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Tuesday, March 28, 2006

Law Blog = Blawg

By Chelsea Gilbert
Pennsylvania Law Weekly
Monday, March 27, 2006

Legal web logs, often referred to as 'blawgs', have become an almost inescapable part of the legal community. Pittsburgh trial lawyer John Grismondi hadn't given much thought to blogging until about a month ago when a lawyer in his firm stumbled upon a blog devoted to one of Grismondi's current, controversial cases. "[The blog] was helpful in that it gave me more info about chelation [a controversial medical treatment for autism] and some of the things that were going on nationally," Grismondi said. Grismondi said he wouldn't hesitate to look up blogs regarding appropriate cases in the future. "I was sort of surprised [at how helpful the blog was]."

Grismondi is only one example of the large number of lawyers who are using blogs to benefit themselves in the workplace. Lawyers are writing blogs in unprecedented numbers: a general Google search for "blawg" receives about 2.6 million hits. Even more lawyers are 'lurkers', reading but not contributing to blogs. Philadelphia attorney Howard Bashman has a blog that averages 10,000 readers a day. The blogging phenomenon doesn't appear to be on the way out anytime soon. Lawyers and reporters have suggested that blogs could eventually replace – if they haven't in part already - law journals and resumes.

Even law firms have recently jumped on the blogging bandwagon, publishing firmwide blogs on their Web sites. Law firms of all sizes are profiting from blogging, but many lawyers agree it is the small firms and solo practitioners that will see the most dramatic successes through blogging.

"Small firms will get more bang for their buck," said attorney Craig Williams, founder of The Williams Law Firm.

It is likely that large firms will see an incremental increase in visibility and business through blogging, while small firms will see a more dramatic increase he said in a telephone conversation.

Reed Smith attorney Denise Howell said that blogs help to "level the playing field for those on the small or solo side of things."

"The web is an extremely pliable, egalitarian meritocracy," Howell wrote in an email.

Attorney Ben Cowgill, who blogs on legal ethics, said that lawyers at larger firms have many more resources available to them than solo or small firm practice lawyers. The disparity in resources makes blogging a valuable tool for lawyers outside of large law firms.

"Blogs are an easy, economical way to establish visibility," Cowgill said.

Additionally, Howell said a lawyer might have more flexibility in a smaller environment. They "might be less likely to encounter disagreement or backlash."

Williams finds most law firm blogs to be "bland" and "sanitized," and said that readers seem to prefer his blog because he freely discusses his opinion on matters that interest him.

There is, though, a place for blogging in large firms. Cowgill said that niche practices within a firm could be well served by a blog. Howell said it is important for big firms to utilize blogging where they can, otherwise they might find themselves losing ground.

Blogs have proven to be hugely successful for lawyers from both large and small firms. Bashman experienced blogging success as a lawyer at Bushanan Ingersoll, one of the largest law firms in Pennsylvania, and as a solo practitioner. In fact, he credits his blog for making the transition from a big firm to his own practice last year such a smooth one. "The site definitely helped," said Bashman. Opening his own practice has been "great" he said, with this last year being his best financial year ever.

Bashman estimated that the money generated directly from his blog and his monthly column for will comprise 1/15 of his income for the year. This fraction does not include the money brought in by clients who were directed to Bashman through his blog. Though Bashman says that he does not record how his clients are directed to him, "I can think of a handful of clients off the top of my head [that were directed to his firm through the blog]."

Craig Williams, founder of The Williams Law Firm, claims his blog, May it Please the Court, has "really changed my practice." Williams' firm has received $1.5 million in revenue from blog business alone. "By some stroke of genius that I can't lay claim to, the blog was linked to my law firm's Web site," Williams said in a telephone interview. He credited this linking to directing clients to his firm and bringing him international clients.

Attorney Denise Howell of large law firm Reed Smith, has also experienced an increase in professional success as a result of her blog, Bag and Baggage. "[Blogging] puts me in touch with smart people and new clients. It has enhanced my professional reputation and credibility."

Despite their success, lawyers warn that blogs should be both read and written with caution. In a telephone interview with Philadelphia attorney Luke E. Debevec, the new blog-watch columnist for The Legal, he warned that only a small amount of the law blogs that exist are actually reliable sources.

The difficulty of knowing what is reliable and what is not "is probably the biggest drawback of blogs." In order to avoid unreliable sources, he researches the people who write the blogs he reads and checks both their work and the blog links. "Go in with your eyes open," Debevec advises.

For those who write blogs, the potential ethical issues are a common concern. Sam Stratten, the ethical issue columnist for Pennsylvania Law Weekly, said that there are three main ethics issues to be concerned with.

The first is attorney-client confidentiality. Even if the case is over said Stratten, it can be a "very dangerous situation" to discuss a case in a blog.

Howell cites client confidentiality as the most obvious concern: "Lawyers are schooled and trained in what they can and cannot disclose and discuss, and it's a straightforward thing to simply bear in mind that ethical rules apply with full force to online activities."

The second issue is that bloggers need to be mindful of the advertising rules of their jurisdiction. If a blog is actively advertising a law firm or an attorney, they need to comply with the standards and requirements of advertising laws. Pennsylvania's advertising rules aren't as extensive as some other states, but both Stratten and Cowgill emphasized the importance of being aware and mindful of the rules that do apply.

Finally, a lawyer must be careful to not misrepersent themselves. Nothing on a lawyer's blog should mislead the reader.

Williams spoke out against using "canned content" - material that is not original. "People read blogs for legitimate legal information, believing that the lawyer wrote it," said Williams. If a lawyer is posting canned content without disclosing it as such you he or she is misrepresenting himself or herself, said Williams.

"In my opinion if canned content is not disclosed it is not appropriate."

Additionally, a lawyer should not be using a case to get other cases said Stratten. This practice can be misleading and "subjective," because "everything is relative." An attorney could have done a good job on a case, but perhaps another attorney could have done a better job, he said.

Cowgill warned that bloggers need to be careful about not including defamatory content. "I don't include things about specific individuals [on my blog]," he said.

In general, "lawyers need to be cautious at all times when communicating to the public," Begley said. Lawyers also need to be aware that writing a blog creates a permanent record. Most lawyers seem to be well aware of the potential dangers.
"Lawyers are already paranoid about the security of e-mail and other online communication," said Grismondi.

Begley emphasized that a blog policy is something all law firms should be evaluating. It is likely that firms already have in place a computer or Internet use policy and should examine it to decide if it is broad enough to cover blogging, advises Begley.

"Large law firms are justifiably concerned with the misuse of blogging as a form of communication," said Bashman. "Large law firms are generally of the view that marketing should be done in a centralized way."

They prefer it to be done by professionals who know what they are doing, rather than by attorneys, Bashman explained. When he was a lawyer at a large firm though, his blogging was not a source of anxiety for his firm.

"They had faith in my abilities," said Bashman.

Though ethical issues should be kept in mind, "certainly people have their first amendment rights," said Stratten. As long as the blog is not ethically wrong, lawyers are free to blog as they please. "Whether the blog is a good business tool is another thing," warned Stratten.

He emphasized that, beyond the realm of ethics, elements of common sense and professionalism should be considered during the blogging process.

Referring to the influx of eager bloggers that crowd cyberspace Stratten said: "In this celebrity age too many people want to become celebrities."

Most lawyers who blog don't push the limits when it comes to ethical issues. Bashman said he makes a pointed effort to avoid conflict between his blog and his practice. As a practicing lawyer, he takes pains to keep his site as objective as possible when it comes to controversial decisions. "I don't want people to develop a negative opinion of me based on the blog." Bashman also said he tries to shy away from expressing his opinion on political issues.

Grismondi points out that blogging is not the only, or arguably the best, way to converse in the law community. Lawyer to lawyer talk can often take place in more structured environments such as list serves said Grismondi.

"A lot of lawyer networking occurs in member based chat rooms."

Blogs are a "less secure" environment to have these conversations Grismondi said.

Despite the drawbacks of blogging, many lawyers still say they find blogs to be an immense help in making important information quick and easy to access. "Blogging keeps me on top of developments it previously took me days or weeks to learn of through traditional media or other channels," Howell said. Howell is credited by many for coining the word 'blawg' in early 2002.

"An important part of being a good appellate lawyer is keeping up with what's going on and with new decisions," said Bashman. His blog is designed to help serve this purpose. Many of the hits to Bashman's blog come from law firms across the country. How Appealing is "incredibly well-read coast to coast" said Bashman.

Williams explains that blogging is something he does because he "loves to write." Howell echoes this sentiment: "As far as downsides [of blogging], there's only one I regularly encounter: there's too much I want to blog, and not enough hours in life to do it."

Bashman sees blogging as an important part of his job. He doesn't find the work he puts into his blog to be a "burden" because the blog is simply a variation on the work he had already been doing as an appellate lawyer. The only difference is that his notes are now available to a global audience. Williams saw blogs as an asset to the entire legal community in the sense that blogs can serve as a grand peer discussion and review.

The time commitment that blogs require is surprisingly small. Bashman spends several hours a day updating his blog. It is a few hours that Bashman claimed aren't difficult to fit into his schedule. He explained that because appellate law is not as "time intensive" and more computer-oriented than other types of law, blogging isn't an inconvenience. Howell said she probably devotes two to five hours a week to blogging, depending. Williams spends about an hour a day blogging.

Of course, starting and maintaining a blog does not guarantee professional success. Though a few select blogs boast a consistently large readership, many are struggling for any kind of readership at all.

"I was fortunate to begin [my blog] at a time when not a lot of people were doing it," Bashman said. He went on to explain that this is possibly why people who have created similar sites in the past few years have not experienced the same success.

Those with well-known blogs are aware of how lucky they are. "I am grateful people enjoy reading [May It Please the Court] and keep coming back," said Williams. Bashman, whose readers continually e-mail him with updates and interesting decisions, said it is "really flattering to have a readership that is so faithful and energetic."

The future of blogging is bright in many lawyers' opinions. "I think that blogging has a definite place in mainstream media," said Williams. Many lawyers emphasized the huge growth potential of the blogging phenomenon: "This is really only the beginning of lawyers blogging," said Begley.

Speaking to perhaps both the best and the worst aspect of blogging, Grismondi said, "blogging is the ultimate free-form cyber discussion - there are really no limits."

Copyright 2006 ALM Properties, Inc. All rights reserved.

Monday, March 27, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 27, 2006

Lawyers Say Reforms Might Widen Use of Mass Detentions and Expedited Removals

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - A fast-moving proposal in Congress to tighten border security has immigration lawyers worried that foreigners fleeing persecution will be shooed out of the United States before they can qualify for asylum.

These lawyers say the gradual move in recent years towards mass detention and "expedited removal" of illegal immigrants - which could be expanded in coming weeks - means legitimate asylum seekers face a greater chance of being sent back to their home countries where they were abused or tortured.

The wide-ranging debate over immigration reform in Washington, D.C., is set to reach a head today in the Senate Judiciary Committee.

Senate Majority Leader Bill Frist, R-Tenn., has introduced a border security bill similar to one passed by the House last year.

Democrats and Republicans broadly agree that strengthening border security is vital, although some members of both parties have voiced concern that an increase in the use of detention and removal may compromise the due process rights of immigrants.

The Bush administration already has expanded its use of expedited removal, a fast-track administrative protocol that was introduced in 1996 but initially was applied only at official ports-of-entry. The process allows immigrants to be sent back to their home countries within days of being picked up.

Last year, the Department of Homeland Security launched its Secure Border Initiative, which allows expedited removal proceedings to be brought against all non-Mexicans detained within 100 miles of the Mexican border and within 14 days of their unauthorized entry to the United States.

Since the program began in September, just over 8,000 aliens, almost all from Central America, have been turned over to U.S. Immigration and Customs Enforcement, the agency that oversees expedited removal, according to its own data. Of those, 6,894 have been returned to their home countries.

Agency officials generally have downplayed concerns that stepped-up border enforcement is depriving persecution victims of the opportunity to seek political asylum.

But officials were unable to say Friday how many of the 8,000 detained immigrants were able to qualify for asylum since the launch of the Secure Border Initiative.

The bill up for debate today would expand the government's power to use expedited removal, and lawyers are still trying to figure out what the consequences will be.

"The bill might mandate that they do it broadly," said Los Angeles-based Linton Joaquin of the National Immigration Law Center. "It's somewhat questionable."

The Department of Homeland Security also is seeking an additional $420 million to spend on 6,700 extra detention beds to be used specifically for expedited removal. The agency currently has around 20,000 beds.

The move toward mass removal concerns advocates for immigrants, including Karen Musalo, director of the Center for Gender and Refugee Studies at Hastings College of the Law.

She fears that genuine asylum seekers, who already face obstacles to staying in the country, will find it even harder to state their cases.

"There's no doubt it will have a negative impact on asylum seekers," she said. "The procedures present a bona fide risk that legitimate asylum seekers won't be identified."

Jeanne A. Butterfield, executive director of the American Immigration Lawyers Association, said the government's method of initially screening unauthorized immigrants upon arrest does little to allay concerns.

"It smacks of being a conveyor belt," she said.

This screening is carried out by officers from Customs and Border Protection, another arm of the Department of Homeland Security. The interviewing officer is required by law to ask detainees if they have a fear of persecution in their home country.

Immigrants who say yes are scheduled a second interview, this time before an asylum officer, who decides whether the applicant has "a credible fear of persecution."

At this point, the applicant may have a lawyer present. If the asylum officer decides that there is a credible fear of persecution, the detainee gets a hearing before an immigration judge. If not, they can still seek a hearing before a judge to appeal the decision.

Butterfield said the biggest hurdle for asylum seekers is the initial interview.

Those who fail to state forcefully their case to immigration officials will be the ones who lose out, she added.

In addition, a provision in the pending bill would impose restrictions on the rights of asylum seekers to appeal denials of their applications.

Critics of the existing system point to a 2005 report by the U.S. Commission on International Religious Freedom, which concluded that immigration officers often fail to inform asylum seekers fully of their rights during the initial interview.

"I'm very troubled by the fact that they are expanding it [expedited removal] without addressing the serious deficiencies raised by the study," Joaquin said. "That calls for the development of quality control procedures."

Sen. Edward M. Kennedy, D-Mass., who has played a leading role in shaping the immigration bill, has openly questioned the impact of expedited removal on asylum seekers.

But federal immigration officials maintain that expedited removal has not compromised anyone's rights to seek asylum.

John Torres, acting director of Detention and Removal Operations at Immigrations and Customs Enforcement, defended the screening process at a press briefing in Washington last week.

"Once the alien expresses a credible fear, that places them on a different track," he said.

David Aguilar, chief of the Office of Border Patrol at Customs and Border Protection, noted all border officers are properly trained to deal with asylum applications.

He added that a higher-ranking official always double-checks any decisions made concerning asylum seekers.

But outside of the government, even those who favor detention and removal concede that some legitimate asylum seekers could fall through the cracks. That's a price worth paying for better security, they say.

"It would be a mistake to think that we could ever create a system that's perfect," said Steven Camarota, director of research at the Center for Immigration Studies, a conservative think tank.

He stressed that providing administrative hearings to asylum seekers while they are in custody is the only way to "protect the integrity of the [immigration] process." He said that if immigrants are simply released from detention and ordered to return later for asylum proceedings, they might never be seen again.

Washington-based attorney C. Stewart Verdery Jr., a former Assistant Secretary for Homeland Security, said he believes an expanded version of expedited removal can work. He deemed Secure Border Initiative a success.

"I haven't seen any specifics that says it's been abused," he said.

Other supporters say it is necessary to put an end to the "revolving door" phenomenon, in which illegal immigrants are arrested and immediately released after being told when to reappear for a court appointment.

The Department of Justice's Office of the Inspector General reported that 160,000 non-Mexicans (which immigration officials describe as OTMs, standing for Other Than Mexicans) were arrested in 2004, before the government increased its use of expedited removal. Of those, 120,000 were immediately released.

The statistics are worrisome to Republicans like Sen. Jeff Sessions of Alabama, a Senate Judiciary Committee member who introduced the amendment to the current immigration bill that would codify the government's expedited removal policies.

"The system is broken," he said at a hearing earlier this month. "The message is out in Central America that if you are apprehended you will be released on bail, then you are home free."

But another Republican committee member, Sen. John Cornyn of Texas, has expressed concern that the proposed changes are unworkable. His main concern is that Immigration and Customs Enforcement won't have enough beds, a view that Sen. Dianne Feinstein, D-Calif., shares.

In California, the Immigration and Customs Enforcement's Office of Detention and Removal operates facilities in El Centro and San Diego. Details on the number of immigrants detained at these facilities are sketchy, but the average stay is currently about three weeks.

Unlike Feinstein and Cornyn, Camarota, of the Center for Immigration Studies, believes that a workable system could be set up in due course, as long as Congress provides the necessary funding.

"It's possible with resources," he said.

Whatever Congress decides to do in the coming weeks, and even if no legislation passes at all, the government's use of expedited removal will continue.

For law professor Musalo, this bodes badly for future asylum seekers. The existing system only serves to encourage applicants to give up on their cases altogether, she said.

To illustrates her point, Musalo mentions the case that is the highlight of her career in which she represented a woman from Togo, Fauziya Kasinga, who sought asylum based on a fear of being subjected to genital mutilation. Musalo said Kasinga almost gave up on the process because she was fed up with being held in detention in the United States. She eventually was granted asylum in 1996.

Musalo said that expanding the use of detention runs the risk of discouraging many from pursuing freedom from persecution.

"You had someone who had a strong case but, because of the situation, was on the verge of giving it up," Musalo said of her client. "It underscores the risk of increased detention and expansion of expedited removal."

Wednesday, March 22, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 22, 2006

Some in IP See Missed Chance For Patent Court

By Kevin Livingston
Daily Journal Staff Writer

Dashing the hopes of many intellectual property lawyers, Judge Ronald Whyte of the Northern District of California will not be tapped to sit on the U.S. Court of Appeals for the Federal Circuit, the nation's highest patent court.

The nod will instead go to George Mason University School of Law professor Kimberly Moore.

The White House has yet to announce Moore's appointment, but Whyte's office confirmed Tuesday that he had been passed over to succeed Judge Raymond C. Clevenger III, who took senior status in January.

Although Moore's appointment is not expected to be made official for a few days, several sources close to the process confirmed she had been chosen. Moore did not respond to a request for comment.

The news comes as a disappointment to many in the Bay Area who hoped Whyte would get the job. Whyte is one of the most respected patent judges in Silicon Valley and was heavily supported by the Federal Circuit Bar Association, some of Silicon Valley's largest companies and U.S. Sen. Dianne Feinstein, a member of the Senate Judiciary Committee.

Whyte, a former Santa Clara County Superior Court judge who was appointed to the federal bench in 1992, has twice been nominated to the Federal Circuit.

While not knocking the choice of Moore, local IP lawyers said Whyte would have brought a trial judge's outlook to the court, something attorneys say it badly needs. For example, how deferential the Federal Circuit should be to trial judges has long been a subject of frustration at the trial court level.

"With Whyte, we have an experienced trial judge," said Silicon Valley IP litigator James Pooley. "That would bring a perspective to the Federal Circuit it hasn't enjoyed."

Pooley, the former head of Milbank, Tweed, Hadley & McCloy's Palo Alto office, described Whyte as one of the best patent judges in the country.

"It seems odd that he wouldn't be put in that spot at the first opportunity," Pooley said.

George Mason University School of Law is well known for its strong Republican ties, and several George Mason law professors have served in the Bush administration. The Virginia school is the only law school in the country, for instance, with a chair endowed by the National Rifle Association.

No one interviewed for this article, however, wanted to speculate on whether politics played a role in the decision. All had very positive things to say about Moore, an IP litigation consultant to Morgan, Lewis & Bockius and the editor-in-chief of the Federal Circuit Bar Journal. Moore co-wrote the textbook "Patent Litigation & Strategy," and she has written numerous articles on intellectual property.

"She is clearly smart," said Stanford Law School Professor Mark Lemley, who has worked with Moore. "She is best known for her empirical analysis of patent litigation."

Pooley agreed: "There will be a unanimous view that the choice of Moore is an excellent one."

Pooley said she is well regarded in the IP community, and her scholarship has been well received.

"She has a very practical academic view of patent law," Pooley said.

Whyte, 62, will just have to wait for another opening.

Monday, March 20, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 20, 2006

Appellate Judge's Vote Doesn't Sway Her Critics

By Dennis Pfaff
Daily Journal Staff Writer

Federal appeals court Judge Janice Rogers Brown voted with her colleagues late last week to strongly reject Bush administration attempts to loosen air pollution regulations.

Such an act might not normally be too noteworthy - especially for a judge who merely joined with two others on a unanimous opinion she did not write.

But this was someone environmentalists had fought a long and bitter campaign against after President Bush named her to the U.S. Court of Appeals for the D.C. Circuit.

On the 'Outermost Fringes'
Brown, a former California Supreme Court justice, held opinions placing her "on the outermost fringes of constitutional interpretation," environmentalists wrote during the protracted confirmation fight. Her appointment could "endanger our most basic environmental safeguards," they wrote in 2003.

On Friday, however, Brown joined with two appointees of President Clinton - Judges David S. Tatel and Judith W. Rogers - to block the Environmental Protection Agency from proceeding with new rules loathed by environmentalists and numerous states. New York v. Environmental Protection Agency, 03-1380.

Clean Air Act Violation
The regulations would have allowed older power plants, refineries and factories to modernize without having to install the most advanced pollution controls by considering the projects "routine maintenance." The EPA has disputed claims that the changes would increase pollution.

The court ruled that the EPA's changes violated the language of the federal Clean Air Act, and that only Congress can authorize any such change. Fourteen states, including California, and a number of cities, such as San Francisco, New York and Washington, D.C., sued to block the change in 2003.

Tatel's opinion ripped the government's actions, in one section saying they could exist "only in a Humpty Dumpty world."

Wrote Tatel: "We decline to adopt such a world-view."

While hailing the ruling, at least one leader of the failed effort to block Brown's ascent to the powerful court declined to toast her as a new friend of the environment.

"I'm convinced that everything we said about her was well researched and accurate and on point and justified in opposing her for a lifetime position," said Glenn Sugameli, senior legislative counsel for the nonprofit environmentalist law firm Earthjustice.

Sugameli said Brown's joining with the majority was "a sign of how blatantly illegal the EPA position was." He drew a distinction between Brown's allegedly fringe views on constitutional law - which was the subject of most of the pre-confirmation criticism - and more straightforward matters of statutory interpretation, such as the air pollution case.

He also noted that Brown, who was confirmed as part of a Senate compromise on judicial appointments in June 2005, is a relatively new member of the court. Brown's vote in the case, which Sugameli noted would not have changed the outcome either way, "doesn't really tell us how she's going to rule next year or in two years or in five or 10 or 20 years, and that's what we're dealing with."

A spokeswoman for California Attorney General Bill Lockyer declined to comment specifically on Brown's vote. But she released a statement from Lockyer calling the court's decision "a breath of fresh air in our fight to stop the Bush administration from stifling our environmental and public health protections."

Under the Clean Air Act, operators who do anything more than routine maintenance are required to add more pollution-cutting devices. The proposed change would have allowed industrial facilities to avoid installing such equipment if the cost of their plant upgrades didn't exceed 20 percent of the value of the "process unit" involved.

Environmentalists believed that created a huge loophole allowing enormous projects to go forward with nothing required to reduce pollution. They said an entire plant could be considered a process unit against which the 20 percent threshold could be applied.

Critics said the provision would have applied to more than 20,000 power plants, refineries and other industrial facilities. In California, a chief concern was over modifications to oil refineries.

"[T]his rule says ... that you could replace equipment and add huge amounts of emissions and still be exempt simply because of some cost test," said Earthjustice attorney Howard Fox, who represented environmentalists in the case. The environmentalists had filed their own lawsuit, which was combined with the states' challenge, Fox said Friday.

Tatel agreed with the critics that such a result was improper.

Despite the EPA's arguments to the contrary, the agency's interpretation "would produce a 'strange,' if not an indeterminate result: a law intended to limit increases in air pollution would allow sources operating below applicable emission limits to increase significantly the pollution they emit without government review," Tatel wrote.

"This is an enormous victory for clean air and for the enforcement of the law, and an overwhelming rejection of the Bush administration's efforts to gut the law," said New York Attorney General Eliot Spitzer, who led the suit for the states. "It is a rejection of a flawed policy."

The rule had been blocked from taking effect since December 2003, when the same court issued a stay.

"We are disappointed that the court did not find in favor of the United States," said EPA spokesman John Millett. "We are reviewing and analyzing the opinion and cannot comment further at this time."

Industry groups have contended that the Clean Air Act, as now written, discourages plant operators from modernizing their equipment. They said Friday's decision would do little to help air quality.

"The decision is a step backward in the protection of air quality in the United States," said Scott Segal, director of the Electric Reliability Coordinating Council, a Washington-based group representing several power-generating companies. "What is it the environmental community thinks they've won? They've won the ability to place roadblocks in front of energy efficiency projects. This is terrible news."

In addition to New York and California, the states challenging the rule included Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin.

Last year, the D.C. Circuit partially upheld other Bush administration rules that still could let some plants make certain modifications without triggering requirements to purchase new pollution gear.

The Associated Press contributed to this article.

Thursday, March 16, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 16, 2006

Judicial Experts See Much Ado in Congressman's Blast

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - A leading member of Congress pledged Wednesday to introduce legislation aimed at reversing what he sees as a trend of judges departing below federal sentencing guidelines - particularly for sex offenders - in the year since the high court's decision in U.S. v. Booker, 543 U.S. 220 (2005).

House Judiciary Committee Chairman F. James Sensenbrenner's announcement comes as Congress today debates for the first time the effects of Booker across the country. The U.S. Sentencing Commission released a report on the matter Tuesday.

"The data is now in and the picture is not pretty," Sensenbrenner said.

Different Interpretation
That conclusion is far from unanimous.

In Booker, the U.S. Supreme Court made sentencing guidelines advisory rather than mandatory. The court held such guidelines unconstitutional because they required judges to make factual decisions about sentencing enhancements that should be made by jurors.

The Sentencing Commission's report concludes that the average sentence post-Booker is actually longer than it was before: 58 months as opposed to 57 months. Overall, the vast majority of sentences are within the guidelines, according to the report.

When below-range sentences to which prosecutors agreed are added to the large number of sentences within the guidelines, the total reached is 85.9 percent of all cases, the report stated.

Before and After

Experts on sentencing appear nonplussed by Sensenbrenner's vow. Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University, said the congressman's comments reeked of political posturing in an election year.

"I don't think any significant legislative response is required," he added.

If anything, the Sentencing Commission's report shows that judges are "bending over backwards" to follow the guidelines, having grown accustomed to "a culture of guideline compliance" Berman added.

The U.S. Judicial Conference agrees.

Judge Paul G. Cassell, a U.S. district judge from Utah who will testify on behalf of the conference at today's hearing, said in an interview Wednesday that "the bottom line of all the data that's come out is that things haven't changed that much."

The Department of Justice, however, looks set to back a legislative response.

The agency has, up to now, left the ball in Congress' court, but it is set to unveil its own legislative proposals at today's hearing.

A senior department official said at a briefing for reporters Wednesday that the favored emphasis would be on preventing judges from departing below the guideline minimums.

He said the department will not propose disposing of the upper limits of the guidelines, as some have suggested, noting that the problem is not with judges imposing sentences that are too long.

The official added that the department's top priority is for sentences to be standardized on the grounds that "all courtrooms should be the same," regardless of where they are in the country.

Of California's four federal judicial districts, only one, the Central District of California, ranks in the top half for sticking to the sentencing guidelines since the Booker decision came down, according to Sentencing Commission data.

Judges in that district impose within-range sentences 80.7 percent of the time.

The state's Northern District stays within the guidelines 61.6 percent of the time, while the Southern District's total is 54.8 percent and the Eastern District's is 54 percent.

Nationally, the average is 62.2 percent.

Judges in all the California districts impose sentences that depart downward from the guidelines: 17.1 percent of cases in the Northern District, 12.8 percent of cases in the Central District, 11.6 percent of cases in the Southern District, and 9.7 percent of cases in the Eastern District.

The national average is 12.5 percent.

Sensenbrenner focused on areas where judges have chosen to impose sentences below the guidelines range.

He argued that the overall increase in sentences is a result of recent criminal laws passed by Congress that impose harsher penalties in such areas of identity theft, terrorism, cybercrime and some sexual offenses.

Sensenbrenner pointed out that below-guidelines sentences have increased for those convicted of sexual abuse of a minor, sexual exploitation of a child and child pornography crimes, among other offenses.

"The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act," he said.

It was the 1984 Sentencing Reform Act that led to the promulgation of the federal guidelines, which took effect in 1987.

Responding to Sensenbrenner's criticisms, Cassell noted "it's always possible to cherry-pick a few isolated examples."

Although some sexual offenders may be getting lower sentences, "it's not the case that child molesters are getting probation," he added.

Wednesday, March 08, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

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March 08, 2006


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Death row inmates in California could be at least five years closer to the execution chamber when President Bush signs into law this week the revised Patriot Act.

The legislation includes a little-noticed provision aimed at expediting capital habeas corpus petitions in federal court, which could shave several years, possibly more than five, off the time it takes death row inmates to exhaust their appeals, according to experts familiar with the proposal.

The dramatic changes to the habeas corpus process are opposed by defense attorneys and members of the judiciary, including California Supreme Court Chief Justice Ronald M. George and the National Association of Chief Justices.

The changes were folded into a re-authorization of anti-terror legislation that is due to be signed into law by President Bush this week after finally passing Congress Tuesday afternoon following months of negotiations between the House, Senate and White House.

It takes about 25 years from sentencing to execution in California, based on the two most recent cases.

Clarence Ray Allen, who was executed in January, and Stanley "Tookie" Williams, who was put to death in December, were originally sentenced to death in 1982 and 1981 respectively.

Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, said Tuesday he has calculated that the state could have executed Williams four years earlier if the new law had been in place then.

Dane Gillette, who co-ordinates death penalty litigation at the state Attorney General's Office, also hinted that the measure could have considerable impact.

"It could easily take at least five years, maybe more, off the federal [habeas corpus] time," he said.

The legislation would allow state prosecutors to ask the U.S. Department of Justice for permission to implement a shorter timeline for resolving habeas claims alleging constitutional error in death verdicts.

To do so, the state has to show that it can provide competent counsel for defendants.

Defense attorneys claim the plan will deter private attorneys from taking death penalty cases in federal court, leading to even more delays. They even worry that some inmates will end up deprived of counsel altogether.

Under current law, it is up to federal judges to determine whether a state qualifies for fast-tracking, but the new provision tucked into the Patriot Act allows the U.S. Attorney General to make the call, pending review by the D.C. Circuit Court of Appeals.

California, with more than 600 inmates on death row, many since the 1980s, is expected to jump at the opportunity to shorten the lengthy appeals process.

"It's certainly a provision we were supportive of," Gillette said. "It would be of real benefit to the states that have done the effort to provide appropriate counsel."

Scheidegger said he believes U.S. Attorney General Alberto Gonzales could "certify us within a matter of months."

Legal experts familiar with the debate over the new law believe Gonzales, a strong supporter of the death penalty, is much more likely to approve California for fast-tracking than a federal judge would.

"They [the states] chose the referee, so the odds are with them," said George Kendall, a New York-based attorney who has campaigned against habeas corpus reform.

When the fast-tracking program was originally set up in 1996 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal judge ruled that California did not meet the necessary standards and the state has not attempted to reapply since.

Former California Attorney General Daniel E. Lungren, who is now a Republican congressman representing the Sacramento area, played a key role in pushing for the latest changes.

He recalled in a phone interview Tuesday that as attorney general from 1991 to 1999, he had pushed for the reforms instituted by AEDPA and was disappointed when California failed in its attempt to participate in the expedited hearing process.

"We believed California had met the standards," Lungren said, adding that the system is riddled with "interminable delays."

The new provisions in the Patriot Act, which modify AEDPA, clarify when a habeas corpus petition is "pending" in federal court.

This controls when a federal judge can issue a stay.

Under current law, a federal court can order a stay even when a petition has not yet been filed, but the new proposal states that a petition is pending only after it has been filed, unless the appellant does not have counsel.

Like Lungren, the state Attorney General's Office and Scheidegger, who helped draft the legislation, maintain that California's process for providing counsel meets the requirements stated in AEDPA, but others disagree.

These critics claim the measure contained in the Patriot Act will lead to the U.S. Department of Justice rubber-stamping a fast-track habeas timeline whether or not competent defense counsel is provided.

One of the biggest challenges facing California, if the new provision takes effect, will be finding enough lawyers to help death row inmates meet their court deadlines.

George, the state's chief justice, warned last year that with 646 inmates on death row, 100 did not have counsel in direct appeals and 150 did not have lawyers for their habeas corpus claims.

George has opposed the changes to the habeas system, saying he believes a judge, as a "neutral arbiter," should make the determination of whether inmates have competent defense counsel.

"There is going to be a significant amount of chaos initially," said Kendall, the New York defense attorney - in part because the new law will likely be challenged in court.

He also suggested that some attorneys might withdraw from death penalty cases because they wouldn't otherwise have time to take on other cases.

Cliff Gardner, a San Francisco-based attorney who represents appellants in death row cases, said the state might have to increase funding drastically for counsel in order to meet the demand, or face the difficult choice of sending inmates without representation to the death chamber.

"Is the state going to execute dozens and dozens of people without counsel?" he asked. "Who is going to blink first?"

When asked to comment on the prospect of legal challenges, Lungren said he did not "underestimate the ingenuity" of defense lawyers.

But Lungren pointed to a silver lining for defense attorneys - their capital cases won't drag on endlessly.

On the other hand, the proposed changes will not have any impact on appellate proceedings in state court, which usually take 10 to 15 years to complete.

Natasha Minsker, chief death penalty lawyer for the American Civil Liberties Union of Northern California, cited a case decided last week by the California Supreme Court, People v. Guerra, 2006 DJDAR 2547, as a typical example.

Thirteen years passed between the murder that triggered a death sentence and the high court's rejection of the defendant's direct appeal.

"It's extremely rare for a case to get through a first direct appeal in less than 10 years," Minsker said.

In her opinion, tinkering with federal habeas corpus "doesn't do anything to fix the real problem," namely the difficulty, as highlighted by George, that death row inmates have in finding attorneys to represent them.

Friday, March 03, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

March 03, 2006

Feinstein Seeks Californian, Outgoing Judge Backs Idahoan

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Judge Stephen S. Trott decided to set up his chambers in Boise, Idaho, he probably didn't count on setting off a political firestorm in Washington 18 years later in the twilight of his career.

Trott, a senior judge on the 9th U.S. Circuit Court of Appeals, now finds himself in the middle of the debate over whether his seat should go a nominee from Idaho or from California.

Sen. Dianne Feinstein, D-Calif., put the issue of where Trott hails from center stage when she objected this week to President Bush's nomination of N. Randy Smith, an Idaho state judge, to replace Trott on the court.

Senate Tradition
She claims the seat is traditionally reserved for Californians and argues that she and Sen. Barbara Boxer, D-Calif., should therefore have a say in who is nominated, as dictated by Senate tradition.

As a former U.S. attorney for Los Angeles, Trott was indeed widely seen as a Californian nominee when appointed to the bench in 1988. But, as he himself points out, he was serving with the U.S. Department of Justice in Washington and living in Virginia when President Reagan nominated him.

He then chose to open his chambers in Boise, where he has remained ever since.

Trott, who assumed senior status in 2004, doesn't like the idea of playing the political pawn. He adamantly denies he's a "California" judge.

'Incorrect Information'
"I came here from Virginia," he said in a telephone interview from his chambers Thursday. "I had left California about five years earlier."

He also accused both Feinstein and Boxer of spreading rumors that he was a once a district judge in California.

"Somebody ought to call [Feinstein's office] and say, 'Why are you putting out all this misinformation?'" he added.

Trott said he was disturbed to learn that Feinstein's staff was snooping around for information on him - even contacting his secretary at one point - without ever bothering to talk to him directly.

The White House also called him to check whether he had ever been a judge in California, Trott added.

Howard Gantman, a spokesman for Feinstein, conceded Thursday that the senator's office had "received some incorrect information" about Trott's background.

But he reiterated that Feinstein stands behind her position that the seat should not go to a nominee from Idaho.

Both of Idaho's Republican senators, Sen. Larry E. Craig and Sen. Mike Crapo, agree with Trott about his seat and also strongly support Smith's nomination.

Smith happens to be the former chair of the Idaho Republican Party and some court watchers believe he would tilt the court in a more conservative direction.

Experts say the Trott controversy creates an opportunity for California's senators to try leverage the White House to pick a nominee they like.

Senators traditionally have considerable influence over nominees from their home states but not from others.

"[Feinstein] is doing this because she sees it as a way to get another judge from California," said Steve P. Calandrillo, a professor at the University of Washington School of Law. "It's a political maneuver."

Feinstein and Boxer certainly have a fight on their hands, particularly as the two Idaho senators are standing their ground.

Both spoke at Smith's confirmation hearing Wednesday, defending Bush's decision to pick someone from the state.

Craig claimed that the seat "has resided in Idaho longer than in California," while Crapo said that Bush "violated no precedent and in fact followed the best precedent" in nominating someone from Idaho.

Not everyone, however, finds fault with Feinstein's argument.

One is the 9th Circuit's chief judge, Mary M. Schroeder, who insisted Thursday that the seat traditionally has been reserved for a Californian.

"[Trott] regards himself as an Idaho judge," Schroeder said. "Whether it's an Idaho seat is another question."

She noted that Trott himself replaced a Californian, Judge Joseph T. Sneed III, a Nixon appointee who taught tax law at Stanford University before he was nominated in 1973.

But, as Calandrillo noted, it is tradition and not the law that ties judicial seats with a particular state.

Furthermore, other judges on the 9th Circuit have moved away from their home state once on the bench.

Judge Alfred T. Goodwin moved from Oregon to Pasadena, while Judge M. Margaret McKeown moved from Seattle to San Diego, according to Calandrillo.

He said he doubted whether Feinstein would insist that a nominee from Washington state should fill McKeown's seat when she takes senior status.

"It's a disingenuous argument from Feinstein," he said.

As for Goodwin's seat, when he took senior status in 1991 he was replaced by Judge Andrew J. Kleinfeld, who is from Alaska.

For Trott, the brouhaha over which state he hails from is further proof of the politicization of the nominations process.

"The politicians treat the bench as politics, but we don't take the bench as California or Idaho judges. We don't represent our states," he said.

Feinstein, who has campaigned for more California-based seats on the court, maintains that the state deserves more seats because the vast majority of the 9th Circuit's caseload originates there.

"California has a far greater need for more judges than Idaho," Gantman said.

Feinstein, who sits on the Judiciary Committee, which oversees judicial nominations, may be raising her objection as a way to bargain for more seats for California, according to Robert A. Carp, a political scientist at the University of Houston.

Of the current four vacancies on the 28-judge 9th Circuit, two are reserved for California and the other two are both for Idaho, which currently has no active judges.

The other Idaho nominee is William G. Myers III, whose Senate confirmation stalled amidst partisan bickering.

Known for his close ties to Vice President Dick Cheney, Myers was a long-term Wyoming resident before moving to Idaho in 1997.

Democrats have objected to the nomination, and his name has not come up for a vote, despite the fact that he was nominated in May 2003.

Whether Feinstein is ultimately successful in either blocking Smith's nomination or gaining promises about future judgeships rests on how much effort she is willing to put into it, Carp said.

"It depends on who her allies are and how much political capital she is willing to spend," he said.

As Feinstein herself has noted, there is a precedent for senators from one state intervening to prevent a nominee from another state being confirmed.

Maryland Sens. Barbara Mikulski and Paul Sarbanes, both Democrats, objected when Bush nominated a Virginian, Claude Allen, to fill a seat on the 4th Circuit that traditionally had been reserved for their home state.

As a result of their actions, Allen's nomination was never voted on and ultimately expired.

Feinstein's intervention could mean that Smith's long plane flight to Washington this week for his confirmation hearing was in vain.

Trott thinks any delay in getting Smith on the bench is a shame.

"I think he's a great judge," he said. "What upsets me is that he's now caught in the Washington mixmaster."