ABA Journal


Criminal Justice

Judge orders new hearing for man given 30 days in controversial teen rape case

Sep 3, 2013, 11:05 pm CDT


Good, now the judge can get the proper smackdown from the appellate court on how many ways he got this one wrong

By jane on 2013 09 03, 11:53 pm CDT

Unless they decide it was not an illegal sentence. Note that in this case, the prosecution initially wanted to let the defendant off completely with a three-year treatment program.

By B. McLeod on 2013 09 04, 1:36 am CDT

Is there any unseemly cause you won't champion, McLeod? How about Roman Polanski - think it was ok for him to jump bail?

By Pushkin on 2013 09 04, 3:18 am CDT

The sentence is worthy of a smack down because of the factors upon which the judge ADMITTEDLY used to come to the sentence. The State has made a policy determination that having coitus with a person under the age of 16 is a CRIME...and that their "appearance" physically or otherwise is NOT a defense to the crime. That alone is worthy of a righteous smackdown and this judge should expect no less. Heck, in about half the states high school teachers cannot have coitus with 18 and 19 year olds if they are enrolled in the school the teacher works at. The judge was WRONGthe public has already made its ire know. Now this wankers betters should have the chance to imortalize his monumental error in judgement in an appellate ruling.

By jane on 2013 09 04, 4:59 am CDT

Backing Polanski would be way too Hollywood for me, Pushki.

Jane, calling the judge names is just juvenile. Presumably, he knows this was a CRIME without your having to shout about it. The issue here is sentencing, and how much of the sentence can legally be suspended. For whatever reason, the judge, who obviously knows the facts of the case far better than you do, is looking at the short end of the range on time he thinks this defendant should serve. If you don't like it, too bad, and screw the public's ire as well. As the case of Angry Trayvon proved, the public doesn't get to vote on the decisions of judges and juries. That is the whole point of having institutions of justice that are sceened from the brainless, howling mob.

By B. McLeod on 2013 09 04, 5:25 am CDT

Well, "the brainless, howling mob" might have the opportunity to weigh in on His Honor's decision at the voting booth:

"G. Todd Baugh is a judge for the 13th District Court in Montana. He was elected to a new seat in 1984 and ran unopposed for re-election in 1990, 1996, 2002 and 2008. His current term expires in 2014."

By LTE on 2013 09 04, 1:14 pm CDT

LTE - I think the judge decided to re-visit the case because of 2014 election - there is nothing worst than being called "soft on crime" in an election.

By Bean Counter on 2013 09 04, 5:36 pm CDT

This seems like a bunch of play the game BS. Judges have the ability to make discretionary calls but justice is the goal. The length of sentence notwithstanding his incompetence on mama satori minimums. Is not the issue. The issue is the statements that reflect his incompetence and adversely affect the justice system about the victim

By Todd on 2013 09 04, 5:44 pm CDT

I wonder what the appellate court can do given that the prosecution did not preserve the issue at the sentencing phase. The prosecution apparently failed to advise the court that the sentence the defense was asking was illegal or that the law required he serve two years. The prosecution seems to have come back only after the sentencing to ask that it be set aside on grounds the law requires at least two years incarceration. It's possible the appellate court may only review whether that motion to set it aside was properly denied; whether the judge properly interpreted the law as limiting his ability to revisit the sentence. Not sure if the appellate court can review the sentence itself with no record of it being preserved during sentencing.

By Santana on 2013 09 04, 7:53 pm CDT

I take the judge at his word. He's educated himself on the law and has now seen that statutory rape never considers the acts of the victim or whether the rape was forcible. It took him far too long to admit he made a mistake, but he did undoubtedly make a mistake.

That said, there are serious ramification to his error. And in light of the human costs of his error, resigning is the appropriate next step.

By Tim on 2013 09 04, 8:52 pm CDT

The State can also waive error , other than jurisdiction over the subject matter .

By Docile Jim Brady – Columbus OH 43209 on 2013 09 05, 4:01 am CDT

If Montana handles this the way most states do, "illegal sentence" is a basis for appeal whether or not the prosecution challenged it before the judge spoke. Obviously, until the judge announces the sentence, the prosecutor has no idea what it is, and in criminal cases (unlike civil) the sentence is entered (and appeal time begins to run) when the judge speaks the sentence from the bench. I would posit that at that point, the trial court has actually exhausted its jurisdiction, because that sentence is "final" and ripe for appeal, and cannot be reopened in the trial court unless Montana has a special rule that provides for that (or until the case comes back on remand due to an appellate determination that the sentence was illegal).

By B. McLeod on 2013 09 05, 5:13 am CDT

The judge all but said that the victim "asked for it" by stating that she "looked older than her age" and giving such a blatantly obscene sentence. Either a crime was committed or it wasn't. If it was, he should have given it a proper sentence. His sentence reminds me of certain people who think that women - no matter what they wear- ask to be assaulted. They forget that rape is a crime of power, and not sex (even though sex is the weapon involved).

By dscrivener on 2013 09 06, 2:05 pm CDT

Without commenting specifically about what I would have done as a Judge, provided this matter came before me for sentencing, it does raise a very good question for any Montana attorneys who may be visiting/commenting. Does the judge retain jurisdiction over sentencing for a specified time period, or is it, as McLeod stated, "final" and "ripe" when it is rendered? On a related note, can the appellate Court present an error which was missed by the State at the sentencing phase and was otherwise unraised by the state in some allowed motion? To me, that raises due process grounds, i.e. the defendant's sentence is being changed not because there were legal grounds to do so and legal process followed, but rather because a public outcry of "not liking" the outcome. I am afraid that would set an awfully poor precedent and could easily be used for just as many injustices in the future to further punish persons who the public doesn't like.

By AndyRTR on 2013 09 06, 8:52 pm CDT

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