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December 13, 2006

What one misses during faculty meetings

I have just emerged from a quite engaging 3+ hour faculty meeting.  While I was off-line, three very notable circuit rulings came to be.  Howard Bashman has all the basics, and I hope he won't mind my cut-and-paste efforts from his reports (with links to his coverage):

  • From the Seventh Circuit, a rejection of a defendant's various challenges to having his DNA sampled under the federal DNA Analysis Backlog Elimination Act (available at this link).
  • From the Ninth Circuit, a recall of mandates "in cases that became final over fifteen years ago and six years ago" to enable resentencing under Booker (available at this link). 
  • From the Eleventh Circuit, interesting opinions concurring and dissenting opinion from the circuit's decision not to hear en banc the circuit's approach to crack sentencing after Booker(available at this link).

When I recover from my meetings, I hope to find time to read and comment on these latter two opinions.

December 13, 2006 at 05:32 PM | Permalink

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Pregerson and Noonan went off the reservation with that decision. Judges don't have some divine power, untethed from law, to right what they perceive as injustice. The Ninth Circuit really produces some loopy decisions, and not just in the criminal law area. The autoerotic cop was a clasic overreach in the civil arena. Certain judges on this court need to be reined in. I don't know what the answer is, but the Supreme Court needs to increase its summary reversal numbers.

Posted by: federalist | Dec 13, 2006 7:09:05 PM

I've just recently moved cross-country after practicing in the 9th Circuit for a while. Their opinions and own "fact-finding" is beyond belief to the point that most district court judges feel tied by the second-guessing of the 9th.

I'm now in a different circuit, and am amazed at how different the atmosphere is - I'd love to see the defense bar from a 9th Circuit court try to survive elsewhere with the tactics they get away with there - they'd lose their law license in most places.

Posted by: Hamilton | Dec 13, 2006 7:20:48 PM

The Ninth Circuit made an argument that its power was "tethered to law," but seems to have ignored the Supreme Court's retroactivity cases.

I'm reminded of this quote from Judge Young's opinion in US v. Kandirakis:
"What is overlooked in post-Booker discussions is the fact that, for seventeen years, federal courts had been sentencing offenders unconstitutionally." (quoting Prof. Berman) It looks as though Judge Pregerson has done some thinking on that, but again, I think he neglects the Supreme Court's retroactivity cases. Either the en banc court or the Supreme Court will take a second look at this, I assume.
Kandirakis is here:
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/kandirakis.pdf

The Eleventh Circuit's case is much more interesting.

Posted by: Bill | Dec 14, 2006 10:29:55 AM

Being "tethered to the law" and "ignoring the Supreme Court" are mutually exclusive.

Posted by: federalist | Dec 14, 2006 10:57:54 AM

The ruling says more about congress than it does about the 9th.

“If mandate could be recalled merely based on Booker, that result
would provide an avenue to escape the restrictions
Congress has imposed on habeas review.”

Perhaps if the public knew 360 month equals 30 years, they would be as outraged as Australians were over Schapelle Corby. Perhaps congress did a survey and found 360 months easier for the public to accept than 30 years.

Is Judge Bryan leading the new Boston Tea Party?

Kent Scheidegger mentioned in the last few days that the First Congress did not include habeas for state inmates. If he means Sections 22 and 25 of the The Judiciary Act of 1789, the Framers were well aware that habeas was covered in the Bill of Rights, debated and passed at the same time as The Judiciary Act. More important, the People's concern was that appeals to federal courts would be more punitive, namely, the Feds might force them to pay their debts to the British. Debtor's prison was common. I don't think federal enforcement of the Bill of Rights crossed their mind at all because they trusted the states (themselves) more than the Federal. No, they were concerned we might end up with NSA Wiretapping, a federal war on state citizens (the drug war) and federal stripping of of the Bill of Rights. In the end, the greatest danger was the opposite: when the Feds paid too much deference to the states, Plessy v. Ferguson and Buck v. Bell being the most potent examples of that slippery slope. The new Federal prison industrial complex brought to us by our conservative friends is exactly what the Framers feared.

George Will quote? He's a Tory and is that out of date.

Rock on, Judge Bryan. The sound of tea bags landing in the ocean is sweet. Better to get smacked down by the SCOTUS than to never stand up.

Posted by: George | Dec 14, 2006 6:44:35 PM

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