Begging The Question

Friday, August 06, 2004

Reinventing The Wheel
I'm going to be starting a clerkship for a federal appellate judge in less than a month. I've known about this since November, so it's kind of old news. But it's just now starting to sink in. I'm looking forward to it, though. And I think, based on seeing a different aspect of the courts of appeals as a staff attorney, and based on conversations with friends, I have some idea of what I'm in store for.

But my recent theme here seems to be letting others do my work for me. So I'll ask any readers who have worked as a clerk, at any level, what they wish they had known when they started the job. What would you do differently? What mistakes did you make? What were your favorite parts of the job, and how would you recommend I ensure I have those experiences as well? If there are any prompts I have not entered, feel free to substitute your own. I crave general advice. I understand that some of this will be judge-dependent, or job-dependent if you're work is for a different court. But I appreciate any help you can offer. Thanks.

In exchange for your help, I promise to pass it on. In a year, I will post on what I wished I knew now.

Milbarge At Large: Writer's Block Edition
What I am doing at work: Winding up. Come to think of it, "wind up" could be one of Will's contranyms. Sometimes it means "start" or "rev up," like with a pitcher's motion or a toy, and other times it means "finish" or "close up," like with a corporate dissolution. Anyway, I'm closing out my final few cases, finally turning to a few I've set aside and can't put off any longer, and doing what I can on a few that will have to passed on to another attorney when I leave. I have two more weeks here. I feel like I've learned a lot, and someday I'll post a comprehensive "What Staff Attorneys Do" post, but I'm really burned out right now. I really like habeas corpus, but I'll be glad to see some new stuff when I start my clerkship. (I do other stuff besides habeas now, and I know I'll still see habeas there, but it's a high percentage now, and will be a lower percentage then.) I'm also looking forward to seeing how Blakely/Booker/Fanfan play out. As a staff attorney, my job would be finding the unanswered questions and passing them on to the judges. As a clerk, I'll get to help answer them. I'm a little worried about getting handed a bunch of civil cases when I get to chambers. Luckily, I have a Title VII employment discrimination case to do before I go, so maybe I can remind myself of the summary judgment standard. My nightmare: The judge tells me we're heading to oral argument, and my cases will be nothing but Tax, ERISA, maritime, mineral rights, diversity contract claims, Fair Labor Standards Act, and a bunch of other sleep-inducers. Let's see what else I have to do before I go...two habeas, the aforementioned Title VII, a First Amendment case I'm going to put on the oral argument calendar, and a handful of rehearing petitions. Nothing serious.

What I am doing at home: Packing. I hate this stuff. I hate all the hassle of cancelling services here and activating them there. I need a helper monkey to do this for me. I went through all my clothes and gave away a few bags full of stuff I can't or don't wear anymore. So now you can dress just as badly as me, and save a lot of money, too, by buying my clothes at the thrift shop. I'm still going through books, but I think I've pretty much divided them into keep/save piles. I was being as ruthless as possible, and still managed to put 137 books in the "take with" pile, and sent another 40 or so home with my Dad. That still leaves a few hundred that will go. (Note to self: call used book store.) That includes two copies of A Civil Action and a copy of A Documentary Companion to A Civil Action (thanks, Civ Pro!). Otherwise, same old.

What I am reading: Just finished Martin Clark's Plain Heathen Mischief. I liked it. It wasn't as wacky/funny as Clark's debut, The Many Aspects of Mobile Home Living (which I thought was brilliant), but still enjoyable (and the deposition scene was a hoot). This one is more of a man's journey to come to grips with himself and his morality, and it's deeper than I expected it to be. Also, I just started Party of One: The Loners' Manifesto by Anneli Rufus. Not sure what to make of it yet. I picked it up because my local B&N was using it for a book group, and I thought that was a nice irony. I'm not much of a joiner, but I was going to go just to see what the reaction to this book would have been. But I ended up not going for some reason, and didn't get that far in the book. So I've picked it back up, thinking that maybe I can cull it from the "take with" pile. Lastly, I was reading an excerpt of Tom Wolfe's new novel, I Am Charlotte Simmons, in a recent Rolling Stone. It's about life at a tony university, Dupont, which was apparently largely modeled on my alma mater. Here's a nice line about the frat-boy patois: "Vance had managed to make an entire statement without using the word fuck or any of its participial or interjectory derivatives. The lull would be brief."

What I am watching: My Life as a Dog, a quirky and sweet 1986 Swedish film. I had seen it years ago and loved it, and caught it the other night on IFC. Saw The Bourne Supremacy last week, and thought it was okay, but the theater experience was so crizzappy that I'm sure that took away from the film's quality to me. (The three worst things about the experience, but far from the only three, were the scorching hot temperatures in the room, sound so bad it was as if the characters were underwater, and an old lady who chose the seat next to me -- in between me and a couple -- out of about 100 empty seats in the place.) Oh, and Thirteen, a very depressing movie. Maybe as depressing as Kids (which I saw on a very odd double date). This is another reason I don't want children. Some of you know that I spent the year between college and law school working as a substitute teacher, and realizing just how insane kids are. Kids that age honestly believe they are cool, and they have no clue. It was quite a wake-up call for me, because I could totally see myself as those kids just a few years earlier (the kids I taught, not the ones in the movies), and I believed I was just as cool as they did. We were both so, so wrong.

What I am listening to: I heard one of my favorite bluegrass songs, "Roll in My Sweet Baby's Arms," on a local radio show, and that's where I got BTQ's current motto. Otherwise, a little Dead, a little They Might Be Giants, a little Dylan, a little Wille, whatever's next in line.

Peeve of the week: "Out of office" auto-reply emails. I hate these things.

What I am thinking about: Other than moving, what to blog about. And what to do about the blog during my move. I may be in touch with some of you about that, actually. I've got a few longish posts in my head, but I haven't had time or energy to type them out. I need a good voice-recognition system, because that way I could just ramble out loud all day instead of merely in my head. Besides, the blog's been getting plenty of traffic lately thanks to my oral argument correspondent and all the kind people who linked to it (especially Steve Minor, who linked to it without me even having to email it to him!). But that traffic was dwarfed by the visitors from Atrios after PG's comment to this post linking to my post about blog crushes. Hello to all those folks, and thanks, PG! Actually, I owe PG even more thanks for her own really nice post about blog crushes. It's completely mutual.

What I am not thinking about: Pretty much anything else. I'm already sick of this election stuff, and that's only going to get worse, as my New City is in a state that is in play this year. I'm really not paying enough attention to the news, because I recently discovered that I was one of the misinformed majority who get their news from the headlines. I won't get into the whole issue, but I basically had no idea what was going on. Prospects of me paying closer attention? Eh, slim. What with the move, starting a new job, and looking for my next one, I'm going to be woefully out of it for a while. Don't expect any breaking news in this space from me. I will try to do a little research if I do happen to comment on anything in the news.

Shout-out of the week: I haven't had a chance to troll the web too much this week, so not much to shout out about. I'm going to catch up over the weekend, and also update my blogroll while I'm at it, so I hope to find some good stuff. Last thing for now: After Fitz pointed out the image generator thingy, I tried it out. I just went with it, and didn't go back an re-edit it after seeing the results. I think it sort of looks like me, but only because I expect it to, you know? There are a lot of quibbles I have, but it's close enough for cartoons. If anyone wants a real picture of me, they're available for trade.

UPDATE, Sun. 8/8: I shaved my goatee tonight, so this image looks even less like me now. But I have no desire to go change it. As noted, pictures of the real thing (both goateed and without) are available by request.

Thursday, August 05, 2004

Aquiver for Liver
One of my collge roommates (no, not frequent commenter Sebastian) is getting ready to defend his doctoral dissertation in biomedical engineering at Vanderbilt. The title is, "Surface Registration and Deformation Compensation in Image-Guided Liver Surgery." Here's the abstract:
Surgical resection of hepatic tumors is currently the only method that definitively cures liver cancer. The accuracy in localizing these lesions could be improved by using image-guided surgical techniques, which provide an accurate mapping, or registration, of the surgeon's position in relation to reoperative images. This project attempts to register intraoperative data of the liver surface with renderings made from preoperative image volumes. During surgery, the exposed liver surface is acquired using a laser range scanner, which can obtain a dense set of surface points in a rapid and accurate manner. This data is then registered to the preoperative image volume in a two step manner. First, a rigid registration is performed that identifies and aligns the minimally deformed regions in the surfaces. Then, any deformation in the intraoperative surface is handled by a finite element model. The rigidly registered range scan serves to prescribe boundary conditions that will drive this model. Initial studies regarding surface registration in clinical settings have also been performed, which suggest that the range scanner surface data and deformation compensation are necessary components to any image guided liver surgery system.
I'm sorry to say I won't be able to make it. My friend promises lots of cool pictures and 3-D models of liver surgeries. If you're into this kind of thing, let me know, and I'll give you the details.

Monday, August 02, 2004

Eyewitness News
A friend of a friend emailed me and some other law nerds this report of observations of the Fourth Circuit's en banc oral argument in a case addressing the impact of Blakely v. Washington on the Sentencing Guidelines. I'm presenting it unedited, except for converting a link to a hyperlink. More from me at the end.
The en banc argument in United States v. Hammoud was held in humid Richmond today. Twelve of the active judges (all but Judge J. Michael Luttig) were present. It is not known whether Judge Luttig will be participating at all, or will rely on the recordings of the argument, or even why he was absent. Also present were a courtroom full of spectators (not packed but more crowded than usual, even for an en banc matter). I spied Judge Henry Hudson of the E.D. Va., who has already held that Blakely invalidated the Guidelines at least in part, E.D. Va. Federal Public Defender Frank Dunham, several folks who appeared to be from the U.S. Attorney's Office and the probation office, and at least two lawyers from the U.S. Sentencing Commission. Arguing for appellant Mohamad Hammoud were Stanley Cohen and James McLoughlin, and Demetra Lambros of the Justice Department argued for the United States, having taken over for the AUSA who argued before the panel.

Cohen went first. He strikes a figure you don't normally see in the steeped-in-tradition Lewis F. Powell Courthouse. He wore cowboy boots with his suit, and sported a very bushy head of hair with a ten-inch long ponytail. Here's an article with a picture. Cohen has gained notoriety for representing accused terrorists, and this case is a good example. Hammoud was convicted for his role in a cigarette-smugging scam that funnelled the profits to Hezbollah. Although his Guideline range was 46-57 months, he ended up with a sentence of 155 years based on a variety of enhancements. I'm not terribly familiar with all the details, but I know that one of them was for the amount of lost tax income. The only one that received extended attention today was an enhancement for committing the crime (aiding terrorist organizations) with the specific intent to influence the government or retaliate against the government, pursuant to U.S.S.G. sec. 3A1.4.

Cohen did well. His opening theme was that federal trials are really nothing more than preliminary hearings now. The Government gets a conviction on anything it can, and then proceeds to the "real trial," sentencing, where all the rules go out the window. It didn't really have a lot to do with the case at hand, but it was a nice intro. Judge J. Harvie Wilkinson hit hard from the very beginning. It was pretty obvious that he didn't think the Fourth Circuit could do anything but what the Fifth Circuit did in Piniero: say that unless and until the Supreme Court declares the Guidelines unconstitutional, the lower court has to apply them, consistent with existing precedent. He went a little further, though, and said that the Guidelines and the Washington state scheme struck down in Blakely were as different as "apples and oranges."

Judge Diana Gribbon Motz seemed to be the strongest proponent of the position Hammoud was arguing. The bulk of Cohen's time was taken by a discussion of the Supreme Court's decision in Edwards, which upheld the Guidelines as a matter of due process. The Sixth Amendment argument was raised in the brief there, but the opinions didn't deal with it much. Judges Dennis Shedd and Paul Niemeyer suggested that Edwards was a problem for Hammoud, but Cohen urged them to follow Judge Richard Posner's opinion for the Seventh Circuit in Booker, which distinguished Edwards. Chief Judge William Wilkins wasn't terribly active, but jumped in near the end of Cohen's argument to ask about how Blakely would apply to the calculation of criminal history. Would juries, for example, have to find that the current offense commenced within a certain time since a prior conviction? Cohen tried to draw a line here that wasn't very coherent (although he may simply have not been able to fully flesh it out), arguing that some cases would present a question of law for the judge, but others would require a jury finding.

Next for Hammoud (they split the argument time) was McLoughlin. His first argument was that the 3A1.4 enhancement was "sui generis" and could be stripped out without even reaching all these other questions. It sounded like a Jones argument, a precursor to Apprendi, although he didn't phrase it that way. But he argued that the specific intent to influence should be an element of the offense, rather than a mere sentencing factor. He described the crime's elements as (paraphrasing) "knowingly plus aided beyond a reasonable doubt and plus specific intent by a preponderance." This argument didn't seem to win a lot of converts, but if the court buys it, the whole thing could go back for resentencing without even reaching the Blakely issue.

The argument then moved to severability. Judges Wilkinson and William Traxler wondered if Hammoud could still receive the same 155-year sentence if the Fourth Circuit (or the Supreme Court) struck down the Guidelines. McLoughlin said yes, because a judge with unbridled discretion could simply run all the sentences for all the counts of conviction consecutively to their maximums. But, McLoughlin noted, if a court tossed the Guidelines in toto, Hammoud would be eligible for parole at some point. None of the judges took issue with this point, but they may have been more concerned about other aspects of the severability issue. Judge Niemeyer apparently following Judge Wilkinson's fruit theme, chided McLoughlin for wanting to "cherrypick" which aspects of the Guidelines could be severed (such as leaving the downward departures but striking upward enhancements, which Niemeyer said was never Congress's intention). When discussing possible remedies, McLoughlin suggested that the Fourth Circuit could follow the Ninth Circuit's decision in Ameline. A mild chuckle ran through the crowd at this notion.

Then Wilkinson started rolling. He declared that the Fourth Circuit should wait for the Supreme Court to provide more guidance. Otherwise, they would enter "a state of total confusion." He predicted "fragmented opinions" from the court, meaning that the district judges wouldn't be any better off. McLoughlin, with a little help from Judge Motz, answered that the lower courts, the district courts as well as the courts of appeal, have a duty to answer these questions in the first instance, to allow the issues to percolate up and be presented to the Supremes. Judge Motz ventured that the circuit courts would be "laboratories" of experimentation with the ramifications of Blakely. McLoughlin: "That's exactly right." Wilkinson, incredulous, bordering on apoplectic: "That's exactly what?! Right?" He went on to say that it is only the Supreme Court's prerogative to overrule its own precedents, and if the Fourth Circuit tries to do it, "We are going to get spanked!"

Regrouping, McLoughlin went on to make an interesting argument. He said that because the Sentencing Commission is an agency within the Judicial Branch, severability analysis as applied to legislative acts didn't have to apply. I'm not entirely clear on what he was trying to say here, and Judge Blane Michael (or maybe it was Judge Robert King) noted that the Guidelines have the force of law and are not something like internal court rules. McLoughlin finished by arguing that any idea that Blakely didn't apply to the Guidelines was belied by the strenuous dissents in that case that it did.

Next up, for the Government, was Lambros. She started out by stating that the Fourth Circuit's job was to apply the law as it is today, not to predict what the Supreme Court will ultimately do. She noted that Supreme Court decisions like Watts, Witte, Edwards, Dunnigan (sp.?), and Harris okayed judicial fact-finding to some degree. Judge Motz noted that the United States did not cite Edwards in its amicus brief in Blakely. How could it now be relying on it as the bedrock case upholding the constitutionality of the Guidelines in the face of a Sixth Amendment attack? Moreover, all the circuits, post-Apprendi, upheld the Guidelines on Apprendi attacks, yet the Government did not rely on Edwards in all those cases, and none of them rely on Edwards as squarely controlling the decision. If Edwards says what the Government now says it does, why didn't it end the debate then? Lambros was game, but not able to come up with a great response to these questions. In essence, she suggested that the Government didn't need to raise Edwards in all these cases. Motz (paraphrasing): "Was it your ace in the hole? Were you intentionally holding back your best argument?" Wilkinson tried to break in a few times during all this, but Motz wouldn't let it go until she got a concession that the Government did not have directly controlling authority for upholding the Guidelines, not even Edwards. Plus, Motz went on, the Fourth Circuit still has to apply Blakely to Hammoud's case. And Blakely has some language that appears to apply, about not allowing sentences beyond that authorized by the jury's verdict. But, said Wilkinson, what Hammoud was asking for would require the Fourth Circuit to tell the Supreme Court that it had been wrong, in case after case, for years, in affirming convictions despite Sixth Amendment violations.

Switching gears, Lambros argued that Blakely only applied to enhancements, like Washington's, that were passed by a legislature. The Guideline enhancements aren't statutory. In response, Judge Michael (or maybe Judge King) said that the Guidelines have the force of law, and that nothing in the Blakely opinion highlighted that distinction. Judge Roger Gregory and Judge Wilkinson went around for a minute or two about whether departures and enhancements needed to be treated differently. Does Blakely apply in the setting of the offense level, or only once an offense level is set? Lambros didn't get a chance to answer. Turning briefly to severability, Lambros suggested that if Blakely applied, the Guidelines could be made, well, guidelines. That is, not mandatory. But, even if that were the legal regime, the district court here could still cumulate Hammoud's convictions and run the sentences consecutively up to the collective statutory maximum, the 155 years he got.

Judge Shedd started to ask a question about Justice Scalia's definition of "statutory maximum" in Blakely. Lambros cut in, noting that "We've lost Scalia" or "Scalia won't buy our argument," something to that effect. Judge Motz immediately pounced: "Who is going to buy it?" The crowd laughed a bit, but she went on. Where did the Government think it was going to get five votes? Surely not from the Blakely majority, and two (O'Connor and Breyer?) of the dissenters have already said that Blakely invalidated the Guidelines. Judge Wilkinson, not in so many words, suggested it was unseemly to be doing nothing but pure vote-counting, but I think it raised the question of how the Government could make an argument that Blakely doesn't apply to the Guidelines. Judge Wilkinson had an answer, referring to Justice O'Connor's dissent (paraphrasing): "It's the job of the dissent to predict the sky is falling; that doesn't mean the sky is falling, especially when the majority says the sky isn't falling."

As Cohen was returning to the podium for rebuttal, Chief Judge Wilkins asked if, under Blakely, the top end of each Guideline range became the "statutory maximum." Cohen answered yes. Aha!, the Chief Judge (and former Commission Chair) seemed to reply (paraphrasing): "Doesn't that give the Sentencing Commission, which sets those ranges, legislative authority? And if you say yes, doesn't that overrule Mistretta, which said that the Commission did not have legislative powers?" Cohen's answer, in part a response to Chief Judge Wilkins and in part a response to Judge Wilkinson's argument that adopting Cohen's argument would mean saying the Supreme Court had allowed thousands to go to prison in violation of the Sixth Amendment, was this. The Court, he said, was showing "an evolving concern" for the Sixth Amendment implications of the Guidelines that is only now becoming fully formed. Another time when it did this, Cohen said, was with the "separate but equal" doctrine, which the Court upheld for half a century before finally scuttling in Brown. Some observers thought this was a very effective analogy. I thought it was a bridge too far to ask this court to go. I don't think a "living Sixth Amendment" (my phrase, not Cohen's) argument is going to carry the day in the Fourth Circuit.

Milbarge again: And, as we know now, it didn't. See Prof. Berman here and Ken Lammers here and Jason Hernandez here for more, but the upshot is that later in the day, the court entered an order stating that Blakely did not invalidate the Guidelines as applied to Hammoud, but recommending that the district courts enter alternative sentences in case the Supreme Court disagrees. It will be very interesting to see the eventual opinions that come from the court. One has to wonder how much the facts impacted things, and how reluctant the court was to reduce a convicted terrorist-aider's sentence from 155 years to (possibly) five. Thanks to my friend for the email report, and I'm sorry that work matters kept me from getting it posted before the Fourth Circuit ruled in the case.

Final bio-post and a farewell from Fitz-Hume: *sniff* I hate goodbyes! *sniff*
What I am doing at work: Filling out paperwork, cleaning out my desk and deleting files from my computer. My last day of work is next Wednesday.

What I am doing at home: Packing.

What I am reading: Medicine for Moutaineering and Other Wilderness Activities edited by James A. Wilkerson, M.D.

What I am listening to: Old Crow Medicine Show (read Milbarge's review here).

What I am watching: My favorite reality TV show is American Chopper which chronicles the adventures of the custom motorcycle builders of Orange County Choppers. The Bachelor ain't got nothin' on these guys.

What I'm thinking about: Whether I will have time to try this once I begin my new job.

Fun stuff: Via Feddie I found this anime portrait generator. I gave it a whirl:

This is the anime Fitz-Hume. Ladies, please, control yourselves. Don't crash the server.

Not so fun stuff: I am taking sabbatical for the foreseeable future. This may or may not be permanent (I haven't decided yet) but for now I am leaving BTQ. It's been fun (mostly) and I have enjoyed participating in the community of bloggers and readers, but I need to take a break. Never fear, though, for I am leaving you in the more-than-capable hands of Milbarge. In fact, you'll barely even notice that I'm gone. To the readers: thank you for your contributions to the blog and for your support of our little project. To Milbarge: thank you for encouraging me to join you in the experiment. The training wheels are off now, buddy. To all: I'm not going to say goodbye. Instead, let me say dasvedanya.

Stay classy BTQ.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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