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Waiting For Gershon

by Alexander R. Cohen
Dec 29, 2011

 “The law’s delay” is proverbial; there are snails sculpted on the flagpoles at the Supreme Court. But how long should a person sit in prison waiting for the court that convicted him to decide whether what he was convicted of doing was actually a crime? Bradley J. Stinn’s lawyers think he’s been waiting too long—and they’ve asked an appellate court to order Judge Nina Gershon to make a decision.

On March 24, 2008, Stinn was convicted—after Judge Gershon removed a dissenting juror—of fraudulently inflating the financial data of the jewelry-store business he was running, thus deceiving investors. As his attorneys see it, this was just the sort of “honest services” fraud that the Supreme Court ruled, in the Skilling case, wasn’t actually prohibited: Stinn wasn’t accused of taking bribes or kickbacks, nor was his gain some victim’s loss; the only money he received was his salary and bonus.

The Skilling case was decided June 24, 2010. On April 28, 2011, Stinn’s lawyers filed what’s known as a “2255 motion,” asking Judge Gershon to rule that, in light of Skilling, Stinn’s conviction could not stand; on May 4, they added a request to release him on bail while that motion was decided. Before the prosecution filed its response, an appeals court gave Stinn’s team new hope that the removal of the dissenting juror would be found unconstitutional. So, on July 3, they amended their motion to take up that issue too. On August 2, the prosecution submitted its response, and Stinn’s team replied ten days later.

It took five months just for Judge Gershon to decide the motion for bail. But on October 7, she did, holding that the standards for bail on a 2255 motion were high, and that Stinn’s case wasn’t strong enough to meet them. He had to present, she said, “substantial claims”—and that, she explained, quoting precedents, meant a “demonstrated likelihood that the petition will prevail, based upon claims of a substantial nature upon which the petitioner has a high probability of success, and demonstrating merits that are more than slightly in petitioner’s favor, so that victory for petitioner can be predicted with confidence.” 

More than two months later, Judge Gershon still hasn’t ruled on the underlying questions—whether Stinn’s conviction relies on the theory the Supreme Court rejected in Skilling, and whether she violated the Constitution by dismissing the one juror who wanted to acquit him. Stinn’s lawyers, interpreting Judge Gershon’s statement that he hadn’t raised a “substantial claim” as a statement that “the 2255 motion did not raise a close question and would be denied in its entirety,” argue that she has no business delaying a decision—and thereby delaying their appeal, since they cannot appeal her decision until she issues it. So they’ve filed a petition with the Second Circuit Court of Appeals, asking it to order Judge Gershon to decide the 2255 motion or release Stinn on bail.

While Judge Gershon’s decision denying bail does not actually foreclose the possibility that she will decide the 2255 motion in Stinn’s favor, it does say that she had reviewed the motion—as of October. The motion was filed in April, and the last brief was filed in August. Now here we are at the end of December, and Judge Gershon hasn’t decided the motion. And as she goes about her life and works on her other cases, Brad Stinn sits in prison—waiting.

 

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