Marquette University Law School Faculty Blog

Best of the Blogs: The Mess in Madison

Post author:Edward A. Fallone
Post published:March 4, 2011
Post category:Labor & Employment Law Media & Journalism Political Processes & Rhetoric Wisconsin Law & Legal System

This month’s Best of the Blogs feature takes a look at the budget debate in Madison. In my opinion, it is myopic to focus solely on the budgetary aspects of the ongoing debate. This is a raw political struggle, in which Governor Walker has attacked the primary source of campaign funding for Democrats. The debate over the biennial budget is small potatoes to the leaders of the Democratic Party. They perceive this bill as nothing less than an existential attack on their ability to raise funds (and therefore buy television advertising) in an amount sufficient to elect candidates in a closely divided state.

If anything, this current fight is only round one, with a second partisan fight over legislative re-districting yet to come. The Voter ID bill, which previously was viewed by Democratic leaders as a dangerous assault on their electoral power, now in comparison seems to be a minor inconvenience. While it is always entertaining to watch two political parties seek to destroy each other, one can’t help but feel that someone in Madison should actually be focused on governing the State. Both Governor Walker, who picked this partisan fight, and the Democrats, who chose to grind government to a halt in order to defend partisan interests, share equal blame in my eyes.

More “Bullcoming”? The Court Courts Confusion in Confrontation

Post author:Daniel D. Blinka
Post published:March 3, 2011
Post category:Criminal Law & Process Evidence U.S. Supreme Court

In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

Post author:Michael M. O'Hear
Post published:March 2, 2011
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing U.S. Supreme Court

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing. This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question. Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months. The judge departed downward, however, and imposed a sentence of 24 months. In June 2005, the Eighth Circuit reversed and remanded for resentencing. In the interim, Pepper completed his 24 months and was released. In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment. Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed. The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor. The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court. Pepper, still free, has apparently continued to do quite well in school and work. The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions. What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.