Appeals nominee set sentence rules aside

Kelly Brenton Farley had it all planned out: fly into Atlanta for business, hook up with a woman he met on the Internet and have sex with her and her 10-year-old daughter.

But Farley never got the chance. When his plane landed in Atlanta, he was ensnared in an undercover FBI sting, arrested and later convicted at trial.

For crossing state lines to engage in sex with a child under 12, Farley faced a 30-year minimum mandatory prison sentence set by Congress in 2006. But U.S. District Judge Beverly Martin —- President Barack Obama’s nominee for the federal appeals court in Atlanta —- declined to impose it.

In a ruling federal prosecutors call “unprecedented,” Martin found the minimum mandatory term unconstitutional in Farley’s case. She said the punishment was disproportionately severe compared to penalties for similar and more aggravated crimes.

With hearings beginning Monday for U.S. Supreme Court nominee Sonia Sotomayor, the Senate Judiciary Committee has yet to schedule Martin’s hearings. But her ruling in the Farley case could make her confirmation process a bit rocky.

The ruling has already drawn sharp criticism by House Republicans who say Martin ignored Congress’ authority to decide the appropriate punishment for trying to sexually abuse a child. Nine members are asking the 11th U.S. Circuit Court of Appeals —- where Martin would sit if she is confirmed —- to overturn her decision.

The congressmen support an appeal by federal prosecutors who say Martin substituted her own judgments for those of Congress when it set the punishment in 2006. “The statute involves a grave despicable offense, worthy of a substantial mandatory minimum sentence,” the government’s appeal said.

Last week, Rep. Lamar Smith (R-Texas), ranking minority member of the House Judiciary Committee, said Martin misinterpreted Congress’ intent regarding mandatory minimum sentences and pedophiles. “If we’re serious about protecting children from sexual predators, we must make sure that our laws are effectively enforced and that judges do not stray from Congress’ intent,” he said.

Martin, 53, is a former U.S. attorney in Macon. She was put on the U.S. District Court in Atlanta by President Bill Clinton in 2000.

Former state Attorney General Mike Bowers, a Republican who recommends judicial appointments to Gov. Sonny Perdue, called Martin a straight shooter who “really believes in the rule of law and doing what’s right.”

No one should give her a hard time at her confirmation hearing, Bowers said. “She’s a gift.”

One of Georgia’s two GOP senators, Saxby Chambliss, gave Martin a ringing endorsement, saying Obama “could not have chosen a more qualified individual” for the 11th Circuit.

Atlanta criminal defense attorney Don Samuel, an expert on federal sentencing law, noted Martin did not declare the 30-year minimum mandatory sentence unconstitutional in every case —- only as it applied to Farley. “[It] reflects her thoughtful consideration of whether the Constitution permits Congress to set a minimum sentence that bars a judge from considering any facts about the case that might make a sentence unreasonable,” he said.

In her Sept. 2, 2008, order, Martin said she had “tremendous respect and deference” for Congress. But to simply assume a statute is constitutional without substantive review would violate the principle of separation of powers, she said.

At Farley’s sentencing hearing, Martin sent him away for 19 years and seven months in prison. “I have never intended to imply that I don’t consider this a serious offense,” she told him.

Martin said that when she set out to decide the constitutional challenge to the mandatory prison sentence, she intended to uphold it.

But when reviewing other statutes imposing penalties for similar or more severe conduct, “I just couldn’t form the words to say that it wasn’t … disproportionately harsh,” she said.

Martin noted that crossing state lines with the intent to kill someone carries a maximum penalty of 10 years in prison; if the victim is physically harmed, the maximum is 20 years.

Farley, a father of six from McKinney, Texas, once earned $140,000 as a regional vice president for a financial services company. On Oct. 3, 2006, he entered a Yahoo chat room called “Fetish Number 14,” devoted to the topic of incest.

Farley met “Stephanie,” who said she was a nurse and single mother with a 10-year-old daughter named Sydney. Stephanie was actually Joanne Southerland, a Clayton County detective assigned to the FBI task force.

Over the next seven months, Farley discussed, in increasingly graphic detail, sex acts he wanted with Stephanie and Sydney. He encouraged Stephanie to show Sydney pornographic movies. He said he would give the girl wine to relax her before sex.

He also told Stephanie he was coming to Atlanta on May 15, 2007, for a business trip. And he arranged to meet her at an International House of Pancakes in Riverdale after his flight landed.

Before he left, Farley telephoned “Stephanie,” who let him talk to an FBI agent posing as Sydney. He also sent an e-mail to the 10-year-old: “I’m sure that you have seen what a good time those folks have on the movies and that is how we will be. We’ll take pictures and laugh and share in some fun times.”

When Farley’s American Airlines’ flight landed at Hartsfield-Jackson International Airport, two FBI agents and an Atlanta police officer boarded the plane, met Farley at his assigned seat and arrested him on the spot.

Farley waived a trial by jury, letting Martin determine his fate.

At trial, Farley testified it was all a fantasy and that he never would have done anything he said he would do in the chats.

“It’s not something I’m proud of,” he testified. ” I had convinced myself that, you know, this was all talk….I didn’t think it was anything real.”

Farley had a business meeting set up with representatives of Colonial Life Insurance the day after he arrived in Atlanta. But he could not provide a good explanation for a devastating piece of evidence found on him when he was arrested: a Mapquest printout of the directions from the airport to the IHOP.

Martin found Farley guilty of both counts against him: crossing state lines to have sex with a child and using the Internet to entice a child to engage in sex.

“The evidence in this case is so horrible I hate to go over it again,” Martin said when handing down her verdict. The judge said she believed if “Stephanie” had really shown up at the IHOP and made her daughter available, Farley had every intention to sexually assault the child.

But Martin did not impose the minimum mandatory term.

Congress requires the same minimum mandatory 30-year term for someone who actually engages in sex with a child, Martin wrote. She noted that no harm was suffered in Farley’s case, “because the child was a creation of law enforcement and no real child exists.”

Farley, a first-time offender, was given a psychological evaluation that showed he was not attracted to prepubescent children. The tests also found Farley showed he was unlikely to reoffend, Martin said in her order.

“While Mr. Farley’s crime is deplorable,” Martin concluded, “it is far less grave than crimes committed by perpetual offenders that remain a demonstrated threat to the public, or crimes that result in loss of or emotional devastation to a person’s life.”

Beverly Martin

Age: 53

Hometown: Macon

Education: Stetson University and the University of Georgia School of Law

Professional: Lawyer at Martin & Snow in Macon (1981-1984) Assistant state attorney general (1984-1994) Assistant U.S. attorney in Macon (1994-1997) U.S. Attorney in Macon (1997-2000) U.S. District Court Judge in Atlanta (2000-present)

Personal: Married to Knox Dobbins, a partner at the Atlanta law firm Sutherland