Should Dinesh D'Souza Have Been Sentenced to Therapeutic Counseling?
It seems to follow that D'Souza was sentenced to therapeutic counseling because he and Judge Berman have different takes on the Obama Administration and his prosecution and if that is so, it is wrong.
Ardent D'Souza supporter Laura Ingraham tweeted after Judge Richard M. Berman sentenced D'Souza: "Surprised the judge didn't force Dinesh into an #OFA reeducation camp for his 'community service.'"
That would have been an obvious display of partisanship, even as part of an otherwise reasonable sentence.
Instead D'Souza was sentenced to therapeutic counseling, as though Judge Berman had diagnosed a mental illness or defect requiring such treatment.
Sentencing D'Souza to therapeutic counseling because he rejected his attorney's advice not to give any post-guilty plea interviews before sentencing and, in promoting his latest book and political documentary, related his suspicion that he was a victim of selective prosecution by the Obama Administration's Justice Department isn't exactly "forc[ing] [him] into an #OFA education camp," but it does call to mind the treatment of political dissidents in the former Soviet Union.
Last January Geraled R. Molen, producer of D’Souza’s two political documentary films, equated D'Souza's prosecution for making $20,000 worth of illegal conduit contributions with the prosecution of "a political dissident in the Soviet Union for jaywalking.”
Molen: “Yes, jaywalking in the Soviet Union is a crime, but it’s a minor crime. The real point is that you are a political dissenter and the government wants to put you away. When Dinesh D’Souza can be prosecuted for making a movie, every American should ask themselves one question: ‘What will I do to preserve the First Amendment?’”
D'Souza and Molen obviously believe that D'Souza was a victim of selective prosecution, and they are hardly the only ones.
D'Souza moved for discovery on the issue of selective prosecution, but Judge Berman denied the motion on the ground that D'Souza had not produced any evidence to support his selective prosecution claim.
Had there been discovery on the selective prosecution issue, it might have been clear that there was, or was not, selective prosecution.
The truth is that we don't know, Judge Berman presumed that there wasn't and he was displeased that D'Souza continued to assert his suspicion that there was.
D'Souza tried to explain to Judge Berman at his sentencing hearing that his suspicion was reasonable instead of evidence of paranoia, and cited an unsigned attack on him posted on President Obama's website.
People who realize that then presidential candidate Obama lied about the extent of his relationship with ACORN during the final presidential debate in 2008 and lied to secure passage of the Affordable Care Act aka Obamacare and that the Internal Revenue Service under President Obama targeted conservative organizations naturally wonder whether D'Souza suspicion was correct and don't fault D'Souza for having that suspicion.
Judge Berman rightly rejected the prosecution's claim that D'Souza should be imprisoned for from 10 to 16 months and instead put D'Souza on probation for five years, the first eight months to be spent in a halfway house, fined him $30,000 and ordered him to teach English for 8 hours a day one day a week for five years.
D'Souza and his attorney Benjamin Brafman did not complain after the sentence was pronounced.
"I want to thank the judge for imposing what I believe is a fair sentence,” D’Souza said.
Later that day, on "The Kelly File," D'Souza blasted the Obama administration and praised Judge Berman: "This was really an effort to put me out of business -- the government was trying to lock me for between 10 and 16 months and a federal judge said no. Today my faith in an independent judiciary is affirmed."
Brafman pronounced the sentence "an enlightened sentence by a court who carefully and thoughtfully reviewed all of the facts and imposed an appropriately lenient sentence.”
The euphoria resulting from Judge Berman's ultimate decision not to send D'Souza to prison and the desire of both client and counsel to declare victory in the extraordinary circumstances is understandable.
BUT... the sentence also requires D'Souza to receive therapeutic counseling during probation and that seems to be an abuse of judicial discretion.
After Judge Berman finished the lengthy "background" to his sentence, including reading a last minute attack letter from the person D'Souza is divorcing and playing a post-guilty plea interview that D'Souza gave hammering his selective prosecution suspicion and lamenting that he could not pursue it as a result of Judge Berman's ruling, it seemed that prison time would be in D'Souza's near future.
Even though Judge Berman had repeatedly acknowledged during the hearing that D'Souza had "an absolute right" to say what he said in that post-guilty plea interview, yet he apparently punished D'Souza for expressing his suspicion in that interview by imposing therapeutic counseling on him.
Judge Berman was entitled to a contrary opinion and he strongly expressed one. He said that in D'souza's interview by Steve Melzberg D'Souza was "all hat, no cattle" and described D'Souza's answers as "inaccurate chatter" and "nonsense. Spin is what that is."
Judge Berman further opined that D'Souza's post-guilty plea interviews did "not promote respect for the law and need to be remedied" and had been done to "deflect and minimize his crime" with references to Senator Majority Leader Harry Reid, President Obama, the IRS and the tea party.
It seems to follow that D'Souza was sentenced to therapeutic counseling because he and Judge Berman have different takes on the Obama Administration and his prosecution and if that is so, it is wrong.
Attorney Brafman fairly depicted himself as facing a steep climb after Judge Berman finished his "background" and gave Brafman the floor. He dealt with his predicament by assuring Judge Berman that he had "begged" D'Souza not to give any post-guilty plea interview before sentencing and that while he agreed with D'Souza about some things, he strongly disagreed with him about other things.
Judge Berman may have been influenced to impose therapeutic counseling on D'Souza by Brafman's disclosure of private communications with D'Souza during the sentencing hearing. Why Brafman apparently thought he was serving D'Souza's best interests by making those disclosures is not apparent.
Judge Berman, referring to D'Souza, declared, "He's a talker. In fact, he's almost a compulsive talker. But I don't think he's a listener. I don't think he's hearing himself and those around him."
Those around him seems to include Brafman.
I don't think that there was a legitimate basis for ordering therapeutic counseling.
I do think that the order may have the kind of chilling effect that the Constitution eschews.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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