Posted on August 15, 2004 in Uncategorized

The two questions the U.S. Government has asked the Supreme Court toanswer in Fanfan and Booker are:

(1) Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the UnitedStates Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admittedby the defendant.(2) If the answer to the first question is "yes," thefollowing question is presented: Whether, in a case inwhich the Guidelines would require the court to find asentence-enhancing fact, the Sentencing Guidelines as awhole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exerciseits discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

In other words, are the guidelines constitutional as historicallyapplied; and if they are not, are they wholly unconstitutional?

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 Posted on August 13, 2004 in Uncategorized

The criminal "justice" system can provide only the vaguest approximation of real Justice. Think of who makes the laws, and who enforces them. The system is designed to make the people with power feel like they're being protected from those who scare them - those who are different than them. When true Justice is the result of a criminal case, it is mere coincidence.

A wiser lawyer than me once said, in a debate on the death penalty:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves - whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

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 Posted on August 13, 2004 in Uncategorized

I wrote this back in April:

Before the war, the conventional wisdom was that Saddam Hussein thought that the American people didn't have the political will to go to war in the middle east. Bodies would start coming back in bags, and we would collectively realize the cost of war and reconsider the benefit.I hope Saddam was right - that once it sinks in that 680 Americans (not to mention 9 Britons, five Bulgarians, one Dane, one Estonian, 17 Italians, two Poles, one Salvadoran, 11 Spaniards, two Thai, and four Ukrainians) have been killed in this war, we will recalculate the cost and benefit of the war.Some of us, I know, even care about the thousands upon thousands of Iraqis killed (free at last...) and wounded, and add their lives to the cost of the war.In addition to 680 dead, there are over 3,000 Americans wounded in the war - lost limbs, lost eyesight, lifetime disabilities. In the words of Pfc Tristan Wyatt, one of the wounded, "that's not wounded. That's fucked up." The wounds are mostly orthopedic - legs, arms.Call it a round 4,000 U.S. casualties so far. Check back tomorrow for new numbers. Walter Reed Hospital admits 10 new Iraq wounded a day. The rate at which American troops are being wounded is as high now as it has been in this war - even before Mr. Bush declared "Mission Complete."Where are they? Where are the flag-draped coffins? Where is the ceremony? Where are the cargo planes landing at Dover AFB to bring the bodies home with military "honors?" The television cameras covering the bodies' returns?The wounded come in to Andrews AFB in the middle of the night. The press, if it wanted to cover the returns, wouldn't be allowed to. (It was a shock to me, this weekend, seeing a photo in the paper of three soldiers, standing with their mother, smiling. The soldier on the right, the caption said, lost her life last week in Iraq.) As long as the press allows the government to keep a lid on the story of the men and women killed and maimed in Iraq, the American people will blithely go along, pretending it has something to do with 9/11 (huh?) or weapons of mass destruction or "freedom."Maybe, though - just maybe - this is one of those wrongs that can't stay buried. Maybe as the war is brought home to more of us we'll actually do something about it. And maybe we'll decide that the privileged and the wealthy aren't the only ones who have the power to stop this war.Hopefully,Mark.

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 Posted on August 13, 2004 in Uncategorized

Lately I've been fielding lots of calls from people whose loved onesmight be affected by the Supreme Court's decision in Blakely v. Washington.

In a nutshell, Justice Scalia wrote in Blakely that, under Washingtonstate's sentencing guidelines, it was unconstitutional for the judge toincrease Mr. Blakely's sentence above the punishment authorized by thefacts found by the jury.

The consensus in the federal criminal law community (defense lawyers aswell as judges and prosecutors) is that Blakely will apply toinvalidate the federal sentencing guidelines (which allow the judge tofind things like drug quantity by a preponderance of the evidence, andpunish based on these findings).

Of all the circuit courts of appeals that have answered the question,"does Blakely apply to the federal sentencing guidelines?" only theFifth Circuit has said "no." In October the U.S. Supreme Court will behearing arguments on the question, and will likely answer it before theend of the year.

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 Posted on August 13, 2004 in Uncategorized

My intent is for this blog to be a place for me to discuss the criminal justice system and related topics. "Related topics" is a pretty broad category because it's hard to imagine a topic that doesn't somehow relate to the defense of people accused of crimes. So I'll probably talk about whatever I feel like talking about here.

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