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February 26, 2007

More on the cert denied in Berger

Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial.  (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)

In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action.  But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA.  (Of course, the Ninth Circuit has been know to find ways around AEDPA.  But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)

So here is my question to Orin and Kent and anyone else interested in playing along: 

What should Berger and his lawyer do now? 

Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful.  I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing.  So, is the cert denial the end of the line for Berger?

February 26, 2007 at 04:00 PM | Permalink


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» Round-Up from SCOTUSblog
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Tracked on Feb 27, 2007 4:14:13 PM

» Round-Up from SCOTUSblog
The AP has this article on today's argument in Winkelman. In the National Law Journal, Marcia Coyle reports here at Law.com on Hein v. Freedom From Religion, which will be heard before the Court tomorrow. At the Justice Talking blog,... [Read More]

Tracked on Feb 27, 2007 4:22:18 PM

» Round-Up from SCOTUSblog
The AP has this article on today's argument in Winkelman. In the National Law Journal, Marcia Coyle reports here at Law.com on Hein v. Freedom From Religion, which will be heard before the Court tomorrow. At the Justice Talking blog,... [Read More]

Tracked on Feb 27, 2007 4:26:48 PM


I expect that clemency is the least unlikely remedy at this point.

Posted by: Kent Scheidegger | Feb 26, 2007 4:25:13 PM

From the AP piece: "A judge in 2004 sentenced the former Cortez High School teacher to consecutive 10-year prison terms on each of 20 convictions for sexual exploitation of a minor."

Does anyone know how the AZ governor's clemency powers work? Does he have the pardon power? Is he forced to choose between setting a prisoner free entirely and leaving him alone?

If I were the AZ governor, I wouldn't be comfortable setting Berger free, but I could probably stomach relieving him of the obligation of serving the last 170-190 years of his sentence.

Though, in my view, executive clemency isn't meant to be used in this way, but whatever...

Posted by: | Feb 26, 2007 5:13:16 PM

He ought to throw every legal "Hail, Mary!" pass that he can. I agree with Kent that no remaining option looks good for him.

Berger's problem is that legislators and governors — and the voters who put them there — don't have much sympathy for child porn offenders. No politician who helps Berger will get any extra votes: at best it will be neutral; at worst, it will help their opponent in the next election.

Posted by: Marc Shepherd | Feb 26, 2007 5:15:27 PM

Your point, Marc, highlights why the Framers thought it important to add the Eighth Amendment in the Bill of Rights and why I am sooooo disappointed that the Supreme Court has refused to give this Amendment any real teeth in the context of non-capital sentencing.

Posted by: Doug B. | Feb 26, 2007 5:20:41 PM

It's hard to know what the Ninth Circuit will do with respect to the case without knowing what other issues are in the record. I would think that the Ninth would be loath to help this guy out on the too much punishment issue, since the Ninth got reversed on the three-strikes cases, but if there are other issues, then the Ninth may be predisposed to helping the guy out. Of course, that would mean Arizona could retry the guy, and he may wind up right back where he started.

Off-topic, a bit: many are getting worked up about the fate of Mr. Berger, and I have some, however slight sympathy, but isn't this issue kind of the flip side of what happens when someone gets released on a "technicality" and then commits a heinous crime? We have laws about possessing kiddie porn for a reason, and it's not just to protect kids from getting molested, it's also to protect their lives. Kiddie porn is created by some pretty unsavory characters, and I suspect that it is not uncommon for these kiddie porn producers to dispose of the children by killing them. Consumers of kiddie porn create a market for this. (I wonder if those consumers of kiddie porn think about the reality that some of the "actors" (read: victims) are dead when they sit down to view this stuff.) Thus, harsh criminal penalties are warranted. And, given our society's view that the constitutional rights of the accused are very important, we often impose harsh remedies against the government.

So why can't people simply look at Berger's plight as a necessary evil in the war against child pornography, just as we look to the victims of those who get released on a technicality as unfortunate consequences of a necessary evil?

The other issue with respect to Berger is that he is just starting his sentence. Who knows what will happen in the future? Will he be a model prisoner? Clemency is something that can wait.

Posted by: federalist | Feb 26, 2007 5:21:30 PM

Is there any evidence that child pornographers indeed kill the children they use in their films? I doubt it. The issue in Berger is proportionality. Why can you get more time watching child porn than actually raping a child? This makes no sense.

Posted by: Steve | Feb 26, 2007 5:57:24 PM

Doug asks me in bold: "What should Berger and his lawyer do now?" I don't mean to be dense, but I'm not sure what this means; what Berger does is up to him, right? Or are you asking what I would do if I were representing Berger?

Posted by: Orin Kerr | Feb 26, 2007 9:30:22 PM

Orin: I mean what should be Berger's and his lawyer's next move if they both still believe that his 200-year sentence is unconstitutional and/or unjust.

Posted by: Doug B. | Feb 26, 2007 9:49:21 PM

Do you think a longer-term strategy may be better? Does Arizona have policies that allow prisoners to publicize their cases? Berger certainly would be a deterrent. Maybe Berger can do enough "good works" in prison to make himself an attractive candidate for clemency in the future.

Posted by: federalist | Feb 26, 2007 10:36:39 PM

Collateral attack is next, then clemency should that fail.

Posted by: "Major" Mori | Feb 26, 2007 10:56:31 PM

Cutting Berger's hand off or whipping him would be cruel and usual, but once he is certain he will never get out, he'd most likely would rather have his hand cut off and be whipped while his severed wrist bleeds all over the floor.

All for offense for which no person can testify to his directly harming them because he never did.

Can we get a little rational?

The Trade in Child Pornography.

The law was pretty cool when it was based on facts.

Posted by: George | Feb 26, 2007 11:36:16 PM

George, how about the right of children simply not to be seen doing (or more accurately being forced to do) this stuff? A child victim, certainly is harmed every time a person views him or her engaged in those acts. Consider a young child subjected to such abuse having to live a lifetime knowing that people like Mr. Berger are engaging in autoeroticism while viewing that child's victimization.

This is, of course, to say nothing about the fact that payments for this stuff fuel a trade in it, which, at best leads to children simply being victimized and at worst leads to their sexual slavery and certain premature death. Perhaps, someone can research all of the infants, young children and adolescents who are victims of videotaped sexual abuse. It seems doubtful to me that there are too many happy endings, and that, most likely, where non-family or criminal enterprises are involved, the particular image is but an endlessly repeated snapshot of their lives, which likely end very quickly.

Now, even I admit, this guy may not deserve what is effectively a life sentence, but his fate, while harsh, is not even remotely the injustice that it is portrayed to be.

Posted by: federalist | Feb 27, 2007 12:11:17 AM

"certain premature death?" The rhetoric does not fit with the facts.

Posted by: | Feb 27, 2007 8:02:07 AM

federalist, you contradict yourself. Either the punishment is just or it isn't. If he made the porn, that would be another story and he would be directly responsible for the atrocious suffering of the child, and as the linked article indicates, it was likely porn made when it was legal in the 1970s. It is beyond comprehension that a child who is now middle aged is harmed by someone looking at a 30-40-year-old picture them. Indeed, they are not even aware of it.

If there are current cases of someone making this porn, they should be the one who gets life if anyone does (though I think life should be reserved for heinous murder).

The punishment should fit the crime, and 200 years is crazy. What is a serious deadly or potentially deadly crime, what is most severe, is no longer clear because the punishments are so blurred.

Posted by: George | Feb 27, 2007 5:42:49 PM

George, Masha Allen may disagree with your view that kiddie porn victims don't care that perverts are looking at them.

Posted by: federalist | Feb 27, 2007 7:22:48 PM

I'd Google Masha Allen but already know you are using her for the exception that proves the rule.

No matter how you spin it, 200 years for possession of pictures is too much. Period.

Juries should know the potential sentence.

Posted by: George | Feb 27, 2007 7:53:09 PM

yep George, that's me again . . . .

seems to me that kiddie porn victims are revictimized everytime some onanistic pervert views their victimization . . . . i guess kiddie porn victims have no interest in privacy

amazing the arguments that will come forth to further the cause of a criminal . . . .

Posted by: federalist | Feb 27, 2007 10:30:08 PM

Not so long ago homosexuals were treated as criminals for similar bogus reasons. They were associated with boy rapist. The question of actual child abuse was not relevant, the association was enough. Also, they were said to "pervert" others into becoming homosexuals, so they were seen to be a threat to society.

The best way to stop children being abused for making child porn would be for the government to make massive amounts of this stuff (digitally so that it doesn't involve any children) and distribute it freely on the internet. The child porn maffia will then go bankrupt.

Posted by: Count Iblis | Mar 22, 2007 8:50:43 PM

Apparently there is a new book coming out which calls Masha Allen a child porn star. The coffee table book includes a literary booklet about Masha's abuse from the perpetrator's perspective.


Why aren't her mother Faith Allen and "grandmother" Judge Cheryl Allen (who granted the adoption) doing something to stop this book?


Is such a book obscene? Unprotected by the First Amendment? Objectionable? Is it moral to profit from such a thing? What if Masha, her parents, etc. wants her story used in this way?

Posted by: Truth or Porn | Apr 5, 2007 7:49:30 PM


Posted by: DFDF | Jul 29, 2007 12:58:10 AM

what you guys have apparently missed is that the US Govt is the Kiddie Porn Mafia...it has been estimated that over 90% of the CP on the net is controlled by law enforcement using it as bait to prosecute the next generation of criminals to fill our jails at our expense. The who thing is ridiculous more people are currently in prison serving lengthy prison terms than the total of the children ever victimized by it. The FBI now spams emails of innocent people with suggestive links to their servers which has proven to be enough justification to beat their doors down and search their houses and take their computers away while they decide whether that person shouyld be tried for "attempted possession of CP" punishable by up to 10 years...CP has turned into the crimen expectum of our era. The governmental activities we are seeing right here and right now are taken directly from the pages of the Malleus Maleficarum and the new heretics

A critical element, which tips the state from one of democracy into a full police state, is the suppression of freedom of expression. Freedom of expression is vital for avoiding
the slide into totalitarianism, but it must be attacked by the opportunists and demagogues as it exposes and undermines them. The police fear it also. When not moderated by freedom of expression, the process shown above develops almost
naturally into the police state, made certain by a fatal combination of public apathy and fear, and moral indoctrination and opportunism by whatever cabal is dominant. The signs that the end of the process is near are when laws are passed that suppress criticism of the law itself and when the media bow to political correctness and to the current social ideology. A test for the last is to ask if there are any questions that are taboo. Would a journalist defend a Jew in Nazi Germany? Would a journalist question
the unnatural age of sexual consent laws in Western society? In order to get a grasp of the the real issue here you need to not think of terms of what is politically correct to say ...take the CP element out of te equation ...and please do it before our rights are all given up and abandon to the whim of our government. No one with a computer and te internet in their house should feel safe from this type of with hunt. Your children , their friends, over 1000 kinds of trojan downloaders, unsoliticted spam you click on the 'unsubscribe' from it only to find your self and your home and ip address popping up on someones computer screen at quantico...come on sheeple

Posted by: | Jun 2, 2008 12:33:34 AM

sorry about the typos "crimen exceptum"

Posted by: | Jun 2, 2008 12:35:19 AM

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