2nd Circuit Removed Judge Over Sentencing

We talked before about how little control judges have over sentencing here. Judge John T. Elfvin has now been removed from a case for exercising discretion during sentencing.

A federal appeals court has sharply criticized a judge for repeatedly ignoring the requirements of the sentencing guidelines and once again has removed him from a case.
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Judges Ralph Winter, John Walker and Robert Sack said in United States v. Benjamin, 05-3677-cr, that "the need to remove Judge Elfvin from this case" was "self-evident." Winter wrote for the panel.

Bureaucrats don’t like disobedient bureaucrats.

Judges cannot be counted on for reasonableness; they have the same pay master as the prosecutors. The jury exists as a bulwark against draconian sentences for this very reason.

"A shocking number of readers have had the same idea"

Music to my ears:

Your reader should have his scotch-and-cigar nights and dare the government to arrest him. I have as much respect for authority as the next wingnut, but these anti-smoking [epithets] have to be stopped, and if civil disobedience and jury nullification are the only way, make it so.

Section 1001 - Worse than Entrapment

Section 1001, which makes lying to a federal official illegal, is a truly vile law that the feds abuse over and over. What makes this one so nasty is that you don’t have to be under oath or even be made aware that you are committing a crime. It can literally be an accidental felony.

Even more insidious is the fact that charges can be brought even if there is no other crime. In other words, you can be charged with lying to cover up a crime that no one has proved was committed. Completely arbitrary, high penalties, and can trap anyone – no wonder the feds love it. John McTiernan is the latest victim:

McTiernan's attorneys also insisted that their client did not understand the consequences of denying his involvement with Pellicano and that his lie, although serious, did not rise to the level of a crime and should not have been charged as a felony.
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McTiernan's lawyers also argued that the FBI all but entrapped their client to mislead them about his use of Pellicano because the wire-tapping that he admitted occurred outside the five-year statute of limitations for that crime.

Guilty Until Proven Innocent- Highway Robbery in Seattle

A man driving 11 miles over the speed limit was pulled over and had over $200,000 in cash taken from him. He wasn't charged with any crime, but the cops are keeping it anyway:

The money was confiscated as the State Patrol investigates the incident. Merrill said if it is determined the man obtained the money legally it will be returned to him.

Jury Nullification and the Jena Six

For a long time I’ve believed that jury nullification is a way to provide justice for underrepresented groups in the United States. One of the reasons I started The Civil Rights Action Corp. is because groups like the NAACP, for instance, would complain about sentencing disparities between races but not champion nullification to as a way fill in the gap. Although it would directly accomplish their stated goals these groups refused to provide this information to their members. I viewed this omission then and still do as close to immoral.

Maybe it shouldn’t be too surprising. Nullification gives power to the citizens. An individual actually has a say in the laws of the society they wish to live in. The people who hold authority, if they are politicians or non-profits, aren’t eager to give that up.

The Jena Six have again brought this topic to the mainstream. This is from US News!:

At the time, many questioned whether the former football great could get a fair trial with the mélange of wealth, race, celebrity, obsessive love, and domestic violence all involved in the case. New debates sprang up on racism, as detailed in this article, where academics and social critics questioned how much white racism is responsible for the disparity in income and education between blacks and whites.

Opinion writer John Leo discussed the trend of "race-based jury nullification," where black jurors would acquit blacks on trial, even if there was overwhelming evidence against them, as a way to remedy the imbalance.

Cockroaches Hate the Light

More government secrets from law.com. What do they have to hide?:

The Department of Justice has asked the federal judiciary to eliminate public Internet access to plea agreements in criminal case files and all related docket notations.
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The Executive Office, in its letter, said that as a result of twin developments -- an increased number of violent crime prosecutions in which cooperating defendants and witnesses are needed to assist law enforcement, and increased Internet access to court records...

There ideal seems to be a nationwide network of citizens spying on each other for the state.

Why should Juries have more discretion?

The bureaucrat is not free to aim at improvement. He is bound to obey rules and regulations established by a superior body. He has no right to embark upon innovations if his superiors do not approve of them. His duty and his virtue is to be obedient. -Mises

Because the judges don’t have enough! From the law.com article:

If it made Robert Bryan "sad and a little angry" that federal sentencing guidelines in the 1990s forced him to impose draconian prison terms on two drug defendants, one can only imagine how the Seattle federal judge feels now.

The 9th U.S. Circuit Court of Appeals vindicated his sentiments in December when a three-judge panel granted his 2005 request to let him reconsider the two jail terms, citing Bryan's courtroom expressions of dismay. The judge had filed his order because the 2005 U.S. Supreme Court case U.S. v. Booker, 543 U.S. 220, had made the sentencing guidelines optional.

But this didn’t apply retroactively to the case unless "extraordinary circumstances" existed. That draconian sentences were imposed based on unconstitutional guidelines is not an “extraordinary circumstance” is an assault on reason. Clearly the politicos don’t care about justice so the juries must.

The Best Defense Against Prosecution for Libel...

...is the truth:

In a decision released late Tuesday, U.S. District Judge Arthur J. Tarnow declared unconstitutional rules requiring lawyers to treat everyone involved in the legal process with "courtesy and respect." The rules were "overly broad and vague," he said.

The Michigan Supreme Court used the rules last summer to reprimand Geoffrey Fieger for appearing on radio shows in 1999 and calling state Court of Appeals judges "jackasses." Fieger, who was angry at the judges for overturning a $15 million medical malpractice judgment he had won, also likened them to Adolf Hitler and other Nazis.

Tarnow's ruling "strengthens our democracy and allows us to speak out against the oppressive forces of corrupt state officials," Fieger said Wednesday in a statement.

Three Strikes is Bad Idea

By removing sentencing discretion the law can result in high penalties for relatively minor crimes. The NY Times article describes a case where a man received 50 years for stealing videotapes. Nonsensical penalties decrease the respect people have for the law - never a good thing.

The worst part of the three strikes law is how it poorly it incentivizes criminals. If there is no difference in penalty between a rape, and a rape and a murder then someone facing a third strike will have incentive to get rid of the witnesses. If this actually occurs the newspapers will surely call it an, "unintended consequence" when the incentive was obvious from the beginning.

The NY Times take on Three Strike style laws is here:

These laws are not only overly harsh. They are enormously expensive, because of all of the prison cells that are needed to warehouse minor criminals who pose little threat to society, many of whom are elderly by the end of their sentence.