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July 21, 2010

Third Circuit requires prosecutors to do more with less in Fumo sentencing appeal

As noted in this post last week, defense attorneys in an appellate fight over the proper federal sentence for a high-profile state politician objected to prosecutors' request to file a super-sized brief.  Now, as detailed in this piece in The Legal Intelligencer, which is headlined "3rd Circuit Judge Orders Feds to Trim Big Brief in Fumo Case," the defense achieved a partial victory in this first Fumo fight:

Federal prosecutors are demanding a longer prison sentence for former Pennsylvania state Sen. Vincent Fumo, but first they're going to have to make their own appellate brief considerably shorter.

In a quick victory for the Fumo defense team, the 3rd U.S. Circuit Court of Appeals has ordered prosecutors to slash their brief by about 20 percent, reducing it from more than 53,000 words to no more than 42,500.

The order came from U.S. Circuit Judge Thomas Vanaskie, one of the 3rd Circuit's newest judges, and says the government's new, leaner brief is due by Aug. 4....

In the appeal, prosecutors are arguing that U.S. District Judge Ronald L. Buckwalter was too lenient when he ignored guidelines that called for a prison term of more than 21 years for Fumo and instead imposed a 55-month prison term.

Fumo was convicted of 137 counts of fraud and obstruction of justice for misusing millions in funds from a charity he created and stealing the services of Senate staffers "to support a lavish lifestyle and illegally amass political power," the prosecutors argue.

The appeal also says Buckwalter was too lenient in sentencing Arnao -- a longtime Fumo aide who was installed as the executive director of the charity -- to just one year in prison.

Soon after the prosecutors filed their appellate brief, the lawyers for Fumo and Arnao objected to its length, arguing that it was simply too long and set the stage for the court and the lawyers to be swamped in paper.  Court rules ordinarily impose a 14,000 word limit for the opening brief and the government's first version, filed on July 9, was about 3.8 times longer. The new and shorter version is limited to about three times the standard limit.

To put things in perspective, the entire stack of briefs in the Fumo appeal would add up to about the length of Kurt Vonnegut's novel "Slaughterhouse-Five" if the lawyers stayed within the standard limits.  If the government had been allowed to stick with the first version of its brief, which weighed in at 281 pages -- and if all subsequent briefs had exceeded the standard limits by the same percentage -- the stack would look more like Fyodor Dostoyevsky's "Crime and Punishment."

But now that Vanaskie has ordered a 20 percent reduction -- and assuming that all of the briefs weigh in at about three times the ordinary limit -- the appellate judges will be facing a reading assignment more along the lines of John Steinbeck's "The Grapes of Wrath."

July 21, 2010 at 09:00 AM | Permalink


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That's still significantly over the normal allotment. I wouldn't think this much of a victory for Fumo. More like laziness on the part of judges and court staff.

Posted by: Soronel Haetir | Jul 21, 2010 1:52:53 PM

Clearly, the appellate judges have the right to limit the amount of reading they would have to do in a case, providing their reasons are rational. The real problem is that they don't read the defense's opening brief or reply, and only skim the government's response. They don't know the case at argument, and they use fallacious reasoning in deciding cases. They determine the outcome they want, use only those facts supportive of their chosen outcome and ignore those facts supporting the defense. Then they twist the law to support their chosen pre-determined outcome. The appellate process is a joke. Been there,now -- disillusioned. The process is severely broken. The government always wins. The appellate judges exist to affirm the lower court at all costs, ripping the blindfold off Lady Justice.

Posted by: layperson | Jul 23, 2010 2:42:26 AM

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