Eastern District of California Blog

Prof. Berman On Prison Overcrowding Oral Argument--And Child Porn Sentences

Here's Prof. Berman's Sent Blog's coverage of today's Supreme Court oral argument in the prison overcrowding appeal, which includes links to the transcript of the argument, more news articles, and early assessments of how things went. 

Earlier today, his blog had this post entitled, "Most federal judges not comfortable with tough guidelines" in child pornography cases.  The piece quotes a Pittsburgh Post-Gazette story that 70% of federal judges think the sentencing guidelines are unreasonable in possession or receipt cases.

Finally, for those obsessive types out there, you can now get my posts instantaneously when I blog, by following me on twitter @balazslaw (as long as I remember to click the "twitter" box when I compose a post). 

More Coverage of Today's Supreme Court Prison Overcrowing Case Oral Argument

Today's Sacramento Bee has more coverage of the Supreme Court's oral argument in the prison overcrowding case, Sacramento Bee, 11/30/10, while a Bee editorial suggests that new California Attorney General Kamala Harris may take steps to help reduce California's prison population:

Harris, the San Francisco district attorney, mostly soft-pedaled the issue of prison crowding during her campaign, and until she takes office, she will be in no position to alter the way the state has pursued the case.

But in her book, "Smart on Crime," Harris forcefully decries the state's soaring prison population and cost, particularly as it relates to nonviolent offenders. This passage neatly sums up her take on the problem:

"For several decades, the passage of tough laws and long sentences has created an illusion in the public's mind that public safety is best served when we treat all offenders pretty much the same way: arrest, convict, imprison, parole. …

"What the numbers say loud and clear, however, is that most nonviolent offenders are learning the wrong lesson … are becoming better and more hardened criminals during their prison stays."

* * *

It's not the usual pedigree of a hard-nosed prosecutor. Harris is a death penalty opponent. But it would be a mistake to dismiss her as soft on crime. She spent two decades in the trenches prosecuting rapists, gangsters and murderers.

She thinks there is a better way to hold nonviolent criminals accountable. She points to Back on Track, a San Francisco program that diverts nonviolent criminals, mostly drug dealers, to job training, community service, drug treatment and school, instead of prison or jail.

She says the program saves San Francisco $1 million in jail costs for every 100 offenders who go through it, and twice that much in court costs, while reducing recidivism.

It is noteworthy that Harris will claim victory today at the Delancey Street Foundation in San Francisco, the rehabilitation facility which, as its website boasts, "has been teaching drug abusers, ex-convicts and others who have hit bottom to turn their lives around since 1971."

As attorney general, Harris will have no power to reduce sentences. She won't be able to alter how local prosecutors charge crimes. Nor will she be able to refuse to defend the state when federal judges challenge its overcrowded prison system.  But she can use the bully pulpit to push innovative approaches to the broken justice system. If it were smarter on crime, perhaps California wouldn't need a federal court order to cut prison population.

Sacramento Bee Editorial, 11/30/10

EDCA Sentences, Nov 2010

Judge Shubb sentenced the "British" bank robbery bandit to 30 months in prison Monday, Sac Bee 911 Blog, 11/29/10, while Judge Damrell sentenced a man convicted of conspiracy to commit bank fraud to 5 years for his role in a scheme using prepaid credit cards for cash advances at banks the resulted in losses of $1-2 million. Sac Bee 911 Blog.   A Stockton man was sentenced to 26 months for trafficking in counterfeit goods. US Atty Press Release, 11/23/10

Earlier this month, Judge Burrell sentenced two men to 20 years in prison for child pornography offenses, US Atty Press Release, 11/19/10, while in Fresno, Judge O'Neill sentenced a defendant to 151 months in another child pornography case.  US Atty Press Release, 11/12/10.

 

Wow, what a day for Sacramento defense attorney Michael Bigelow

While Mike was arguing this morning before the U.S. Supreme Court, Transcript of Oral Argument, Walker v. Martin, 09-996, the Ninth Circuit reversed the Sacramento district court's denial of habeas corpus in another of his appeals, finding that state court trial counsel rendered ineffective assistance by failing to ask that evidence of the victim's DNA be tested before trial.  See Diaz v. Clark, 08-15808.  It's an unpublished, 2-1, decision.  

[1/28/12 Update:  The Supreme Court reversed in Walker v Martin and the Diaz decision did not last as the Ninth Circuit reversed course on remand from the Supreme Court.  See my 1/28/12 post ].

California Prison Case Reaches U.S. Supreme Court

That's the title of this piece in the San Jose Mercury News, 11/28/10 covering Tuesday's Supreme Court oral argument in the state's appeal of the 3-judge, prison overcrowding ruling.  Other media coverage includes articles in the Wall Street Journal, 11/29/10 and the Sacramento Bee, 11/28/10; see also My 11/23 post.

Other recent news stories I found interesting:

The LA Times, 11/28/10 has a piece on the difficulty California faces in getting lawyers to represent defendants on death row while the New York Times, 11/27/10 discusses former Justice Stevens's musings about the death penalty to be published in the 12/23 New York Review of Books and available here.  Justice Stevens was also on 60 Minutes Sunday night.

Sunday's Sacramento Bee, 11/28/10 talks about how Humboldt pot growers are teaming up to go legit as the county plans to license marijuana medical marijuana cultivators.

And, a story about a would-be prosecutor who finally passed the California bar on his 24th attempt.  Sacramento Bee, 11/28/10

1.5 Billion Documents? Government And Defense Spar Over Discovery and Motions in SK Foods Salyer Prosecution

Last Thursday, Judge Karlton denied Salyer's request to continue the evidentiary hearing and proceeded to hear testimony on pretrial motions, including a dispute over the government's interception of proffered attorney-client privileged jail calls.  A defense status report filed Monday notes that the government has provided in discovery 6,287 audio recordings, over 100,000 hard pages of documents, and 23 external hard drives with over 1,515 gigabytes of electronic discovery.  With more forthcoming, the defense expects a total of 3,000 gigabytes (i.e., 3 terabytes) of discovery. 

Although I have no idea what a gigibyte or terabyte are, the defense cites the FBI agent's declaration as stating that a single gigibyte can hold up to 500,000 pages of text, meaning that there could conceivably be up to one and one-half billion pages of electronic discovery (no one expects that much).   No wonder the Court granted Salyer's request for a further status conference on March 8, 2011 before a jury trial is set.  In the meantime, the defense has 10 days from Tuesday's status conference to file a reply to the government's opposition to the motion to suppress evidence of warrantless searches and the Court ordered the government to comply with the magistrate's judge's Brady/Giglio discovery order by March 1, 2011.

On the civil side, Judge England dismissed a group of tomato processors racketeering and state law unfair competition claims against SK Foods, but the court left standing the plaintiffs' antitrust claim in Morning Star Comp. v. SK Foods L.P., No. 09-0208-MCE.  See AntitrustConnectBlog, 11/18/10. 

Former EDCA AUSA Elena Duarte Appointed To Third District Court of Appeal

Congratulations to former EDCA AUSA Elena Duarte on her appointment to California's Third District Court of Appeal.  Although Governor Schwarzenegger's Press Release, 11/23/10 incorrectly refers to her working as an AUSA only in the Central District of California, Duarte worked in the Sacramento U.S. Attorney's Office for years before leaving for Los Angeles.  As a UCLA Law School grad, I attribute her balance and common sense as a prosecutor to the fact that her parents had both been criminal defense attorneys, rather than her education at USC and Stanford Law School. 

Sacramento Court Reaffirms Lake Tahoe Pier Ruling

A federal judge on Monday reaffirmed his September ruling overturning a plan to add thousands of new boat facilities on the lake.

The Tahoe Regional Planning Agency had requested the judge amend his ruling. The TRPA’s motion was not an appeal. The agency will have another 30 days to appeal the judge’s September ruling to the Ninth Circuit Court of Appeals.

In September, Judge Lawrence K. Karlton of the US District Court in Sacramento ruled in favor of the League to Save Lake Tahoe and the Tahoe Area Sierra Club. The groups were represented by the non-profit law firm Earthjustice.

The decision helps clarify the obligations of the TRPA, which is Tahoe’s prime land-use and environmental regulator, according to the League in a news release.

Carsonnow.org, 11/23/10

U.S. Supreme Court To Hear Arguments In Two EDCA Cases Next Week

Next week, the U.S. Supreme Court will hear oral arguments in two cases that originated in the EDCA.  First, on Monday, November 29, the Court will consider whether a California rule requiring that state habeas petitions be filed without "substantial delay" is too vague and inconsistently applied to bar an otherwise timely federal habeas corpus petition.  See Walker v. Martin, No. 09-996.  The EDCA Federal Defender joined forces with the federal defender offices in the three other California districts in submitting this Joint FD Amicus Brief.  Good luck to Sacramento attorney Michael Bigelow who represents the habeas petitioner (and Respondent in the Supreme Court) Charles W. Martin.

The next day, November 30, the Supreme Court will hear argument over the 3-judge, district court ruling that limited the population in California prisons to remedy unconstitutional prison conditions.  See Schwarzenegger v. Plata, No. 09-1233.  The Supreme Court briefs and lower court opinions in both cases are available at the links above.

EDCA Court Holds California's Contemporaneous Objection Rule "Inadequate" To Bar Federal Habeas Review

In a significant new decision, an EDCA district judge adopted in full, Steele v Ayers, CV-S 03-143-GEB KJM, Order, 11-10-10, the magistrate court's 35-page, "Order and Findings and Recommendations" that found, among other things, California's contemporaneous objection rule to be an "inadequate" procedural default to bar review of federal habeas claims.  Mag. Judge Order, 7-14-10, 2010 U.S. Dist. Lexis 70731, 2010 WL 2793644.  This appears to be the first decision to hold that the contemporaneous objection rule has been too inconsistently applied in California to prevent federal habeas review.  The F&Rs include a thoughtful discussion of when it is proper to go back to re-examine a rule that had previously been assumed to be "adequate."

For habeas wonks, the Steele opinion is also worth reading on a number of other points, including the court's ruling that various allegations of Teague non-retroactivity be stricken from Respondent's Answer for failing to comply with the Ninth Circuit's Teague pleading requirements set forth in Arredondo v. Ortiz, 365 F.3d 778, 781-82 (9th Cir. 2004).