Are Sentences for Possession of Child Porn Too High?

Yes, according to some district judges testifying before the Sentencing Commission. From the National Law Journal:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.
Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.
"This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."
In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years.
***
"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.
Rosen emphasized that he doesn't condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.
***
7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence.
"One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

What do you all think?

Judge Zloch strikes back

Remember Loring Spolter's wild claims that there was a conspiracy with Judge Zloch and the clerk's office? Well, the DBR reports that it didn't go so well for Mr. Spolter:

District Court Judge William Zloch is considering suspending a Fort Lauderdale employment attorney from practicing in South Florida federal courts for criticizing him in an interview with the Daily Business Review. Fort Lauderdale lawyer Loring Spolter said the former chief judge allows his religious and conservative views to color his decisions. He also commissioned a statistical analysis that Spolter said showed it was impossible for so many of his cases to be randomly assigned to Zloch, only to be dismissed. Cases are assigned in the Southern District through a somewhat weighted wheel system that takes into account where cases are filed and where the action occurred.

***

Zloch asked U.S. Magistrate Judge Robin Rosenbaum to review the matter and make recommendations. She issued a 96-page report July 10, finding Spolter’s accusations were specious after taking testimony on case assignments from Steven Larimore, the district’s clerk of court. “Although a lawyer should be lauded for having the courage to take a stand against any truly biased activity on the part of a court, Mr. Spolter’s actions do not fall into that category,” Rosenbaum wrote. “These statements exceed the bounds of properly raising grounds for recusal or disqualification and instead constitute a personal attack on the presiding judge.” Zloch adopted Rosenbaum’s findings and held a hearing Aug. 20 on whether to sanction Spolter for filing the motions in bad faith. Zloch repeatedly invoked the interview with DBR in the hearing, a transcript shows. “I would like to know how the federal judiciary, the Southern District, gets back its good name after that article,” the judge said. Zloch said he is considering suspending Spolter from practicing in South Florida federal courts for five years. He also is considering a fine, court costs and referring Spolter to The Florida Bar for discipline. The judge told Spolter he could mitigate the sanctions if the lawyer bought a full-page, court-approved advertisement in the Review apologizing for his previous position.

Things that struck me about from the article, which is worth reading in its entirety:

• 96 pages? That's a long R&R! Judge Marcus would be proud of his former clerk.
• What happens if the DBR gives Spolter the ad for free?
• Why can't Spolter keep his mouth shut? (From the article: Zloch said Spolter’s statistical expert recanted his position at Rosenbaum’s hearing. The statistician had said it was nearly impossible for Spolter’s cases to randomly end up with Zloch only to be dismissed. That’s when Spolter stood up and said the judge was wrong. “The expert just called me up last week and spoke to me about this case again, and he said to me that he stood by his testimony,” Spolter said. Zloch retorted to Reinhardt, “He apparently still maintains his position.”) Painful. SFLawyers has a funny post about this.
• Is Judge Zloch the right judge to be deciding the sanctions? Or should some other judge do it?
• Should lawyers be permitted to criticize judges without fear of being reprimanded? (More from the DBR: The Spolter case raises the issue of the free speech rights of attorneys who criticize a sitting judge. Last year, The Florida Bar reprimanded Fort Lauderdale attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an “evil, unfair witch” in a blog post that appeared around Halloween 2006. Conway maintained his statements were protected opinions but stipulated to the Bar’s disciplinary decision.)
  
  

1-0

C-A-N-E-S

Okay, now that that's off my chest, back to business.

The Chief has formed a committee to look at building a new Broward courthouse. From the DBR:

With its maze-like corridors, dead ends and multi-level pools, the Fort Lauderdale federal courthouse is outdated in the post 9/11 world. The chief judge says it's high time for a replacement. Chief U.S. District Judge Federico Moreno said the courthouse fails to meet the upcoming — and even the current needs — of the Southern District. There are security issues, the courtrooms are small and undignified, and there is a lot of unused space on the tiered floors. But most importantly, Moreno said there is a need to expand. The district’s caseload is shifting north from Miami, and the next federal judge in South Florida will sit in Fort Lauderdale. Moreno has appointed a 16-member committee including judges, magistrates, mayors and a number of high-profile law firm partners, and they plan to hold their first meeting Sept. 15.

Lots of pithy quotes in the article...

George Platt, a Shutts & Bowen partner in Fort Lauderdale, is the committee chairman. He said the current courthouse was built in the mid-1970s. The front entrance features a sun-worshipping tiered staircase, pools and fountains edged with palm trees. But for security reasons, the public must enter through a narrow, dark rear door walled off by a chain-link fence around a ramp. “I would describe it as sort of going into a gulag. It’s a very unpleasant experience,” Platt said. “I guess it was a wonderful idea in someone’s imagination when it was created originally, but once we got into a situation where a courthouse had to be more secure and more efficient, this building has been a disaster.” In recent years, the most prominent feature at the front of the building, the fountain pools, were drained and left empty.

I agree that the building is a disaster, but the actual courtrooms aren't that bad. I like trying cases there: you are close to the jury and to the judge (unlike the Ferguson building). And the acoustics aren't awful like they are in the Tower building in Miami.

For those that are interested, we had the blog Fantasy Football draft last night. I got saddled with the first pick. Here's my (championship) roster:

Philip Rivers
Anquan Boldin
Brandon Marshall
DeSean Jackson
Adrian Peterson
Steve Slaton
Jeremy Shockey
Willie Parker
Knowshon Moreno
Matt Schaub
Chris Henry
Chris Chambers
James Davis
Justin Gage
Kevin Boss
Patrick Crayton
Darrius Heyward-Bey
Mason Crosby
Tennessee Defense
New York Jets Defense

Justice Stevens to retire?

We're a little late on this story, but it's starting to get a lot of traction, so here goes... It looks like Justice Stevens might be on the retirement track as indicated by his lack of hiring law clerks. From the NY Times:

Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.
Or it could merely mean that he is keeping his options open. There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.
The alternative is to hire clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.
“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of “The Next Justice: Repairing the Supreme Court Appointment Process” and a former clerk to Justice Stevens.

If Stevens does retire, maybe we'll finally get a Floridian to the Supreme Court... Those will be huge shoes to fill.

In other news, the Padilla oral argument will take place on November 17 in Atlanta.

Have a nice long holiday weekend. Sorry for the short post today.

News & Notes

1. The big interviews are today with Senators Nelson and Martinez. They've flown down here and the interviews will be held at the federal courthouse. But they are closed to the public. (They should be open, shouldn't they?) If anyone hears anything about them, please email me.

2. Holland & Knight got sued. Julie Kay has the details:

The receiver in an alleged $347 million Ponzi scheme has filed a malpractice lawsuit against Holland & Knight and partner Scott MacLeod, claiming they failed to provide investors with crucial information about the disbarred attorney behind the investments. The suit filed Monday in Sarasota Circuit Court accuses the law firm and its attorney of preparing disclosure documents for investors that failed to mention Arthur Nadel, who headed the hedge funds, was a disbarred New York attorney who had drained a client’s escrow account. The suit also accuses Holland & Knight of conflicts of interest by representing Nadel and his investment funds simultaneously. The suit seeks in excess of $50 million in punitive damages, receiver Burt Wiand said. Karen McBride, a spokeswoman for Holland & Knight, said, “the firm’s position remains unchanged. We’ve done nothing wrong and we intend to vigorously defend this.”

3. Guy Lewis & Mike Tein keep growing their firm. Five new associates from UM Law School. Business is good!

4. The University of Miami will honor Steve Chaykin:

The University of Miami School of Law Center for Ethics and Public Service has established a fellowship in memory of the late Steve Chaykin, an Akerman Senterfitt shareholder and criminal defense attorney who died on vacation last year. Chaykin slipped in rapids while trying to rescue his wife, Melissa, who fell into the Colorado river. His wife survived, but Chaykin was knocked unconscious and drowned. The Chaykin fellowship has been established for third-year law students who served in one of the center’s programs or community service clinics. The recipient must display leadership and mentoring skills and a strong sense of ethical judgment, professional responsibility and professionalism. “The fellowship honors the significant, historic contribution that Chaykin made to the South Florida legal profession and to the law school, university community and the civic community,” said Tony Alfieri, a UM professor of ethics and public service and the center’s director.

5. Steve Zack broke his ankle in Napa... Was wine to blame? From Joan Fleischman:

Miami attorney Steve Zack, the American Bar Association's president-elect, won't be traveling for awhile. Zack, 61, broke his right fibula, the smaller of the two main bones near the ankle.
He's to blame, he says, for last week's midday slip-and-fall. Happened in Napa, Calif., but he swears he wasn't tipsy from wine. ``Had gone to tastings the day before.''
So how did it happen? ``Silliest thing. There was loose gravel over a road. My left leg slipped. I tried to catch myself with the right leg and I fell on it. When I heard the pop, I knew it wasn't a good day.'' He's using a wheelchair and crutches, and expects to have a plate put in to help the bone heal straight and stabilize the ankle.
``Last time I broke an ankle was 40 years ago, playing tennis. It seemed to hurt a lot less.''

That's hot -- Paris wins again...

...this time in the Court of Appeals (the 9th Circuit -- here's the opinion). From Reuters:

The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase "That's hot" on a greeting card, a federal appeals court ruled on Monday.
Hilton had contended that Hallmark violated her privacy and right of publicity by ripping off a scene from her reality TV show "The Simple Life" on a birthday card captioned "Paris's First Day as a Waitress."
A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's argument that its depiction of the Hilton Hotels heiress was protected speech as a matter of law.
It sent the case back to a lower court, which had turned aside Hilton's claim of trademark infringement but rejected other Hallmark defenses.

Paris is now 2-0 in federal court... That's huge:



Hat tip: my commentors and WSJ Law Blog.

Lyglenson Lemorin still sits in immigration jail

From Jay Weaver's article in today's Miami Herald:

A Tampa engineering student acquitted of terrorism-related charges walked out of an immigration court a free man earlier this month, after a judge rejected the U.S. government's bid to deport him to his native Egypt on identical charges.
Yet the same immigration judge sided with Department of Homeland Security lawyers last year when he ordered the removal of a Miami man to his native Haiti after he had been acquitted of terror-conspiracy charges.
Why did the immigration judge, Kenneth Hurewitz, grant the release of Youssef Megahed yet order the deportation of Lyglenson Lemorin? The lawyer who represented both men says it's because the evidence was stronger in the Lemorin case, though he disputes it was enough to deport him.
``The government's lawyers misunderstood that every case is different and you must plead what you're going to prove,'' Charles Kuck, an Atlanta attorney, said of the Megahed case. ``They failed to do that.''
Kuck said he believes Lemorin -- one of the so-called Liberty City Seven defendants -- has a good shot at his appeal, which will be considered this fall. Lemorin, 34, remains in custody.
Both Megahed and Lemorin are legal U.S. residents with no criminal histories who have lived in this country for years. Both also experienced a rare kind of ``double jeopardy'' -- being charged a second time in immigration court following acquittals in federal court.
Megahed, a 23-year-old former student at the University of South Florida, was arrested on a 2007 road trip in South Carolina along with a fellow classmate, Ahmed Mohamed. Both were charged with transporting explosives after police found model rocket propellants in the car's trunk.
Mohamed was also charged with providing ``material support'' for terrorism, because he created a You Tube video that showed how to convert a remote control toy vehicle into a bomb. He pleaded guilty to that charge last spring.
In early April, Megahed was acquitted in Tampa federal court on the explosives charges after his defense attorney argued that the materials found in the trunk -- PVC pipe and chemicals -- were homemade fireworks.
But a few days later, Megahed, while leaving a Wal-Mart store with his father, was arrested by Immigration and Customs Enforcement agents. He was charged again with the same terrorism-related explosives offense, only this time in immigration court, which is part of the Justice Department and has a lower standard of proof.
Megahed, who has lived in the United States since he was 11, faced deportation. His family, the Muslim community and others -- including four jurors in his criminal case -- expressed outrage.

They should be outraged. I'm sorry but if you are acquitted in federal court, immigration shouldn't be able to recharge you with the same conduct and be able to deport you based on a lower standard of proof. My prior coverage on this issue is here.

"Gov. Charlie Crist and ex-aide George LeMieux cleared in federal probe"

That's the headline from Jay Weaver's story about the Mutual Benefits case, which keeps taking stranger and stranger turns:

Gov. Charlie Crist and former chief of staff George LeMieux -- the subjects of a federal public corruption investigation -- have been cleared of allegations that they tried to thwart a state criminal probe into a Fort Lauderdale insurance company, according to sources familiar with the ongoing case.
Crist's selection of LeMieux to replace U.S. Sen. Mel Martinez would not have been possible had LeMieux still been under scrutiny by federal prosecutors investigating alleged influence-peddling by Mutual Benefits and its former top executive.
LeMieux was in the cross-hairs of the investigation after a major Republican fundraiser working with the FBI made a secretly recorded phone call to LeMieux at the governor's office in 2007, trying to get LeMieux to implicate himself, sources said.


Our prior coverage of the case and all the secrecy and failed snitching and set-ups is here. It's really amazing to me that the government would rely on criminals to try and set up well-respected and law-abiding citizens without real proof. LeMieux did the right thing:

But the phone call backfired: LeMieux immediately reported it to Crist's general counsel, who called the FBI. Still, LeMieux remained under investigation through much of 2008, along with Crist and several other members of his inner circle from his tenure as Florida attorney general and then as governor.