How Appealing Extra

How Appealing Extra

Wednesday, January 10, 2007

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January 10, 2007

Justices Reject 'Blakely' Follow-Up

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - A potentially important U.S. Supreme Court case on criminal sentencing fizzled out Tuesday as the justices announced that legal technicalities prevented them from deciding whether a landmark 2004 decision strengthening a defendant's jury-trial rights should apply retroactively.

Last year, the court agreed to review a case from the 9th U.S. Circuit Court of Appeals to decide the retroactive reach of Blakely v. Washington, 542 U.S. 296 (2004), in which the court limited the power of judges to issue harsher-than-normal sentences based on their own fact-finding.

The retroactivity case centered on Lonnie L. Burton of Washington state, who wanted to use Blakely to reduce his 47-year prison sentence for rape, robbery and burglary.

The 9th Circuit, like all other federal appeals courts to consider the issue, ruled that Blakely should not apply to older cases that were finalized.

In a unsigned opinion announced Tuesday by Chief Justice John G. Roberts Jr., the court said it could not decide whether the 9th Circuit was correct because Burton should not have been allowed to bring his case. Burton v. Stewart, 2007 DJDAR 358.

The court said Burton raised the retroactivity issue in a second habeas petition but did not follow the strict federal procedures that apply when inmates are trying to bring a second habeas case.

A federal trial judge and the 9th Circuit erred by letting Burton proceed, the court said.

Given the Supreme Court's interest in answering the Blakely retroactivity question, the justices could grant review in another case soon - if a good case is available to them.

Stanford University law professor Jeffrey L. Fisher, who argued and won Blakely and argued Burton's retroactivity bid, said he and others were "shaking the trees" in search of a case that raised the same issue.

The court could line up another prospect soon.

"It looks like the court may well have something on its docket to take a shot at this," Fisher said.

He said he was disappointed by Tuesday's outcome because he'd been optimistic about his chances after hearing the court's comments at oral argument.

A high-court ruling that Blakely is retroactive could create significant new headaches for courts and prosecutors around the country.

In Blakely, the court ruled 5-4 that judges cannot increase a defendant's sentence based on aggravating factors that were not found by a jury beyond a reasonable doubt.

The ruling invalidated Washington state's sentencing regime and prompted a number of other states to restructure theirs. The decision also led to the demise of the Federal Sentencing Guidelines.

An untold number of defendants would be able to reopen their cases if Blakely is found to be retroactive.

The issue could pose a special set of problems for California because, in a separate case, the Supreme Court is deciding whether the state's sentencing system violates Blakely.

A decision in that case, Cunningham v. California, 05-6551, could come any day.

Burton's was one of two 9th Circuit cases that ended Tuesday. In the second, the court had granted review in an Arizona case to decide whether an error in a federal criminal indictment could be deemed harmless.

The court, however, found that the indictment at issue was not, in fact, faulty, so it could not decide the harmless-error question. U.S. v. Resendiz-Ponce, 2007 DJDAR 361.

Ohio State University law professor Douglas Berman said the two cases raised questions about the effectiveness of the court's process for screening and reviewing incoming cases, known as the "cert pool."

In the pool process, the justices' law clerks collaborate to review all incoming petitions one time instead of each chambers conducting a separate, independent review of all petitions.

Only Justice John Paul Stevens does not participate in the pool.

"This is yet another indication that the pool is not working," Berman said.

© 2007 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.

January 10, 2007


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Intrigue grew Tuesday over two vacant seats on the 9th U.S. Circuit Court of Appeals when one embattled nominee withdrew from contention and another was re-nominated by the White House.

Democrats were dismayed that the Bush administration did not use the opportunity provided by William G. Myers' withdrawal to resolve a turf dispute between senators from California and Idaho, who have competing claims on one of the seats.

California's senators, Democrats Dianne Feinstein and Barbara Boxer, had hoped that Bush would steer Idaho state judge N. Randy Smith, initially nominated last year, to the seat Myers had sought for more than three years until he withdrew abruptly Tuesday amid partisan opposition.

But that didn't happen.

Instead, the White House re-nominated Smith for a seat that Democrats contend belongs to a Californian. The seat previously held for Myers was left open.

Idaho's senators, Republicans Mike Crapo and Larry Craig, have supported Myers and Smith, arguing that their state should have two judgeships.

Bush's apparent decision not to settle for one Idaho judgeship frustrated Feinstein, whose state has the largest number of judges on the 28-member court and contributes the lion's share of the 9th Circuit's caseload.

"The White House today missed an opportunity to resolve an outstanding nominations issue," Feinstein said in a statement. "I regret that President Bush did not nominate Randy Smith to the vacant Idaho seat ... thereby needlessly precipitating opposition."

She said she will maintain her position that one seat belongs to Idaho and one to California, a stand that has drawn the support of new Senate Judiciary Committee chairman Patrick J. Leahy, D-Vt., who initially aired the idea last year. Leahy spokesman Tracy Schmaler confirmed Tuesday that Leahy still sides with Feinstein.

University of Pittsburgh law professor Arthur Hellman, a close watcher of the 9th Circuit and Congress, said a compromise is "a sensible thing for the administration to do at this point."

Curt Levey, executive director of the Committee for Justice, a group that supports President Bush's judicial nominees, speculated that the White House will take the path of least resistance.

"That may ultimately be what happens," he said in reference to Feinstein's plan.

Hellman noted that, as a senior Democrat on the Judiciary Committee, Feinstein is in a "strong position" to get what she wants. She can, for example, hold up committee votes on Smith, as she did last year after his initial nomination.

The disagreement over Smith, a former Idaho state Republican Party leader, has nothing to do with his credentials. Rather, it centers on the man he would replace for a full-time judgeship: Stephen Trott, who last year took senior status.

Although Trott has kept his chambers in Boise and counts himself an Idaho-based judge, Feinstein and others note that the former U.S. attorney for Los Angeles was considered a Californian when President Reagan nominated him to the 9th Circuit.

Myers initially was nominated in 2003 but never got close to confirmation, even when Republicans controlled the Senate. That was in large part because of concerns about his record on the environment as solicitor of the U.S. Department of the Interior during President Bush's first term.

Some of Myers' decisions, which tended to favor mining interests, were questioned by his superiors and overturned by federal courts.

"Myers was the worst on the environment," said Glenn Sugameli, senior legislative counsel for the environmental group Earthjustice. "This is obviously very good news."

Myers is one of four controversial nominees who have withdrawn since the November elections that brought Democrats to power. The others are 4th Circuit selections William Haynes and Terrence Boyle and 5th Circuit nominee Michael Wallace.

In other action Tuesday, President Bush re-nominated five candidates for federal district court judgeships in California. They are Central District selections Valerie L. Baker, Philip S. Gutierrez, James E. Rogan and Otis D. Wright II and Eastern District nominee Lawrence J. O'Neill.

Tuesday, January 02, 2007

© 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.

December 27, 2006

Panel's Decision to Sanction Judge Real Was Pending Appeal

By Drew Combs
Daily Journal Staff Writer

LOS ANGELES - A lawyer for U.S. District Judge Manuel L. Real called Tuesday for an investigation into how a confidential disciplinary decision against the judge ended up on a public Web site.

John J. Quinn was skeptical of the official story, that the report was "inadvertently" placed on the Internet for more than a week by the legal publishing company Thomson West.

"I don't think it was inadvertent," said Quinn, a Los Angeles-based partner at Arnold & Porter, who represents Real. "The circuit should conduct a thorough investigation and find out who released the documents."

"It is outrageous that the confidentiality of that opinion was not honored," Quinn said. "Absolutely outrageous."

In the much-anticipated decision, a disciplinary council of judges from the 9th U.S. Circuit Court of Appeals and district courts voted to sanction Real for interceding in the bankruptcy proceeding of a female probationer.

The decision calling on the judge to be publicly reprimanded was handed down by the council in mid-November, but not made public because the matter remained pending when Real appealed to the Judicial Conference of the United States earlier this month. That body has not yet ruled on the matter.

The Los Angeles Times first reported the decision over the weekend. Reached Tuesday, a spokesman for Thomson West said he was unable to explain how the secret decision came to be posted on an Internet site accessible to the public.

"I am aware of the issue, but I have no details to add," said John Shaughnessy, who handles corporate communications for the company. "I am in discovery mode."

But 9th Circuit Chief Judge Mary M. Schroeder said her court was not in discovery mode over the issue.

"At this point I don't anticipate conducting any investigation," said Schroeder. She said that the court was "disappointed [the decision] was disclosed because that is contrary to our rules so long as it is pending," but she did not see any reason to pursue the matter further.

"We have looked into it and the court was not responsible," she said. "We don't know how it got to Westlaw."

Loyola Law School professor Laurie L. Levenson, who has read the decision, said she wasn't so sure it should have been secret in the first place. Some circuits make judicial discipline council decisions public even if appealed, she said.

"It is quite a controversy over whether [the decision] should have remained confidential anyway," Levenson said.

The release of the confidential decision represents just the latest surreal turn in the misconduct investigation of Real, who in 40 years on the bench has been both celebrated for landmark rulings, including the desegregation of the Pasadena school district, and harshly criticized for his autocratic demeanor.

In 2003, attorney Stephen Yagman filed a complaint against Real, 82, alleging the judge "acted inappropriately to benefit an attractive woman."

The two personalities have a storied past that includes a $250,000 fine issued by Real after Yagman said the judge was suffering from a mental disorder.

Yagman, who is under indictment for tax evasion and fraud in an unrelated case, could not be reached for comment, but in an interview in September he said, "I don't presently have any beef with [Real]."

The central allegation in the complaint, which dates back to 1999, stems from Real's ex parte communications with Deborah Canter, a woman whose criminal probation he supervised, in which she asked for the judge's help regarding a bankruptcy matter.

Real removed Canter's bankruptcy case from the court overseeing it and allowed her to live for three years rent-free in a Hancock Park home owned by her former in-laws.

During testimony before the House Judiciary Committee in September, Real said he was prompted to take over the bankruptcy matter because a confidential presentence report from Canter's earlier fraud case had been, in his view, wrongly introduced into the record of the bankruptcy case.

Canter's lawyer, Michael J. Proctor, a partner at Caldwell Leslie Proctor & Pettit, said, "Ms. Canter acted ethically and lawfully at all times while she was Judge Real's probationer.

"Moreover, Judge Real's actions were not taken to prejudice any party, but simply to ensure the integrity of the judiciary and to ensure that Ms. Canter's rights were respected."

When testifying before Congress, Real expressed a similar sentiment: "I categorically deny committing any misconduct in that case."

Despite the controversy, some circuit court observers viewed the decision as providing some hope that this process is nearing an end.

"This has been such an unpleasantness for our circuit for so long," Levenson said. "It is something that people want to put behind them."