreme Court made me think about this.  I asked Cohen on twitter, but no doubt my twit was lost in the clutter that big league journos endure.

The title and lede suggest his putative point was that the government’s position in Gomez flew in the face of Attorney General Eric Holder’s recent kindler, gentler speech.  Either he puts more stock in speeches by political appointees than I do, or he used the speech as a mechanism to show the wrongfulness of the government’s position in Gomez.  I suspect it’s the latter, as no reasonably intelligent person would have taken the speech seriously otherwise.

But reading through Cohen’s narrative of the Gomez case, I found a problem. It made absolutely no sense to me. I read it again. It still made no sense.

In 2009, when Gomez’s co-conspirator pleaded guilty to a five-year minimum charge, the feds offered Gomez a deal: plead guilty and take the five-year minimum sentence or go to trial and face the possibility of a ten-year minimum sentence after prosecutors told the sentencing judge about the unconsummated Florida transaction. Prosecutors never explained why they didn’t just charge him with both drug transactions (the Florida deal was a “reverse transaction,” in which federal undercover agents tried to sell drugs, which means the evidence against Gomez likely was weaker). In any event, Gomez declined the deal.

At trial, prosecutors did as they had threatened—they tagged Gomez with the failed Florida drug deal, argued that it was part of the same conspiracy that led to the December deal, and then asked the judge to sentence Gomez based upon the total amount of cocaine that was in play in both transactions. The judge agreed—to his great discredit—and sentenced Gomez to a ten-year minimum sentence even though the defendant only had been charged under the five-year mandatory minimum statute. Gomez appealed to the 1st Circuit—and lost.

From there, I had to read the cert petition to figure out what he was talking about. What distinguishes the Gomez case is that the charge for which he was tried was a 5 year mandatory minimum count, but at sentence, the judge held that he was constrained, by the proof of drug weight shown at trial, to sentence Gomez as if he was convicted under 21 U.S.C. 841(b), a 10 year mandatory minimum.

This is pretty tricky stuff, but also pretty important stuff.  What makes the Gomez case very wrong is that the judge applied a mandatory sentencing enhancement based upon quantity for a crime not charged.  But then comes the harmless error analysis.  What? Huh? Harmless? Are you friggin’ nuts?

Yes and no.  The problem is “relevant conduct” (which includes even acquitted conduct, the worst example of the problem), and the problem with Cohen’s article is nowhere is this mentioned.  It’s unclear whether he left it out on purpose, or just didn’t connect the dots, but without mentioning the relevant conduct issue, the article doesn’t make any sense. At least not from a legal perspective.

There is often more than one way to get to the same place. The argument for Gomez is that his sentence can’t be justified by imposing the 10 year mandatory minimum based on quantity when he was only charged with a 5 year mandatory minimum count. It’s not only a sound argument, but one that would seem mandated by the Supreme Court’s decision in Alleyne v. United States. Fair enough.

But there is a second route, untouched in the article, and far more nefarious than the path chosen by the judge in sentencing Gomez.  This is why harmless error analysis was applied. You see, since the sentence was within the parameters of the maximum sentence available by statute, and the judge can sentence based on relevant conduct proven by a preponderance of the evidence regardless of the crime charged or the verdict rendered, the sentence of ten years imposed on Gomez was permissible anyway. So the judge was wrong to utter the words “mandatory minimum” when the same 10 years would be imposed as “relevant conduct.” No harm, no foul.

While AG Holder’s empty rhetoric about mandatory minimums may have caused some to believe in the possibility of “hope and audacity,” perhaps because of political fervor and unduly wishful thinking, there was a huge issue behind the problem faced by Gomez and never mentioned by Holder that ends up doing all the same harm, plus some.  But nowhere in the article was it mentioned.  It should have been, as it is a far larger, far more serious problem than a mistaken use of mandatory minimums, and yet nobody reading the article would have a clue it exists.

I’m sure @CBSAndrew knows all about this. I’m sure he is just as concerned about it as lawyers are.  He probably just forgot, or got caught up in the moment. That can happen.

But since so many more people read what he writes than, say, what a lawyer would write about an issue, it still seemed worthwhile to try to remind him of the omission. He does a lot of good, and it would be a  shame for him to miss the chance to do so this time.