Monday, May 10, 2010

It's Elena Kagan

That's the (leaked) word from last night and this morning. Tom Goldstein called it months ago and his coverage over at ScotusBlog is unbelievable. Here's Tom's summary of his recent posts, but there's a whole lot more over there:

1. On February 23, I wrote explaining that Justice Stevens would retire, Justice Ginsburg would not, and the President would nominate Elena Kagan to fill the Stevens seat. Most of the post is devoted to discussing why the President would choose her over other candidates.
2. After Stevens’ retirement, on April 27, I returned to the selection,
explaining that I continued to believe that the President would select Kagan, albeit for reasons that had less to do with electoral politics than was true in February.
3. On Saturday, we published a
very extensive piece on Kagan, discussing both her professional history and claims made for and against her, as well as the breakdown of likely votes in the confirmation process.
4. Earlier this evening, before the announcement leaked, I
discussed at length both the likely confirmation process and the substance of the ten principal issues that will be debated by her defenders and opponents.

Item #3 is a 10,000 word essay about Kagan. If you have some time today, it's worth skimming.

In other news, the DBR (John Pacenti) covers the debate about whether PSIs are really needed after Booker. Professor Rick Bascuas said this: "Today's federal probation officers see themselves primarily as law-enforcement agents rather than agents of mercy." Rick has written extensively on the issue here.


Anonymous said...

PSIs have much more to do than just calculating the Guidelines. They offer, at their best, detailed information about the defendant's past and, if applicable, has past criminal history. This information is just as important to a judge, if not more so, than the Guidelines calculation set forth in the PSI. As for Probation's role post-Booker, one potential solution is to eliminate/limit probation's ability to make Guideline calculations in the PSI. It is also worth mentioning, that defendants have the right to have their lawyer present when Probation interviews the defendant for the PSI. In short, I think that Prof. Bascuas' critique in the Wake Forest law journal is oversstated. Judges will do what they want to do and, as a practical matter, most abide by the agreement of the parties regarding Guideline enhancement etc.

Anonymous said...

Amazing that a person who is not a probation officer knows exactly how a USPO sees himself/herself. Mr. Bascuas' onminiscient quality must really come in handy. Maybe he should try playing the lottery.
This disdain for probation officers who write PSIs creeps up every once in a while in this blog (I seem to recall a recent discussion about Judges simply rubber-stamping and going along with the plea agreement without doing any fact-finding). Yes, I'm sure it would be much easier for attorneys to receive the sentences they want from Judges without those pesky PSIs that sometimes uncover facts about defendants that no one wants uncovered. But, every once in a while, what do you know?...a defendant's good qualities and characteristics actually appear in a PSI and an attorney actually uses the information in the PSI to seek a more lenient sentence. Amazing!
If anything, I would argue that, in a post-Booker world, the information contained in the PSI, is now more than ever needed.

Anonymous said...

This is simply not true:

"...a defendant's good qualities and characteristics actually appear in a PSI and an attorney actually uses the information in the PSI to seek a more lenient sentence."

defense lawyers - what percentage of PSIs have your info about your clients "good qualities and characteristics"?

Anonymous said...

ZERO. They are cut and paste jobs sent to probation from the Government. Jokes.

Anonymous said...

Okay, let's assume that they are "cut and paste jobs sent to probation from the Government." Isn't the real question whether the information is truthful? If it is, what's the problem? (other than the fact that you don't like what it says). Also, to the extent you disagree with what the PSI says about your client, you have the opportunity to object. Further, the PSI is not the sole means of getting information about your client before the Court (individuals can write letters to the court on behalf of your client etc.)

Anonymous said...

"They are cut and paste jobs sent to probation from the Government. Jokes."

Interesting. Damn if you do and damned if you don't! In most cases, there is a factual proffer agreed to by the parties. So, if a probation officer does a "cut and paste" job, apparently, that's a bad thing. But, if a probation officer puts additional information, usually obtained from discovery material or by talking to the case agent, that's also a bad thing. Didn't realize it was the probation officer's job to re-investigate the criminal activity. Nevermind that most plea agreements have a stipulation that the U.S. Attorney's Office reserves the right to provide the probation office and the Court with all pertinents facts related to the sentencing process and offenses committed, whether charged or not.
If probation officers are only regurgitaing what the government has provided them, then maybe we can all agree to have the USAO interview the defendant; obtain prior criminal history; speak to and visit family members; and obtain all of the defendant's personal records, including medical, school and employment. That sounds much more fair to me!

Anonymous said...

No, actually the issue is whether or not probation fulfilled its duty to conduct an independent inquiry.

Dissecting into paragraphs what the prosecutor sends is not conducting an independent investigation.

They should start by doing their jobs, not being lazy and often times vindictive.

Anonymous said...

Well David, at least we know what the probation folks are up to after they have finished "investigating" the government's e-mails on conduct:

Reading and posting to your blog!

Nice jobs guys...keep up the work.

Anonymous said...

What can you expect from line AUSAs when the top guy has no idea what he's doing? Memo to Holder:

Dickerson v. US ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution. [. . .] we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.")

Anonymous said...

I am voting for Palin:

She will do away with Miranda and probation officers - no probation, mandatory sentences for everybody.

Much more simple, less B.S., and saves money too on those pesky motions to suppress and then prosecution of perjuring leos.

Anonymous said...

"No, actually the issue is whether or not probation fulfilled its duty to conduct an independent inquiry."

Sounds very serious . . .

But what kind of "independent inquiry" are you talking about? An "independent inquiry" into what exactly? Offense conduct? (if so, that's ridiculous). Defendant's background? (the defendant and his counsel is in the best position to provide that information).

I suspect that this demand for an "independent inquiry" is a euphemism for viewing the case as the defense proposes . . . how "independent" can that be?

I also find it hilarious that when defense attorneys read comments that they don't agree with on the blog they discount them by saying that they come from AUSAs or some other government employee and (almost always) find their way to some reference about perjury. The apparent desire to hear only from other people who reinforce your own views of the world is, quite frankly, intellectually bankrupt.

Anonymous said...



That is why as an AUSA I would insist that the psi be independent. Progressive thinking AUSAs don't want rubber stamp probation officers! They want a probation officer who will tell them how it is...even if it means pointing out a cop or cooperator is full of it. For gods sake AUSAs aren't there just to maximize convictions and sentences...they are there for the truth dagnumit...even if a probation officer gets in the way!

Anonymous said...

I don't think 7:22 was being serious.

Anonymous said...

Probation officers have always been a mix of cop and social worker. The percentage of that mix is the variable: 90/10, 66/33, etc. The trick for the defense is to tap into that social worker percent, no matter how small it is. It can be done, but it takes some work, pissing on people is not the way to do it. The biggest problem I have seen is the supervisory decisions at Probation whioh go almost uniformly for the govt. Look at the number of justifications for an upward vice downward departure by Probation versus the hugely greater decisions by the Court for a downward. In that particular sense the Court is ill-served by Probation.

Anonymous said...

For those of you who ever actually investigated what the PSI process is you would find guidance in the Monograph 114 put out by the AO.

The AO requires probation to investigate the offense conduct and report changes as needed. When was the last time defense counsel submitted their own version of the offense conduct to probation for comparison and possible inclusion? When was the last time you found positive PSI material and submitted it for inclusion in the PSI? You would find that probation is charged with finding good and bad.

There is also that little thing called relevant conduct that requires probation to bring it to the Court's attention whether you like it or not. Charged or not charged. Finally, you have the right to file objections to anything that is written in the PSI.

Stop worrying about quick plea deals, your retainer, and get involved in the process instead of being lazy.