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June 2004
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August 2004

The Prejudice of Wealth

Barry Tarlow's latest RICO Report (my favorite segment of The Champion) is publicly available.  He highlights the problem wealth creates in a criminal trial.

Post-trial interviews of juries and focus group studies consistently remind us of information we already knew: jurors are appalled, and frequently alienated, by evidence of a defendant’s indulgent lifestyle or conspicuous consumption. After serving on the jury that convicted Martha Stewart of lying to investigators about arrangements with her stock broker, Chappell Hartridge no doubt had evidence of Stewart’s six homes and substantial wealth in mind when he declared his jury’s verdict was “a victory for the little guy who loses money in the markets because of these types of transactions.” Constance L. Hays, Martha Stewart Seeks New Trial, Saying Juror Lied, N.Y. Times, Apr. 1, 2004.

Although I agree with Mr. Tarlow that wealth should not prejudice a jury, I take great solace in knowing that the wealthy at least have the resources to retain lawyers of his caliber.  I imagine having someone like Barry Tarlow or John Keker representing me at trial - prejudice against my wealth notwithstanding - would be superior to being stuck with a randomly-assigned PD.  [Note: No nasty emails from PD's, please.  I carefully crafted my post to say randomly-assigned.  If you can't catch that distinction, then you are most likely a pretty terrible lawyer.]

Legal Writing

This article provides excellent advice on how to read and clearly restate statutory language.  The bulk of his article deals with interpreting and restating this regulation:

No executive-level state employee, head of a principal department, head of an independent state agency or member of the legislature, or their immediate family members, shall have, at or following the effective date of this Act, a financial interest in or be employed, directly or indirectly, by any Licensed Gaming Entity, Licensed Casino Gaming Entity, applicant for such licenses, or any holding, affiliate, intermediary or subsidiary company thereof, during his or her status as an executive-level state employee, head of a principal department, head of an independent state agency or member of the legislature and for two (2) years following termination of such status.

On a related note, Professor Volok is soliciting ideas for the next edition of his book on academic legal writing.  He writes:

I hope to put out a second edition of my Academic Legal Writing book eventually. If any of you have used it, can you suggest any changes, or let me know what you'd like to see added? Please let me know, at volokh at And if you run a legal Weblog that has some law student readers, and could pose this question to them, I'd be very much obliged. Many thanks in advance.

Please help him if you can.  After all, he has never asked for a donation of anything other than ideas.

Blawg Notes

I was pleased to learn that All Deliberate Speed has rejoined the land of the living.  All Deliberate Speed focuses on civil rights.  ADS's coverage of all civil rights issues is excellent.  He also helps law students.  In this post he provides excellent advice for those seeking a judicial clerkship.  UPDATE:  I noticed that ADS has a permalink to me.  How terrific!  He does not link to the Federalist Society, though. ;^>

Professor Douglas Berman's blawg, Sentencing Law & Policy, was cited in an en banc decision of the Second Circuit Court of Appeals.  I believe this to be the first time a blawg has been cited in an appellate opinion.  I also noticed that his blawg has received almost 13,000 hits since June 28.  Terrific.  He proves that law professors can obtain significant attention when they produce a product the market actually desires.  What is most appealing about his blawg is Prof. Berman's absolute lack of self-congratulations or arrogance.  Indeed, he is such a swell guy that I frequently praise him, which makes me feel weird!

Screaming Bean (brought to my attention by Legal Underground) offers wonderful advice to would-be 1L's.  My advice: Use Aspen's Examples and Explanation books for Con Law and take the LEEWS legal writing program.  I don't want to brag about grades.  Let's just say that before LEEWS my grades were sh*t.  After LEEWS my grades were better.

CrimLaw and Feddie share their personality types.  (Ken's is here.  Feddie's is here.)  You can take the personality test here.  Now if only Prof. Leiter would take the test...

Class Maledictorian is worth a daily visit.  She was sorely missed at Saturday's party.

I hope you enjoy these blawgs.  Sorry for the lack of substance these past couple of days.  I was the Federalist Society's Student Leadership Conference all weekend.  Now I am playing catch-up with my paying job.

Never Allow Law to Stand in Your Way

Having just read DOJ’s memo on Blakely, I am appalled by the lack of substantive legal analysis.  Here is how the memo begins:

“The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing.”  Memo at 1.

No one suspected otherwise.  Indeed, I noted (based on highly reliable intelligence) that this is what DOJ would be arguing.  But where it the law?  The DOJ tells us that its “legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.”  Id.

Shouldn’t the DOJ refrain from issuing policy directives until after it has fully analyzed the legal issues?  As an Executive Branch, the DOJ deals with law – its enforcement and prosecution.  That the DOJ does not have a memo ready for distribution indicates that it has not fully analyzed the case.  This, if true, is a dereliction of its constitutional duty.

Further, “All federal prosecutors should [ ] argue in favor of the continued constitutional validity of the Sentencing Guidelines as a system requiring the imposition of sentences by judges.”  Id. at 2.  However, DOJ offers no legal reasons for doing so.  Instead, AUSAs should simply “argue.”  Article II does not empower the Executive to merely make arguments.  Rather, the Executive Branch “shall take Care that the Laws be faithfully executed.”  Art. II, sec. 3.  And lest the government forget: The Constitution is the supreme law of the land.  Art. VI, cl. 2.  How can the laws be faithfully executed if they are not first fully analyzed?  How can the government forget that it has a duty to ensure that a criminal defendant's rights not be violated?

The remainder of the memo consists of how-to advice.  Namely, how to argue against the application of Blakely; how to get a defendant to waive his rights under Blakely; and how to charge new crimes while avoiding the potential problems of Blakely.  Though, again, no legal analysis is offered.  The memo does not parse the Blakely opinion.  There is no comparison and contrast between the Washington and Federal Guidelines.  This lack of analysis is startling because in its amicus brief the United States asserted a "substantial interest in the outcome [of Blakely]" because "a decision invalidating judicial departure authority here could call into question the constitutionality of the federal Guidelines."  Brief at 1.

If a lawyer had his clients make decisions based on this memo, he would be liable for malpractice.  If a law student submitted this memo as a legal writing project, he would get an “F.”  If I submitted this memo to my boss, he would fire me.  But this memo – laden with nothing but unsupported arguments – is what the United States deems good enough to rely upon when depriving a man of his liberty.  That, my friends, is appalling.

UPDATE:  Marty Lederman blogs about DOJ's Blakely memo: It will be interesting to learn the Department's view as to which SCOTUS case "directly controls" the question whether the Sentencing Guidelines violate the Sixth Amendment per Apprendi and Blakely..  I read every Lederman post regardless of the topic - the dude is on fire.

UPDATE: CrimLaw analyses DOJ's arguments.

UPDATE:  Sentencing Law & Policy has connections.  Click here for DOJ memos defending the Guidelines despite Blakely.

Court Watching

Below please find discussions on the Court's most recent term.

"The Washington Legal Foundation hosts a review of the 2003 Supreme Court term with appellate experts Kenneth W. Starr, Andrew J. Pincus, and Richard Klingler."  To watch this, click here.

The American Constitution Society's Supreme Court Review can be found here.

You can watch PBS's "Judicial Review here.  "Margaret Warner reviews the judicial opinions of the recent term with Douglas Kmiec, a professor at Pepperdine University Law School, and Harold Koh, dean of Yale University Law School."

The Heritage Foundation will be hosting "Scholars & Scribes Review the Rulings: The Supreme Court's 2003-2004 Term" on July 12, 2004.  Details here.  [If a video feed of this event becomes available, I will post it here.]

The CATO Institute has not yet posted details for its an annual Supreme Court Review.  However, you can watch "The Supreme Court at Midterm," "[f]eaturing Thomas Goldstein, Partner, Goldstein & Howe; Erik S. Jaffe, Erik S. Jaffe, P.C; and James L. Swanson, Editor in Chief, Cato Supreme Court Review" here .

(Links to the WLF and HF talks via How Appealing)

Scholarly Paper Takes on New Relevance

"Redefining a 'Crime' as a Sentencing Factor to Circumvent the Right to Jury" is the title of a CATO Institute paper.  This paper was pie in the sky stuff until Blakely.  Here is the paper's introduction:

The right to trial by jury is under grave threat today. From time immemorial, whether a person is guilty of a crime has been decided by one’s peers in the community. Under the United States Constitution, an accused person must be indicted by a grand jury and convicted by a petit jury of the charges beyond a reasonable doubt. However, forces are at work attempting to transfer these jury powers to the courts. By the linguistic artifice of redefining the term ‘‘crime’’ as a ‘‘sentencing factor,’’ courts are usurping the jury’s traditional fact-finding role and are dispensing with the standard of proof beyond a reasonable doubt. The following essay tells the story of how this menace to traditional American liberties is being carried out.

Understanding the Court's Commerce Clause Jurisprudence

The only way to understand the Court's Commerce Clause jurisprudence is by turning to chaos theory.  Chaos theory tells us that if a butterfly flaps its wings in Hong Kong, it may cause a hurricane in Texas.  "Fundamental to chaos theory is the phenomenon of sensitive dependence on initial conditions, commonly referred to as the Butterfly Effect."  Leonardo Electronics Almanac.

If I sneeze in California, it may cause an earthquake in Missouri. Hence, Congress has the power to criminalize my intrastate sneezing because it may substantially affect interstate commerce.  (After all, an earthquake can cause billions of dollars in damage.  Everyone has heard of the million dollar man.  But had you heard of the billion dollar sneeze?

Even one dollar spent in Utah will have a substantial affect on interstate commerce since this dollar will travel across the country many times.  This website explains why.

Hence, the Commerce Clause confers upon Congress to regulate any activity it likes, so long as it does not offend the Court in so doing.