The woman cringed; so did her attorney. They had not anticipated this. But Urbina knew that this would be his final chance to hear directly from the defendant before imposing sentence, and he wanted to gauge her remorse and get a sense of her as a person beyond the stick-figure rendered in court papers.
Lest they raise questions about their impartiality, judges are loath to discuss the emotional strain or joys of the job. But Urbina, a gray-haired jurist who took up Aikido in his 50s and meditates daily, is known for wearing his heart on his sleeve. And in a series of interviews, the judge spoke candidly about what he and most of his colleagues consider the most difficult and draining aspect of their work: sentencing, that gut-wrenching courtroom moment when a real life intersects with esoteric legal arguments and sentencing guidelines that never truly capture a case’s nuances.
For Urbina, sentencing has always been filled with stress and doubt — of agonizingly weighing the crime against the defendant’s past, of worrying about what message to send to the public and of feeling that he was never given the proper tools to rehabilitate offenders. So, after 31 years on the local and D.C. federal bench, of sitting in judgment of scam artists, burglars, corrupt government officials and murderers, the judge retired last month, explaining that a prime reason he left a job he loved was that he had simply grown too tired of sentencing.
So, perhaps it is fitting that this sentencing, the last in which he had any discretion, was so typical of what he had confronted during his long career — with its ambiguity and tough choices.
Before he could make any decisions, however, the judge needed to hear from the frightened woman standing before him. So he asked her again, this time more gently: “Tell me what happened.”
It was 2:17 p.m. on a recent Thursday when Urbina, clad in his black robe, entered the august wood-paneled Courtroom 30A through a back door, carrying a manila folder filled with papers. The judge strode five steps and sat in his high-backed leather chair on the courtroom’s elevated bench. He pivoted slightly to his right and studied Norma Borgono, a diminutive woman whose hands were clenched under the defense table. Next he scanned from right to left: taking stock of Borgono’s attorney and a federal prosecutor, a probation official, a deputy U.S. marshal and his own law clerk. Then he eyed the gallery, empty except for a federal agent, two law students and four of Borgono’s relatives.
The judge opened his file and retrieved the case’s sentencing memos, plea agreement and lengthy pre-sentence report, which he had read over the past few days and which spelled out the case’s particulars: Borgono had pleaded guilty to conspiring to defraud the federal government by falsifying records that allowed her boss, the president of a Miami-based export company, to steal more than $10 million from the Export-Import Bank of the United States.
Because so much money had been stolen, federal prosecutors argued in court papers that Urbina should sentence the former office manager to 18 months in federal prison.
Her attorney countered that Borgono deserved just a year of home detention and two years of probation because the Peruvian immigrant, who became a U.S. citizen in 2007, had not reaped a dime in the scheme’s proceeds beyond her $500 weekly salary. She had cooperated extensively with authorities and had helped them build their case against her boss, a man sentenced by Urbina to nearly four years in prison. She also had the support of her community, the attorney said. The judge’s folder was filled with heartfelt letters from relatives, friends and even her priest.
After questioning the prosecutor and defense attorney for 15 minutes, Urbina called Borgono to the courtroom lectern.
“The thing is that I trusted my boss,” she said haltingly in response to Urbina’s questions.
“He told you what papers to prepare,” Urbina replied, his voice growing stern. “This happened for six years. This happened time after time after time after time. Right? So, why did you trust this man?”
Borgono stammered. Her boss had also been a friend, she said.
“So he had helped you?” Urbina asked.
“Yes,” she squeaked.
“Who do you think he was actually helping? You or him?”
“I don’t know exactly,” she replied.
“I think I know what happened,” Urbina said. “Te uso como un juguete.”
“You understand?” the judge asked, looking down at Borgono through his wire-rimmed glasses. “He used you like a toy.’”
‘No passion for punishment’
That morning, as was his routine for more than three decades, the 66-year-old judge, who retains the lean build of a former high school and college track star, sat cross-legged on a blue mat in a sunny second-floor room of his D.C. home and meditated.
His goal was simple, if not always easy to achieve: “I try to see where my biases and prejudices that day are hiding,” he said of a practice he first took up as a young law professor. “If you don’t find them, they have a tendency to come out at the most unusual of times. . . . Your mind is like a murky glass of water, and meditating is like letting the sediment settle until the water clears.”
Urbina — who had a reputation among lawyers and courthouse employees for being thoughtful and incisive, if at times a bit prickly and too easily irritated — said there is no better time for clarity than sentencing, which he tried to approach in a systematic way.
First, he considered such factors as a defendant’s criminal record, the sentencing guideline range and court papers filed by prosecutors and defense attorneys. Then, he asked himself, “How am I going to interpret all of this? Is there anything that is predisposing me to act or think? Because he is a Latino or because he is an African American or because he is a super-rich guy who seems [unlikable]?”
He added, “Those are not fair considerations to thread into your thinking.”
Over his years as a judge— he was first appointed to the D.C. Superior Court by President Ronald Reagan — Urbina said he worked hard to recognize potential biases while sentencing hundreds of men and women to punishments ranging from life in prison to community service. (He never presided over a death-penalty trial.)
That philosophy, he said, led him to order a few defendants to write books about their deeds in the hope that it would help them better understand their crimes and enable others to learn from the defendants’ experiences. And he required most defendants to reappear in his courtroom every six months to check on their progress while on probation or supervised release from prison.
“I do not have a passion for punishment,” he said, a statement that helps explain why he is one of the more lenient sentencers on the D.C. federal bench, according to statistics. “If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.”
Weighing the factors
After he finished querying Borgono, Urbina walked through the factors he had to consider before imposing a sentence, including the seriousness of the offense, the desire to deter future crimes and the defendant’s potential for rehabilitation.
Urbina said it seemed that Borgono had learned her lesson — through sobs, she had tried to apologize at least three times — and had cooperated extensively with authorities. “I don’t think you need a whole lot of deterrence, and I can tell this matter has been weighing heavily on you and your family,” the judge said. “In a sense, your punishment has started. In a sense, your rehabilitation has started.”
Noting that her adult son and daughter were in the courtroom and that he had received extensive letters from family and friends, the judge said, “It appears you have a safety net,” a key point in her favor.
The judge then grew silent and pondered a stack of papers in front of him before locking eyes with Borgono. “My parents were immigrants,” he told her. “They came from Latin America. I am very much acquainted with the qualities and characteristics of the Latin culture from a long time ago: ‘The woman obeys the man. Period.’ But this was very bad judgment on your part. The fact that it was a man telling you what to do is not an excuse, but it is a factor.”
“And that is everything I have to look at, really,” he said. “And then there is common sense . . . and my sense of right or wrong.”
The judge was quiet for a half minute before turning to Borgono to issue his sentence: a year of home detention, four years of probation and $5,000 in restitution payments.
Was it the right decision? Urbina will probably never know.
Before stepping from the bench and heading back to a dusty and box-filled office, the judge ordered Borgono’s case transferred to federal court authorities in her home state of Florida because he will not be around in six months to check on her progress — and to ensure that he had made the right decision.
Staff writer Ann Marimow and staff researcher Lucy Shackleford contributed to this report.