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?