Judges question earlier Circuit holding

A decision from the 7th Circuit Court of Appeals about child pornography convictions turned into an examination of whether a standard adopted by the Circuit Court regarding allocution should remain the law of the Circuit.

In United States v. Dick L. Noel, No. 07-2468, the Circuit judges unanimously affirmed Dick Noel's convictions of producing and possessing child pornography. Despite the allowance of testimony from a police detective that images found on Noel's computer met the federal definition of child pornography – which was improper – the judges believed the outcome of the case would have been the same if it had been excluded.

The judges also found the District Court committed plain error during its sentencing, including Noel not being allowed allocution, but Judge Michael Kanne and Chief Judge Frank Easterbrook ruled that it didn't affect the fairness, integrity, or public reputation of the judicial proceedings.

But the focus of the opinion turned to whether to revisit United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007), which ruled that when conducting plain-error reviews that show a District judge didn't give a defendant the right to allocute, the court should presume prejudice when there's any possibility the defendant would have received a lesser sentence had he been heard. The issue arose because Noel challenged his sentence and argued he wasn't given the chance for meaningful allocution because the District judge didn't personally ask him if he'd like to speak and instead spoke directly to his attorney. The attorney read aloud a letter written by Noel that she thought may help with his sentencing in response to comments by the prosecutor.

The holding that a judge must address a defendant personally and offer him or her the opportunity to speak before sentencing was codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii.) Chief Judge Easterbrook took issue in his concurring opinion that an appellate court must presume prejudice when there is any possibility that the defendant would have received a lesser sentence had he been given the chance to speak because the presumption is in the defendant's favor and the proposition of "any possibility" of prejudice suffices to establish plain error.

Luepke justified transferring the burden to the prosecutor because it's hard to show an adverse effect from a judge's failure to address the defendant personally, rather than addressing counsel in the defendant's presence, which conveys the same information but doesn't satisfy the rule, he wrote.

"That a violation did not affect anyone's behavior – which may explain why no one objected – ought not make reversal the norm. It is instead why a court of appeals should allow the judgment to stand," he wrote.

But in her dissent, Judge Ann Claire Williams wrote the appellate court can't deny the importance of the right to allocute and the steps the District Court must take to enforce it. She argued the presumption of prejudice allows the right to be enforced and provides a remedy when procedural rules may have rendered it effectively obsolete.

"The presumption we adopted in Luepke does not make the denial of allocution a structural error, nor does it advocate for automatic reversal. It recognizes that the right is more than an 'unenforced honor code' that judges may follow in their discretion," she wrote. "Unless the Supreme Court says otherwise, I see no reason to revisit Luepke."