Judicious

We watched this video in September.  It is a lecture Judge Gerard gave on April 17, 2021 to the University of Nebraska at Omaha School of Criminology & Criminal Justice.  You don’t have to watch the entire thing, but I encourage you to take a few minutes to view Judge Gerard’s self-proclamations at the 5 minute and 54 minute marks.  He explains his approach to imposing sentences, the subjectivity/objectivity of sentencing, how he doesn’t feel tethered to the sentencing guidelines, and he takes the totality of the defendant’s factors into account.

 

I don’t feel what I witnessed in the courtroom is what is presented in this video.  And for the record, I sing the praises of many judges I worked alongside in my career.  Judges and prosecutors who honored and valued the principles of the justice system and the way it was designed to run.  Prosecutors who stood up for and actively worked to ensure defendants were afforded due process.  Judges who worked to grant those same due process rights and rendered fair judgments to protect our community.  This is the same respect toward the law and the process of justice I had expected to see in Travis’s case, but time and again we saw the procedures and actions which left us scratching our heads in disbelief.  For me to questions these legal proceedings or an official of the court is an exception and not the norm.

What we saw Judge Gerard do was look at all of the evidence of the prosecution.  Even though Travis was only charged with one count for the two comments made to Ms. Griswold, the Judge considered and even read on record in court some of the other comments made to POTUS, VPOTUS, and Mr. Zuckerberg.  Currently this practice in judgments is allowed.  It is called Acquitted Conduct, which means a judge can take into consideration all of the elements of a case when imposing a sentence, including those charges and actions which have been dismissed.  The U.S. Sentencing Commission has published proposed amendments to the sentencing guidelines which may remove or change being able to utilize Acquitted Conduct.  The Commission will send the proposed amendment to Congress on May 1, 2023.  Potentially the practice of acquitted conduct will no longer remain a part of sentencing guidelines.  What is a sentencing guideline?  It’s the calculation system used in the federal system to determine the max and minimum of the sentence.  For example, in Travis’s case the original charge contained a sentencing guideline of up to five years in prison.  The amended charge in the plea agreement had a sentencing guideline of 0-2 years in prison.

In my opinion, I witnessed Judge Gerard focus on the factors of the case with a one-sided perspective.  He even went so far as to call Travis’s mitigating factor of the fear of the COVID vaccine “non-sense” and stated on record Ms. Griswold had no influence over Travis’s vaccine fear.  However, if you objectively look at all the people who had threats made to them you will find Ms. Griswold to be the outlier.  POTUS, VPOTUS, Ms. Pelosi, and Mr. Fauci all were actively pursuing vaccine mandates, and Mr. Zuckerberg’s platforms were censoring what could and couldn’t be seen regarding everything COVID related.  

What did Ms. Griswold have to do with any of it?  The charges toward Ms. Griswold had been selectively made by the prosecution likely because of the task force created in July 2021, likely because of the changes Congress made to the law, likely because those charges had the strictest sentence, likely because there was such a staunch desire for deterrence for acts such as this, and likely because the next election was just a few short weeks away.  This doesn’t make any threats to Ms. Griswold permissible; it merely outlines the view of the case was subjective.

While Judge Gerard looked at the entire factual basis of the prosecution’s case, he failed to look at all of the mitigating circumstances in Travis’s statement.  Judge Gerard filled out a Statement of Reasons after the sentencing which explains the factors he considers when imposing sentence.  The only two factors he considered for reducing the sentence to 6 months less than the guideline was due to pre-sentence rehabilitation and lack of criminal history when several more factors were aspects of Travis’s real life; not just stretching of reality in hopes of catching a break. 

If you’ve been following the blog, you know I’ve come with receipts, meaning I’ve posted documents and screenshots, to show you what I’m talking about is really true and not just my claims.  I would share the Statement of Reasons as well, but the form specifically says it is not for public disclosure.  Why can’t it be shared with the public?  I have no answer to that.  I am going to share the details of a small portion of the form here instead.

There are 16 total variance options listed in one section of the form.  The judge justified on record why he would not consider aberrant behavior even though Travis had no other acts of this type of behavior in his entire life.  The judge did not consider lack of youthful guidance even though when Travis’s (biological) father had been involved in his life, his father had not been a positive figure.  Additionally, the relationship had been severed at a young age when Travis was a teenager.  The judge also declined Travis’s employment record, which had been upstanding, despite the fact it is a consideration for downward variance.  Travis was fully supported by his (step)father, mother, my parents, and myself but family ties and responsibility was not taken into consideration by the judge.  And while it was noted on record Travis was remorseful, this too had been ignored as a reason for downward variance by the judge.

Judge Gerard had also made an insolent and impudent assertion stating the real-life traumas Travis had occurred in the recent past were non-sense.  Contrary to what was being considered in Ms. Rahman’s case.  Read more about that case here. In knowing as much as I did about this case, the sentencing seemed orchestrated with the topics spoken about on record having been carefully selected.  How could the suicide of Travis’s best friend and mentor be simply ignored, the absence of his biological father, and the health concerns of his family rejected if Judge Gerard truly presided over the law the way he indicated he did in his lecture?  It the sentencing hearing it was as though the judge had crawled inside Travis’s head and could assert what was real and what was not.  I had never seen anything like it in my two-decade career. 

Judges are in a precarious position.  They have to impose a sentence that is fair and in the best interest of justice.  They have to take each case seriously, but I found myself questioning whether judges are truly so naïve to believe every plea brought before them is in good faith?  Do they ignore the statistics that show 20% of the population they place in prison are there innocently?  And that’s not even including statistics of those placed on probation, solely incarcerations.  Would this case have been viewed differently if the judge had known there were only three business days allotted to find a defense attorney and less than 24 hours to decide whether or not to take the plea? And why isn’t the totality of the case’s circumstances, such as the timelines leveraged, presented to the judge for review?

I found myself having a spark ignite for justice reform because this was a different flavor of justice.  One I had not witnessed before.  This spark was going to turn into a flame as our journey continued.  Life does move forward, and we were steadfast to move forward with it.  Even though we were left to cling to hope that someday all of this would make sense and accepting the fact we may forever live with a long list of questions we will never find answers.  We were going to continue looking for those answers though, and we continued our vow to one another to be better because of this and not bitter.

Better despite the fact Travis’s retirement and investment accounts would be closed in the very near future.  Better despite the next blindsiding was on the horizon.  Just when you think this story might be concluding, you discover it’s really only beginning.

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Peace & Love,

Janessa