Federal Judge Orders Dinesh D’Souza To Continue Psychological Counseling Despite Contrary Expert Recommendation

220px-Dinesh_D'SouzaI am rather perplexed by a ruling by U.S. District Judge Richard M. Berman to order not just four more years of community service for filmmaker Dinesh D’Souza but continuation of psychological counseling despite the countervailing findings of two experts in the case. Judge Berman was on solid ground in much of his opinion on the conditions of the prior sentencing order. While tough, the defense was trying to curtail key aspects of the order. However, the counseling component does concern me.

D’Souza’s pleaded guilty to a single count of making illegal contributions in the name of others as part of the campaign of Wendy Long for New York Senate. He made $20,000 in illegal contributions. That is no minor infraction, but many questioned the decision of the Justice Department to seek multiple felonies and jail time. His case was denounced by various people as reflecting a selective prosecution of a conservative write and critic of the Obama Administration. Berman rejected the demand for jail time but did impose five years probation, eight months in a halfway house and a $30,000 fine as well as requiring that D’Souza perform eight hours of community service each week during his probation and must undergo therapy on a weekly basis.

This hearing was meant to clarify aspects of his sentence last year and much of the order would not be viewed as particularly controversial. D’Souza was seeking to limit the time of the community service by reference to his home confinement period. Berman balked and said that he said the two periods as distinct — a position that courts would likely take in similar cases.

Berman not surprisingly continued the community service for four more years. However, it is the counseling that most surprised me. While some sites have clearly relished the denial of relief, even referring to D’Souza as a “conservative clown.” His political views should not factor into these cases.

D’Souza’s counsel submitted evidence that the court-ordered psychiatrist found no indication of depression or reason for medication. His own retained psychologist provided a written statement concluding there was no need to continue the consultation. However, Judge Berman simply disagreed and said that he thinks more counseling will help while noting that this is not punishment: “I only insisted on psychological counseling as part of Mr. D’Souza’s sentence because I wanted to be helpful. I am requiring Mr. D’Souza to see a new psychological counselor and to continue the weekly psychological consultation not as part of his punishment or to be retributive.” I am concerned with a judge exercising such power “to be helpful” when there is not an independent recommendation for such counseling or a desire by the individual for such counseling.

Resources-1809-Berman_Richard_20141011115535Moreover, I am not comfortable with Judge Berman’s reference to his own expertise in the area. The court insisted “I’m not singling out Mr. D’Souza to pick on him. A requirement for psychological counseling often comes up in my hearings in cases where I find it hard to understand why someone did what they did.” I fail to see why this conduct is so mystifying. Stupid, yes, but the motivation was obvious. He sought to circumvent limitations on campaign financing laws. That was justifiably punished but it is not like he was found with severed heads in a duffle bag. Judge Berman noted that the court-appointed psychologist called D’Souza “arrogant” and “intolerant of others’ feelings.” However, that description would fit many successful people, including many in Washington and even a few on the bench.

Judge Berman then added: “You have to understand, I have a background in social work with a psychology major. I’m sensitive to mental health issues in the criminal cases I hear, and I do not want to end psychological counseling at this time in Mr. D’Souza’s case.” I have little question that Judge Berman has such a background. Indeed, he has a remarkable background and proven intellectual prowess. He received his B.S. from Cornell University in 1964 and his J.D. from New York University School of Law in 1967. He also received a Master of Social Work from Fordham University in 1996. He had a successful legal career and served as an executive assistant to United States Senator Jacob Javits in 1974. He was later named Executive Director of the New York State Alliance to Save Energy and was then appointed General Counsel and Executive Vice President of the Warner Cable Corporation. He has been a judge on various levels and is distinguished in the depth and scope of his published opinions.

However, while judges often bring their experience and knowledge to cases, it is a bit more problematic when the court effectively places his own experience as a type of third expert witness on an issue like psychological counseling. It is akin to a former police officer invoking his own forensic analysis to overrule or amplify the conclusions of an expert witness. I also simply do not see the record for continuing this element of the order. The original sentence for D’Souza was quite harsh and he has fulfilled those conditions without incident from what I can see. He has also continued as a successful writer and speaker. Even if the court believes that community service must continue, I do not see the basis for compelled psychological counseling. The court is not in the business of making “better people” in this way. The court acknowledged that this is not part of the punishment and that he was only ordering the counseling on his hunch that D’Souza could benefit from such counseling. At this point however I think that decision should rest with D’Souza. I do not know D’Souza and I have not read his work. However, I fail to see a record to support this part of the order.

What do you think?

136 thoughts on “Federal Judge Orders Dinesh D’Souza To Continue Psychological Counseling Despite Contrary Expert Recommendation”

  1. Richard M Berman, that Richard M Berman who cooperated with the corrupt FBI and lying US soldiers in burying Aafia Siddiqui for 86 years in a prison for the criminally insane in Carswell Medical Centre Fort Worth Texas after making sure that she could not raise in her defense her location during the missing 5 years after she and her 3 children were kidnapped from a Karachi street by America’s friends in the Packistani ISI.

  2. About the question “can we do something” I tried once. Serving on a jury, I was placed where I could see the judge at all times. He allowed such antics from the prosecutor waving his arms, shaking his head. No judicial comment. He took a nap, I swear. So I made an appt. to see the head of judges. He was nice, concerned, thanked my citizenship, patted me on the head and said he would discuss my concerns with the judge. I have a friend married to a retired lawyer.mat a dinner party, he laughed and explained that articulate court’s system of judicial “complaints.” They rotate judges on a monthly basis.

    He doubted anything would have been said,mat least not seriously. Next time call the newspaper, they have people who love to smash judges. D’souza has many legal folks who would help him, but he doesn’t need them. This is getting so much attention, Mrs. Berman will soon put a stop to it.

  3. BFM, My wife wrote hundreds, probably thousands, of presentence investigations as a Fed PO. Those presentence reports document all the facts and produce a recommendation to the court. While the Federal Sentencing Guidelines are formulaic, complicated and sometimes draconian, fixing the crack v powder cocaine guidelines did help somewhat. And, judges do have some leeway on sentences. You do have to keep judges corralled to a certain degree otherwise you get wildly disparate sentences. But you are correct, there are not many Solomon’s wearing robes.

  4. “It seems to me, even with your web site, that sentences are about as close to engraved in stone as any written text you are likely to find.”

    Considering all the mass shooters who were not given mandatory counseling or commitment and went on to commit terrible crimes, I find it offensive that a judge would mandate counseling, unwarranted by any psychiatric professional, for allegedly political reasons.

    1. @Karen S

      I don’t think there are many who are satisfied with federal sentencing.

      We tried rigid, formulaic standards that gave judges essentially no discretion and got some absurd results.

      Now we seem to have loosened it a bit so judges and use their judgment a bit and other kinds of problems reveal themselves.

      Where is Solomon now that we really need him?

  5. BFM- Towards the bottom is a section on what to do if you’ve already been sentenced. There are appeals, as well as going as far as impeachment/recall.

    Lack of judicial accountability was a hot topic in this area after several cases where children were murdered by their own parents after judges refused to grant protective orders. We may need additional legislation if there is not enough accountability.

    What is troubling is that lawyers’ hands are tied. They dare not complain or they could be punished the next time they face that judge.

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