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."
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.
"It's just not something we see a lot of, but I don't think it's wrong or something judges shouldn't engage in," Metos said. "It certainly takes a lot more time and energy to do it that way than simply waiting for the parties to raise the issues.
"He is an extremely smart judge, extremely energetic," he said. "I think that's the combination that gets him classified as the active or proactive judge."
The judge, who looks younger than his 45 years, rocks in his chair throughout hearings, steepling his fingers and pressing them to his lips in thought. He asks questions that often catch their target off guard and is always quick with a quip or a hypothetical scenario.
"I enjoy the challenge in terms of you find yourself arguing both against the government, but you also have to anticipate where the judge is coming from and answer his questions," Metos said.
During his confirmation process, Cassell was strongly opposed by liberal politicians and organizations. The Alliance for Justice questioned his ability to rule fairly when he had "dedicated his legal career to restricting the rights of criminal defendants," and Sen. Patrick Leahy, D-Vt., expressed "grave doubts about his intellectual forthrightness and his capacity and willingness to put aside the extreme views he has long held."
However, legal observers have since had a difficult time pinning the judge down to either side of the aisle.
Cassell's resume certainly paints the portrait of a conservative jurist. He clerked for former Supreme Court Chief Justice Warren Burger and current Justice Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit and served as a deputy attorney general in the Reagan administration.
And although Luna hails him as "one of the most accomplished conservative scholars and advocates in the United States," he says Cassell has taken a new persona since taking the bench.
"Because he is a conscientious man who understands the difference between being an advocate and being a judge, he has avowed a particular perspective as a judge and it's neither conservative nor liberal," he said.
The opinions Cassell has issued since joining the bench bear that out, Luna said. They are always well thought out and well researched, and they always follow the law rather than any one political perspective.
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