We are moving!

Just in time for out annual assembly, PRACDL is moving to a new Typepad address, which will allow us to do much more with our blog. We are halfaway in the construction and process so please bear with us and visit us at PRACDL Blog. Our membership roster has increased dramatically in the past few weeks, as have our membership benefits. But even more important, there seems to be an urgency on the part of criminal defense lawyers about the need to have PRACDL be a strong presence.

Terry v. Menifee, No. 04-4505, 004 WL 2434978 (S.D.N.Y. Nov. 1, 2004) follows Goldings v. Winn and Elwood v. Jetter

We posted on Elwood v. Jetter here, and on Goldings v. Winn, here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)"), here ("A Healthy Exchange on Goldings v. Winn"), and most recently here ("Goldings v. Winn: Update from Peter Goldberger via BOP Watch").

Now this in via Howard O. Kieffer at BOPWatch:

On November 1, 2004, Chief Judge Michael B. Mukasey (SDNY), in Terry v. Menifee, No. 04-4505, 2004 WL 2434978 (S.D.N.Y.), found that the statutory interpretation underlying the BOP's current policy regarding limiting CCC placement to the last 10% of one's sentence to be erroneous.

The court found that the BOP is entitled to deference ("some deference") in its interpretation and, while making it clear to note that it was not requiring placement in a CCC, it granted the petition and required reconsideration for CCC placement consistent with the factors BOP considers, etc. The Court stated that: The First and Eighth Circuits, the only Courts of Appeals that have spoken on the matter so far, have invalidated the BOP's new policy on the ground that the BOP's interpretation of the statutes is erroneous. See Elwood v. Jetter, No. 04-2253, 2004 WL 2331643 (8th Cir. Oct. 18, 2004); Goldings v. Winn, 383 F.3d 17, No. 03-2633 (1st Cir. Sept. 9, 2004). The SDNY in Terry ordered the respondent (Warden) to reconsider, promptly and in good faith, the appropriateness of transferring Mr. Terry to a CCC in light of the factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002. It bears emphasis that this order's effect is to restore discretion to the BOP under it's pre-December 2002 policy over designation and transfer of federal prisoners. The order does not purport to establish Mr. Terry's entitlement to placement in a CCC.

As Todd Bussert, who has participated in several of these cases, also wrote at BOPWatch:

Judge Mukaskey's is one in a long line of written opinions from the SDNY invalidating the rule change, dating back to Judge Wood's decision in Greenfield v. Menifee [in] October, 2003. Notably, while the vast majority of the judges within that district have granted relief to the petitioner-prisoners, that is, directing BOP to reconsider their halfway house placement dates in a manner consistent with Judge Mukaskey's order, the government has not appealed one of its losses.

In terms of the proposed change published in the Federal Register in August, which Howard previously posted to the list, officials at the Rules Unit in Washington report that the earliest a new rule, with an effective date, might be issued is late January, and maybe not until next Spring.

Given that the October 18 deadline for comments has passed, those interested in seeing BOP's halfway house practices return to their pre-December 2002 form are encouraged to contact your Congressperson and express a position. Who knows, maybe the new AG will have a different opinion about the legality of BOP's historic practices than his/her predecessor.

Not believing that they have been previously posted at BOPWatch, comments from the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers, responding to the August notice, can be found on FAMM's site here.

Also, Corrections.com recently wrote about the "The Halfway House Debate." The article, includes some compelling findings by the Urban Institute about bipartisan support for reentry initiatives.

If anyone has any information as to how this has played out with any inmates housed at MDC-Guaynabo, please leave a comment to this post, or e-mail PRACDL.

Thanks to BOPWatch and it's great contributors for the information.

First Circuit's Leadership Role in Blakely Strikeouts

As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds." No liberals at the First!* The Circuit Judges, who share the Courthouse with the Judges from the District of Massachusetts, must wonder at times whether they are from a different planet.

See also our previous post: "Is Pedro Martinez pitching at the First Circuit?"

* I hope none of the Circuit Judges takes offense at missing out on being labeled with the "L" word.

PRACDL Assembly - November 17, 2004 at 6:00 p.m.

This is to remind all new and renewing PRACDL members of our assemby scheduled for November 17th from 6:00 to 9:00 p.m. at Café Al Fresco - G-11 O'Neill St.

The members of the PRACDL Board will be elected at that time. We want all PRACDL members to participate, so please set aside November 17th from 6:00 to 9:00 p.m. and join us for some formalities and a lot of fun with the best folk in town - the criminal defense bar.

Te esperamos. No falles.

Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase

In a first of a kind, U.S. District Judge Nancy Gertner has entered a Memorandum and Order Re: Bifurcation in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004) -a capital case- whereby there will be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment.

Is Pedro Martinez pitching at the First Circuit?

The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit.

On Monday, November 1st, 2004 the Circuit issued three opinions dealing blows to appellants' Blakely claims. See United States v. Del Rosario, No. 02-2377 (1st Cir. Nov. 1, 2004), United States v. Martinez-Bermudez, No. 02-2419 (1st Cir. Nov. 1, 2004), and United States v. Stearns, No. 03-2340 (1st Cir. Nov. 1, 2004).

And today another Blakely claim struck out in United States v. Coyne, No. 03-2013 (1st Cir. Nov. 4, 2004) (not for publication).

This is certainly not Ameline-land.

New White Collar Crime Blog

We welcome the new White Collar Crime Prof Blog, at which -starting today- distinguished law Professors Ellen Podgor and Peter Henning "will make daily postings on issues related to White Collar Crime. The Blog will discuss current investigations and indictments, criminal and civil enforcement cases, and issues related to the scope of the criminal law."

We have added a link to our sidebar, as we think this will be a very useful blog.