Posted on 01/03/2012 4:29:25 PM PST by ARCLights
For a version with better formatting and working links, see http://www.atlassociety.org/brc/blog/2011/12/29/waiting-gershon
The laws delay is proverbial; there are snails sculpted on the flagpoles at the Supreme Court. But how long should a person sit in prison waiting for the court that convicted him to decide whether what he was convicted of doing was actually a crime? Bradley J. Stinns lawyers think hes been waiting too longand theyve asked an appellate court to order Judge Nina Gershon to make a decision.
On March 24, 2008, Stinn was convictedafter Judge Gershon removed a dissenting jurorof fraudulently inflating the financial data of the jewelry-store business he was running, thus deceiving investors. As his attorneys see it, this was just the sort of honest services fraud that the Supreme Court ruled, in the Skilling case, wasnt actually prohibited: Stinn wasnt accused of taking bribes or kickbacks, nor was his gain some victims loss; the only money he received was his salary and bonus.
The Skilling case was decided June 24, 2010. On April 28, 2011, Stinns lawyers filed whats known as a 2255 motion, asking Judge Gershon to rule that, in light of Skilling, Stinns conviction could not stand; on May 4, they added a request to release him on bail while that motion was decided. Before the prosecution filed its response, an appeals court gave Stinns team new hope that the removal of the dissenting juror would be found unconstitutional. So, on July 3, they amended their motion to take up that issue too. On August 2, the prosecution submitted its response, and Stinns team replied ten days later.
It took five months just for Judge Gershon to decide the motion for bail. But on October 7, she did, holding that the standards for bail on a 2255 motion were high, and that Stinns case wasnt strong enough to meet them. He had to present, she said, substantial claimsand that, she explained, quoting precedents, meant a demonstrated likelihood that the petition will prevail, based upon claims of a substantial nature upon which the petitioner has a high probability of success, and demonstrating merits that are more than slightly in petitioners favor, so that victory for petitioner can be predicted with confidence.
More than two months later, Judge Gershon still hasnt ruled on the underlying questionswhether Stinns conviction relies on the theory the Supreme Court rejected in Skilling, and whether she violated the Constitution by dismissing the one juror who wanted to acquit him. Stinns lawyers, interpreting Judge Gershons statement that he hadnt raised a substantial claim as a statement that the 2255 motion did not raise a close question and would be denied in its entirety, argue that she has no business delaying a decisionand thereby delaying their appeal, since they cannot appeal her decision until she issues it. So theyve filed a petition with the Second Circuit Court of Appeals, asking it to order Judge Gershon to decide the 2255 motion or release Stinn on bail.
While Judge Gershons decision denying bail does not actually foreclose the possibility that she will decide the 2255 motion in Stinns favor, it does say that she had reviewed the motionas of October. The motion was filed in April, and the last brief was filed in August. Now here we are at the end of December, and Judge Gershon hasnt decided the motion. And as she goes about her life and works on her other cases, Brad Stinn sits in prisonwaiting.
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