With appreciation to Doug Berman for his relentless coverage of Second Circuit criminal decisions, comes the decision in US v. Ogando (October 20, 2008).  The defendant’s conviction was reversed “for insufficient evidence a set of jury trial convictions for a livery cab driver hired to pick up a drug courier at the airport.”  “Hooray, a reversal?”  Not quite.

The problem isn’t that the Circuit reversed the conviction, which is certainly a good thing given that they held the evidence insufficient.  The problem, as Doug points out, is this:

Ogando was convicted on all four counts.  The Pre-Sentence Report calculated a Guidelines range of 63 to 78 months’ imprisonment.  The court granted the defense’s motion for a downward departure based on aberrant behavior, U.S.S.G. § 5K2.20, and sentenced Ogando principally to 30 months’  imprisonment.  Ogando has completed serving his prison sentence.

The last sentence says it all.  It’s a great win for everybody but Ogando, who already served his 30 months.  No, he doesn’t get the time back.

Why it took so long for the convictions to be reversed on appeal isn’t clear.  What is clear is that an innocent man served his sentence before he received the benefit of review.  Based upon the downward departure, it appears clear that he presented no threat to society had he been allowed to remain free on bond pending review, and based upon the Circuit’s decision, it appears that the evidence against him could not have been overwhelming.  Yet, to jail he went while the appellate process decided his fate.

The basis for bail pending appeal is not whether the defendant poses a threat to others, but (again courtesy of Doug)

as codified in the Bail Reform Act of 1984, defendants who wish to remain out on bail after conviction must prove (among other things) that their appeal will have enough merit such that it will raise at least one “substantial question.”

While there is a debate as to what constitutes a “substantial question” as opposed to a really debatable question, the hurdle is very high indeed.  If you think about it, it requires the trial judge to conclude that he came to the very edge of the precipice of error, by other causing or not stopping something that raises a such a significant potential for reversal on appeal.  If the judge believed that to be the case, then why would he have done it in the first place?

Defense lawyers have long argued in case that involve relatively short prison terms that when there is a real issue for appeal, the defendant should remain at liberty lest they complete the sentence before the case is decided, as happened here.  It’s a good argument.  It generally loses. 

But if you’re a judge, does a reversal like this make you feel that you’ve done your job well?  If so, I’m sure Ogando would really appreciate it if you could explain why.