Posted: Aug. 5, 2004


By Celia Cohen
Grapevine Political Writer

An unforeseen ally could help Michael E. Harkins get a light sentence for his excesses at the Delaware River & Bay Authority. It is the U.S. Supreme Court.

In the time since Harkins pleaded guilty in March to living the high life on the public's tab, the Supreme Court decided a case that is having an untold impact on federal and state sentencings across the country.

For Harkins, a consummate political dealmaker who used to talk about waiting for the sun, the moon and the stars to line up before he would make his move, the legal heavens may have swung his way.

His sentencing, which was going to be complicated, anyway, has been rescheduled twice, pushed back from June 15 to Aug. 17 and now to Oct. 18, but there is no guarantee it will be held then.

The maximum jail time Harkins could face was eight years, but under federal sentencing guidelines, he was supposed to be looking at five months to two years. Because of the Supreme Court decision, however, those sentencing guidelines are now suspect.

One educated assessment put Harkins' incarceration at as little as three months.

The federal case at issue is Blakely v. Washington, which was decided in June by a 5-4 vote. The Supreme Court ruled that a defendant's sentence must be based upon the facts that either were admitted at a plea hearing or else found by a jury.

In Harkins' case, he admitted at his plea hearing to much less than what the prosecutors accused him of doing. The two sides were supposed to thrash it out afterwards, and whatever they decided would be the basis for his sentence when it was set by U.S. District Judge Kent A. Jordan. At the time, it was a standard practice.

"Harkins is exactly the case that's going to be impacted by Blakely," said Edmund D. "Dan" Lyons Jr., a Wilmington defense attorney who used to be a federal prosecutor. "It may not take him off the hook entirely in terms of incarceration, but it certainly will help him out."

Harkins spent -- and the operative word here really is "spent" -- 10 years from 1992 to 2002 as the executive director at the authority, a joint Delaware-New Jersey operation that runs the Delaware Memorial Bridge, the Cape May-Lewes Ferry and five airports. He went there after serving as a top-notch political adviser and secretary of state for Republican Gov. Michael N. Castle, now a congressman.

Harkins was flagged for a personal spree, taking advantage of the authority for airplane trips, limousine travel, hotels and meals for himself, his family and his friends at hot-ticket basketball games, choice golf courses and even a college reunion.

He agreed to plead guilty to two felonies, one of mail fraud and the other of making a false statement on a tax return, but there was no agreement on how much of what he did was strictly personal and how much was legitimately the authority's business.

His side argued his misspending amounted to $30,000, while the prosecutors said it was as high as $175,000. The sentencing was being delayed while the two sides tried to arrive at a figure.

"Every single transaction which we say was fraudulent or income to him, 80 percent of them he objected to," said Richard G. Andrews, the first assistant U.S. attorney for Delaware.

Then along came the Supreme Court. Its decision in Blakely has thrown so much doubt into the sentencing system that the justices agreed during their summer recess to consider two appeals in early October to clarify what they meant.

Victor F. Battaglia Sr., the Wilmington lawyer representing Harkins, was too cautious to say whether the case was affected by Blakely, but Andrews anticipated it would be.

"That may have an effect on this," Andrews said. "If the court says the guidelines are unconstitutional, it changes everything. It could work out to his benefit. It might possibly work to his detriment."

Harkins has been free while he awaits his sentencing. Because of the Supreme Court, he may not have much of an interruption.