Next Witness...Please

One often hears the term “sentencing guidelines” when following a federal criminal case. But what are they and how do they work? The guidelines are for federal judges to use in sentencing defendants convicted of federal crimes so there is some consistency from court to court across the country, says John R. Mitchell, award-winning attorney in the Taft Law Firm’s Compliance, Investigations, White-Collar Defense and Commercial litigation practices. The guidelines are established by the U.S. Sentencing Commission consisting of lawyers, judges, and legal scholars. The guidelines also are reviewed periodically by the commission to see if any of the guidelines need to be changed. The guidelines are intended to provide fairness and consistency, to reduce disparities by preventing arbitrary or biased sentencing, to provide transparency for the public, and to give judges some structure in fashioning the right sentence. The guidelines originally were mandatory but since 1987 they have become advisory to judges. This flexibility allows judges some discretion in sentencing convicted individuals. Attorney Mitchell explains, in depth, on this edition of Next Witness…Please the key components of the guidelines. A judge must first consider the seriousness of the offense considering the nature of the crime, whether a weapon was used, and the harm to the victim. Secondly, a judge must consider the defendant’s criminal history – whether the defendant has a past criminal record. Finally, a judge must look at a Sentencing Table or Sentencing Grid. This table takes into consideration the offense level and the criminal history of the defendant to arrive at a recommended sentence of prison, fines, or probation. The use of sentencing guidelines by the prosecution and the defense, often creates incentives for a negotiated guilty plea in a matter – with sentencing recommendations to the judge. That often avoids a trial Mitchell says. Some states have sentencing guidelines for state crimes but not all.

Judges, both federal and state, are increasingly under attack and are becoming targets of abuse and even violence from citizens and politicians alike. Sometimes, state legislatures target judges for punishment for First Amendment speech. One such case is happening in Ohio. On Oct. 21, two members of the Ohio House filed a joint resolution demanding that a Hamilton County (Cincinnati) Municipal Court judge resign immediately or be brought before the General Assembly for impeachment proceedings. Judge Ted N. Berry is being targeted for his social media comments after the death of conservative leader Charlie Kirk. Judge Berry is the son of the first African American Mayor of Cincinnati. Adam Mathews (R-Lebanon) and DJ Swearingen (R-Huron) claim that Judge Berry made inappropriate comments. They site three.: First, “So, a white guy killed him! Color it KARMA.” Second, “Rest in Hatred & Division!” and finally “How’s he feel about gun violence and gun control in Hell, now?” Matthews and Swearingen claim that these statements show a clear “personal bias or prejudice” and therefore, Judge Berry should be removed from the bench. This legislative action bypasses the usual disciplinary processes conducted and managed by the Ohio Supreme Court and makes this whole free speech issue political. Sponsor testimony was given to the resolution in the House General Government Committee on Nov. 4, but no further action has been taken. Some observers see this resolution as a political stunt to silence judges since Judge Berry’s term of office ends on Jan. 4, 2026. This edition of Next Witness…Please examines this legislative action and other attempts to curtail the free speech rights of judges and to target them if they do not follow the conservative path.

As President Donald Trump’s Department of Justice (DOJ) continues to target his political foes with criminal indictments, the topic of vindictive prosecutions is making headlines. Currently the judicial landscape is strewn with cases against former FBI Director James Comey, New York Attorney General Lettia James, former National Security Advisor John Bolton and others less well known. Special grand juries are being formed to investigate former President Barrack Obama’s officials and other so-called “enemies” of President Trump. Others on the “hit list” are former House Speaker Nancy Pelosi, Sen. Adam Schiff of California, former FBI Director Christopher Wray, Congressman Eric Swalwell and more. The list seems endless. Normally successfully claiming “vindictive prosecution” is difficult because defendants must prove genuine animus against them by the prosecution. However, in the case involving Comey, he is attacking the issue of vindictive prosecution at four levels. First, he is saying that his prosecutor Lindsey Halligan was not properly appointed and is holding her office illegally. Secondly, he claims that there were grievous errors committed by current FBI agents in testifying before the grand jury and divulging privileged information. Third, Comey claims that Trump literally ordered his prosecution through various social media posts that were made public by Trump. Therefore, Comey was targeted. And finally, it has been discovered that newly appointed prosecutor Halligan never showed the final indictment to the entire grand jury which is required. She just had the foreperson sign the indictment in a rush to get charges filed before the statute of limitations ran out against Comey. On this episode of the podcast Next Witness…Please, retired judges Gayle Williams-Byers and Thomas Hodson make the whole concept of vindictive prosecutions understandable. They delve into what the various federal judges must consider in making their decisions and specifically look in-depth at the allegations of vindictiveness in the Comey case.

As Election Day 2025 is upon us, President Donald Trump is still calling for the elimination of mail-in ballots and early voting. He wants to limit voting to same-day, in-person voting only. However, his opinion is contrary to the official position of the Republican Party. Instead, party officials having been trying to get Republicans to embrace early forms of voting. As early as August, the President was threatening to issue an Executive Order eliminating early voting claiming it is “rigged.” However, most legal experts say he has no power to do so. Experts agree that states are not mere agents of the federal government when it comes to elections. Instead, states have the power to control their own election processes. In 2020 during COVID, nearly 70 percent of people who voted for President voted prior to election day. In 2024, the figure was 60 percent. This year, California mailed 23 million ballots to its voters and over 4 million ballots –more than 18 percent were received two weeks before the election for the redistricting proposition. In New York City, during the first week of early voting, more than 164,000 ballots were cast in the mayoral race between Democrat Zohran Mamdani, Andrew Cuomo and Republican Curtis Sliwa. In some states, mail-in ballots are the primary way of voting. That’s the case in Utah, Oregon and Washington. Contrary to Trump, some Republican officials are urging GOP voters to promote early voting and to “work it” to up Republican turnout. Presidential power to impact voting methods in states is the topic of this new episode of Next Witness Please. Retired judges Gayle Williams-Byers and Thomas Hodson also discuss Trump’s strategies of casting doubt on election results preceding the 2026 mid-term elections.

As a result of an aggressive law enforcement presence in Washington DC, over the past month, federal grand juries have refused to indict almost a dozen cases presented by the Department of Justice (DOJ). They have found that the cases lack probable cause to bring indictments. So, the DOJ lawyers have attempted a back door approach by taking rejected cases to a local grand jury to get indictments. However, Judge Zia Faruqui, a federal magistrate judge, has refused to accept the new indictments saying that the federal attorneys are trying to perform an “end-run” around the usual processes for bringing cases. Initially Judge Faruqui asked for briefs on this unusual procedure. Not only did the government file a fiery 18-page legal brief but it also requested an emergency hearing before Chief Judge James E. Boasberg. Judge Boasberg refused to interfere but chastised government attorneys for acting disrespectful to the court. In its brief the government attorney, Jonathan R. Hornak, accused Judge Faruqui of ignoring the law and “bloviating” from the bench. His highly political brief said: “Judge Faruqui’s bloviate first and consider the law later approach is just the latest example of his demonstrated prejudice against the U.S. Attorney and the Trump Administration.” Jeanine Pirro, the U.S. Attorney for the District of Columbia, called Farqui and activist judge and said that the judge should tend to his own cases and not interfere in DOJ’s actions. This situation is just one example of government attorneys’ increasingly disrespectful behavior towards courts and judges. This is the topic for the latest episode of “Next Witness…Please.” Retired judges Gayle Williams-Byers and Thomas Hodson unwrap the issue of a growing breech in attorney decorum towards judges and the judicial system.