By Carlyn Kolker

Second chances

6/14/12

If two's a trend, here's something we've noticed: Some Republican governors are using the language of redemption in efforts to restore rights to convicted felons. In March we posted about how Virginia's Republican governor, Bob McDonnell, had doled out more pardons and other forms of clemency than his immediate predecessors. (The state has some of the most restrictive laws in the country about prisoners' post-release rights, according to the Brennan Center for Justice.)

Another Republican governor, John Kasich of Ohio, has now invoked the language of redemption (hat tip: The Crime Report) to lend his support to a bill passed unanimously by the state's house on Wednesday. That bill would make it easier for convicted felons to get work. "Who here doesn't need to be redeemed?" Kasich asked, according to the Dayton Daily News. "We are giving people a second chance." The bill also changes the reasons for which a driver can lose a driver's license.

Geek squad

6/14/12

Judges don't have the reputation for being the most tech-savvy bunch. But according to U.S. District Judge David Nuffer of Utah, writing on the adorably titled 3 Geeks and a LawBlog, they really love their iPads. They use them for email, for reading lengthy court documents on the go and for listening to Podcasts (of federal judicial conferences, of course). "Challenges with iPad include the courts' continued use of WordPerfect, which has no editor for the iPad," Nuffer writes. A February article in Law Technology News says that in 2010 about 0.35 percent of the world market used WordPerfect, the word-processing program that was once a competitor to Microsoft Word. See what we mean about some judges still being in the Dark Age?

Secret weapon

6/14/12

Allen Stanford, convicted in March for perpetrating a $7 billion Ponzi scheme, was sentenced today in federal court in Houston to 110 years. The government had asked for 230 years (yes, you read that right) in prison. Stanford's lawyers sought a term of between 31 and 44 months.

The sentencing phase is typically a chance for both sides to show off. The prosecution usually touts its big win, making arguments, especially in the case of a slam-dunk trial win, for why they should get the sentence they request. Defendants often submit reams of paper showing why they deserve leniency, including letters from friends, celebrities, parents and offspring and anyone for whom the defendant has ever done a good deed. In the case of Stanford's sentencing there was a lot going on that was left up to our imaginations. Perusing the docket, Summary Judgments noticed that there were about a dozen sealed documents in the presentencing phase of the case. Some major filings, such as government's motion on June 6 requesting the two-century sentence and Stanford's reply to that on June 13, were public. The rest sat in a black box. A sentencing memorandum Stanford filed on May 18 was sealed, there was a "sealed event" on June 13 and a sealed addendum to the (sealed) objection to the presentence report,and so it went on and on. There was no indication from the docket as to why these documents were sealed.

I called Stanford's attorney, Ali Fazel, about why so much of the sentencing record was sealed. According to federal rules, he said, anything pertaining to the presentence investigation must be under seal. In the Stanford case, this included a lot of back-and-forth because "everything in this case was lengthy." Fazel said there was about 200 pages of briefing about the amount of loss incurred in the scheme.

However, Hank Asbill, a criminal defense attorney at Jones Day who was not involved in the case, offered up some other ideas. He said that it wasn't terribly uncommon for at least some portions of sentencing papers to be sealed or redacted because defendants believed they contained confidential material.

Courts tend to view medical issues, mental health or physical health issues, family issues and cooperation with the government as reasons to grant confidentiality, he said.

"My guess is there is some evidence or facts or information that the defense is suggesting makes Stanford not responsible for a significant monetary loss, or evidence of personal mitigating circumstances that in the defense's view might warrant a departure," Asbill said, emphasizing that "I have no idea what's going on here."

Despite all this, Summary Judgments wonders whether the entirety of the documents pertaining to Stanford should have been under seal. Take the case of Scott Rothstein, a Fort Lauderdale attorney who pleaded guilty to a Ponzi scheme involving fraudulent business deals in January 2010. Rothstein's sentencing papers were fully open to the public, even though it was later revealed that he was cooperating with prosecutors in Mafia-related cases. Rothstein's sentencing request contained the following tantalizing line: "The nature and extent of Mr. Rothstein's substantial cooperation with the federal authorities will not be detailed here."

Could Stanford's papers have been similarly redacted or simply have alluded to confidential information without being entirely unavailable to the public, all the while adhering to rules that issues pertaining to the presentencing report remain private?

Not easy being green

6/14/12

And you thought eating your broccoli was just something that your mother made you do. It turns out it is becoming a legal and political act too. Broccoli -- yep, that green flowering vegetable -- has become a motif in the challenge to the Obama administration's healthcare law. As The New York Times details in an in-depth article, broccoli has become the "defining symbol" in the healthcare debate, with challengers to the law invoking it to depict the level of the government's role in individual healthcare choices. In other words, can the federal government make you buy (and eat) broccoli? In a September 1993 Wall Street Journal opinion piece, libertarian-leaning lawyer David Rivkin, who believed President Bill Clinton's proposed healthcare legislation was unconstitutional, raised the issue of how much control the federal government could exert on dietary habits. In 2009 Terence Jeffrey, the editor of a conservative Internet publication, asked the question more pointedly: "Can President Barack Obama and Congress enact legislation that orders Americans to buy broccoli?" Since then the broccoli motif has appeared in a video by Reason TV, a part of a libertarian-leaning research group; was seized upon by Justice Antonin Scalia; and has made it into lower-court challenges to the healthcare law.

Just yesterday this Summary Judgments writer bought a nice round bunch of broccoli. And she will most certainly force her young child to try it too. He, in turn, will probably launch a healthy debate about the limits of power.

Join the crowd

6/14/12

You probably heard about the major setback public sector unions faced in Wisconsin, when the state legislature restricted collective bargaining rights. It turns out that Wisconsin isn't the only state to radically reimagine its laws and procedures for public sector workers.

Arizona, Colorado and Tennessee have all passed "sweeping overhauls" of their civil service systems, according to the PewCenter on the States. In Arizona, for example, the legislature has instituted the gradual implementation of "at will" hiring, allowing managers to hire and fire employees as they like, and eliminating civil service protections. In Colorado and Tennessee, the legislatures voted to end "bumping," a practice by which senior employees whose positions are being cut can force out more junior employees. The Colorado governor wants even bigger changes, but those will go to state voters in November, Pew reports. Meanwhile, labor relations are bubbling over in Maine, where the legislature is also exploring curbing collective bargaining rights. Perhaps, as professor Marick Masters suggested in a Reuters article in early June, after Wisconsin Governor Scott Walker survived a recall election, unions "underestimate the intensity of the feeling against both big government and organized labor itself, particularly in the public sector."

(Reporting by Carlyn Kolker)

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