Analysis

Rare 'Varsity Blues' Video Sentence Carries Risks For Defense

By Chris Villani
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Law360 (March 27, 2020, 7:55 PM EDT) -- The coronavirus pandemic will force a California mother who pled guilty in the "Varsity Blues" college admissions case to be sentenced via videoconference, a rare occurrence that experts say could make it harder for her to garner sympathy from the judge than if she were face-to-face.

When Elizabeth Henriquez faces U.S. District Judge Nathaniel M. Gorton on Tuesday morning, they will be on opposite sides of the country with Henriquez thousands of miles away from the Boston courthouse. The sentencing will be the first in the district to be conducted virtually due to the outbreak, marking a high-profile example of courts adapting on the fly to an unprecedented situation.

For Henriquez and other criminal defendants and defense attorneys, sentencing hearings conducted by videoconference can present unique challenges.

"To the extent the sentencing is a humanistic endeavor and to the extent the defense function is about making the judge see the client as more than a rap sheet or a charge, anything that sort of limits that human element has the potential to be detrimental," said William Fick of the Boston defense firm Fick & Marx LLP.

Henriquez's counsel, who did not object to holding the hearing via video, declined to comment. It was not clear which of her attorneys, if any, plan to be physically present with her during the sentencing.

A spokeswoman for the U.S. attorney's office declined to comment on Tuesday's format.

Fick said holding such a hearing without having everyone in the same place makes it harder to "read the room" and can impact a lawyer's ability to subtly communicate with his or her client if an allocution starts to go off the rails, or if something needs to be said out of earshot of the other parties.

Christopher Nasson, a white collar defense partner in the Boston office of K&L Gates LLP, agreed that there is no substitute for being in the same courtroom, particularly for a sentencing.

"When a defendant is being sentenced, she wants to present as credible, sincere and remorseful," Nasson said. "She wants to be seen as a human being, a mother, a wife, a sister, a colleague, a community member — not just a base offense level and criminal history category."

If the lawyer advocating for the defendant is not in the same room as the defendant herself, subtle cues like a hand placed on a shoulder can be lost, Nasson said.

"Whenever I am representing a client at a sentencing proceeding, I try to fill the gallery with supporters," Nasson added. "I want this poignant, tangible reminder to the judge that the person who stands before her has done many positive things with their life."

It is highly unusual for a sentencing to take place without the defendant physically present. Nasson said he had never argued a sentencing hearing in this fashion, and Fick said the only time it's happened in his career was when a defendant was being sentenced for the second time after a successful appeal the first time around.

In one instance — coincidentally before Judge Gorton — a sentence for one of Fick's clients was vacated by the First Circuit because the defendant was not present for a resentencing over Fick's objection.

The case law around sentencing without the defendant present is unsettled, Nasson said. Some courts have expressed concern that videoconference testimony may not satisfy the Sixth Amendment's confrontation clause, which does not provide defendants merely with the right to "virtually" confront adverse witnesses.

Elizabeth Henriquez's husband, Manuel, also pled guilty in the high-profile case. Prosecutors say the couple agreed to pay the "Varsity Blues" scheme's mastermind, William "Rick" Singer, $400,000 to have the Georgetown University tennis coach, Gordon Ernst, falsely designate their daughter as a recruit.

Elizabeth Henriquez, citing the COVID-19 pandemic, has argued she should serve probation and house arrest, while prosecutors indicated they would seek 26 months in prison. Manuel Henriquez, the former chairman and chief executive of Hercules Capital, is scheduled to be sentenced April 8 in what the courthouse website describes as a "teleconference."

Jeffrey Cohen, a former federal prosecutor and current assistant professor at Boston College Law School, said it would be "troubling" if the pandemic forces more of these high-stakes hearings to take place virtually. But he did see some upside to the format for defendants.

"The defendant gets the ability to be sentenced without standing up in the presence of the judge," Cohen said. "I think it's a hard thing to get up and speak in front of a federal judge in open court about what has occurred. It's different when you do it in your lawyer's conference room and you sort of turn it off when you're done."

Motion hearings and other proceedings in the Boston federal courthouse have been moved to teleconference. During one such hearing, the district's chief judge, F. Dennis Saylor IV, told attorneys the courthouse information technology staff was doing its best to arrange for defendants to appear via video.

William Weinreb of Quinn Emanuel Urquhart & Sullivan LLP doubted there will be a flurry of sentencing hearings conducted via video if the pandemic keeps courts relatively barren, saying most defendants will likely elect to put the hearings off until virus concerns have passed.

Cohen noted that a defendant not being present for an arraignment or a hearing is different than a sentencing, when the stakes are high and the emotions often run deep.

The sentencings in "Varsity Blues" have been no exception. One college coach who pled guilty sobbed uncontrollably for several minutes after being sentenced to six months in prison for his role in the scheme.

Actress Felicity Huffman wept before she was sentenced to two weeks in prison, as did developer Robert Flaxman before his one-month prison term. Weinreb, who represented Flaxman, said Tuesday's sentencing for Henriquez has the potential to be emotional even without her being in the courtroom.

"It's long been my experience as an attorney that, when people talk to you in your office or in other settings about something that's very meaningful or emotional, they don't show emotion," said Weinreb, a former acting U.S. attorney for the district. "But when it comes time for the proceeding, all the emotion comes out."

Weinreb added, "it's still going to be the real deal. It's going to be her sentencing."

The government is represented by Eric S. Rosen, Justin D. O'Connell, Leslie A. Wright and Kristen A. Kearney of the U.S. Attorney's Office for the District of Massachusetts.

Elizabeth Henriquez is represented by Aaron M. Katz, Colleen A. Conry and Laura Gaffney Hoey of Ropes & Gray LLP.

The case is U.S. v. Sidoo et al., case number 1:19-cr-10080, in the U.S. District Court for the District of Massachusetts.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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