Sunday, July 30, 2006

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:
  • Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
  • Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
  • Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
  • Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
  • Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....

Saturday, July 29, 2006

Aquitted Conduct

by: Marc David Seitles
In United States v. Faust, the Eleventh Circuit did not find a constitutional problem with enhancing a sentence based on acquitted conduct. While the Eleventh Circuit is not the only circuit to hold the same, it does seem to run contrary to the whole point of why we have trials in the first place. Indeed, I would bet that if you asked 100 people (non lawyers!) whether they could be sentenced for conduct where a jury concluded that he/she was "not guilty," 99 of those folk would say "no way, that's impossible." What do you think?

Notice of Appeal

A funny notice of appeal is making the rounds...

Wednesday, July 26, 2006

News and notes

Quick notes:

1. The National Association of Criminal Defense Lawyers is having their annual meeting here in Miami Beach. It started tonight and it goes through Saturday. The focus is on cross-examination. Tomorrow, legendary defense lawyer Larry Pozner is lecturing. On Friday, we tap the local talent: Albert Kreiger and Jeff Weiner.

2. The Miami 7 "terror" defendants were in Court today before Judge Lenard for the first time. She set trial for March 2007, with discovery to be exchanged by this fall. She also told the parties not to leak to the press.

3. Magistrate Judge Ted Klein's cases have been reassigned temporarily to Judge Torres. The order can be found here on the court's website. Judge Klein is in all of our thoughts.

Tuesday, July 25, 2006

"Vamos a Cuba" back on school shelves

Judge Alan Gold in an 89-page order said the School Board in banning 24 books "abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.'' Here's the Herald article. And here's Matthew Pinzur's blog post covering the story and a teacher's take before the opinion came out.