Judicial Reports: LexPress: The Post-Modernist Court

By Jesse Sunenblick
jsunenblick@judicialstudies.com
Posted: 04-01-08 

In an unusual hearing, all the judges from the Second Circuit ponder the possibly inherent subjectivity in departing from federal sentencing guidelines as allowed under U.S. v. Booker. In other news, Chief Judge Judith Kaye rekindles threats of a pay raise lawsuit.

 

COW-TIPPING AND THE 8TH CIRCUIT 
The U.S. Supreme Court’s landmark ruling in U.S. v Booker gave judges greater flexibility to depart from sentencing guidelines based on “reasonableness.” But what exactly does “reasonableness” mean — what are the boundaries, and what kind of information can a judge rely on? In an en banc hearing last week, the judges from the Second Circuit debated these and other philosophical questions stemming from Booker, including, notably, the extent to which judges can ever rely on empirical data in shaping a sentence and whether such data is objective or subjective. As reported by The New York Law Journal, the judges voted for the hearing after a controversial decision by Eastern District Judge Charles Sifton, who went above a 12-to-18 month guidelines range and sentenced gun trafficker Gerard Cavera to two years in prison, based on the notion that New York City’s greater population density puts innocent bystanders in harm’s way. His decision was overturned by a Second Circuit panel, only for the panel to withdraw its opinion months later, saying it had “prompted comments from several members” of the court. “Why can't a national system tolerate regional disparities?: asked Judge Dennis Jacobs at last week’s hearing. “Having a gun is a serious problem in New York City. Maybe in the Eighth Circuit they worry about cow-tipping or something.” Added Judge Jose Cabranes: “This is a post-modernist court. What is objective? What is subjective? What is truth?” After Assistant U.S. Attorney Taryn Merkl responded with something like “all kidding aside,” Cabranes said, “Who’s joking?”

$25 FOR YOU, $86 MILLION FOR ME
Southern District Judge William Pauley yesterday presided over a hearing to determine whether the law firms who handled a $336 million class action settlement between Mastercard, Visa and millions of customers who were bilked on overseas purchases took excessive fees. Most of the 21 million class members will receive about $25 dollars, but the 31 law firms are asking for about $86 million. Interestingly, as reported by The New York Sun, Pauley seemed to have less of a problem with the payout than with the sheer number of firms involved in the case. “Can you explain to me why 31 law firms had to be involved with the plaintiffs?” he asked, adding that he “found a disconnect” between the number of the different groups of plaintiffs and the number of law firms.

“WE HAVE BEEN JOLLIED ALONG”
Midnight came and went, but New York’s budget still isn’t inked. As legislators struggled to tie up loose ends, Chief Judge Judith Kaye pondered the likelihood of a 10th year passing without a salary boost for state judges. “I would say shortly, during April. Earlier rather than later,” she said during an appearance yesterday before more than 100 judges at the headquarters of the New York State Bar Association, referencing the possibility of filing a lawsuit to counteract the stalled bill. And as reported by The Law Journal, attorney Bernard W. Nussbaum (who has been retained in the event such a suit is filed) chimed in, too, saying, “This is a legitimate case, a legitimate legal case.” Continued Kaye: “Instead of the increases, we have been jollied along — believe me, we have been jollied along — from April going back all the way to 2005. From April [we hear], ‘Well, it won't be April, but definitely it will be July. And don't worry, it's not July, but it will be September, it will be October. Oh, please, we assure you. You have our promise. You have our word. It will be November 2005, 2006, 2007.’ I'm hearing that again in 2008.”

INTENTIONAL DELAY IN DROWNING CASE?
And from an Associated Press story appearing in The Staten Island Advance comes news of the impending trial of Shirley Winters, who is accused of drowning to death a two-year-old toddler in 2006. Prosecutors in Onondaga County have also charged Winters with smothering to death her son, Ronald, back in 1979 (his death in a mysterious 1979 fire was originally attributed to sudden infant death syndrome). The judge in the upcoming trial, Joseph Fahey must decided whether an intentional delay in bringing the older murder charges against Winter has jeopardized her right to a fair trial, since two doctors and a mortician involved in the case have died. Meanwhile, Since 1979 Winters has been connected to 17 fires at homes where she or family members lived.

 

Posted by Jesse on April 1, 2008 09:59 AM to Judicial Reports