Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: Massachusetts Criminal Sentences For 2010 Crimes Of Fraud, Bribery, Sexual Assault And Beyond Are Discussed And Compared (Pt 1)

I am often asked whether Massachusetts prosecutors and judges are more lenient during the holiday season. The answer is like most answers in human events…it depends. As we end the year in which various unlikely Massachusetts criminal defendants have faced “Justice” at the bar, it is worth seeing what sentences have been coming down in cases ranging from fraud, to bribery, to sexual assault…and beyond.

Today, let’s look at an on-going sentencing struggle in federal court. it is the case in which the fate of former state senator Dianne Wilkerson is still being battered about like a piñata although she pleaded guilty months ago. As I have mentioned in the past, federal sentencing is a complicated process, complete with its own book of rules and guidelines as well as the consideration of virtually anything under the sun including the alleged existence of potential uncharged crimes.

Ms. Dickerson was supposed to be sentenced this week pursuant to her plea bargain. However, a hearing as to new allegations (supposedly committed long before her plea bargain) was held. At the hearing, the court heard testimony from a Dorchester businessman that Ms. Dickerson had pressured him to pay her several thousand dollars from 2002 to 2006 to help relieve her financial problems and that he complied because he thought it would give his multimillion-dollar development proposal in her district a boost.

“I felt it couldn’t hurt me in moving my project along,” testified businessman Azid Mohammed, who prosecutors say paid Wilkerson $6,700 in checks and cash. He testified in US District Court during an unusual evidentiary hearing that sets the stage for Wilkerson’s sentencing next month in a bribery case. But he added, “No, I didn’t want to make those payments.”

By the way, in case you are wondering, there is no news of his being charged with anything such as offering or paying the bribe..

Wilkerson’s lawyer argued that the payments were never bribes, although he said it was poor judgment for her to accept them. He said Mohammed has known Wilkerson and her two sons for years and that she never promised anything in exchange for the money. In fact, under cross-examination, Mr. Mohammed admitted that he had told the defense attorneys earlier that he probably would have given her the money even if he had not wanted help in developing state-owned land at Melnea Cass Boulevard and Washington Street. He had also told them that he gave Wilkerson the money because he was aware she had financial problems and felt sympathy for her.

Enough for the United States Attorney to bring charges? Apparently not. Enough to use to try to turn a sentencing hearing into a 5-hour-long mini-trial and try to pound the defendant with additional time (naturally, under the media spotlight)? You betcha!

We will find out how the court will interpret the self-contradictory testimony that added another month or so onto awaiting sentencing next month. In the meantime, we do know that the court indicated that the payments were indeed relevant to the crimes to which Wilkerson pleaded guilty.

“Moneys were provided to Ms. Wilkerson, and she knew that a reason for the money was influence,” Judge Woodlock said of Mohammed’s payments.

On the other hand, Judge Woodlock said he was not persuaded that the litany of ethical misconduct alleged by the government in a recent sentencing memorandum warranted a sentence longer than the three years and 10 months recommended as the maximum prison term by federal guidelines. On the other hand, the court also indicated that he was also not persuaded by the defense argument that Wilkerson should get less than the recommended minimum sentence, three years and two months.

One of the main reasons stated was including her years of extraordinary public service.

“For a public official whose job it is to do this, I don’t see it as grounds for departure,” Judge Woodlock said.

A View From The Trenches:

Why am I reminded of the story about the juvenile who was convicted for killing his parents and then asked for leniency because he was an orphan?

Don’t get me wrong…it was worth arguing about her history of public service, but I would not lean on it too much. As a crutch it is a bit weak in a case where she has pleaded guilty that payment for said public service was augmented by personal gain that was illegal and unfair to those making the involved payments.

Federal sentences tend to be harsh and, given the guidelines, judges have little room for discretion unless there is a compellingly arguable reason to depart from the guidelines.

There is no “Hey, com’on, it’s Christmas” section in the guidelines. On the other hand, the prosecutors, almost Grinch-like, seem to be dedicated to slamming Ms. Wilkerson in her very public case as hard as possible.

Some would argue that there is little good to the community to imprison Ms. Wilkerson. After all, it is a non-violent crime and she has no prior criminal record. Further, her career is finished and so one would imagine that she will be in no position to commit the crimes again.

However, that is likely not the most popular view. Judge Woodlock has said that he intends to focus on “general deterrence” at Wilkerson’s sentencing and to mete out an appropriate punishment that makes people think twice about engaging in public corruption.

One of the stated reasons for sentencing is, indeed, for deterrence effect as well as for punishment. It would appear that the tale of Dianne Wilkerson is among those this year which may well serve as such a warning to public servants.

Frankly, that is also the most popular view as well. Christmas or not.

A word to the wise in the United States Attorney’s office, though, from a former prosecutor and criminal trial attorney of many years: Overdoing your crusade can come back and bite you where you…sit. It is called “guilding the lilly””, for reasons I have yet to understand.

Prosecutors are not yet satisfied that they have poured enough dirt onto Ms. Wilkerson. The prosecution has asked Woodlock to strike dozens of factual assertions in the defendant’s sentencing memoranda and other court filings. Further, it has indicated a desire to throw her back onto the stand to cross-examine her about some of the claims therein.

Somebody might want to tell them that the case is basically over…there was no trial and will be no trial now. Potentially turning public sentiment, as well as the judge, against them is not terribly smart.

On the other hand, defense counsel has indicated that she would refuse to testify, asserting her Constitutional right against self-incrimination.

Somebody might want to tell said counsel that said Constitutional right was most likely waived back when she pleaded guilty. Although, as a tactic, communicating that it will be a fight to even try to get her on the stand is not a bad idea when wanting the judge to cut the show-boating off.

After all, the lady is clearly going to be serving at least three years in prison and her career and reputation are history. That’s not enough???

But, as we speak, the posturing continues, Ms. Wilkerson remains un-sentenced for the holidays. We can see, though, that, at least in this case, the Christmas season is not dampening the vigor with which the government seeks to lock her away for as long as possible…despite the threat to the public which she clearly does not present.

As always, if you are ever in her Ms. Wilkerson’s position, you want an experienced criminal defense attorney at your side; the government surely has its own! If you would like to discuss such a case with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

And, of course,

Have a great, safe and law-abiding weekend and Christmas!

Santa Goldberg will bring part 2 of this review on Monday
To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/massachusetts/articles/2010/12/23/evidence_hearing_sets_stage_for_wilkerson_sentencing/ ,

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