Courting controversy: Judge out front on hot-button issues

Cassell's June 29 order is already being cited by at least one other attorney as a basis for permanently overturning the federal sentencing guidelines. Connecticut attorney Conrad Seifert included the Utah judge's reasoning in a petition mailed last week to the U.S. Supreme Court on behalf of a client whose sentence was more than doubled under judge-imposed enhancements.

And even the U.S. Department of Justice has adopted Cassell's analysis — somewhat.

In a July 2 memo, Deputy Attorney General James Comey advises all federal prosecutors that their first step should always be to argue that Blakely does not render the sentencing guidelines unconstitutional. However, if that fails, prosecutors should then urge judges not to apply the guidelines at all and impose a sentence within the minimum and maximum terms set out in federal statute.

Which is exactly what Cassell has said he will do in those cases with Blakely issues. The Justice Department memo also tells prosecutors to ask for an alternative sentence in case the guidelines are later determined to be constitutional, another thing Cassell has said he intends to do.

Still, the Justice Department isn't entirely on board with Cassell's analysis. The government's argument, Comey wrote, is, first and foremost, that "lower federal courts are not free to invalidate the guidelines."

Utah defense attorney Fred Metos, who was recently on the receiving end of another of Cassell's noteworthy moves, believes Cassell is often out front on issues simply because he cares about what he is doing.

"I don't know if that's him being an activist so much as it his academic background where he sees an issue that really interests him and wants to deal with it," Metos said. "He's just really interested in this stuff."

Cassell still teaches two courses at the University of Utah — Criminal Law and Victims' Rights — and often remarks from the bench that "maybe this is just the law professor in me coming out."

He made a similar comment earlier this year during a hearing to determine the proper amount of restitution in two unrelated death cases. In an unprecedented move, Cassell determined the Mandatory Victims Restitution Act of 1996 required him to order two criminal defendants to pay hefty amounts based on the lost income of their victims.

The decision — which, like the Blakely issue, Cassell first raised himself — resulted in a $325,751 award to the estate of a 3-month-old baby who was killed by her father, Metos' client.

While Metos disagrees with Cassell's interpretation of the law — he has appealed the matter to the 10th U.S. Circuit Court of Appeals — he doesn't necessarily disagree with the judge's decision to address it.