Turn in McLaughlin Sentencing Could Set New Legal Precedent

July 11, 2013
By

As the nation paused to celebrate and elevate the cornerstones of democracy in America, the attorneys in the Michael McLaughlin case did revolutionary battle over a unique turn in the case that could set new precedent in the federal court system.

At issue is the still-remarkable turn of events from McLaughlin’s sentencing hearing in June, where Federal Judge Doug Woodlock put everything on hold and turned the keys to the case over to attorneys for the Chelsea Housing Authority (CHA) and the Chelsea Citywide Tenants Association (CCTA).

While everyone expected the former CHA executive director to leave the courthouse with some sort of punishment for misleading and misreporting his salary to state and federal officials, he instead left with a much bigger fish to fry – a fish that could end up sliding him into the deep end of jail time rather than the shallow end that he has been advocating for.

At issue was the fact that Judge Woodlock allowed CHA Attorney William Codinha the ability to gather extra information and to question one – potentially two – witnesses who claim McLaughlin tried to obstruct justice by meeting with them in order to coordinate false stories to feed investigators.

One of the witness, former CHA Accountant James McNichols, is known, but the second witness is still a mystery.

While the filings were rather legalistic in their wording – and perhaps a little bit boring considering the other dramatic cases going on in Federal Court right now (i.e., Whitey Bulger and the Marathon Bomber) – they were critical to as whether or not McLaughlin sees time behind bars.

McLaughlin’s attorney, Thomas Hoopes of Boston, was the first to object to the ground-breaking situation – sending a bottle rocket 26-page filing up in the air just prior to the July 4th holiday.

Hoopes called for McLaughlin to only get probation for his crimes, and then attacked the judge’s arrangement with CHA lawyers, attacked the media for its portrayal of McLaughlin and then indicated that McLaughlin had been a cutting-edge agent of change at the CHA.

Hoopes called the new arrangement an end-run around the existing plea agreement with U.S. Attorneys in the case – saying that allowing the appointment of others would ruin the entire federal sentencing process.

“Appointing another attorney in the courtroom to take on the prosecutor’s role when the prosecutor has bargained away his ability to present additional argument is precisely that prohibited ‘end run’ around the plea agreement,” he wrote. “The arrangement that the court has suggested here – where a nonparty submits argument and takes on the questioning of a witness – creates a situation where no defendant would ever wish to plead guilty. If this arrangement stands, it sets the stage for a prosecutor to be able to say to the judge – with a wink and a nod – the statements that appear proper on the record so as not to invalidate the plea agreement while at the same time, ensuring an end-run around the bargained for plea agreement. If the Government knows that the Court will anoint another lawyer in or near the courtroom to take on its role – but without the duties incumbent upon prosecutors – the Government can obliquely indicate its desired outcome that the Court should further pursue information. This end-run around a plea agreement completely undermines the plea bargaining process.”

Following that, he entered into discussion of why McLaughlin should actually get a downward sentence from the current guidelines in his case, which are 12-18 months in jail.

“Mr. McLaughlin’s age and criminal history already puts him in at the lowest level for likelihood of recidivism,” he wrote. “As these, and other articles [presented to the court] demonstrate, incarceration is increasingly being recognized as being widely overused in the United States. Incarceration is not necessary in this case to provide deterrence or protect the public.”

To back up that request, and to strengthen the currently wobbly public impression of McLaughlin, he indicated to the court that McLaughlin had performed admirably at the CHA and other organizations – aside from this one minor slip-up of not correctly reporting his salary.

Finally, he fired off a Roman Candle at the coverage of the case in the media, in particular aiming his fireworks at Boston Globe reporters Sean Murphy and Andrea Estes, who first broke the McLaughlin story. He said their coverage should not push the court to take steps in trying to up McLaughlin’s jail sentence.

“Neither the publicity surrounding this case nor the media’s inflammatory coverage of this case is grounds for an upward departure either,” he wrote. “These reasons are not contemplated by the Guidelines as having any bearing on a sentence, and for good reason. The agenda of the media has no place in sentencing, and this case is an example of how the hostility of the media can warp the actual situation. The facts of this case are not so exceptional as to remove this case from the heartland and into the rare circumstances that permit an upward departure.”

Following that statement, Hoopes actually used media reports and direct quotes from this paper – the Chelsea Record – to undermine the credibility and ethical position of Attorney Codinha and other attorneys working alongside him.

On July 9th, Attorney Codinha fired back, noting that there was legal precedent in handing over some responsibilities to a third-party attorney during sentencing.

He said he and the other CHA and CCTA attorneys were not able to bring charges, were not able to subpoena, were not able to bring the case to trial and were not able to convene a Grand Jury.

“Far from ‘set[ting] the strategy,’ or having a ‘veto’ as Defendant claims, CHA is merely charged with assisting in the orderly presentation of the information which is already in the possession of the Court, and which the Defendant has admitted would be inefficient for the Court to attempt to follow without assistance,” wrote Codinha. “These activities do not conflict with CHA’s role as applicant for recognition, as the Court’s assessment of the information within this report or presented by the witness has no bearing as to the success or failure of CHA’s Motion. Whether the Court considers, modifies, or entirely ignores the presented information or the witness’s testimony is of neither benefit nor harm to CHA’s position. Moreover, the presentation of a witness providing testimony concerning post-plea obstruction at the request of a court has been held to be distinct from advocacy on behalf of a higher sentence and fully concordant with a plea agreement, not, as Defendant claims, an ‘end-run.’”

One other piece of the arguments is that the CHA attorneys are creating a conflict of interest due to the fact that they and the CCTA have asked to be named as victims in the case, presenting impact statements to the court and requesting $556,324 in damages from McLaughlin for the discrepancy between the salary he reported and the salary he collected.

Codinha’s simple defense is that the CHA or CCTA is not a victim…yet. In fact, he quoted Judge Woodlock in saying that he will not decide on victim status until after the questioning of witnesses and the sentencing.

“CHA, however, has not yet been recognized as a victim, and this Court has expressly stated that no ruling will be made on CHA’s status as victim until after the presentation of the…witness,” he wrote.

Codinha also argued in the 10-page filing at length about the federal sentencing guidelines and where McLaughlin should fit within those guidelines. In all arguments, he called for a sharply upward sentence from the 12-18 months now on the table.

He called for 30-37 months in jail if the witness testimony is not given any credibility on the obstruction of justice claims, and 37-46 months in jail if the testimony is credited as reliable.

All this and more will be decided next week on Wednesday, July 17th, when all will descend upon Federal Court to write the next chapter in the case.


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