The Sports & Entertainment Law Playbook

Earlier this week, Dharun Ravi walked out of the Middlesex County jail a free man...at least for now, if you believe the Middlesex County Prosecutor's Office, which is challenging the trial court's 30-day sentence in the Appellate Division of the NJ Superior Court. 

I've been writing about this seemingly epic story since Ravi was indicted not because it's directly related to my sports or entertainment law practice, but because of how close the case is to my everday life—I have two degrees from Rutgers University, and all of the events unfolded within a few miles of where I live and work, not to mention that the trial took place one block from my office. In addition, the underlying issues in the case are of national importance because of their likely effect on constitutional law, criminal procedure, and the law as it pertains to social media; moreover, the principal crime with which Dharun was charged—invasion of privacy—is a typical scenario not only in my own law practice, but for all entertainment lawyers.

So why am I writing about it again? Because the state of New Jersey (i.e. prosecutor's office) is appealing the alleged leniency of Dharun's sentence. After the jury convicted Dharun of the majority of the charges, the prosecutor asked the court to sentence him to 5–7 years in prison (remember, the maximum sentence was 10 years) (read the state's sentencing memo here). But Judge Glenn Berman sentenced Dharun to just 30 days in county lockup, of which he only had to serve 20 days. Dharun's attorneys are also appealing, but they are appealing the entire conviction, based among other things, on the prosecutor's failure to disclose key defense evidence.

I've written about the appellate process a few times (see here & here) not only because it's something with which I have a lot of experience, but also, it's one of the most misunderstood aspects of our judicial process. This case presents a unique situation within the appellate process—the state's right to appeal. Typically, the state only appeals criminal cases when the judge throws out key evidence, which results in dismissal of the charges. Prosecutors can't appeal acquittals because of the Double Jeopardy Clause. With regard to sentencing, defendants routinely appeal their sentences as being too harsh, but prosecutors rarely (almost never) appeal sentences for being too lenient, the reason being that appellate courts don't usually overturn sentences, for either side. (NB: a recent exception.) This has to do with the appellate court's limited scope of review. For what it's worth, the scope of review in New Jersey is consistent with the federal standard, and the standards held by most states, as restated recently in State v. Blackmon, 202 N.J. 283 (2010).  

Sentenc[ing] is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done...In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are fully supported by the evidence. Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the factfinder has applied correct legal principles in exercising its discretion.

What that means is that in every sentencing order, the judge must give a carefully reasoned analysis of the circumstances of the case, which he or she considered and relied upon in arriving at the sentence ordered. In Dharun's case, Judge Glenn Berman couldn't have been any clearer as to how and why he sentenced him to just 30 days (video clip includes sentencing hearing). Based on the thoroughness and lucidity of the judge's analysis, it seems highly unlikely that the Appellate Division would overturn Dharun's sentence. Anybody who says differently is either making noise, or just bitter.

Add to the equation the fact that Dharun has, now, already served his time, so sending him back to prison would essentially be like punishing him again for the same crime. Although I'm not aware of the Double Jeopardy Clause being asserted in the context of appeals of sentencing orders, I believe it could be used to Dharun's benefit in this case. Dharun had the option of waiting until his own appeal was decided before serving his term of incarceration, but he chose not to wait, and to get it over with now. Dharun said he wanted to go to jail so he could close this chapter in his life, but I wonder if he had help in arriving at his decision to turn himself in early. Given the dire consequences of the Appellate Division overturning Dharun's sentence—no matter how remote of that possibility—did Steven Altman and the rest of Dharun's legal team take the calculated risk of sending their client to jail so they could pull the rug out from under the prosecution's feet?

Judge Michael Pastor just gave Conrad Murray the maximum sentence allowed by California law for involuntary manslaughter — four years in the L.A. County Jail. Video footage of the entire hearing is available at CNN.com. I have no doubt that Murray's attorneys will appeal, but as I said previously, appellate courts don't make a habit of overturning sentences that are within the statutory range. Since Murray's sentence was within the statutory range, his attorneys will have to demonstrate that the judge made errors throughout the trial.

First thing first: I'm not at all shocked by yesterday's guilty verdict in the case against Michael Jackson's former physician, Conrad Murray. Sure, I said before that Murray was not a criminal, and explained my reasoning, but I never said that the jury would find him not guilty of manslaughter. Given the circumstances of this case, I couldn't have predicted that — and apparently, neither could Murray's own defense team.

Murray's attorneys, Ed Chernoff and Nareg Gourjian, blamed the judge for the verdict, essentially saying that he allowed the jury to be poisoned by all of the highly prejudicial evidence. Be that as it may, the law affords trial judges very broad discretion in deciding what evidence will and won't be off limits, and because of that broad discretion, a trial court's evidentiary rulings are not routinely reversed on appeal (although this law is state-specific, I'm not aware of any state that deviates from the general rule).

The fact that evidentiary rulings are a weak basis for appeal is probably why Murray's defense team is focused on his sentencing. In that regard, the judge also has broad discretion — he can sentence Murray to any range of punishment from probation (i.e. no jail), up to four years in prison. CNN does a fairly good explanation of the factors that might play into how much, if any, jail time Murray gets, so I needn't restate.

With regard to the severity of Murray's sentence, however, there is one thing that I haven't heard any of the legal experts or media discuss: The significance of the judge having Murray remanded (taken into custody) after the verdict. Murray was technically a free man for the duration of the trial, having posted bail to guarantee his appearance at trial, but after the jury read the verdict Judge Michael Pastor revoked Murray's bail, calling him "a threat to society."

This [wa]s not a crime involving a mistake of judgment. This was a crime where the end result was the death of a human being.

Although the judge isn't bound by these words with regard to sentencing, the judge's sentiments are usually a good indication of what is likely to come. Furthermore, as with the judge's evidentiary rulings, the length or severity of sentencing is also a weak basis for appeal. In most states, sentencing is left to the trial court's discretion, and so long as the judge orders a sentence that is equal to or within the range provided by the penal code, an appellate court is unlikely to change it. NB: This is very different from the appellate rules and procedure governing the Amanda Knox appeal. For a brief but thorough explanation of striking differences between appellate review in the Italian system and the U.S., check out Georgia appellate attorney Scott Key's post Managing Expectations in the Wake of the Amanda Knox Win.  

Of course it is possible that the judge only put Murray in jail to put a little fear into the man, or perhaps instill some much needed humility, but historically, judges don't lock up defendants whom they plan on giving a slap on the wrist. The irony of the judge assuming the role of God in this situation is that his name is Pastor.

Given the number of times Lindsay Lohan has been in court since her DUI arrest in 2007, the fact that she was back in court yesterday shouldn't be newsworthy or even noteworthy. But this time, Lohan faces felony charges of grand theft, in connection with a $2500 necklace that she is accused of stealing from Kamofie & Co., a Venice, CA jewelry store. Unlike the misdemeanor drunk driving charges, Lohan faces up to 3 years in prison, if convicted. (Download the state's charging docs here.)

Now, that doesn't mean she'll do 3 three years. Although, as TMZ reported, the store's video surveillance appears to have Lohan on film, taking the necklace, they also report that the store's owner gave several conflicting stories to police. Lohan is claiming that the store loaned the necklace to her, and if the key witness's credibility is in question, that could be enough to raise reasonable doubt. But because Lohan is still on probation for the DUI charge, the bigger issue for her could be whether this most recent arrest constituted a probation violation, which could send her back to jail once again.

While I haven't seen the specific terms of Lohan's probation, the boilerplate terms, which are found in most sentencing orders, include a requirement to obey all laws. According to this California criminal defense attorney who specializes in probation violations, even being arrested can be a violation. But the biggest problem a criminal defendant faces when accused of a probation violation is the fact that the prosecution only need prove its allegations by a preponderance of the evidence (a much much lower threshold than beyond reasonable doubt). Preponderance of the evidence, essentially means, "more probable than not."