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April 7, 2008

Thoughtful thoughts on Judge Weinstein's work in Polizzi

Over at Volokh, Orin Kerr has this extended discussion of Judge Weinstein's very extended Polizzi opinion (basics here and here), which reverses a conviction in a child porn case on debatable legal grounds.  Here is the start of Orin's analysis:

Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

Related posts on Polizzi:

April 7, 2008 at 12:02 PM | Permalink

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Tracked on Apr 8, 2008 9:19:18 PM

Comments

I've read chunks of the decision, and it seems to me that Weinstein is his own worst enemy. To me, the Sentencing Guidelines (and other recent Sixth Amendment) cases actually indicate a SCOTUS intent to foster MORE of an allegiance to the strict judge-law/jury-fact paradigm that the nullifier advocates abhor, and NOT an invitation to embrace rudderless notions of "more jury power is always better."

Posted by: KipEsquire | Apr 7, 2008 2:16:01 PM

These kind of quotes are rather odd:

"There is merit to defendant’s assertion that the statute charged violates the First Amendment free speech protections of persons in their own homes viewing, reading, or hearing what they wish, but it cannot be said the statute is unconstitutional on this ground."

What in the hell does that mean, as a practical matter? I know that is not what he is resting his decision on, but come on...

Judge Weinstein makes it much easier for Federalist Society members to point to rogue, out of control "activist" judges. I'm not in favor of making those arguments easy for them.

Posted by: Alec | Apr 8, 2008 2:41:46 AM

It just means “It is a good argument, but binding precedent compels a different result.” Even paying members of the Federalist Society (whose sole qualification is paying to join) have written things like that. In fact, if I recall correctly, even quite intelligent members of the Federalist Society (of the dozen or so of them) have been known to declare that “Stare Decisis is for Suckers.”

Posted by: S.cotus | Apr 8, 2008 7:15:36 AM

In fact, if I recall correctly, even quite intelligent members of the Federalist Society (of the dozen or so of them) have been known to declare that “Stare Decisis is for Suckers.”

I think it's spelled "suckas," and it's a reference to Clarence Thomas's methods of reaching his decisions (or, more accurately, writing his solo dissents). Unlike Judge Weinstein, Clarence Thomas is on the Supreme Court and is free to put down in a judicial opinion that if he had the support of 4 of his colleagues, he would not follow this or that case. Judge Weinstein, on the other hand, is on the district bench and is bound to follow the decisions of the Second Circuit and Supreme Court.

Posted by: | Apr 8, 2008 8:51:23 AM

Judge Weinstein is free to put in his judicial decision that if he had the support of the two of his colleagues on the second circuit that he would reach an opposite decision. I don’t really see the difference.

If Judge Weinstein were deliberately disregarding circuit or SCOTUS precedent he would say:

There is merit to defendant’s assertion that the statute charged violates the First Amendment free speech protections of persons in their own homes viewing, reading, or hearing what they wish, and despite the law in the circuit, they are correct, and the defendant is entitled to the relief he seeks.

Judges frequently do say they disagree with the law. This serves a few purposes: 1) venting; 2) deliberately weakening the winning party’s position on appeal; and 3) trying to get attention for a nomination to another court (which the Federalist Society-types perfected). My semi-educated guess is that #2 was going on here.

Posted by: S.cotus | Apr 8, 2008 10:31:55 AM

I don't see why judges who disagree with a holding they are bound to enforce don't rule that way but for horribly wrong and insulting reasons. A judge is not bound to explain his holding in any particular way. If done cleverly, it could make affirming your decision (and thus the holding you disagree with) very difficult for an appellate court.

Posted by: bruce | Apr 8, 2008 9:29:19 PM

Bruce, Some judges are better at this than others.

Posted by: S.cotus | Apr 8, 2008 11:04:25 PM

S.cotus, I can't recall the last time I've seen a judge actually do it. Though I've encountered a few issues where I disagree with binding authority and have thought of really snarky ways of following the law while simultaneously making the binding authority look extremely bad. I suppose it's hard to do without coming across as being sarcastic - it's pointless unless you can do it with a straight face. Plus, the only way to do it right is to write an opinion that is so egregiously offensive (in its reasoning, not its holding) that nobody would want to affirm it for fear of the taint wiping off on them. Affirm the dismissal of a legitimate sex discrimination claim by writing a 20 page opinion about how women are inferior, weak, and belong in the kitchen. People who know you will catch on to what you're doing. And you're following binding precedent (though you disagree with it) so you're not abdicating your duty as a judge. While the court of appeals might try to distinguish its affirmance from your holding, "COURT UPHOLDS WOMEN-HATING DECISION!!!" is what the news will report.

Posted by: bruce | Apr 8, 2008 11:48:34 PM

DAB

My name is Robert Forkner and I am a criminal defense attorney in California. A recent case of US v. Montes & Scarmazzo in The Eastern District is a CCE conviction for 20 years for operating a state apporoved medical marijuana dispensary. Numerous jurors have contacted me about the 20 year mandatory minimum and are very upset. I am interested in the status of the polizzi case and any thoughts or resources you may have.

Thank you

Robert Forkner
722 13th Street
Modesto, CA 95354

Phone: 209 544 0200

Posted by: Robert | Jul 6, 2008 12:19:34 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB