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May 29, 2006 - Charlotte Observer (NC)

Federal Judge Raps Rules On Sentencing

Mullen Says Guidelines Give Prosecutors Too Much Power

By Gary L. Wright

Graham Mullen has sent hundreds of black men, mostly young and mostly convicted for drugs, to prison. The federal judge in Charlotte hasn't liked it. "I'm tired of sentencing young black men to prison," Mullen said during a recent interview.

The 66-year-old judge doesn't intend to do that much longer. Mullen, a judge in Charlotte and the Western District of North Carolina for 16 years, has taken senior status. That's a move akin to semi-retiring but one that allows him to continue working at a reduced pace. It means President Bush will be able to nominate a replacement. Mullen, who earns $165,200 a year, is no longer accepting cases that will require him to put anyone behind bars. Once he disposes of the more than 150 criminal cases already assigned to him, he'll focus on civil litigation.

Mullen has contempt for the federal sentencing guidelines, which he believes have given prosecutors more power than judges in deciding punishments. He once said the guidelines, designed by Congress in the 1980s to make prison terms tougher and more uniform, would "gag a maggot." Even though the U.S. Supreme Court last year abandoned years of federal sentencing practices, they are still in place as advisory guidelines. Mullen doesn't shy from speaking out about what he perceives as injustices. He's told federal prosecutors they have a reputation of being arrogant bullies. And he's refused to accept plea bargains that force criminal suspects to give up their rights to appeal.

"Judge Mullen is his own man," Charlotte lawyer James Wyatt said. "He does not care about doing anything other than what he believes is right and fair. That doesn't always make everyone happy, and it shouldn't." The judge's critics say he can sometimes seem hostile toward prosecutors. "He's a bright guy and he's capable of doing very well. But he can manipulate the law to suit his purposes," said one former prosecutor, who didn't want his name attached to comments critical of a federal judge. "He sometimes ignores or bends the law."

Mullen said his differences with prosecutors stem from his desire to even the playing field between them and criminal suspects. Mullen and then-First Assistant U.S. Attorney Kenneth Bell have had their share of courtroom battles.

The most highly publicized involved former heavyweight boxing champion Riddick Bowe, who in 1998 was accused of abducting his estranged wife from her Cornelius home and transporting her and their children across state lines into Virginia.

Bowe pleaded guilty to interstate domestic violence in a deal with prosecutors that called for him to serve 18 months to two years in prison. But Bell and Mullen went round and round in Bowe's sentencing. The judge, despite the plea bargain calling for prison time, twice gave Bowe sentences that allowed him to avoid prison. And twice, the U.S. 4th Circuit Court of Appeals overturned the sentence and ordered Mullen to resentence Bowe. Mullen eventually sentenced Bowe to 18 months in prison.

Mullen talked recently for the first time about why he kept allowing Bowe to avoid prison. The judge said he takes domestic violence seriously but questions whether Bowe should have been prosecuted.

"He's a proud man who was told by his mother-in-law that a real man would go down there and get his wife and family and bring them back," Mullen said. "And that's what he did."

"Judge Mullen and I have had our battles over the years," Bell said. "Sometimes I was able to persuade him what the law was, sometimes not. But I think most attorneys and defendants believe they were treated fairly in his courtroom."

Charlotte lawyer Pete Anderson, a former federal prosecutor who also was Mullen's law clerk in the early 1990s, called his former boss "a great teacher, a wonderful mentor and a true friend."

As a law clerk, Anderson said Mullen taught him the importance of credibility. As a prosecutor, the judge reminded him about exercising sound judgment, mercy and restraint. And as a defense lawyer, the judge inspired him to remain ever-vigilant in protecting his clients. "He has that rare ability to temper justice with mercy," Anderson said. "That's my kind of judge."

In 2003, Mullen surprised many in the legal community by announcing he would no longer accept most plea agreements. He said the agreements, which forced criminal suspects to give up their rights to appeal, were unconscionable. A few months later, prosecutors and defense lawyers reached a compromise that gave defendants more rights to appeal.

As the keynote speaker at a 2002 U.S. Attorney's Office retreat in Boone, Mullen's bluntness shocked and angered prosecutors. He told prosecutors never to lie or shade the truth. "A lying law enforcement officer," he warned, "is as much a slime dweller as any criminal defendant." The judge said prosecutors have so much unchecked power that there's a temptation to use it to bulldoze. "Don't run over people just because you can," he said.

Mullen knew his talk would anger prosecutors. "The message I was trying to get across was 'beware of Lord Acton's axiom that power tends to corrupt. And absolute power tends to corrupt absolutely,' " the judge said. "There are judges who ought to get that same message." Mullen's biggest frustration has been how the sentencing guidelines took away judges' power to impose what they believe are fair punishments. "These sentencing guidelines weren't guidelines at all," the judge said. "They were mandated sentences. Sentencing required no judicial exercise."

Mullen has complained before that following the guidelines meant he had to send blacks to prison for decades for crimes involving crack cocaine. He pointed out that those crimes carry tougher penalties than powder cocaine and that many blacks are charged with crack cocaine crimes. "The drug laws of this nation are draconian," Mullen said. "Sentences have had a disproportionate impact on young black men.

"I've sent too many black men to prison for 20 or 30 years or life. As a judge, I had no power to do anything other than what was called for in the sentencing guidelines."

Mullen wrote the preface for the Georgetown Law Journal's 2004 Annual Review of Criminal Procedure. He didn't hide his scorn for the sentencing guidelines.

"I will retire from the field soon," he wrote, "as I can no longer stomach the gross injustices I am required to announce. Senior status beckons in the near future and offers the ability to avoid criminal cases."

Talking Tough to Prosecutors

Graham Mullen, nominated to the federal bench in 1990 by the first President Bush, is known for his outspokenness. He had some blunt warnings for prosecutors at a 2002 U.S. Attorney's Office retreat: On pursuing convictions in court: "If you define excellence as prosecuting every case that passes through your quality screen pursuing a win-a-conviction-at-all-cost and a maximum sentence, then we have a conceptual cognitive dissonance."

On how federal prosecutors are perceived: "Your office is perceived as acting like arrogant bullies who over-indict, always believe snitches, threaten defendants who seek release on bond, always seek to get the max and go for the jugular."

On federal sentencing guidelines: "I am only performing a ministerial function -- indeed only slightly more than a clerical function at sentencing. Frankly, the sentencing guidelines would gag a maggot. ... You now determine the sentence. Not me. Your power has become all but absolute."

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