Prosecutor Breaches Plea Deal in A.L.F. Case: The Report From Court

Posted by Peter Young | 2 comments

 

I attended court Friday, December 11^th for the (second) sentencing date of accused Animal Liberation Front activist BJ Viehl.BJ was scheduled to be sentenced for the release of 600 mink from a mink farm in suburban Salt Lake City.

What should have been a sentencing instead became a court battle, with BJ’s lawyer Heather Harris and Assistant U.S. Attorney John Huber sparring over whether the prosecutor has breached the plea agreement and a new judge should be assigned to the case.

A full recap of BJ’s first sentencing date can be read here.

To encapsulate: On November 11th, the case took a turn for the worse at BJ’s first sentencing when the judge announced he intended to more than quadruple the sentence called for in the plea bargain. Wishing to “set an example”, he stated he intended to sentence BJ not to the 6 months recommended in the plea bargain, but to over 2 years. He stopped short of issuing a sentence that day, acknowledging that discarding a plea bargain was an unusual move, and allowed the prosecution two weeks to prepare a response.

Court reconvened last Friday. Again, the case had taken another turn that would prevent sentencing for BJ that day.

On the table was a motion filed by BJ’s lawyer asking the judge to remove himself from the case. Arguing certain statements made by the prosecutor at sentencing amounted to a breach of the plea agreement, the defense asked the judge to hit the reset button on sentencing and start over: new judge, new sentencing proceeding.

BJ’s attorney took to the podium and outlined her argument.

Central to the motion was the slide show given by the prosecutor at the first sentencing date. Memorable to all who were in court that day, it was a collage of arson scenes from past A.L.F. actions, communiqué samples from actions BJ was not charged with, and more material related to A.L.F. action BJ had no involvement in. The only material of direct relevance to the case were photos of graffiti left at the McMullin farm reading “We are watching” and “A.L.F.”.

It was clear the intent of the slideshow was to associate BJ with A.L.F. actions he had not been charged with, and insinuating an affiliation with A.L.F. cells carrying out more serious actions such as arson. Defense attorney Harris recounted her conversation with Huber before court on November 11th, in which she told him: “Arson has nothing to do with this case”.

BJ’s lawyer argued these statements amounted to a breach of the plea agreement. By law, she said, the prosecutor cannot start the sentencing by asking for 6 months (as he was bound to do by the plea agreement), and then proceed to list every reason why BJ should get more than 6 months.

“The government can not agree to the sentencing guidelines, and then complain about the sentencing guidelines”.

Several factors can permit a judge to go above the sentencing guidelines. One of these is an exceptional emotional impact on the victim. A prosecutor is not allowed to argue any of these factors when they are recommending a fixed sentence, per a plea agreement.

The most repeated point the prosecutor made during sentencing was the emotional impact of the mink release on Lindsey McMullin and the entire fur industry. Thus, the defense argued, he had breached the plea agreement and a new sentencing was required.

The judge interrupted Harris to ask:

“What advice should we give prosecutors? Should they just say nothing (at sentencings)?”

Harris’s response:

“The government cannot argue for enhancements (factors which justify going outside the recommended sentence)”.

I recall leaving the courtroom the day of BJ’s first sentencing date and commenting that the prosecutor’s entire statement amounted to a “wink wink” suggestion to the judge that 6 months was to light of a sentence, despite being required to argue for 6 months as required by the plea agreement signed by his hand. This sentiment was later echoed by BJ’s attorney in statements to the media, and was her prime focus in court last Friday.

Harris told the judge that U.S. Attorney Huber “muttered” a recommendation of 6 months, and proceeded to list every reason why 6 months “does not capture the seriousness of this case”.

Upon recommending a guideline range (again, the range in this case was 6 to 10 months, with the prosecutor recommending 6), the government is supposed to support their position at sentencing, not argue against a plea agreement previously agreed upon. This was the heart of the defense’s case for assigning a new judge to the case.

“The government did indirectly what it couldn’t do directly”, Harris said.

Harris closed her argument and U.S. Attorney Huber addressed the court.

Huber did not temper the language he used at sentencing. He repeated: “this is something different than the typical property crime”.

Again, the focus was on urging the judge to “set an example”. Failing to look over his shoulder, Huber asked the judge to consider the people in the courtroom (referring to both farmers and activists present, of which that day there were none of the former and only one of the latter: myself) when deciding on a sentence. “A lot of people are listening to you”, he said. He went on to refer to people in the courtroom who weren’t there, saying; “I know there are a number of his supporters here today”.

The Judge subtly reprimanded Huber:

Judge: “You think that (fiery, emotive language about the impact on the industry) is consistent with giving him 6 months?”

Huber: “Consider that a lot of people are watching you.”

Judge: “A lot of this arguing is inconsistent”

Huber: “Sure it is”.

The judge then stated this was a “difficult” case to rule on, and that he would need time to make a decision. He made several statements that may not indicate a favorable outcome for BJ.

“I recognize the government’s recommendation for six months, but I don’t agree with it,” Benson said.

He stated he made his decision about the 2+-year sentence he stated at sentencing he intended to give BJ before he entered the courtroom that day, and that he was uninfluenced by the prosecutor’s statements.

If anything, he said, he was influenced by fur farmer Lindsey McMullin’s statements that day (covered in the November 12^th post here).

He did not set a date to announce his decision, but stated he would have a decision in the near future. Court went into recess.

The next court date for BJ is likely to be not only a ruling on the motion for a new judge, but is also the day BJ receives his sentence. When that day comes, the judge has stated he intends to more than quadruple BJ’s recommended sentence to 2+ years for the “crime” of opening cages.

-Peter Young

Endnotes:

In light of the breach of the plea agreement by both the judge and the prosecutor, BJ’s codefendant, Alex Hall, is expected to take his case to trial. Trial date TBA.

Please send them both a letter:

William James Viehl
Inmate #2009-05735
Davis County Jail
800 West State St.
Farmington, UT 84025

Alex Hall
Inmate #2009-06304
Davis County Jail
800 West State St.
Farmington, UT 84025

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