Sunday, February 4, 2007


My conservative, former college roommate wrote to express his enjoyment at reading my blog, but suggested that I should try to be a little less critical and focus on some of the more positive things happening in the world. I conceded to him that my current writings were somewhat motivated by the years of mischaracterization and misinformation that were frequently used to describe my opinions, while I served on the court. Indeed, the same old chestnuts were roasted the day my first blog entry was published. Senator Obama in his new book, The Audacity of Hope, relates an incident where the mere change of a line in a speech about Lincoln brought down the wrath of the conservative world---suggesting that he was comparing himself to Lincoln.

In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".

But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.

How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.


rothmatisseko said...

Interesting point, Judge. I'd say the same about Ring (Apprendi rule applies to capital aggravators) and Apprendi itself. Having Scalia on your side seems to provide a lot of cover...

I hope you keep providing your comments on whatever comes to mind.

MMF said...

I am so glad you didn't end the X-Judge blog. I look forward to your posts and appreciate the time and thought you obviously put into it.

I was planning to send someone a clip from your post about how silly it is for the administration to imply that only paople who have a solution to the Iraq morass have a right to criticize the war.
You had a great analogy that I thought demonstrated how ridiculous the "What's YOUR plan?" challenge really is.

I can't find that entry now on your page. If it was accidentally removed, I wish you could replace it. Thanks,