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Courting controversy: Judge out front on hot-button issues

Published: Sunday, July 11 2004 12:00 a.m. MDT

Paul Cassell is sworn in as Utah's 14th U.S. District judge by Chief Judge Dee Benson on July 2, 2002.

Jeremy Harmon, Deseret Morning News

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The confirmation process to the federal court bench was not an easy one for Judge Paul Cassell.

His public opposition to police-issued Miranda warnings and his outspoken defense of capital punishment worried Senate Democrats. His ardent support of a constitutional amendment ensuring the rights of criminal victims made defense attorneys cringe.

Such concerns — which stalled Cassell's confirmation for nearly a year — normally die down after the nominee takes the bench. Yet, two years after donning his black jurist's robe, Cassell's name is still frequently bandied about in the legal community.

And the comments are not always consistent. He has been called "the brightest federal trial court judge west of the Mississippi" by a Utah law professor while being dubbed a "renegade judge" by a member of a national legal advocacy organization.

The former full-time law professor has issued a handful of rulings that have raised eyebrows in the past two years, but perhaps none have attracted as much attention as last week's declaration that complex federal sentencing guidelines, used for the past 15 years in every federal criminal case nationwide, are unconstitutional in many cases.

The decision came on the heels of a Supreme Court ruling that only juries — not judges — can lengthen a defendant's sentence beyond the maximum set out in sentencing guidelines. Though the ruling applied only to Washington state, it wreaked havoc in courts across the nation that operate under similar mandates.

Cassell, the youngest judge ever confirmed to Utah's federal bench, was among the first judges in the nation to address the issue — announcing he would no longer follow the guidelines in cases that previously would have called for enhancements.

Several jurists soon followed suit, and others have since come up with alternate ways to deal with the issue, including Cassell's own colleagues in Utah.

The decision caused some to question Cassell's motivation — positioning himself for a spot on a higher court, perhaps? — and others the appropriateness of his behavior — shouldn't he have waited for attorneys to broach the issue rather than raising it himself?

University of Utah law professor Erik Luna doesn't buy either of those arguments, saying Cassell did the right thing by addressing the matter in a "brilliant" 39-page opinion that will help guide others grappling with the consequences of Blakely v. Washington.

"Judge Cassell is getting out on front of this issue because he actually cares about the decisions he makes," Luna said. "I find that incredibly refreshing."

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."

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