The Long Arm of the Law

PolanskiIFFKVI want to begin by thanking Dean O’Hear and Marquette University Law School for the opportunity to be October 2009’s “Alum Blogger of the Month.”

Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California.  According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine.  Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman).  After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. 

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Standing up for the Rule of Law

Charles_Swift_--_Guantanamo_August_2008Hamdan v. Rumsfeld, which concerned the President’s authority to employ military commissions without congressional authorization, is among the most noteworthy of cases to have been decided by the Supreme Court in the last few years.  Last month, Professor Stephen Vladeck, who was part of the team that represented Guantanamo detainee Salim Hamdan before the Supreme Court, was part of the law school’s Constitution Day observance.  On Wednesday, we have the good fortune to host Lieutenant Commander Charles Swift, who represented Hamdan from the beginning.

Swift’s presentation promises to be compelling in at least two respects.  The first is that Swift will provide a first-hand account of the legal issues surrounding the war on terror via the story of his advocacy for recognition of the rights of Guantanamo detainees.  The second concerns the personal cost to Swift of his representation.  According to media accounts, Swift understood that the expectation was that he would simply assist Hamdan in entering a guilty plea.  But, Swift explained to the Seattle Post-Intelligencer,  “I didn’t volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could.”  That resulted in a trip to the Supreme Court, in Swift being denied a promotion, and in turn to the end of his military career.  As Swift explained to a Bloomberg reporter, “If you start thinking about your career over your duty, it’s time to get out.”

For more information, and to reserve your spot, go here.

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Seventh Circuit Criminal Case of the Week: Reversing a Liddell Progress on Crack Sentencing

seventh circuitThe Seventh Circuit continues to struggle with the question of what it means for the federal sentencing guidelines to be “advisory.”  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory guidelines system violated the Sixth Amendment.  The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.  Then, in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court confirmed what even the government had recognized and conceded: “advisory” means that a district court judge may impose a sentence outside the recommended guidelines range on the basis of a policy disagreement with the guidelines.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

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