Judge Says Sentence Appears 'Vindictive'

Judge Says Sentence Appears 'Vindictive'
The New York Law Journal by Andrew Keshner  -  April 30, 2012

A federal judge has ordered resentencing for a man convicted of manslaughter after finding that the state judge who presided over his trial appeared to be vindictive in applying the maximum 25-year term.  Eastern District Judge Joseph Bianco, sitting in Central Islip, ordered that Raul Izaguirre be resentenced before a different state judge after finding that there was "a reasonable likelihood of actual vindictiveness" by Nassau County Court Judge Meryl Berkowitz, who presided over Izaguirre's 2005 trial and sentencing.  Though Izaguirre was indicted on two counts of second-degree murder in connection with a fatal 2003 stabbing after a bar fight, he was ultimately convicted of first-degree manslaughter. A first-degree manslaughter charge for a first arrest carries a five-to-25-year term of incarceration while a second-degree murder charge carries a 25-year-to-life sentence.  Against the advice of defense counsel, Izaguirre refused to plea to a Class C violent felony in a deal where prosecutors in the Nassau County District Attorney's Office would recommend eight years of incarceration and two years of supervised release.  Just before voir dire, Berkowitz told him, "Do you understand that if you are found guilty after this trial you will do 25 years in prison?"

In Izaguirre v. Lee, 10-cv-3216, Bianco said the statement "created a presumption of vindictiveness once the statutory maximum was, in fact, imposed at the time of sentencing. That presumption was not rebutted by any other objective information in the record."  Bianco ordered Izaguirre be resentenced within 90 days from his April 25 ruling or he would grant Izaguirre's habeas petition.  Nevertheless, Bianco rejected Izaguirre's other claims, which included that Berkowitz improperly tried to persuade a guilty plea.  The case involved the 2003 killing of Marvin Valle, who was found dead of multiple stab wounds on a Hempstead street.  Though there were no eyewitnesses, a co-worker and a relative would testify to overhearing Izaguirre discuss the stabbing; a four-inch-long knife was discovered at the supermarket where Izaguirre worked; and forensic tests showed the victim's blood was on the knife.  According to trial transcripts, Izaguirre's assigned defense counsel, William Rost of Mineola, told Berkowitz that he thought his client believed he could not be convicted without an eyewitness. "I have tried to express to him the fact that's not required," Rost said in the transcript.  After Berkowitz told Izaguirre he would serve 25 years if found guilty, she later added, "The prisons are filled with people who were convicted of crimes where there was no eyewitness, and they are filled with people who feel they were wrongfully convicted because there wasn't enough evidence, or who have convinced themselves that there wasn't enough evidence. Those people are not necessarily the kind of people you want to spend the next 20 years of your life with," she said.  Bianco would later view the reference to 20 years as the judge's factoring of time already served and potential credits for good behavior.  Noting there was an "immigration hold" on Izaguirre, Berkowitz told him if convicted, he would probably "never see daylight again" between his New York sentence and deportation to Honduras. But Izaguirre insisted on a trial.  After both sides rested their case, Berkowitz agreed to charge the jury on the lesser included offense of first-degree manslaughter in addition to second-degree murder.  He was acquitted on the murder charge but found guilty of manslaughter.  At Izaguirre's 2005 sentencing, prosecutors asked for "no less than 15 years in prison." Berkowitz pointed out that the victim, like Izaguirre, was young "and now he will never grow old."  She sentenced him to 25 years and five years of post-release supervision.  Izaguirre filed his habeas petition in July 2010, contending his sentence was imposed as retaliation for refusing the plea deal.

In his decision, Bianco observed a sentence is "unconstitutionally vindictive" when the punishment is greater "because the defendant exercised a constitutional right, such as the right to jury trial or the right to appeal."  Bianco applied the "Pearce presumption," established in a 1969 U.S. Supreme Court ruling that upheld the reversal of a defendant's conviction after he received a longer sentence on retrial, North Carolina v. Pearce, 395 U.S. 711. The presumption assumes vindictiveness when a tougher sentence is imposed on retrial and there is no evidence in the record to explain the longer sentence.  The presumption has since been applied to other contexts, such as prosecutorial vindictiveness in plea negotiations, Bianco observed. The U.S. Supreme Court "made it clear" that vindictiveness claims could be raised against judges and prosecutors and at different points in a trial and sentencing, he said.  The Nassau County District Attorney's Office argued that the U.S. Supreme Court had not applied the presumption in cases like Izaguirre's. But Bianco said that was of "no legal significance."  He said there was "no question" the presumption had been triggered. And while it was possible Berkowitz had no actual vindictiveness, there was "a reasonable likelihood of actual vindictiveness."  Bianco discarded arguments by prosecutors that Berkowitz's statement was "motivated, and even invited" by the defense, or that the statement was just "an advisement" instead of a threat.  The County Court's "original statement reasonably conveys the ostensible message that the County Court had predetermined that Petitioner would receive a much more severe sentence should Petitioner invoke his right to trial and further supports the application of the Pearce presumption." Bianco wrote.  Izaguirre filed his habeas petition pro se but Bianco appointed Kevin Keating of Garden City to represent him.  In an interview, Keating called Berkowitz "an excellent judge" and said it was "not inappropriate" or uncommon for judges to involve themselves in plea negotiations.  "But here, Judge Bianco correctly concluded that the affirmative statement that 'you will get 25 years if you go trial and are convicted,' that triggers the presumption of vindictiveness, when in fact it was ultimately imposed," he said.  Keating said he plans to represent Izaguirre at his re-sentencing, adding that he will likely seek the minimum five-year term.  Matthew Brissenden, of the Law Offices of Kevin J. Keating, assisted in the case.  In an interview, Rost, who represented Izaguirre at trial, said he was "happy" that his client "got his day in court with regard to the sentence."  Assistant District Attorneys Tammy Smiley and Andrea DiGregorio represented the Nassau County District Attorney's Office.  A D.A. spokesman said the office is reviewing its options, but declined to comment further.  Izaguirre, 34, is incarcerated at the Eastern N.Y. Correctional Facility.  Andrew Keshner can be contacted at akeshner@alm.com.