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Voter ID Law Heads to Supreme Court
Legal Career News | 2007/12/31 23:53
The dispute over Indiana's voter identification law that is headed to the Supreme Court next week is as much a partisan political drama as a legal tussle. The mainly Republican backers of the law, including the Bush administration, say state-produced photo identification is a prudent measure to cut down on vote fraud — even though Indiana has never had a prosecution of the kind of fraud the law is supposed to prevent.

The opponents, mainly Democrats, view voter ID a modern-day poll tax that disproportionately affect poor, minority and elderly voters — who tend to back Democrats. Yet, a federal judge found that opponents of the law were unable to produce evidence of a single Indiana resident who had been barred from voting because of the law.

The Supreme Court, which famously split 5-4 in the case that sealed the 2000 presidential election for George Bush, will take up the Indiana law on January 9, just as the 2008 presidential primaries are getting under way.

A decision should come by late June, in time to be felt in the November elections in Indiana and in Georgia, the other state with a strict photo ID requirement, as well as in a handful of other states.

The justices will be asked to decide whether the law is an impermissible attempt to discourage certain voters or a reasonable precaution among several efforts aimed at cutting down on illegal voting.

"There's more than a little bit of irony in going to the Supreme Court and asking them to rise above partisan politics in election cases," said Richard Hasen, an election law expert at Loyola Law School in Los Angeles.

The court's decision in the disputed 2000 election is partly responsible for the ensuing increase in election-related lawsuits and the loss of confidence by some groups in the voting system, Hasen said. Yet, the other branches of government seem more politicized than ever, leaving the court as the best option despite the 2000 election dispute, he said.

Indiana argues that demands for identification are frequent in today's society, and producing a photo ID at polling places is hardly onerous.

"In light of such widespread demands for ... government-issued photo identification, it is almost shocking that in late 2007 Indiana can be characterized as even unusual in requiring it at the polls," the state said in its court filing.

The Bush administration maintains states need not wait for fraud to occur to take action to prevent it. "The state's interest in deterring voter fraud before it happens is evident from the monumental harm that can come from such fraud," the government said in its supporting brief.

The law's opponents counter that an ID may be just one card among many in most people's wallets, but some groups are far less likely to have them.

Homeless people wanting to vote might face the most difficulty under the law. While the state will provide a voter ID card free of charge to the poor, applicants still must have a birth certificate or other documentation to get the ID card.

"I think it's wonderful, but if you can't prove who you are, you can't get an ID," said Carter Wolf, executive director of Horizon House, which provides services to homeless people.

Getting a birth certification isn't always easy, Wolf said, or cheap. Sometimes it can cost $60 to $70 to get a birth certificate from other states.

"Obtaining a photo identification card under Indiana law requires documentation that is difficult, if not impossible, for many homeless individuals to provide," Carter Phillips, a leading Supreme Court lawyer, wrote in a supporting brief.

Even without an ID, indigent people can cast provisional ballots, then show up within 10 days at county offices and sign a form attesting to their vote.

But the Marion County Election Board, which includes Indianapolis, said just two of 34 voters who cast provisional ballots because they lacked voter ID showed up at county offices to validate their vote in the 2007 municipal election. Their signatures all matched those on file, but could not be counted because of the photo ID requirement.

Hasen said while neither side has abundant evidence to back its position the fraud argument is far less plausible than the claim that and ID requirement will reduce voter turnout.

Someone wanting to sway an election through fraud would be unlikely to get individuals to show up at the polls, pretend to be someone else and then ask them to cast a secret, unverifiable ballot, said Hasen.

But he said, "When voting is more difficult, people tend to not vote."

Opponents to the law argue the real potential for voter fraud lies in the filing of absentee ballots and that Indiana has made it easier to vote absentee in recent years.



Nevada judge abused authority, court rules
Legal Career News | 2007/12/29 19:42
The Nevada Supreme Court has ruled that Justice Nancy M. Saitta abused her authority when, as a Clark County District Court judge, she issued a gag order and sealed child-support proceedings involving a former judicial colleague.

Saitta did not meet requirements in state law when she sealed court records in 2006 involving former Clark County Family Court Judge Robert Lueck, the court said in the ruling issued Thursday. Lueck at the time was seeking to return to the bench.

The unanimous 13-page ruling, written by Justice Michael Douglas, calls Saitta's decision to seal the case without a written request and without findings or public notice "a manifest abuse of discretion."

The ruling found only that the action was improper and directed the Clark County District Court to open the case to the public. It did not address any motivation by Saitta for sealing the case.

Saitta, who was elected to the Supreme Court in 2006, did not participate in the decision. Senior Justice Deborah Agosti served in her place. Through an aide, Saitta declined to comment Friday.

Saitta was one of the subjects of a Los Angeles Times investigation of Las Vegas judges published in 2006. She was among several judges who were found to have routinely ruled in cases involving business associates or friends.

In one instance, the Times investigation found that Saitta awarded $1 million in fees for a certified public accountant and his attorneys, two of whom held a campaign fundraiser for her while the case was pending.

Lueck, a Las Vegas attorney, said he intended to seek a rehearing by the Supreme Court. He said Saitta properly used her judicial authority under Nevada rules of civil procedure to prevent his ex-wife, Jane Johanson, from using the courts to harass and embarrass him.

"This was a small, private matter that had been resolved months before," Lueck said of the child-support dispute between himself and Johanson. "This was done to hurt my campaign."

Johanson asked the Supreme Court through her attorney, Bruce Shapiro, to nullify the gag order and unseal the records of her child-support case involving Lueck. Shapiro did not immediately respond Friday to a message seeking comment.

Shapiro filed a petition last year accusing Saitta of issuing the gag order and sealing the court records to prevent voters from learning that Lueck failed to pay child support.

Lueck, who served on the Family Court bench from 1999 to 2004, lost his bid in 2006 to return to that court. At a July 11, 2006, hearing, Saitta found that Lueck was behind in his $750-a-month child-support payments. But she sealed the case, citing the potential use of the child-support information for negative campaigning.

Saitta was running against incumbent Justice Nancy Becker for the Supreme Court. She acknowledged in October 2006 that she made the statements about negative campaigns, but she denied any favoritism toward Lueck and said she ordered the gag order and sealed the records to protect the child.

State law allows a court to seal certain documents in a divorce case, but only upon written request of one of the parties. The gag order prohibited public discussion of the case by those involved. The court characterized the gag order as unconstitutionally vague and said it violated Johanson's free-speech rights.

The court said such orders could be entered only when there was a clear and present danger or a serious and imminent threat, and when no less restrictive alternatives were available.


U.S. appellate court overturns state murder conviction
Legal Career News | 2007/12/20 15:06

A federal appeals court overturned a Santa Rosa woman's murder conviction Wednesday for killing a man during an attempted carjacking in 1996, saying she had been forced to go to trial with a lawyer she wanted to replace. Nicole Bradley was 18 when she and two juveniles were arrested for the fatal shooting of James Strickler Jr., 19, of Santa Rosa. The court said Bradley had shot Strickler unintentionally, but she was convicted of first-degree murder and sentenced to 35 years to life in prison for a homicide committed in the course of another felony.

Bradley's lawyer quit before the trial, and a Sonoma County judge appointed a replacement in a hearing from which Bradley and her chosen lawyer were excluded. When Bradley sought to dismiss the new lawyer because of conflicts, Superior Court Judge Knoel Owen refused, saying the trial had already been delayed by almost two years and it wasn't clear Bradley could pay for her own lawyer.

In Wednesday's 9-2 ruling granting Bradley a new trial, the Ninth U.S. Circuit Court of Appeals in San Francisco said nearly all the pretrial delays were the results of judges' decisions, not Bradley's.

Noting that Bradley's trial lawyer disagreed with her on a possible plea agreement and on whether she should testify, the court said the trial judge's decision had created an adversary relationship between lawyer and client.

Defense lawyer Dennis Riordan praised the ruling and said a new trial could result in a lesser conviction, for second-degree murder or manslaughter. Deputy Attorney General Gregory Ott, who represented the prosecution, said the court disregarded a federal law that requires federal judges to defer to state court rulings unless they are clearly wrong.



Death penalty revoked in N.J.
Legal Career News | 2007/12/18 15:34
New Jersey became the first state in decades yesterday to abolish the death penalty, giving hope to opponents of capital punishment that Maryland and other states could soon follow. But the obstacles to passing a repeal or even a moratorium in the General Assembly next month remain high. Key lawmakers concede that the legislature is as polarized over the emotionally charged issue as it was last year, when a bill seeking a repeal was defeated by one vote in a Senate committee.

Still, the news of New Jersey Gov. Jon Corzine's decision to sign the repeal bill yesterday and to commute the sentences of the state's eight death-row inmates led many to believe that the momentum in Maryland will be on the opponents' side.


Supreme Court rules on sentences
Legal Career News | 2007/12/16 16:20
Advocates of greater fairness in criminal sentencing won an important battle at the U.S. Supreme Court last week. But they could lose the war if individual judges exploit the decision to return to the bad old days of dramatically divergent sentences for the same crime. By a 7-2 vote in two drug cases, the justices -- reversing federal appeals courts -- upheld sentences imposed by federal district judges that were more lenient than those suggested by guidelines of the U.S. Sentencing Commission. In one case, Brian Gall, who was involved in an Ecstasy ring in college but reformed himself, was sentenced to probation. In the other, Derrick Kimbrough, a veteran of the Persian Gulf War who pleaded guilty to possessing crack and powder cocaine, received a 15-year sentence instead of the 19 to 22 years he would have gotten under the guidelines.

Kimbrough's case had attracted particular attention because it involved a disparity in sentencing for crack and powder cocaine that disproportionately punishes African Americans. The judge in Kimbrough's case rightly had described the 100-1 disparity -- which the commission adopted to reflect a similar formula in an act of Congress -- as "ridiculous."

Coincidentally, the Sentencing Commission, which already had voted to narrow the disparity, decided last week to make the reduction retroactive. That could allow nearly 20,000 inmates to petition for sentence reductions. It will not, however, undo the crack/powder differential contained in a draconian 1986 law establishing mandatory minimum terms for drug offenses. Only Congress can, and should, repeal those provisions.

Still, the court's rulings reflect the national reconsideration of the misguided crack/powder distinction. Unfortunately, they could lead to other sorts of unfairness. To understand why, it is worth recalling why Congress created the Sentencing Commission in 1984. Faced with evidence of wildly different sentences being imposed for the same crime -- some of which seemed to track racial differences -- Congress decided the commission should devise sentences that would reflect several factors: the seriousness of the offense, the defendant's criminal history, and aggravating and mitigating factors. Although the rules adopted by the commission (subject to congressional veto) were called "guidelines," they were for practical purposes mandatory.

Fast forward to 2005, when the Supreme Court ruled 5 to 4 that the 6th Amendment required juries, not judges, to weigh aggravating factors that could increase a convicted defendant's sentence. Therefore, it was unconstitutional to require judges to abide by guidelines based on such factors. But a different 5-4 majority said the commission's guidelines could remain on the books as an "advisory" resource for judges.

In June of this year, the court seemed to shore up the guidelines when it ruled that an appeals court was free to presume that sentences within the guidelines were reasonable. But last week, the pendulum swung back in the direction of greater leeway for the sentencing judge. Although judges must treat the guidelines as a starting point, Justice John Paul Stevens wrote in the Gall case, their greater familiarity with the case entitles them to deference when they sentence outside the guidelines.

Once again, the high court has left lawyers and lower-court judges scratching their heads over how much discretion in sentencing is too much. At least some judges will see the latest rulings as a green light for departures from the guidelines much less defensible than the one in the Kimbrough case. Racial, and regional, differences in sentencing may reassert themselves. A judge might even feel free to act on a personal view that crack cocaine is more dangerous than powder.

No matter how criminal sentences are determined, two traditional notions of justice are in tension with one another. One is that similar crimes (and criminals) should be punished similarly. The other is that justice consists of taking account of the circumstances of a particular case. The sentencing guidelines on which the court cast doubt last week didn't resolve that tension perfectly, but they were an improvement over the pre-guidelines era that mocked the concept of "equal justice under law."


High court gives U.S. judges more freedom in sentencing
Legal Career News | 2007/12/11 10:19

The Supreme Court restored federal judges Monday to their traditional central role in criminal sentencing.

In two decisions, the court said U.S. district judges have broad discretion to impose what they think are reasonable sentences, even if federal guidelines call for different sentences.

One decision was particularly emphatic in saying judges are free to disagree with guidelines that call for much longer sentences for offenses involving crack cocaine than for crimes involving an equivalent amount of cocaine in powdered form.

Monday's decisions include an important racial dimension: A 2002 report noted that 85 percent of defendants convicted of crack offenses were black, a fact the U.S. Sentencing Commission warned was leading to a loss of confidence in the fairness of the system.

Both cases, each decided by the same 7-2 alignment, chided federal appeals courts for failing to give district judges sufficient leeway. In each case, the appeals court had overturned a sentence that was shorter than that provided by the guidelines. The two dissenters were Justices Clarence Thomas and Samuel Alito Jr.

Judges still may not impose sentences above the range written into law by Congress or state legislatures.

But the decision Monday gives judges broad discretion to impose sentences higher or lower than the federal guidelines, which are not statutes and are issued by the Sentencing Commission.

The two decisions answered questions left hanging in 2005, when the court ruled that federal sentencing guidelines could be constitutional only if advisory rather than mandatory. Appeals courts were to review sentences for "reasonableness," the court said then. But the court did not say what it meant by either advisory or reasonableness.

"The guidelines should be the starting point and the initial benchmark," Justice John Paul Stevens said in one of the decisions Monday, Gall vs. United States.

But Stevens went on to say that the guidelines are just one factor in the "individualized assessment" that a judge must make in every case.

In that case, Brian Gall, who had briefly been involved in an ecstasy distribution ring while a college student, received a sentence of three years' probation rather than 30 to 36 months in prison called for by the guidelines.

The Eighth U.S. Circuit Court of Appeals, in St. Louis, ruled that such an extraordinary variance from the guidelines range required an equivalently extraordinary justification.

That judgment was erroneous, Stevens said, in failing to give due deference to the district judge's reasoned and reasonable decision.

The defendant in the crack cocaine case, Derrick Kimbrough, received 15 years instead of 19 to 221/2 for several cocaine and gun-related offenses.

The trial judge said the higher guidelines term would be inappropriate for Kimbrough, a Marine veteran of the Persian Gulf War with an honorable discharge.

The judge also disagreed with the relative treatment of crack and powdered cocaine, a disparity that he said led to disproportionate and unjust results.

The Fourth U.S. Circuit Court of Appeals, in Richmond, Va., overturned the sentence on the grounds that it was unreasonable for a judge to depart from the guidelines "based on a disagreement with the sentencing disparity for crack and powder cocaine offenses."

The Supreme Court took the unusual step of reinstating the original lower sentences, rather than simply instructing the appeals courts to reconsider the cases under an appropriately deferential standard of review.

In her majority opinion in Kimbrough vs. United States, Justice Ruth Bader Ginsburg took account of an important policy development since the case was argued Oct. 2. On Nov. 1, amended guidelines for crack cocaine that the U.S. Sentencing Commission had long advocated took effect when Congress, which had the power to block them, let the moment pass without acting.

Ginsburg said acceptance of the amendment by Congress undermined the government's position that judges should not have discretion to depart from the guidelines themselves. The amendments put into effect a relatively modest change that will reduce sentences for crack by about one-quarter.

The Sentencing Commission was limited in what it could accomplish on its own. A 1986 federal law, enacted at the height of public concern about crack, incorporated a 100-to-1 ratio into mandatory minimum sentences - that is, the same sentence was imposed for a given amount of crack and 100 times that amount of powder.

Bipartisan bills are pending in Congress to address the disparity. Today, the Sentencing Commission will vote on whether to make the Nov. 1 amendment retroactive to the 19,500 inmates imprisoned for crack offenses.



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