Appeals Court Tells Lower Court (For The Second Time) To Stop Coddling An Abusive Ex-Deputy

from the god-help-you-if-we-see-this-appealed-again dept

Fri, Jul 7th 2017 7:39pm — Tim Cushing

The Seventh Circuit Appeals Court seems a bit tired of the district court's shit. For the second time, it's remanding a case involving a convicted law enforcement officer because the lower court refuses to give the former officer the punishment he deserves. Terry Joe Smith has twice been sentenced for subjecting two arrestees to intentional and unreasonable excessive force. The facts of the case are this, as recounted by the Appeals Court's second run [PDF] at the same problem.

At trial, Smith’s fellow police officers testified against him, describing the unwarranted attacks. In the first incident, Smith punched the arrestee in the face with a closed fist, causing bleeding and swelling on his face. Two officers testified that the blow made the sound of a tomato hitting a concrete wall. At the time, the arrestee was fully under the control of four other officers, and the arrestee posed no danger to Smith. A fellow officer testified that he had been trained to refrain from striking anyone in the head with a closed fist unless he was in a “deadly force” situation because such a blow could be lethal. After that incident, Smith bragged about his behavior to other officers and mocked those who objected to his unjustified attack. The arrestee had to be removed from the scene in an ambulance.

That's only half the story. Here's the rest:

Several months later, in the second attack, Smith and other officers arrested an intoxicated man accused of battering a woman during a domestic dispute. Smith led the handcuffed arrestee to a patrol car. On reaching the car, Smith raised the man into the air, threw him face-first onto the ground and drove his knee into the man’s back with such force that the man defecated on himself. The man suffered injuries to his back and ribs. Smith later bragged that this was not the first time he had made someone defecate on himself. Again, Smith’s fellow officers testified that the arrestee was not actively resisting in any manner and that the use of force was unjustified and excessive.

Obviously, Smith liked throwing his weight around. And he had plenty of it, according to the decision's footnotes: 6' 3" and 270 pounds -- all of it apparently deployed to show these arrestees who was in "control" of the situation.

Sentencing guidelines called for 33-41 months imprisonment. The court considered some mitigating effects (community work, difficult childhood) and those calling for the harsher end of the sentencing spectrum (assaulting juveniles at a detention facility, "unaddressed anger issues," lying to investigators). For reasons not adequately explained, the district court sentenced Smith to less than half the minimum: 14 months.

Both parties appealed. In retrospect, Smith may have been better off letting the sentence ride. The Appeals Court sent the case back with instructions to either explain its downward sentencing departure better or to apply a sentence within the guidelines. It pointed out the lower court said Smith was unlikely to reoffend but did not show its homework as to why it had chosen to depart so drastically from the guidelines.

The lower court took another look at the case and… arrived at the same exact sentence. The court considered the time the officer had served as well as some steps he had taken to reintegrate himself into the real world again. It also pointed to the officer's statement as a proper expression of remorse for his wrongdoing. The Appeals Court notes the second sentencing attempt is basically a word-for-word replay of the first. It also notes Smith's "remorseful" statement mainly discussed how difficult things were for him rather than for his victims.

Smith did make a statement at his second sentencing hearing but it is difficult to find mention of his victims or much of a sense of ownership of his actions in his remarks. We reproduce in full the letter he read aloud:

Your Honor, as you may know, it is very dangerous being an ex-police officer in prison; but yet, there are little to no secrets in prison. Most inmates know why you are there before they even ask you. I had guys that hated me, not for being me but for my ex-profession. I made it clear I was no longer a sheriff’s deputy, and I was an inmate just like them; and I was there to better myself, just as they were…

There's more along these lines discussing his time in prison, but still nothing about the harm he did to the victims of his violence. Smith closed his letter by making it clear that only one person is on Smith's mind: former deputy Terry Joe Smith.

Why do I tell you this? I tell you this because you made the right decision when it came to sentencing me. I want to be an example to other judges, prosecutors that not every man that makes a mistake needs a long sentence and that when you have done everything to better yourself and when you have years left to serve – to sit and wait for your sentence to run out and the only thing you’re waiting for is an out date, it is the family, children and communities that are serving the sentence.

[...]

I can say that because of the sentence you handed me. You knew exactly what I needed to get back on track and I thank you. I hope my actions during and after my incarceration have validated your sentencing choice for me. I thank you for the opportunity you’ve given me.

Having been swayed by someone who showed no remorse for anything but his personal situation, the district court handed out the same sentence, which Smith had already served. It also stated extending his sentence would be unduly disruptive to Smith's new life. Undoubtedly so, but that's the nature of prison sentences, as the Appeals Court points out:

In addressing the need to promote respect for the law and deter others from committing similar crimes, the court mentioned that Smith had incurred two felony convictions,lost his job as a police officer, resigned his position on the city council, and lost his reputation within the community.

[...]

Losing one’s job and reputation are the normal consequences of committing a felony at work. It is unclear how these naturally occurring repercussions that are not part of any sentence would promote respect for the law and deter others from committing similar crimes.

As for the letter of regret that persuaded the lower court to do absolutely nothing about the absurdly low sentence it had imposed, the Appeals Court says this:

Smith’s statement to the court contained, at most, an acknowledgment that some—but not all—of his fellow prisoners were people like him, who had made mistakes and were seeking to better themselves. He also expressed his new-found belief that not all defendants required lengthy sentences, a principle he hoped the court would apply to him. He never mentioned his victims or his crimes unless one generously infers that the “mistake” to which he referred was senselessly beating arrestees who were already under control and posed no danger to him. He did not concede the facts of his offenses of conviction and he did not express regret for anything other than the length of a possible new sentence. It is certainly admirable that he learned in prison that prisoners are human beings like himself, but that is a far cry from an expression of remorse for the harms he caused or acceptance of responsibility for his crimes. There is nothing resembling the promised “ownership” in Smith’s remarks to the court.

With that, it's yet another trip back to the lower court to see if it can finally get its sentencing right. This court's extreme reluctance to apply the sentencing guidelines it gladly applies without question to normal defendants doesn't score it any points with the Appeals Court. The fact that the lower court needs to be told twice to do its job right looks even worse. The super-low sentence shows Deputy Smith isn't like the other prisoners he was forced to spend time with, no matter what his letter says. He's the beneficiary of judicial deference -- something lots of cops get, but is rarely enjoyed by members of the public they serve.

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Filed Under: 7th circuit, police, terry joe smith

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That One Guy (profile), 7 Jul 2017 @ 6:31pm

"We can't hand out more than a slap on the wrist, that wouldn't be fair!"
'I want to be an example to other judges, prosecutors that not every man that makes a mistake needs a long sentence'

Oh look, I just threw up in my mouth a little. Guiding someone that's been arrested into the car and accidentally not having them duck their head enough such that they bonk their head against the door-frame would be a 'mistake'. Accidentally putting a pair of cuffs on too tight before you notice would be a 'mistake'.

Punching an already restrained person in the face and bragging about it later is not a mistake. Picking another already restrained person up and throwing them against the ground and bragging about that too is not a mistake.

Credit where it's due to the other officers for testifying against scum like that, it's just a pity that the lower court is bending over backward to make sure that the consequences for this actions are as insignificant as they can possibly make them.

Hopefully after being slapped down twice now they'll actually hand out a punishment fitting for his crimes, taking into account his clear lack of any remorse for his actions other than the 'regret' he apparently feels over facing any negative repercussions for his actions.
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Anonymous Anonymous Coward (profile), 7 Jul 2017 @ 6:37pm

Maybe not enough
Other than remanding the case to the lower court for reconsideration, is there any way that an Appeals Court can bitch slap the lower court?
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Anonymous Coward, 7 Jul 2017 @ 8:00pm

Besides Stallman, are there any true champions of freedom left? The idealistic promise of the internet seems all but dead.
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That Anonymous Coward (profile), 7 Jul 2017 @ 8:24pm

What did we expect?
There are prosecutors who won't hold cops to the same standards as everyone else.
There are pundits who talk about how hard the job is & in the heat of the moment we shouldn't 2nd guess them, they could have died.
We have juries blinded by the cop halo effect that blinds them to if this ass hadn't had a badge, they wouldn't be asked if they think he should be indicted.

We need to stop with the nostalgia about Barney Fife & Andy Taylor keeping the citizens safe with a few words & home in time to enjoy a big slice of Aunt Bea's pie.
They use automatic weapons to serve traffic warrants.
They destroy peoples homes to get the bad guy, who had fled the scene hours before.
They ignore a yard full of kids toys & toss a flash bang into the crib with the baby.
They flat out lie & claim that the video of what they did is just your lying eyes deceiving you.

They talk about the "War on Cops" and have to include heart attacks in those numbers to inflate them, yet can't manage to follow the law & report citizens killed.

A majority of people have never had a bad run in with a cop, and feel that if a cop did something the suspect did something to deserve it. They like these cowboys beating the shit out of restrained helpless suspects, who must be guilty, to send a message to the "Bad People(tm)" to not be bad... and this works until one of their children runs afoul of a cop in beast mode & ends up in the hospital. Then they are shocked just shocked at the people defending what they think is indefensible.

We talk about how cops are held to a higher standard... yet we can't seem to manage to hold them to the most basic standards - don't molest kids, don't rape citizens, don't steal, don't use your authority to bully, don't beat a child who sassed a teacher, don't pocket the drugs you recovered.

How many more lawsuits do your taxes have to pay out to people crippled by these cops because they were in "contempt of cop" before you think it might be time to demand real change? I think we've been past that point for a while, how many more bodies do you need to get there?
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Hugh Jasohl (profile), 7 Jul 2017 @ 8:56pm

The courts should be anonymized
If all court cases had race, age, sex and professions stripped from their cases and adjudicated by a truly impartial 3rd party, we could once again trust our legal system.

They call it the Justice Department for a reason.
Perceived justice is the end that justifies all of the means. The fact that those means involve breaking far more laws than they solve and violate everyone's rights each and every time they are used is ignored.
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JoeCool (profile), 7 Jul 2017 @ 9:07pm

Re:
Wrong article. You want the next older one. :)
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David, 7 Jul 2017 @ 9:43pm

You know the surprising thing?
The surprising thing to me is not that he got off easy at first. Rather it is that his fellow policemen testified against him and he got incarcerated at all and that still the prosecution was bothered enough to try actually getting justice according to the law rather than just a bit of it. Not just that, but they actually got it.

Must also have been a complete surprise for the defense or they would have prepared their client better. I mean, that letter of remorse is real damning.

It's almost like the justice-defying powers of his badge were foiled. Some sort of cryptonite or something in the court room.
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Anonymous Coward, 7 Jul 2017 @ 10:08pm

Re: Maybe not enough
Sure, if it comes back again they can send it again with an addendum questioning whether there's some undisclosed connection between the defendant and the lower court Judge.

Even if nothing is evident there having a higher court question for the record whether you're a dirty judge can't be considered good.
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Anonymous Coward, 7 Jul 2017 @ 11:28pm

And what would your sentence be if you did the same things to an off-duty cop that you didn't even know was a cop? Death seems more appropriate than prison in this case.
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Anonymous Coward, 8 Jul 2017 @ 1:09am

Re: You know the surprising thing?
He likely had a long history of abuse and his fellow policemen probably tried getting him help before choosing to turn him in.
Someone in the courthouse might also owe the guy some kind of favor.
Either that or there's some sort of ulterior political motive. A career in politics maybe?
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GristleMissile (profile), 8 Jul 2017 @ 1:35am

Given his responsibilities as a piggy to uphold the law, his supposedly greater knowledge of the law due to his training, and his abuses of the power he was given to wield, he should receive an automatic maximum sentence, then double it.

Cops should receive a harsher punishment than your everyday citizen.
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Bruce C., 8 Jul 2017 @ 3:48am

The one bright spot in this mess...
Is that he was convicted on the testimony of fellow officers. So at least we have a case where the blue wall of silence was broken. I'm just hoping it was for the right reasons. If they only did this because they hated him for other reasons, that's not real progress.
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Daydream, 8 Jul 2017 @ 5:08am

"Honestly, your honor, I'm actually the good guy."
"Have you seen the mess the prison system is in, your honor? You've got gangs, and you've got drugs, and you've got rape, and it gets worse, because you've got corporations like Monsanto who use prison labour like their own personal slaves. And once you get out, you can't find a job, your housing options suck...

"Look, basically, I guarantee you, if someone goes to prison here in America, that's it for them. Either they become real criminals or they're dead. Is that fair on their families, your honor? How about the rest of the community?

"This has everything to do with me, your honor. I'm being rough on suspects on purpose, I'm playing up the boasting and the jeering because, that way, when they get to court, their lawyer has something to point at. He can claim the cops are of bad character, that they made stuff up, that they forged the evidence. And then these guys, they don't go to prison, they can go home. To their families. And they can lead real lives that help others.

"The only reason I hurt these people was to save them more hurt down the road, your honor. I'm trying to give them a way to get out of prison, and I'm sacrificing my good reputation to do it. Work with me here, your honor, I'm trying to save the United States of America."
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afn29129 (profile), 8 Jul 2017 @ 5:47am

Typical incomplete story from TechDirt.
This is only about half the story.
More details can be found at:
http://www.wthr.com/article/putnam-county-sheriffs-deputy-sentenced-for-using-excessive-force

and scroll down for more at:
http://www.lisa-legalinfo.com/
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Hugo S Cunningham (profile), 8 Jul 2017 @ 6:24am

Impeachable offense?
If this judge again refuses to enforce a basic civil right, the Senate Judiciary Committee should consider impeaching him.
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Anonymous Anonymous Coward (profile), 8 Jul 2017 @ 6:42am

Re: The courts should be anonymized

They call it the Justice Department for a reason.

Marketing?
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dreddsnik, 8 Jul 2017 @ 7:00am

Re: Typical incomplete story from TechDirt.
Read it. It seems that the Techdirt story is pretty complete. A short sentence and home. What was missed ? Please be specific ?
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Anonymous Coward, 8 Jul 2017 @ 7:11am

Re:
Cops are some of the most honest and hardest working people in the whole world. This is just a case of a couple of bad cops.

Thankfully this administration has sorted most of it out by ending inquiries into some of the larger police stations. Now the police can do their job without someone looking over their shoulder all the time.

We really need less regulation of cops because like the internet we don't need government in our services.

You probably wouldn't understand though.
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Serpico, 8 Jul 2017 @ 7:47am

Re: BitchSlappers needed?
' any way that an Appeals Court can bitch slap the lower court? '

...well, ya got a much bigger problem than just a few bad judges & cops -- so playing whack-a-mole on individual cases will not solve the overall problem

corruption among American police & courts is widespread -- the formal government supervisory organization supposed to control such bad behavior does not work... and leaves citizens very vulnerable

the local police police-chief SHOULD and can fully handle these cases of bad cops -- but they generally refuse to do so... instead they protect bad cops to defend the reputation & funding of their police unit.

likewise, judges and prosecutors view cops as members of their own team... and treat bad cops with kid gloves... to defend the reputation & public support for the government justice system. Dirty Laundry must be hidden or minimized

The checks & balances are broken. Honest mayors/governors/legislators/lawyers could readily fix the problem -- but they are just as scarce as honest cops/judges

Cops/Judges/Prosecutors MUST NOT lie, cheat, steal nor TOLERATE THEIR MEMBERS WHO DO SO !
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Shawn, 8 Jul 2017 @ 9:17am

Re: Typical incomplete story from TechDirt.
from reading the second link, it looks techdirt soft peddled it somewhat and he should get at least 3 times already served sentence.
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Bergman (profile), 8 Jul 2017 @ 9:52am

Re: "We can't hand out more than a slap on the wrist, that wouldn't be fair!"
Given that the district court is already in violation of a court order issued by the appeals court, at what point would the judge(s) of the district court be liable to being hauled to jail for contempt of court?

After all, violating a court order is one of the definitions of criminal contempt of court.

And if the answer is 'never', wouldn't that mean that enforcing contempt of court penalties would be rendered unconstitutional, because it creates a (very large) less privileged class of citizen?
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Stephen T. Stone (profile), 8 Jul 2017 @ 11:09am

Re: Re:
That’s funny. You’re funny, anon.
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YaTOG, 8 Jul 2017 @ 2:09pm

Lower Court Judge defective...
Time to de-bench the asshat.
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stderric (profile), 8 Jul 2017 @ 3:39pm

Re:
Ok, Ok, I have to agree that many of your points are valid. I'll admit there are some bad cops out there, and they do tend to get preferential treatment both in court and in the media... but civil forfeiture's still 100% legit, right?
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stderric (profile), 8 Jul 2017 @ 3:43pm

Re: The courts should be anonymized
Anonymized courts? How's justice supposed to be served by blinding the judges?
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Anonymous Anonymous Coward (profile), 8 Jul 2017 @ 4:25pm

Re: Re:
I am not sure where you get civil forfeiture's are legit from that comment.

Civil forfeiture, to most of us is an anathema that had a specific intent when it was originally implemented, but has gotten so far away from that original intent that the original intent is not just blurred, but totally obfuscated.

Criminal forfeiture makes a lot more sense, then that assumes that evidence is not created, and cops do not lie on the stand. Something I find hard to believe given recent evidence.
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That Anonymous Coward (profile), 8 Jul 2017 @ 8:17pm

Re: Re:
It seems its not when it targets them...

http://photographyisnotacrime.com/2017/01/11/federal-marshals-seize-florida-deputys-personal- assets-after-sheriff-refuses-to-pay-settlement-for-man-left-paralyzed-in-wrongful-shooting/
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Anonymous Coward, 8 Jul 2017 @ 10:48pm

You write the article as if somehow the appeals court is not playing the same same ball game. All they're doing is flipping their lips and tossing the case back to another court because THEY TOO are unwilling to actually impose the appropriate sentence even though they could.
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peter, 9 Jul 2017 @ 1:58am

Rule 36
From another site:
"The panel ended the decision with a cryptic note that “Circuit Rule 36 shall apply on remand. “ Seventh Circuit Rule 36 requires assignment to a different judge if a case is remanded for a new trial, but does not normally apply where the remand is for resentencing.

That the Circuit ordered reassignment to another judge suggests the extent to which the appellate court believed that this judge was so predisposed to be lenient because the defendant had been a cop that he could not be trusted to follow the appellate court’s instructions."
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That One Guy (profile), 9 Jul 2017 @ 3:33am

Re: Rule 36
That's got to sting, and rightly so.

With that they're all but flat out telling the original judge 'You have displayed such a blatant bias in favor of the defendant that you cannot be trusted to rule in an impartial fashion, and as such we're giving the job to someone else in hopes that they can act in a more professional manner.'
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Retsibsi (profile), 9 Jul 2017 @ 8:57am

Interesting little throwaway comment in one of the articles that "nobody charged him criminally until the Feds came along..." ( http://www.lisa-legalinfo.com/ ). Certainly there doesn't appear to be any obvious reason for the FBI to become involved, unless perhaps someone locally wasn't doing their duty in prosecuting?
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stderric (profile), 9 Jul 2017 @ 9:14am

Re: Re: Re:
Damn it. They let him keep his underwear.
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Nop (profile), 9 Jul 2017 @ 11:47am

Re: "We can't hand out more than a slap on the wrist, that wouldn't be fair!"
You just know that the cop is someone's son in law, or has something on the lower court judge.
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Nop (profile), 9 Jul 2017 @ 1:31pm

Re: Re:
You accidentally left out the sarcasm tag in your comment.

HTH!
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Anonymous Coward, 10 Jul 2017 @ 1:39am

Re: Re: The courts should be anonymized
Justice being blind as the intent - leaving little room for prejudices. So that they don't know if the accused drunk driver was a sixty five year old male doctor, a thirty five year old latina cop, or an unemployed twenty year old asian. There would be no hammer coming down from being an 'undesirable' nor mercy on account of holding a 'respectable' position.

It would be interesting to see what proxies evolved in those circumstances as 'metadata' leaks through the process. Would it accidentally lead to money as they only see the status of the lawyers. Would there be extra bizarre disparities in sentencing that emerge from assumptions that only an X would have committed that kind of crime.
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Cowardly, 10 Jul 2017 @ 2:58am

Re: Re: Re:
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Cowardly Lion, 10 Jul 2017 @ 3:07am

Re: etc.
Amongst the things they seized: *"...his collection of Samurai swords..."*

*crickets*
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Cowardly Lion, 10 Jul 2017 @ 3:08am

Re: Re: Re: Re:
Sorry, ghosts in the machine this morning...
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Michael, 10 Jul 2017 @ 4:58am

Re: Re: The courts should be anonymized
They couldn't afford the licensing for "The Avenger System"
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Anonymous Coward, 10 Jul 2017 @ 6:36am

Re: Typical incomplete story from TechDirt.
You're right - he should've copied it word-for-word.

/s
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Anonymous Coward, 10 Jul 2017 @ 7:27am

Re: The one bright spot in this mess...
I think the other police in this case really had no way to hide what was done. Either confess to what happened to be brought up on charges also. Was there anyone around recording what was happening? Normally the police get away with this crap most of the time. They never get convicted at all. Between the UNION and the Blue Line, they can pretty much get away with Murder, and they do!!!!
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Mason Wheeler (profile), 10 Jul 2017 @ 8:34am

Smith and other officers arrested an intoxicated man accused of battering a woman during a domestic dispute.

I'mma stop you right there. If the guy did that, there's nothing Smith could have done to him that constitutes "inappropriate force," including shooting the scumbag on the spot. Any man who beats his wife (or similar "domestic dispute" partner) or his children is no man at all.
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Anonymous Coward, 10 Jul 2017 @ 8:42am

Re:
accused

I'mma stop you right there. What if the woman was lying?
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Anonymous Coward, 10 Jul 2017 @ 9:02am

Re:
So if someone tells the cops you are abusing your wife, you are O.K with the cop who investigates shooting you before the do anything else?
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Anonymous Coward, 10 Jul 2017 @ 10:52am

Losing one’s job and reputation are the normal consequences of committing a felony at work.

Usually, unless you're a police officer- then they're cause for promotion!
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Anonymous Coward, 10 Jul 2017 @ 11:56am

Now wait a second, I thought all cops were bad? I thought all cops refuse to testify against other cops?

That is what you have written before Tim, but yet here, in this article, 2 cops testify against another cop? Has the world ended?
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That One Guy (profile), 10 Jul 2017 @ 1:44pm

Re:
Please remember to clean up any extra straw once you're done stuffing the majority of it into your strawman. The latter is bad enough without having to deal with random pieces of straw everywhere.
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That One Guy (profile), 10 Jul 2017 @ 1:54pm

Re:
Pretty sure Judge Dredd, someone who is legally allowed to execute criminals on the spot, would have more respect for the law than you are displaying here.

Whether the accused was in fact guilty of the crime and was a scumbag does not mean that the police should take matters into their own hands beyond arresting the individual. We have a court system for a reason, and if he really was guilty it should/would be trivial to secure a conviction against him and punish him that way.
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Anonymous Coward, 11 Jul 2017 @ 10:31am

Re: Re:
A comment on the author's recent posts that say "all cops" are bad because even the good ones won't testify against bad cops make them bad cops is a valid point.

Less than a week later, Tim pens an article that has 2 cops testifying against another cop. I guess there are good cops out there, no?
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