Judge says punishment not cruel, unusual

A judge has thrown out the argument of cruel and unusual punishment and ordered that Jay Bernard Gillilland spend the rest of his life behind bars for the "horrific" crimes against his daughter.

The former U.S. Customs and Border Protection agent was sentenced to more than 6,000 years in prison Thursday by Santa Cruz County Superior Court Judge James A. Soto.

Gillilland will serve a minimum of 35 years for each of his 173 counts of sexual conduct with a minor. Those counts will be served consecutively. Before that, he will serve 17 years for each of 10 counts of sexual exploitation of a minor. Those counts will also be served consecutively. He also faces 17 years for each of 100 counts of molestation of a child, but those sentences will be served concurrently. Lastly, he faces 2.5 years for one count of child abuse. That sentence will be served concurrently with the molestation charges. In total, Gillilland was sentence to 6,242 years in prison.

In March, a jury found Gillilland, 38, guilty of 317 counts of molestation of a child, sexual conduct with a minor, sexual exploitation of a minor, and child abuse. The charges stemmed from two and a half hours of videotape that was seized from a storage locker in Gillilland's name depicting him with his 5-year-old daughter. Combined, the charges carried a maximum sentence of more than 12,000 years in prison.

Gillilland was to be sentenced on June 12 but his attorney, Charles Kendall, argued for a stay of sentencing based on the 8th Amendment of the U.S. Constitution against cruel and unusual punishment.

It's not hard to conclude that a former law enforcement officer and child molester will be a target in the general population of a state prison, Kendall argued. For that reason, Gillilland should serve the federal time he faces first where he's more likely to be safe. Gillilland pleaded guilty in federal court to possession of child pornography and conspiracy to import cocaine, said Tom O' Sullivan, the attorney for the state.

Safety

"He'll be safer once those years have passed because this will have blown over," Kendall said. "This is a high profile case. Channel 4 News and the Nogales International are here. If he ends up in state prison right now, he's a good candidate for a shank."

O' Sullivan argued against the motion.

"The defendant is asking you to look into the future to see if there is danger," he said. "That's too much perspective."

Nevertheless, Soto granted Kendall 48 hours to try to convince the court of appeals to issue a stay. Kendall was unsuccessful. Thursday, he and O'Sullivan got to the heart of the sentencing.

"This has been a very difficult case for everyone involved," O'Sullivan said. "The court has to look at what is fair and just in relation to the offense. These acts in history have been regarded as some of the most heinous that one human being can inflict on another. In two states, it carries a penalty of death. What the defendant did to his own flesh and blood, his own daughter, deserves nothing less than a life sentence."

During the trial, the number of counts has provided the most friction between Kendall and O'Sullivan. Thursday, they continued the argument, which has bubbled up at nearly every hearing since the trial.

O'Sullivan said, "This may seem shocking to the consciousness of the people but the reality is, the defendant committed every one of those acts."

Argument

In response, Kendall argued against what he has called frivolous multiplicity.

"I've thought long and hard about the argument I was going to make today. I'm not going to try to justify my client's actions. We've seen the videotapes and as to the sentencing, it's largely academic."

Kendall pointed out that Gillilland had originally settled on a plea bargain that would have landed him in jail for the next 50 or 60 years, but because Gillilland wanted to retain his right to appeal he went through with the trial that ultimately netted him 317 guilty counts.

"This sort of charging has a profound effect on a defendant's ability to challenge. Basically they're saying, we'll give you an offer, but if you don't take it, we'll put you away for life," Kendall said. The difference between this case and other similar cases are the videotapes, he added. Without the videotapes, he probably would have been charged once.

O'Sullivan countered that the nature of the acts warrant the sentence.

"This case has impacted me personally in my life," he said. "People ask me if I've ever seen any really bad things. I always think of this case." O'Sullivan added that at least with the videotapes, he didn't have to question the girl on the stand.

"That would have been much worse," he said. "Having to ask, what did your daddy do to you?"

Before issuing the sentence, Soto asked Gillilland if he had anything to say in his own defense.

"Yes, I have a lot of things to say, but I can't help but think that everything I say will fall upon deaf ears," he said. At this point, he began to glare at O'Sullivan. "I can only pray that the court of appeals will lift the unjust sentence that was vested upon me only for someone's political aspirations."

Before handing down the sentence, Soto addressed Gillilland.

"Mr. Gillilland, I am struck by the statements you've given to the court. It's apparent to me that you were grooming your daughter for your own personal satisfaction regardless of the lifetime of psychological trauma she would face. It appears to me that you don't think you did anything wrong, but what you did was horrific."