Tracy McIntosh, the former Penn Neurosurgery professor who pleaded no contest in December 2004 to sexually assaulting his college roommate's then-23-year-old niece in 2002, will be resentenced this morning in the Philadelphia Court of Common Pleas.
The resentencing should bring closure to a lengthy legal battle that began in March 2005 when McIntosh was sentenced to 11-and-a-half to 23 months of house arrest, probation and fines and restitution to the victim, who was about to enter Penn's School of Veterinary Medicine.
The resentencing also raises questions about whether Judge Pamela Pryor Dembe will face pressure to hand down a harsh punishment after the outcry that occurred following Judge Rayford Means' original sentence, which many thought was too lenient.
State sentencing guidelines call for three to six years in prison for McIntosh's offense.
Prosecutors appealed Means' sentence, and in November 2006 the Pennsylvania Superior Court vacated that sentence, concurring that it was too lenient.
The Superior Court opinion stated "that a downward departure from the [sentencing] guidelines is unreasonable," said Philadelphia criminal defense attorney Patrick Artur. "I think you're going to find . a sentence within the guidelines and an extensive written narrative" behind it.
The lack of clear written reasoning caused problems after Means' sentence.
McIntosh's attorney, Joel Trigiani, alleges that the sentence was the result of a backroom deal between Means and the case's former prosecutors and defense attorneys. That deal purportedly stated that McIntosh would not receive prison time in exchange for his no-contest plea.
Means - who has never publicly stated the reasons for his sentence - recused himself from the case last September.
"Judge Means acted improperly in a number of ways" according to the Superior Court, Artur said. He added, "The most egregious was the lack of a written statement" on the reasons behind his sentencing decision.
This makes it even more crucial for Dembe, who has been assigned to the case since Means recused himself, to provide a "contemporaneous written statement on her reasoning," Artur said.
Means has also been accused of favoring McIntosh, a world-renowned brain trauma expert and the former head of Penn's Head Injury Research Center, due to his prestigious social and academic position, saying that he had considered the defendant's "social worth."
But some legal experts say public opinion should have little effect on Dembe's sentence.
"The question is whether the facts have changed," said Penn Law professor Paul Robinson. "You have the problem of the criminal-justice system being under the influence of public uproar."
Prosecutors have said they will ask for 5-and-a-half to 11 years in prison for McIntosh.
"Every judge can look at this differently," Artur said, "so be prepared for a surprise. . But I think you're going to find a very reasoned, fair, thought-out sentence."
Trigiani and Assistant District Attorney Richard DeSipio did not return calls for comment yesterday.
