ILNews

Judges question earlier Circuit holding

Back to TopE-mailPrintBookmark and Share

A decision from the 7th Circuit Court of Appeals about child pornography convictions turned into an examination of whether a standard adopted by the Circuit Court regarding allocution should remain the law of the Circuit.

In United States v. Dick L. Noel, No. 07-2468, the Circuit judges unanimously affirmed Dick Noel's convictions of producing and possessing child pornography. Despite the allowance of testimony from a police detective that images found on Noel's computer met the federal definition of child pornography - which was improper - the judges believed the outcome of the case would have been the same if it had been excluded.

The judges also found the District Court committed plain error during its sentencing, including Noel not being allowed allocution, but Judge Michael Kanne and Chief Judge Frank Easterbrook ruled that it didn't affect the fairness, integrity, or public reputation of the judicial proceedings.

But the focus of the opinion turned to whether to revisit United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007), which ruled that when conducting plain-error reviews that show a District judge didn't give a defendant the right to allocute, the court should presume prejudice when there's any possibility the defendant would have received a lesser sentence had he been heard. The issue arose because Noel challenged his sentence and argued he wasn't given the chance for meaningful allocution because the District judge didn't personally ask him if he'd like to speak and instead spoke directly to his attorney. The attorney read aloud a letter written by Noel that she thought may help with his sentencing in response to comments by the prosecutor.

The holding that a judge must address a defendant personally and offer him or her the opportunity to speak before sentencing was codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii.) Chief Judge Easterbrook took issue in his concurring opinion that an appellate court must presume prejudice when there is any possibility that the defendant would have received a lesser sentence had he been given the chance to speak because the presumption is in the defendant's favor and the proposition of "any possibility" of prejudice suffices to establish plain error.

Luepke justified transferring the burden to the prosecutor because it's hard to show an adverse effect from a judge's failure to address the defendant personally, rather than addressing counsel in the defendant's presence, which conveys the same information but doesn't satisfy the rule, he wrote.

"That a violation did not affect anyone's behavior - which may explain why no one objected - ought not make reversal the norm. It is instead why a court of appeals should allow the judgment to stand," he wrote.

But in her dissent, Judge Ann Claire Williams wrote the appellate court can't deny the importance of the right to allocute and the steps the District Court must take to enforce it. She argued the presumption of prejudice allows the right to be enforced and provides a remedy when procedural rules may have rendered it effectively obsolete.

"The presumption we adopted in Luepke does not make the denial of allocution a structural error, nor does it advocate for automatic reversal. It recognizes that the right is more than an 'unenforced honor code' that judges may follow in their discretion," she wrote. "Unless the Supreme Court says otherwise, I see no reason to revisit Luepke."

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  2. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Tamara Barrow am from USA I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.voodoo, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact his email at: voodoospelltemple66@gmail.com visit his website on http://drvodoospelltemple.webs.com

  3. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  4. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

  5. Banana.Republic

ADVERTISEMENT