January 13, 2004 New York Times

A Judge's Struggle to Avoid Imposing a Penalty He Hated
By BENJAMIN WEISER
 
The defendant's crime was grave: Using the screen name BigThing, he sent thousands of images of child pornography to people who answered his advertisement in an Internet chat room. And a federal judge responded with a heavy sentence, 10 years in prison. But even as he handed down the penalty, Judge Gerard E. Lynch angrily denounced his own decision.

"This is without question the worst case of my judicial career," he said. The "unjust and harmful" sentence, he added, "has the potential to do disastrous damage to someone who himself is not much more than a child."

BigThing, authorities learned when they arrested him, was an 18-year-old college freshman named Jorge Pabon-Cruz who lived with his mother in Puerto Rico and had no prior criminal record. His trial, at a time when federal judges are chafing against strict sentencing measures passed by Congress, was the culmination of an extraordinary courtroom collision between a judge and the law he is sworn to uphold.

In the case, which has played out in Federal District Court in Manhattan over the last two years, Judge Lynch tried tack after tack to prevent the teenager from receiving the 10-year minimum sentence required by law. He urged prosecutors to reconsider the charge, or to plea bargain, which might allow Mr. Pabon to avoid the mandatory term. When all that failed, he took the highly unusual step of announcing that he would reveal in his instructions to jurors the sentence the defendant faced.

The prosecution cried foul; under the rules of trials, jurors are to base their verdict solely on the evidence. The judge, prosecutors suggested, was trying to provoke the jury into ignoring the facts and acquitting out of sympathy - in effect, encouraging an act of civil disobedience.

Judge Lynch, a former prosecutor himself, said that was not his intention but might not be a bad result. For him, the problem was the law, a measure Congress passed in 1996 requiring that anyone convicted of advertising child pornography be imprisoned at least 10 years, regardless of his age or record.

Tough sentencing laws have won wide political support in recent years, particularly as the Internet creates vast new arenas for spreading pornography and victimizing children. Those laws have angered federal judges who see the mandatory penalties and sentencing guidelines as infringements on their authority, leading some to speak out, and in one case, resign. Last month, Chief Justice William H. Rehnquist criticized a recent law that placed federal judges under special scrutiny if their sentences fell short of Congressional guidelines.

Judge Lynch, in the end, bowed to the law. He said he was not out to make the Pabon trial "some kind of cause cÀelÁebre." He has declined to speak publicly about the case, and it received little publicity.

The dispute, which continues in appeals, offers a rare look at how a judge tried to maneuver between lawmakers' command that he punish all criminals of a particular class the same way, and the judicial tradition of treating them as individuals. In court papers and interviews, the story emerges of one judge struggling with increasing limits on his power to judge.

`A Life of Its Own'

Before his arrest in 2001, Mr. Pabon appeared to have surmounted a difficult childhood. From age 5, he grew up alone in the care of his moderately retarded mother, and, according to two defense psychologists, he was teased about his mother's retardation. In high school, he maintained a B average, played the piano and sang in the choir. At the University of Puerto Rico, he was studying computer engineering.

His computer skills led him down a darker path. Mr. Pabon told one psychologist that to explore his curiosity about adult pornography, he obtained file-sharing computer software that allowed people to send images and receive others in return. The trading, he said, took on "a life of its own."

There is no evidence that he created the images, made money from them or had any contact with the children. Still, prosecutors say, his offense was serious; they say file-sharing has revolutionized child pornography by making images more accessible and easier to trade, reviving an industry that law enforcement had significantly reduced.

In fall 2001, the young man's Internet activities were being monitored by federal and local investigators in New York State. Shlomo Koenig, a detective in Rockland County, has testified that he was in a chat room when he came across BigThing's advertisement for swapping images. By mid-December, according to court papers, 2,857 people had visited Mr. Pabon's computer files, and he had traded more than 11,000 images. One showed a toddler in diapers posed as if he were masturbating a man.

Mr. Pabon came to New York in January 2002 to face a charge of advertising for the distribution of child pornography, which carried the 10-year minimum sentence. He was also charged with distributing images, a count that had no mandatory term but in a case like this could bring about five years, said his federal public defenders, Jennifer Brown and Deirdre D. von Dornum.

From the start, Judge Lynch was struck by the defendant's youth and the "enormous penalty" he could face. He urged both sides to begin talks that might allow prosecutors to "reach a different conclusion about what charge is necessary."

"I have no idea what threat he might pose in the future, or what kind of treatment might benefit him," the judge said in one hearing. "I have some difficulty imagining that 10 years in prison is going to do either him or society much good." In another, he noted that if the teenager had been charged with having sex with a 12-year-old, he would face only about five years. "This leads me to the rather astonishing conclusion that Mr. Pabon-Cruz would have been better off molesting a child," he said.

He acknowledged that Congress had cited evidence that trafficking in child pornography could lead to more predatory behavior. But, he added, "I don't want to accept some generalized fear about pedophilia as a substitute for careful evaluation of what we should expect from this particular individual and how he should be treated."

Still, negotiations were going nowhere. Prosecutors, stressing the seriousness of the offense, would not drop the mandatory-minimum charge in return for a guilty plea to the other count.

A Shift in Power

Judge Lynch, 52, once ran the criminal division of the United States attorney's office in Manhattan, the same office that prosecuted Mr. Pabon. Later, as a law professor at Columbia and even after he became a judge in 2000, he wrote critically about sentencing laws.

In a 2001 article for a law review, he advanced an argument against mandatory sentences: that by choosing to press a charge with a minimum penalty, the prosecution was effectively determining the sentence. Congress, he wrote, had taken the job of tailoring sentences from seasoned federal judges appointed by the president and handed it to prosecutors.

He cited the first sentence he had ever imposed: a mandatory minimum of 10 years for a man he identified only as "Eddie," a 53-year-old small-time drug dealer. The sentence, the judge wrote, stemmed from a young prosecutor's "spontaneous, nearly casual" decision during trial about the quantity of cocaine the jury would be told that Eddie had sold.

"I did not expect sentencing people to prison to feel good," Judge Lynch wrote. "But I was sorry and surprised to find that the very first sentence I imposed felt like an injustice. And not a small one."

In the Pabon case, he took his argument further. If prosecutors are to act as sentencers, he said, they have a "moral responsibility" to do what a judge would do: conduct a "deep inquiry" into whether a sentence is just.

A prosecutor, Alexander H. Southwell, replied that the decision to press the tougher charge had been reviewed at the highest levels of his office. Mr. Pabon, prosecutors said, was no different from other defendants with troubled backgrounds. His youth was not remarkable, either; in fact, they suggested, he fit the profile of those often charged with using file servers to trade pornography: young, computer-literate men.

If anything distinguished the case, prosecutors said, it was the volume and luridness of the images of sexual abuse.

David N. Kelley, the United States attorney in Manhattan, declined to discuss the case in detail. There might be an exceptional case, he suggested, in which prosecutors would not seek a mandatory sentence, but this was not it.

“Our job is to enforce the laws enacted by Congress," he said. "In a case where you're dealing with close to 10,000 horrific images, I'm troubled by someone who sees it as unjust to do what Congress has basically prescribed for us to do."

Conviction and Conscience

Trial testimony took only two days in October 2002. While the defense argued that Mr. Pabon was not a professional pornographer, it conceded that he had exchanged the images. Judge Lynch allowed jurors to see about 15 explicit ones. Before instructing them on the law, he granted a defense request that he tell jurors about the mandatory sentence that a guilty verdict would require.

Prosecutors objected, arguing that disclosing the sentence was an invitation to nullification - a practice in which jurors, despite the strength of the evidence, acquit because they believe the law itself is unjust.

Judge Lynch acknowledged that nullification was "a kind of civil disobedience" that was not to be encouraged and indeed was prohibited by law. But, he added, "We recognize that do act on their conscience and that, to some degree, that is why we have jurors and not technicians deciding guilt and innocence.

"And jurors' consciences cannot operate if they have no idea what is at stake," he added. If jurors were so troubled by the sentence that they decided to acquit, "that, it seems to me, would constitute a significant exercise of the historic function of the jury."

The jurors were unlikely to acquit, he said, but if they did, he suggested, it could make an important difference.

"I think that would be an instance where the government, the lawmakers and all of us would best be advised to learn what the community's standards are if they are so inconsistent with those that the court and the government believe appropriate," he said.

Prosecutors immediately appealed the ruling, and a federal appeals panel ordered Judge Lynch not to reveal the sentence, calling such a proposal "a clear abuse of discretion." Mr. Pabon was then convicted on both counts.

At his sentencing in July, he tearfully begged Judge Lynch for mercy. "I never knew a computer could harm somebody," he said. "More than that, I never thought a crime could be done on one."

After more than a year, the decision was finally up to the judge.

He called the sentence abhorrent, and noted, as the defense had pointed out, that the teenager would not be eligible for specialized sex-offender treatment for seven years. "It is shocking to me," he said.

Mr. Pabon was being consigned to a long and potentially dangerous imprisonment, the judge said, because of "the heedless use of mandatory sentencing statutes, and the intransigence of the government in pursuing this Draconian remedy."

Still, he refused a defense request that he declare the sentence unconstitutional as cruel and unusual punishment. "It is apparent to me that there has been a deliberate decision by Congress," he said, "to treat this offense with extreme severity" - a punishment that lawmakers had since increased to 15 years.

"It's a bitter and unfortunate sentence," he said. "I wish I could do more for you, Mr. Pabon."