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Supreme Court rules on sentences
Law Center |
2007/12/16 08:20
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Advocates of greater fairness in criminal sentencing won an important battle at the U.S. Supreme Court last week. But they could lose the war if individual judges exploit the decision to return to the bad old days of dramatically divergent sentences for the same crime. By a 7-2 vote in two drug cases, the justices -- reversing federal appeals courts -- upheld sentences imposed by federal district judges that were more lenient than those suggested by guidelines of the U.S. Sentencing Commission. In one case, Brian Gall, who was involved in an Ecstasy ring in college but reformed himself, was sentenced to probation. In the other, Derrick Kimbrough, a veteran of the Persian Gulf War who pleaded guilty to possessing crack and powder cocaine, received a 15-year sentence instead of the 19 to 22 years he would have gotten under the guidelines.
Kimbrough's case had attracted particular attention because it involved a disparity in sentencing for crack and powder cocaine that disproportionately punishes African Americans. The judge in Kimbrough's case rightly had described the 100-1 disparity -- which the commission adopted to reflect a similar formula in an act of Congress -- as "ridiculous."
Coincidentally, the Sentencing Commission, which already had voted to narrow the disparity, decided last week to make the reduction retroactive. That could allow nearly 20,000 inmates to petition for sentence reductions. It will not, however, undo the crack/powder differential contained in a draconian 1986 law establishing mandatory minimum terms for drug offenses. Only Congress can, and should, repeal those provisions.
Still, the court's rulings reflect the national reconsideration of the misguided crack/powder distinction. Unfortunately, they could lead to other sorts of unfairness. To understand why, it is worth recalling why Congress created the Sentencing Commission in 1984. Faced with evidence of wildly different sentences being imposed for the same crime -- some of which seemed to track racial differences -- Congress decided the commission should devise sentences that would reflect several factors: the seriousness of the offense, the defendant's criminal history, and aggravating and mitigating factors. Although the rules adopted by the commission (subject to congressional veto) were called "guidelines," they were for practical purposes mandatory.
Fast forward to 2005, when the Supreme Court ruled 5 to 4 that the 6th Amendment required juries, not judges, to weigh aggravating factors that could increase a convicted defendant's sentence. Therefore, it was unconstitutional to require judges to abide by guidelines based on such factors. But a different 5-4 majority said the commission's guidelines could remain on the books as an "advisory" resource for judges.
In June of this year, the court seemed to shore up the guidelines when it ruled that an appeals court was free to presume that sentences within the guidelines were reasonable. But last week, the pendulum swung back in the direction of greater leeway for the sentencing judge. Although judges must treat the guidelines as a starting point, Justice John Paul Stevens wrote in the Gall case, their greater familiarity with the case entitles them to deference when they sentence outside the guidelines.
Once again, the high court has left lawyers and lower-court judges scratching their heads over how much discretion in sentencing is too much. At least some judges will see the latest rulings as a green light for departures from the guidelines much less defensible than the one in the Kimbrough case. Racial, and regional, differences in sentencing may reassert themselves. A judge might even feel free to act on a personal view that crack cocaine is more dangerous than powder.
No matter how criminal sentences are determined, two traditional notions of justice are in tension with one another. One is that similar crimes (and criminals) should be punished similarly. The other is that justice consists of taking account of the circumstances of a particular case. The sentencing guidelines on which the court cast doubt last week didn't resolve that tension perfectly, but they were an improvement over the pre-guidelines era that mocked the concept of "equal justice under law." |
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Investors Focus on Housing Data and Fed
Business |
2007/12/16 08:17
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| Stock investors smarting from months of volatility are hoping this holiday-shortened week provides signs of a badly-needed yearend rally. The days leading up to Christmas -- which in recent years have been positive for stocks -- will bring readings on the housing market, minutes from the Federal Reserve's meeting last month, and earnings reports including results from major retailers. The data should keep investors busy as they stare down tumbling home prices, billions of dollars of losses at banks that made losing bets on subprime mortgages, and crude oil flirting with $100 a barrel.
Though the end of the year usually sparks buying, recent developments have made a December rally look like a pipe dream to many market participants, who are simply hoping stocks can hold onto their gains. The Dow Jones industrial average is up 5.73 percent year-to-date, the Standard & Poor's 500 index is up 2.85 percent, and the Nasdaq composite index is up 9.19 percent. At this point, Wall Street expects the U.S. housing market to keep wilting through next year, and perhaps into 2009. It also assumes financial institutions will be taking another giant round of writedowns during the fourth quarter, one that may be larger than the third quarter's approximately $45 billion in credit-related losses. What investors remain unsure of is how long it will take the Wall Street banks to bounce back from their losses, and if consumers and the broader economy will survive the worst housing market in decades. Last week, investors sent stocks higher and lower as they wrestled with uncertainty. The Dow finished last week 1.03 percent; the S&P 500 index ended 0.35 percent, and the Nasdaq finished 0.35 percent. |
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UBS Subject of Subprime-Related Lawsuit
Class Action |
2007/12/16 07:23
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| UBS is facing a class action lawsuit, which alleges the financial services company misled investors by issuing materially false and misleading statements about the company's financial condition just two months before it was revealed UBS was planning to write down $10 billion in subprime-related losses. The lawsuit filed by the firm of Coughlin, Stoia, Geller, Rudman & Robbins LLP alleges in a United States District Court that UBS's actions negatively impacted common stockholders who purchased stock between the dates of March 13, 2007 through December 11, 2007. In a press statement, the firm says, "UBS issued a press release announcing its financial results for the third quarter of 2007. In the days following this announcement, the price of UBS stock declined to as low as $49.27 per share. Then, on December 10, 2007, UBS announced writedowns of around $10 billion as a result of its subprime mortgage related positions. Following this announcement, the price of UBS stock declined to $48.78 per share, a 26% decline from the Class Period high." |
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ND Jailer Pleads Guilty to Sex Assaults
Criminal Law |
2007/12/16 05:26
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| former jailer convicted last month of killing a college student pleaded guilty Friday to sexually assaulting female inmates last year at the jail where he worked. Moe Gibbs, 35, pleaded guilty to six felony counts involving five inmates at the Barnes County Jail. Last month, a jury found him guilty in the death of Valley City State University Mindy Morgenstern. His first murder trial on the charge, in July in Minot, ended in a deadlocked jury. Defense attorney Ross Brandborg would not say why Gibbs changed his pleas to guilty. The plea deal calls for a 25-year prison sentence with 10 years suspended. Prosecutor Jonathan Byers Byers said Gibbs' "acceptance of responsibility" figured into the lower sentence. "There has to be some benefit to him for doing that," Byers said. Authorities say the assaults took place from May to September last year. Under questioning from Byers on Friday, Gibbs said he had sexual contact with two inmates while they were either asleep or waking up. The judge agreed to Brandborg's request to delay sentencing on the assault charges. Gibbs is to be sentenced on the murder conviction Monday and for a 2004 rape next Thursday. |
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Man pleads guilty in CalISO computer attack
Court Watch |
2007/12/16 04:25
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| A South Natomas resident accused of shutting down computers that manage energy at the nonprofit that controls the flow of power over California's transmission grid pleaded guilty to a felony charge Friday in U.S. District Court in Sacramento, prosecutors said. Lonnie Charles Denison, 33, was a contract employee managing computer applications at the California Independent System Operator in Folsom, said Assistant U.S. Attorney Kyle Reardon in a news release. At 11:15 p.m. April 15, Denison turned off power to the ISO computers that communicate with the electricity market. prosecutors alleged. Denison first tried to log into the ISO's computer system, but was unsuccessful because his computer privileges had been suspended, investigators said. Denison broke a glass cover that protected an emergency shut-off button, meant for use in case of fire or other calamity, according to the release. Denison allegedly went home after shutting off the power to the computers, and told a friend the next morning that he had pressed the emergency button and had tried to "shut off the power grid," according to prosecutors. The ISO manages high-voltage lines owned by Pacific Gas and Electric Co., Southern California Edison and San Diego Gas & Electric Co. The April 15 outage disrupted CalISO communications for about two hours, leaving the grid vulnerable to electricity shortages. The ISO used back-up systems to reconnect to the energy market. Denison is scheduled to be sentenced by U.S. District Judge Garland E. Burrell Jr. at 9 a.m. on Feb. 29. The maximum penalty for attempting to damage an energy facility is five years imprisonment, a $250,000 fine and a three-year term of supervised release. Denison originally had also been charged with making a bomb threat. The case was investigated by the Federal Bureau of Investigations's Joint Terrorism Task Force, composed of federal, state and local law enforcement agencies. |
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Attorney readies for class action lawsuit following fire
Legal Marketing |
2007/12/16 03:24
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Latigo Canyon lawyer Jay Devitt has placed an advertisement in both local newspapers and is speaking to members of the community about putting together a class action lawsuit against the state and possibly other entities regarding alleged faults that led to last month's Corral Fire, which destroyed 53 homes and damaged another 33.
"We're going to sue anyone and everyone who is responsible, like a good attorney is supposed to do," Devitt said.
The main focus so far of the proposed litigation is the California Department of Parks and Recreation. Investigators say the fire started in or near a cave on State Parks land at the top of Corral Canyon known for late-night partying. Devitt said State Parks was negligible in not securing the area better.
"They had notice that this is a dangerous condition of public property with kids going up there," Devitt said.
A Corral Canyon resident who lost his home in the fire, Scott Palamar, had complained several times to State Parks officials about the partying, and the fire risk it created. He was not immediately available for comment for this story.
When asked why a private security guard was never hired by local homeowners to watch over the area, Devitt said it was not their job to do that.
Roy Stearns, spokesperson for State Parks, said he had heard nothing of the potential suit.
"We'll have to wait and see what it alleges, and go from there," Stearns said on Tuesday. "Our feeling is that with the shortage of rangers that we have, our people did all they could under the circumstances to address these issues."
Devitt said he would be hiring investigators to look into what else might have gone wrong during the fire. However, unlike what some Corral Canyon homeowners have alleged, Devitt said he did not see the city's reduction of the bottom of Corral Canyon Road to one lane as being a factor in the fire's outcome. Some homeowners said the reduction delayed the fire trucks.
Realtor Beverly Taki, who heads the Corral Canyon Safety Committee, said at a City Council meeting that the lane reduction hurt the fire response. She hinted at a possible lawsuit against the city in an interview last month with The Malibu Times. Taki said she is not involved with Devitt's lawsuit.
Devitt already has five homeowners who have joined the suit, but declined to mention their names. The attorney, who is the founder and former president of the Malibu Bar Association, only received minor smoke damage to his home. But he knows many people who suffered losses.
"My view of Latigo Canyon is completely black," he said. "Some of my neighbors did lose their homes."
Prior to any lawsuit, what is called a government claim must first be filed against the state about its alleged negligence. If the state fails to respond within 45 days, a lawsuit could be filed. The suit must be filed within six months after the fire.
"With more than 50 houses having burned down averaging a value of about $1.5 million, that's at least $75 million," Devitt said. "There is also emotional distress and some people had the inconvenience of having to pay hotel bills." |
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2 plead guilty of plotting to engage in terrorism
Breaking Legal News |
2007/12/16 01:27
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| Two men accused of plotting behind prison walls to launch jihad-style attacks on military sites, synagogues and other targets in 2005 pleaded guilty Friday to conspiring to levy war against the United States. Kevin James, 31, and Levar Haley Washington, 28, entered their pleas in separate appearances before U.S. District Court Judge Cormac J. Carney. Washington also pleaded guilty to using a firearm to further the conspiracy. Prosecutors said he used a shotgun to rob a Torrance gas station on July 4, 2005. James faces up to 20 years in prison when he is sentenced March 31. Washington faces up to 20 years in prison on the conspiracy charge and five years to life for the firearms offense when he is sentenced April 28. Authorities say James, Washington and two others were part of a California prison gang cell of radical Muslims that planned the attacks in the Los Angeles area. "Homegrown terrorism remains a grave concern to the security of our country, and this cell was closer to going operational at the time than anyone since 9/11," Los Angeles Deputy Police Chief Michael Downing told reporters at a news conference after the two men entered their pleas. Police uncovered the plot in July 2005 while investigating a string of gas station robberies that authorities say were committed to finance the attacks. Torrance Police Chief John Neu told reporters at the news conference that authorities linked about 10 holdups to the plot.
The plotters were within weeks of being able to carry out an attack, officials said, when they were discovered about two months before the Jewish holiday Yom Kippur. Washington and James, who arrived in court in chains and prison jumpsuits, said little during their separate hearings. Both men wore goatees and Washington's face was covered in tattoos. Washington's attorney, Ellen Barry, said outside court that her client decided it was "in his best interests" to plead guilty. James' attorney, Robert Carlin, declined to comment. Also indicted in the case were Gregory Vernon Patterson and Hammad Riaz Samana. All but Samana, a Pakistani national, are American-born Muslim converts. Patterson and Samana are charged with conspiracy to levy war against the U.S. government through terrorism, conspiracy to possess and discharge firearms in a violent crime, conspiracy to kill members of the U.S. government uniformed services and conspiracy to kill foreign officials. Patterson is also charged with a robbery count and using a firearm in a violent crime. U.S. Attorney Thomas O'Brien said Samana has been declared mentally unfit to stand trial and is undergoing psychiatric care at a federal prison facility. Patterson is expected to plead guilty to a terrorism conspiracy charge on Monday. Prosecutors say the plot was orchestrated by Washington, Patterson and Samana at the behest of James, a California State Prison, Sacramento, inmate who founded the radical group Jamiyyat Ul-Islam Is-Saheeh, or JIS. |
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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