Sentencing Law

Ed. note: We are having an Above the Law retreat this afternoon, so we may be less prolific than usual today. We will return to our regularly scheduled programming tomorrow.

* “I think I am now the hardest-working justice. I wasn’t until David Souter left us.” Justice Ginsburg celebrates her twentieth year on the high bench in true diva style. [USA Today]

* Sorry, EA, the Ninth Circuit thought your First Amendment free expression defense to allegedly stealing college sports players’ likenesses was a load of hooey. [Wall Street Journal]

* “It’s a decision that clearly favors the merchants.” A federal judge gave the Fed a spanking in a ruling on its cap for debit card fees earned by banks after consumer swipes. [DealBook / New York Times]

* “What makes this discriminatory? I don’t think there’s anything in Title 7 that says an employer has to be consistent.” Ropes & Gray’s “token black associate” had his day in court. [National Law Journal]

* The firm that outed J.K. Rowling as author of “The Cuckoo’s Calling” will make a charitable donation as an apology — getting the book to the bestseller’s list wasn’t charitable enough. [New York Times]

* As the bar exam draws to a close today, here’s something to consider: 12,250 people signed up to take the test in New York alone. Are there jobs out there for them? Best of luck! [New York Law Journal]

* The feds want to make a better return on their investment on law student loans. Perhaps it’s time for those good old gainful employment regulations. [Student Loan Ranger / U.S. News & World Report]

* Cleveland kidnapper Ariel Castro is expected to speak at his sentencing hearing today, where a judge will decide if a term of life in prison plus 1,000 years is appropriate punishment for him. [CBS News]

* The cop who became a global internet meme for pepper spraying protesters at Berkeley Davis is now appealing for worker’s comp, arguing that he suffered psychiatric injury. Pray for him. [Lawyers, Guns & Money]

* Ariel Castro has pleaded guilty. Professor Douglas Berman suggests that the death penalty may have made this possible. An alternative theory is that Castro doesn’t think being locked up in a tiny space for years on end is all that bad. [Sentencing Law and Policy]

* Navigating the archetypes of expert witnesses based on The Office. [The Expert Institute]

* Lawyer arrested for bringing meth into a courthouse. I’d say “better call Saul,” but this sounds more like something Saul would do. [Press Democrat]

* An Akin Gump partner, James Meggesto, is in hot water for Tweeting his disdain for a congressman and a Native American chief. For the record, when a tweet opens with “Resisting urge to tweet…”, you’ve failed. [Politico]

* This story actually reminds me of the plot to the new BSG series — a networked house can easily be hacked by cylons. Or in this case, Kashmir Hill. [Forbes]

* New York’s energy regulations are increasing demand for energy-efficient solutions. The most efficient thing about my apartment is finally getting a break in the heat. [Breaking Energy]

* “Can you imagine if a law firm had a breach? We wouldn’t work with them again.” In-house counsel are pissed that outside counsel CHECK THEY EMAILS on cellphones. [Am Law Daily]

* Matt Kluger’s 12-year insider trading sentence was upheld by the Third Circuit. All of the Biglaw firms he’s worked at, most recently Wilson Sonsini, must be so proud. [WSJ Law Blog (sub. req.)]

* Shots fired: a tax law professor decimates Seton Hall in prose over its decision to possibly kick untenured junior professors to the curb due to budget considerations. [DealBook / New York Times]

* Do yourselves a favor, and don’t worry about how to “demystify the LSAT experimental section” during the test — unless you want a crappy score. [Law Admissions Lowdown / U.S. News & World Report]

* Pass the ammunition? After facing a court-mandated deadline from the Seventh Circuit, Illinois is now the last state in the country to have legalized the concealed carrying of firearms. [Chicago Tribune]

* Now that SCOTUS has punted on the question of gay marriage, other plaintiffs are stepping forward to sue for the right to wed. Next up, a challenge to Pennsylvania’s ban on equality. [Legal Intelligencer]

* James “Whitey” Bulger let f-bombs fly across the courtroom during his trial yesterday when his former partner took the stand to testify against the mob boss. Once a Masshole, always a Masshole. [CNN]


I took Crim Law my first semester in law school. My professor, now the school’s dean, was an imposing fellow to 1L eyes. He looked approximately seven feet tall, with a deep, booming voice, a propensity for cold-calling, and a demanding, often impenetrable teaching style. I loved the class, even though I went into fight-or-flight mode in the minutes before he would stroll down the aisle of the auditorium.

We read the Apprendi line of cases, where the Supreme Court ruled that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. I thought I grasped the gist, with my nervous 1L brain. Then we got to Harris v. United States. In Harris, the majority held that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Judges could apply mandatory minimums on the basis of facts not proved to a jury, without violating the Sixth Amendment. These fact were sentencing factors, the majority held, not offense elements.

Terrified that I had misunderstood something crucial, I visited my crim prof’s office before the class when we would discuss Harris. I recited the cases up to that point, if for no other reason than to show that I had, in fact, been reading and that my ultimate confusion was not because I was totally mentally challenged. (Even if just a little.) I summarized my understanding of the Court’s holding in Harris, why it just didn’t square, how I knew that I must be missing something, because I just didn’t see how Harris properly followed. After way too long, I finally sputtered, “Sir, I’m . . . I’m just . . . confused.”

My prof leaned back in his chair, paused dramatically, sighed, then replied, “Ms. Tabo, of course you are confused. The Supreme Court is confused.”

As of this week, the Court is no longer so confused….

double red triangle arrows Continue reading “Mandatory Minimums: SCOTUS Gets (A Little Less) Confused”

Left to right: Eric Cuellar, Hazhir Kargaran, and Justin Teixeira (click to enlarge).

Lawyers and Las Vegas are a dangerous combination. Just ask the lawyer who allegedly inflicted almost $100,000 in damage on a suite at the Encore Hotel.

Sin City seduces law students too. We’ve extensively covered the sad story of how three Berkeley law students, while visiting Vegas on spring break, killed a helmeted guinea fowl named “Turk” at the wildlife habitat of the Flamingo Hotel.

Two of the students, Eric Cuellar and Hazhir Kargaran, already pleaded guilty. So it should come as no surprise — with his co-defendants having cut deals, and with reported video footage of the incident as possible evidence — that Justin Teixeira copped a plea as well.

What kind of sentence did Teixeira get? It doesn’t sound that bad to me….

double red triangle arrows Continue reading “A Final Guilty Plea in the Berkeley Bird Beheading”

It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.

And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.

To do otherwise would violate the Ex Post Facto clause.

The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.

Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.

So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?

double red triangle arrows Continue reading “Does the Ex Post Facto Clause Apply To Suggestions?”

On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.

In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.

(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)

Dark days for the fair application of AEDPA….

double red triangle arrows Continue reading “Why We Can’t Have Nice Things: The Death Penalty Dilemma”

* Online gambling wants to come back to the U.S. after the government cracked down last year. Anybody want odds on whether this works? [Wall Street Journal]

* In news that only affects those who want to dress like whores, Abercrombie & Fitch and Hollister may systematically mistreat the disabled. [Fox News]

* Post-disaster price gouging is sad, but inevitable. Oklahoma’s Attorney General E. Scott Pruitt is having none of it. [The National Law Journal]

* Obama will address drone policy and Gitmo in a security speech today because, after the last couple weeks of scandal, he’s hoping to introduce fodder for another round of withering criticism. [Huffington Post]

* The Daily Caller is all over the idea that Michelle Obama may have dated the Inspector General of the IRS at Harvard Law. Which proves… actually, I have no idea if the Daily Caller even knows why this might be significant. [Daily Caller]

* U.S. and Chinese law schools are collaborating more. American law schools are really desperate to open themselves to more students, aren’t they? [China Daily]

* The Jodi Arias jury may not be able to make a decision on sentencing. If you cared about this story at all, you’ve already heard Nancy Grace’s opinion. [NBC News]

* Elie argues with folks about Greece v. Galloway and legislative prayer. Video after the jump…

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Jodi Arias

* Growth was “steady” for New York’s top firms, with Latham & Watkins and Skadden Arps leading the pack in terms of gross revenue — which wasn’t surprising, considering their Am Law 100 gross revenue ranking. [New York Law Journal]

* Dewey know when we’ll be able to stop using this pun? Hmm, at this rate, probably never. Steve Otillar and Citi recently settled their dueling suits over the ex-D&L partner’s capital contribution loan to the failed firm. [Am Law Daily]

* Cahill Gordon was supposed to investigate the Rutgers basketball scandal, but the firm cited a conflict of interest, so Skadden Arps stepped in. [Insert the joke of your choice here. I don't like or watch this sport.] [Reuters]

* Surely you’ve heard about Justice Orie Melvin’s sentence by now. As it turns out, shaming a judge like you’d shame your dog online might not be enforceable… which is too bad. [Pittsburgh Post-Gazette]

* When we last spoke about “controversial” commencement speakers, we didn’t bring up the fact that Nancy Pelosi would be pulling double duty at UC Davis and Baltimore. Thoughts? [National Law Journal]

* She’s got a death wish: the aggravation phase of the Jodi Arias trial was postponed at the last minute yesterday, and some think it’s because of the interview she gave after the verdict was announced. [CNN]

Andrew “weev” Auernheimer

A famed hacker, Andrew “weev” Auernheimer, was sentenced to 41 months in prison yesterday. A jury convicted Auernheimer of conspiracy and identity theft back in November stemming from his role in a scheme to snag the personal email addresses of over 114,000 iPad users, including Mayor Michael Bloomberg, Diane Sawyer, and Mayor Rahm Emmanuel.

Auernheimer argued that he acted as an uninvited “gray hat” hacker, grabbing the email addresses of customers for the sole purpose of exposing the flaws in AT&T’s security.

The sentence, at the upper end of the Guidelines range, is a far cry from the non-custodial slap on the wrist Auernheimer’s attorneys sought. There are two broad categories of response to the sentence. First, that Auernheimer is a completely terrible human being, but that his being a dick does not justify the harsh sentence. Second, that Auernheimer did not commit a real crime because he never intended to steal anyone’s identity and the Computer Fraud and Abuse Act is a bad law.

To these arguments, I reply “yes it does,” and “who cares?”

double red triangle arrows Continue reading “Internet Hacker Sentenced to Prison Garners Ill-Conceived Support”

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