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July 16, 2004

Judge Weinstein Speaks!!

I'm back at it even faster that expected because I just received two opinions authored by EDNY Senior US District Judge Jack Weinstein. I have not had a chance to even glance at these opinions, but because of the source I am sure they are fantastic and fantastically interesting, worthy of posting sight-unseen. More commentary on this front, too, before long.

Download weinstein_usvkhan.pdf

Download weinstein_usvlandgarten.pdf

UPDATE: Even if you are not a fan of Star Trek, you cannot help but love the Wrath of US v. Khan. Though I've only now had a chance for a very quick read, the decision is classic Weinstein, ingeniously wacky and wonderful, and it also honors this blog with a cite. (Of course, Weinstein has long been the hero of writers interested in cite counts, and he does not disappoint here.) More substantive commentary later.

July 16, 2004 at 02:05 PM | Permalink


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FYI, Jack Weinstein is in EDNY, not SDNY.

Posted by: Li'l Kim | Jul 16, 2004 2:24:08 PM

Thanks for the correction. Problem solved. Much appreciated!

Posted by: Doug B. | Jul 16, 2004 2:31:11 PM

What an opinion! One must admire Judge Weinstein's use of the English language and vocabulary("chimerical" anyone?). I'm also intrigued by his historical analysis -- beginning with a rebuke of applying "1780 jury practice in our courts" and then proceeding to attempt to do just that, all the while seemingly calling for jury nullification, and concluding that the sentencing jury solution is unnecessary in the case before him (although he references the case in the second opinion). It appears he is the first to discuss why a district court would have authority to empanel a sentencing jury. (Cf. US v. Green 2004 WL 1381101). However, I am a bit puzzled -- how exactly does he get from the first premise: Common law juries would find facts and law, often engaged in 'pious perjury,' and were considered essential in a democratic system; to the second premise: Sentencing juries are appropriate when Blakely issues arise?
And doesn't the judge's analysis have to be taken in an even deeper historical context? The English system of the jury trial was a great departure from the previous systems (trial by ordeal, for example) and the other systems being used in Europe at the time (inquisitorial trials). So wouldn't one of the major reasons the Framers viewed the jury as such an essential tool was because of its stark contrast to the other, draconian means of "justice" known to Europeans during and prior to the Enlightenment? Such a consideration would undermine the natural consequence that sentencing juries are appropriate in a post-Blakely world in federal court.

Posted by: District Clerk Battling Blakely | Jul 16, 2004 5:30:31 PM

A quick read and response from a federal defense attorney in the SDNY and EDNY:

Lots of interesting analysis in Khan that I think didn't really require it but it's on record for now as persuasive dictum because it comes from the inestimable Judge Weinstein.

Disappointing that he seems to believe that maintaining a mandatory sentencing scheme with jury control is better than an entirely discretionary scheme controlled by judges but that's a philosophical debate and probably the middle ground he thinks will stave off worse fixes by Congress. It's not that I don't trust juries, it's that I am afraid of mandatory schemes no matter who is the fact finder.

I am surprised, however, that there's no fifth amendment/double jeopardy issue noted in in Landgarten, who appears not to have been indicted for the enhanced loss figure and pleaded guilty to a pre-Blakely style bare bones indictment. Apparently, Judge Weinstein believes the loss figures don't have to be "elements" charged in an indictment but that they are simply sentencing factors that can be added after a guilty plea simply because the guidelines book provided sufficient notice. He may be right but I would have wanted some discussion about that, if only because this was a pre-Blakely plea that will be subject to a post-Blakely sentencing--a topic that will be one of the primary ones for the time being.

Once these types of straddle cases are emptied out of the system, though, I would think there wouldn't be as much of an issue about whether guidelines provisions are elements or sentencing factors (assuming the Weinstein approach prevails and the guidelines remain in some form).

Then the primary question might be whether juries must know why they are finding facts during the sentencing phase. After all, they know their fact finding during the guilt phase will result in a "conviction"; why shouldn't they know that their fact finding at sentencing will result in a certain punishment (as death penalty juries do). I've never been able to press a trial judge to advise juries of mandatory minimums or guidelines but maybe that will change in light of Blakely.

Posted by: Alex E. | Jul 16, 2004 5:34:40 PM

I am a recently retired, politically oriented liberal democrat Jewish lawyer who enjoys "surfing" the web. I encountered your blog and enjoy it immensely. I am very bright, and fairly learned, but have no enlightening comments to make.

Posted by: Norman Cohen | Jul 16, 2004 7:41:33 PM

Can someone please advise me of why Judge Weinstein was the topic of discussion on NPR today? I was trying to speak to my husband about it, but completely spaced and could only remember that he was discussed, but not why.

Posted by: Elizabeth | Jun 9, 2005 11:54:52 PM

Can someone please advise me of why Judge Weinstein was the topic of discussion on NPR today?

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:53:16 PM

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