By David Ziemer
Wisconsin Law Journal
Three former Milwaukee police officers will not be getting a new trial on charges of conspiracy to violate the civil rights of Frank Jude in 2004. The convictions were affirmed on June 8.
However, one of the defendants, Jon Bartlett, will be resentenced, after the Seventh Circuit concluded that the district court may have mistakenly used the wrong guideline range in imposing sentence.
“The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short. Police officers in Milwaukee proved this the morning of Oct. 24, 2004. " Judge Frank H. Easterbrook wrote on behalf of the court.
Officer Andrew Spengler held a housewarming party the night of Oct. 23, 2004 that lasted into the next morning. Spengler and many guests were police officers. Five minutes after arrival, two white female guests, who arrived with two men, one black and one bi-racial, were uncomfortable and prepared to leave.
However, they were accused of stealing Stengler’s badge, and were not permitted to leave. Stengler and a number of other officers beat Jude for more than 20 minutes, breaking bones, and at one point, injuring his ear canals by pressing a pen into them. The officers also vandalized Jude’s car.
After none of the officers were convicted in a state court proceeding, charges were brought in federal court in the Eastern District of Wisconsin. Spengler, Jon Bartlett, and Daniel Masarik were tried and found guilty of conspiracy to violate Jude’s civil rights, among other charges.
Spengler and Masarik were both sentenced to 188 months imprisonment, and Bartlett received 208.
They appealed, but only Bartlett’s sentence was vacated.
Conspiracy
The defendants contended that they could not be convicted of conspiracy, because there was no prior agreement between them, but the court disagreed (If guilty of only the substantive offenses, but not the conspiracy, the maximum sentences would be only 120 months).
The court rejected the defendants’ assumption that an agreement must predate the first substantive offense in the conspiracy.
“An agreement forged in the course of committing a crime, among people who plan to work together in an ongoing criminal venture, is no less a conspiracy than one that precedes the first overt act,” Easterbrook explained. “The battery of Jude lasted for 20 minutes. “
The court found that a jury could infer that the defendants formed a plan to do whatever was necessary to recover Spengler’s badge and punish the thief -- including cooperative criminal activity.
“None of the evidence suggests that defendants worked at cross-purposes with each other, or with the rest of the mob,” Easterbrook wrote. “The evidence is enough to permit an inference of agreement and thus a conviction for conspiracy. “
Sentence
However, the court vacated Bartlett’s sentence, even though it found it to be “substantively reasonable. “
Bartlett’s guideline range was 151 to 188 months, and the sentencing transcript was filled with explanations why the sentence is at the high end of the range.
However, the actual sentence imposed was 208 months, 20 months more than the top of the range. The court thus vacated the sentence and remanded the case to ensure that the court did so deliberately, rather than make a mistake.
“A 208-month sentence is reasonable substantively, but no one, not even a Bartlett, should lose 20 months of freedom because a district judge read across the wrong line in a table,” Easterbrook concluded.
David W. Simon, of Foley & Lardner LLP, who represented Bartlett pro bono on appeal, said that he hopes on remand to not only get a sentence within the guidelines, but to argue for recalculation of the guideline range.
Because of the inclusion of the conspiracy charge, Simon said the sentences in this case are the longest ever for this type of offense.
But Assistant U.S. Attorney Mel S. Johnson said that, according to the terms of the remand, the district court should just clarify its original order, rather than revisit every guideline calculation.
On the conspiracy issue, Simon noted that the court did not cite to any cases involving “spontaneous mob violence,” although in Simon’s brief, he cited several persuasive, but not binding, cases from other jurisdictions, holding that such actions are insufficient to constitute a conspiracy.
“My view is that it is not a conspiracy, but obviously, that did not carry the day,” Simon said.
Johnson emphasized that the case was not analogous to typical mob violence cases, because the perpetrators were all friends, all police officers, and all acted in concert as police officers.
Johnson also noted the length of the attack: “If it lasted a minute or less, it would be tougher to call it a conspiracy,” he acknowledged.
Copyright 2009 Dolan Media Newswires