ISLAND VOICES
Rodrigues' bail was not a miscarriage

Peter C. Wolff Jr. is the District of Hawai'i federal public defender.

I write in response to David Shapiro's Volcanic Ash column of Sept. 1 about Gary Rodrigues' release on bail pending appeal, headlined "Rodrigues' bail a miscarriage."

Because Shapiro's column contains a number of fundamental mistakes about the federal legal process, your readers have been misled by it. The column does a further disservice to the federal court by suggesting that Rodrigues received different and more favorable treatment because of his former position. Nothing could be further from the truth.

First, the column implies that Rodrigues received a lenient "five years in prison." In fact, Rodrigues was sentenced to 64 months imprisonment — in the middle of the sentencing guideline range established for his offenses by the Sentencing Commission acting under the authority granted to it by Congress. The additional four months that Shapiro neglects to mention may not seem like too much, unless you are the person who has to serve it.

Moreover, Rodrigues' sentence, unlike most state sentences imposed in Hawai'i, is not subject to parole. And, if Rodrigues' appeal is not successful, he will have to serve almost all of his sentence. Federal sentences are subject to reduction only by a theoretical 54 days per year for "good time." Because of the way the Bureau of Prisons interprets the "good time" statute, in fact only 47 days of good time per year can be earned by a prisoner.

Second, Shapiro expresses doubt that Rodrigues will ever go to jail because Rodrigues "will certainly cry for leniency on the grounds of old age and infirmity when his appeals run out." What Shapiro does not understand is that there cannot be any reconsideration of Rodrigues' sentence if his appeal is unsuccessful. In the federal system, even if the sentencing judge wants to reconsider a sentence at a later time, it cannot be done.

Third, Shapiro suggests that Judge Ezra applied the wrong legal standard in considering bail pending appeal because "the judge repeatedly said in rejecting Rodrigues' preliminary appeals that he doesn't see much chance of reversal."

That is not the legal standard. The law is that a defendant in Rodrigues' circumstances is entitled to bail pending appeal if his appeal raises a "substantial question" of law or fact and, assuming that the "substantial question" is determined favorably to the defendant, the appellate decision would be likely to result in reversal or an order for a new trial. The phrase "substantial question" means a question that is "fairly debatable."

Thus, it is not necessary that a defendant convince the district judge that the judge has made a mistake. Requiring a defendant to convince the district court that its own ruling is likely to be reversed is tantamount to requiring the district court to certify that it believes its ruling to be erroneous.

As the Ninth Circuit Court of Appeals has noted, such an interpretation of the bail statute would be a mockery of the requirement that the application for bail be made in the first instance to the district court. Here, Judge Ezra applied the correct legal standard.

Next, Shapiro chastises the federal court by alleging that it "works in slow and mysterious ways." In fact, there can be little doubt that the time required for disposition of criminal cases and appeals in the federal court system is usually far less than required in the state court system. Undoubtedly there are good reasons for this, including the lack of resources available to the state court system.

Shapiro overlooked this, undoubtedly because it did not fit his point.

In a society with a free press, government institutions, including courts, are subject to criticism. But little good comes from ill-considered and erroneous attacks on institutions that we all depend upon to maintain democracy. Particularly during a time when there has been a massive increase in the federal executive's power, it would be unwise to unfairly criticize one of the few institutions that exists to act as a check upon that power.