By failing to include a defendant in conversations about his sentencing, a Connecticut district court judge violated his Fifth and Sixth Amendment rights, the U.S. Court of Appeals for the Second Circuit found.

"The district court's conduct violated [Jorge Luis] Morales' Fifth Amendment right to be present at all critical stages of his criminal proceeding," the court wrote in its May 4 decision. The case was remanded to the federal courts for resentencing. No date has been set.

In 2008, Morales stood trial for conspiracy to possess with intent to distribute 1,000 grams or more of heroin and was facing 30 years to life in prison, with a 10-year minimum sentence. However, due to a clerical error, the district court determined that the minimum sentence was 20 years. During a sentencing hearing in December 2008, the government sought more severe penalties. Prosecutors claimed there had been a potential obstruction of justice after a prison fight broke out involving Morales and a cooperating witness, according to court records.

Richard Marquette, Morales' trial attorney, requested a continuance so that he could prepare to cross-examine a witness, but the government pushed for the hearing to continue as scheduled to spare marshals and out-of-state witnesses future travel inconvenience.

Then-U.S. District Judge Alan Nevas called a recess and asked for a prosecutor and defense counsel to meet in the robing room. At the end of the meeting, Nevas offered to impose a 25-year sentence. According to court briefs filed for Morales, that was "apparently the midway point between the improperly calculated mandatory minimum of 20 years and the bottom of the 30-years-to-life guidelines range." Marquette recalled Nevas saying "25 today only," according to court records.

After the meeting with the judge, Morales and Marquette spoke. Morales did not accept the proposed 25-year sentence.

At some point, Morales said, "I don't know what's going on here." According to court records, Nevas replied: "Whatever we discussed off the record is no longer applicable. This will be a straight-out sentencing." The continuance requested by Marquette was granted and the sentencing ultimately took place in January 2015. Morales was sentenced to 28 years, three more than the off-the-record sentence offered a month before.

Morales appealed on the basis that his sentence was much longer than that of his co-­defendants and that it did not take into account his "difficult past." He later added two more points of appeal, one being that Nevas' conduct was improper during the December sentencing hearing.

Morales filed a habeas petition requesting to be resentenced. He alleged that his constitutional rights had been violated and that he had received inappropriate counsel during the off-the-record December meeting. In the Second Circuit appeal, Morales was represented by Scott Chesin from Mayer Brown in New York. Connecticut Assistant U.S. Attorney Harold Chen represented the government.

In court briefs, the government downplayed the closed-door meeting. "The in camera meeting in this case did not involve the testimony of witnesses, judicial fact-finding, or any rulings," prosecutors wrote in their briefs to the Second Circuit. "Instead, it focused on the potential application of an obstruction enhancement and involved a 25-year proposal that Judge Nevas expected defense counsel to convey to Morales."

Prosecutors said the meeting caused no harm to Morales because the court wound up having a full sentencing hearing anyway. They also stated that "by failing to object to his absence from the in camera meeting when Judge Nevas returned to the bench, Morales waived any right to be present at that meeting."

Chesin, in his briefs, characterized the government position as "no harm, no foul."

"Virtually every one of the government's arguments is predicated on a few facts that it contends minimize Mr. Morales's constitutional claims and strip him of any entitlement to relief," Chesin wrote. "But no matter how many times that refrain is repeated (and it is repeated a lot), it simply does not serve as an adequate response to any—let alone all—of Mr. Morales' constitutional claims."

Chesin took particular issue with the government's argument that the meeting was more of a sidebar, and therefore did not constitute a court proceeding, and therefore fell outside the scope of the fair trial rights guaranteed by Sixth Amendment. Chesin wrote that nothing could be "more material to a sentencing proceeding than a proposed sentence."

In the end, the court sided with Chesin, adding that the situation was exacerbated by the ineffective representation provided by trial lawyer Marquette. "Counsel's failure to raise Morales' significant and obvious Fifth Amendment claim—while instead advancing weaker arguments—constituted inadequate performance," the court found. "Despite the factual finding that Morales rejected the proposed sentence after Marquette communicated it, the record reflects that Morales expressed confusion about the exact terms of the 'offer' when offered an opportunity to be heard later during the hearing."

Reprinted with permission from the May 16, 2016 edition of The Connecticut Law Tribune © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.