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January 19, 2005

A plea for help in the 2d Circuit

Attorney Alex Eisemann wrote to me this evening to report that "by sheer luck, I believe I'm one of the two cases that will be the vehicle for the Second Circuit's upcoming Booker decisions."  (Background here)  Alex explains:

The panel hearing my case this morning — 2/3 of whom heard the companion case yesterday and consisting of Judges Leval, Straub and Katzmann — ordered me to respond to the attached letter brief from the Government (served at 5pm and received by me at 9pm today) by noon tomorrow (Thursday).  [This letter can be downloaded below.]

Assuming you find it appropriate, could you please post this ASAP and invite readers to comment and offer suggestions on it.  Any comments and suggestions must be in by 11:30am Thursday, if I'm to incorporate them and meet the noon deadline.  Please also ask people to be brief and to the point (unlike some of my own posts) and to write in "formal" style if possible, so I can cut and paste parts into my upcoming response.

I find posting this request appropriate — after all, last month, as detailed here and here, I used this space to help a victim's family member develop a brief to support a death sentence.  Alex can be reached at aee@eisemannlaw.com

Download 2d_circuit_govt_letter_briefs.pdf

January 19, 2005 at 09:40 PM | Permalink


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I've already received a couple of e-mails from readers offering suggestions. No one has yet addressed the government's primary argument, that an error such as this can be plain and affect substantial rights but still not "seriously affect the fairness, integrity or public reputation of judicial proceedings." I'm still trying to figure out what that last clause really means and am researching the area but if anyone has any suggested approaches on how to determine when a plain error does or does not have this affect (and why a Blakely/Booker error must), please let me know (quickly) here or in an e-mail.


Posted by: Alex E. | Jan 20, 2005 8:36:49 AM

I'm not sure this will help, but it is what came to mind after a quick read of the Govt's brief. They're basic argument is that the "fairness, integrity or public reputation of judicial proceedings" is served by ensuring that the original sentence imposed is preserved. In other words, the result is OK so never mind the process by which we got there. The merits majority in Booker, on the other hand, concludes with a pretty strong statement about how complying with the Constitutional process that respects Sixth Amendment rights is sometimes inefficient but it is necessary. In other words, it is more important that a defendant's rights be vindicated than the wheels of justice cruise along without a hitch. You might make a similar argument here, that the "fairness, integiry, or public repuration of judicial proceedings" is best (only?) served by remand to ensure that your client was sentenced pursuant to a Constitutional scheme.

On a somewhat related note, how the heck are "fairness, etc." served by failing to remand a sentence that we now know was imposed under an unconstitutional system? That seems obvious to me, but I've never been able to find a lot of support for that type of argument in my research.

Good luck, Alex.

Posted by: JDB | Jan 20, 2005 10:15:50 AM

Re-read U.S. v. Cotton, 535 U.S. 625, 632, 634, where the prisoner stayed in prison after the Court accepted same argument about plain error under Apprendi and Jones, for even assuming defendant's substantial rights were affected, the Court analygized to Johnson, where the Court held that there was "no basis for concluding that the error 'seriously affected the fairness, integrity or public reputation of judicial proceedings.'" So study Cotton and Johnson and see if your client can get out of the brier patch. Luck!

Posted by: Joseph A. Connors III | Jan 24, 2005 3:03:08 AM

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