Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit?
As my second and last day of guest blogging at Hot Air concludes, I wrote a longer post on this over there. Here is a taste:
[I]t’s rare good news from the Ninth Circuit Court of Appeals. That’s the court that declared the Pledge of Allegiance unconstitutional, is emptying California’s prisons, and never met a death sentence it liked. Yet even they couldn’t stomach the prospect of an Al Qaeda terrorist receiving a mere 22 years in prison after he was caught with powerful and deadly explosives that he planned to use to blow up LAX airport.
. . . .
Marvel as the Ninth Circuit recounts Ressam’s violent plans, and contrasts that picture of Ressam with the laughably naive assessment of the simpleton trial court judge:
Ressam targeted an airport, knowing that as a result, many civilians would die. Ressam attempted to rob a bank to obtain funds to carry out his mission and finance the attack in the United States. In the course of robbing the bank, Ressam planned to throw a live hand grenade at the police, and run, if he needed to do so in order to get away. These are only a few of the findings in the [pre-sentence report] that are in direct tension with the district court’s findings as to Ressam’s life history and personal characteristics, including the finding that Ressam is “a quiet, solitary and devout man whose true character is manifest in his decision to cooperate.”
No, his true character was manifest in his decision to plan the bombing of a major airport and slaughter countless innocent people. . . .
The real lesson here is that when you put our country’s safety in the hands of grandstanding federal judges, we are not safe. What we really need is to try scum like Ressam in military tribunals, as warriors against our country. And then execute them.
But until we muster the will to do that, we need to keep him off the streets. And so I issue a rare kudos to the Ninth Circuit, for righting this wrong — and setting this scumbag on the road to what I hope will be a life sentence.
Read it all at Hot Air.
When was the last execution in California?
Beldar (8c5ee1) — 2/2/2010 @ 5:53 pmHrm. Wikipedia sez 13 executions in California since the 1976 Supreme Court decision in Gregg v. Georgia that marks the beginning of modern capital punishment jurisprudence. The most recent was in January 2006.
Beldar (8c5ee1) — 2/2/2010 @ 5:57 pmIf this page is right, during the same period, Texas has executed 449.
Does anyone actually believe that they’ll be executed in California for a capital crime? Why would they?
Beldar (8c5ee1) — 2/2/2010 @ 6:00 pmI think smoking a cigarette inside Tom Bradley is probably a felony… one that an ambitious person could easily turn into 22 years.
SteveG (909b57) — 2/2/2010 @ 6:00 pmPlotting to blow it up…. “oh OK.. as long as you start with El Al…”
no, no, you guys don’t understand the logic here.
Do you remember the episode of South Park where they were all arguing about whether their flag was racist, and at one point jimbo infiltrates the local KKK and says something like, “look, we have just got to face the fact that people don’t like us. So whatever side we endorse loses the debate. So let’s say we want the flag changed, so then they will keep it!”
Okay, same logic. the 9th circuit knows that in the eyes of the supreme court they are presumptively wrong, therefore they ruled against the terrorist, and thus they hope to be reversed by the Supreme Court without them realizing what they did.
Its ingenius!
A.W. (f97997) — 2/2/2010 @ 6:04 pmFirst off, this was a Federal crime, adjudicated in a Federal District Court. CA’s non-performance as to the death penalty has no standing.
BTW, who was on this appellate panel?
AD - RtR/OS! (eadee4) — 2/2/2010 @ 6:39 pmIt wasn’t chaired by Kozinski was it?
They finally found something they hate more than America!
Patricia (e1047e) — 2/2/2010 @ 7:12 pmThis “9th Cir. is liberal” meme is over-used and fails to take into consideration the fact that there are many judges on the 9th who were appointed by Reagan, Bush 41 and Bush 43.
In fact, two of the three judges on the panel that decided this case were appointed by Bush 41 and Bush 43.
It all depends on who is on your panel.
shipwreckedcrew (3d3fb8) — 2/2/2010 @ 7:23 pmClifton — appointed by Bush 43
Fernandez — appointed by Bush 41
Alarcon — appointed by Carter
shipwreckedcrew (3d3fb8) — 2/2/2010 @ 7:32 pmshipwreckedcrew – It was a 2-1 decision apparently. Was it Clifton and Fernandez against Alarcon?
daleyrocks (718861) — 2/2/2010 @ 8:29 pmYes, it was 2-1 with Alarcon dissenting.
But the basis for the referral was “subjective unreasonableness” and a failure to adequately consider all the 3553a factors — a vexing problem in federal criminal sentencing ever since the guidelines were made advisory only, and all sentences are reviewed only for “reasonableness”. Alarcon said, in so many words, “Who says 22 years isn’t long enough? Seems like a long time to me.”
shipwreckedcrew (3d3fb8) — 2/2/2010 @ 8:58 pmHere’s a link to a pdf version off the court’s website.
Not sure if it will come in active — I still haven’t figured out how to do that with my Mac.
http://www.ca9.uscourts.gov/datastore/opinions/2010/02/02/09-30000.pdf
shipwreckedcrew (3d3fb8) — 2/2/2010 @ 8:59 pmAD – RtR/OS! wrote (#6 — 2/2/2010 @ 6:39 pm):
I’m not exactly sure what you mean by “no standing,” but I assume you meant that my musing was irrelevant.
I concede that my point was tangential to the overall thrust of Patterico’s post at Hot Air and the excerpt that he posted here. However, my comment about the death penalty was in response to Patterico’s in-passing comment about executing terrorists — a comment with which I strongly agree, by the way.
This particular defendant, it’s true, was convicted of non-capital federal crimes in federal court. But capital defendants — whether charged under California state law or federal law — who are tried within the State of California in either federal or state court will most often be found guilty or innocent by a jury composed of citizens of California. From the federal system, direct appeals of such cases would go to the Ninth Circuit, and from the state-court system, direct appeals of habeas corpus challenges made in federal district court would, again, go to the Ninth Circuit. The Ninth Circuit thus would be a likely obstacle to a death sentence imposed against any terrorist convicted in either state or federal court in California.
To be more clear, I am not faulting the willingness of California state or federal prosecutors to seek the death penalty in appropriate cases, nor the willingness of California jurors to impose it. I believe the Ninth Circuit has badly undercut the deterrent purposes of the death penalty in California (and the other capital punishment states within its territorial ambit), which is a tragedy.
And Alarcón wrote the majority opinion, in which Clifton joined. Fernandez dissented. I haven’t read either yet, but Patterico was kind enough to link it.
Beldar (5281d2) — 2/2/2010 @ 9:16 pmWell. I was wrong in assuming this case originated in California, even though that’s where the target of the terrorism was to be. The defendant was arrested and charged in Washington state. The appeal is from the Western District of Washington, Hon. John C. Coughenour (a Reagan appointee) presiding. Judge Coughenour has been an outspoken opponent of the view expressed by former U.S. District Judge and Attorney General Michael B. Mukasey regarding the suitability (or lack thereof) of using civilian federal courts for trying terrorism cases. Bizarrely (it seems to me; .pdf file at 9, emphasis mine), “[d]ue to possible prejudice by public sentiment in the
Seattle area, the trial judge granted Ressam’s motion to transfer the site of the trial to Los Angeles.”
Sentencing guidelines and sentencing discretion cases make for some odd results that are hard to predict based on the politics of the presidents who appointed the federal judges involved.
Beldar (5281d2) — 2/2/2010 @ 9:40 pmWow. The panel majority remanded the case for re-sentencing, and also did this (at page 66 of the .pdf):
Then (at page 70):
This may fairly be described as an appellate bitch-slap.
Still reading, though ….
Beldar (5281d2) — 2/2/2010 @ 10:11 pmBeldar — I knew I should have looked at the names. I was guessing who was in the majority and who dissented based on experience.
Now that I think of it, Alarcon has never been too liberal.
shipwreckedcrew (3d3fb8) — 2/2/2010 @ 10:21 pmMmm-kay, done. The short but powerful dissent by Judge Fernandez is basically a very conventional re-affirmation of the district courts’ very broad discretion, even under the Federal Sentencing Guidelines. I think he’s right that Judge Alarcón’s opinion strained unduly to find a procedural violation on the basis of which to reverse. The “abuse of discretion” standard sets, and is intended to set, a high hurdle, but if this set of facts doesn’t get there, no case could. If I’d been on this panel, I’d have found that District Judge Coughenour did abuse his discretion. And in particular because of that, I would also have agree with Judges Alarcón and Clifton that Judge Coughenour needs to be taken off this case.
I think the chance for en banc review or SCOTUS consideration of this case is made considerably higher by the charade that Judge Alarcón went through to find a “procedural” error. He’s made bad precedent that will encourage endless future appeals in the short run, and that in the long run will simply make busy-work by federal district judges who are covering their collective and singular asses to protect against the sort of post-hoc mind-reading Judge Alarcón engages in.
As for Judge Coughenour’s public position that civilian courts are well-suited to handle terrorism cases: To conclude that he’s absolutely wrong, and that Judge/AG Mukasey was right, all you have to do is read the first 33 pages of this decision to see the virtuosity with which Ressam has milked the civilian system. It will turn your stomach, and make you weep for the innocents, American and otherwise, likely to die in the future as a result of this bastard Ressam’s withdrawal of his cooperation and recantation of his earlier testimony and statements.
Beldar (5281d2) — 2/2/2010 @ 10:25 pmComment by Beldar — 2/2/2010 @ 9:16 pm
I think we’re in total agreement.
AD - RtR/OS! (eadee4) — 2/2/2010 @ 10:27 pmCA juries have not demonstrated any substantial reluctance to sentence murderers to death. And, have reinforced that resolve by recalling CASC Justices that seemed to be reluctant to follow the will of the people.
As has been demonstrated over and over, the more Liberal members of the Ninth-Circuit are a huge impediment to the people’s wishes to rid themselves of the cancer they keep cutting out of society, and their actions have not found favor with that people, nor it seems, with the members of SCOTUS (for the most part).
To actually find a panel of the Ninth that thinks a terrorist was insufficiently punished is not only surprising, but breath-taking – all things being equal.
shipwreckedcrew: Reversing the case and sending it back to a different judge (who will almost certainly impose a longer sentence) is a “conservative” result, but it’s hard to characterize Judge Alarcón’s majority opinion as either conservative or liberal. It definitely is the sort of opinion that will leave federal district judges (and probably prosecutors) throughout the Ninth Circuit groaning in dismay, however, regardless of their politics.
Beldar (5281d2) — 2/2/2010 @ 10:39 pmBeldar — I have only briefly skimmed the decision, so I don’t have a solid understanding of Alarcon’s reasoning, but the snippets I did read suggested to me that one of the things that troubled the 9th was the district judge’s heavy participation in the “cooperation” aspect of the matter, and how that later influenced his decision-making in terms of reducing Ressam’s sentence for having done so. Federal judges are typically required to maintain more “distance” from the process of negotiating the terms of a plea deal, including a term involving cooperation and how the defendant is to benefit from that cooperation. The district judge here, from the parts I read, was very involved in that process which is rare.
shipwreckedcrew (3d3fb8) — 2/3/2010 @ 6:41 amWLS, I have to inject a little political reality into your posts 8 and 9. While the siting President nominates Federal Judges, the names actually come from the SITTING US SENATORS IN THE STATE(S) UNDER THAT COURT’S JURISDICTION. Ergo, you the Bushes nominating judges put forward by Feinstein and Boxer, not Conservatives in any sense, and in Boxer’s case, not sane in any case.
PCD (1d8b6d) — 2/3/2010 @ 7:11 am“… put forward by Feinstein and Boxer…”
And prior to those two, by Cranston (D) and Wilson (R), neither of which would realistically be described as either a big or little “c” conservative.
AD - RtR/OS! (b1d1f9) — 2/3/2010 @ 10:52 am> setting this scumbag on the road to what I hope will be a life sentence.
I say give the man his virgins.
If he’s right, and Allah exists, he will receive the reward he justly deserves.
If he’s wrong, and Allah doesn’t exist, then he will recieve the reward he justly deserves.
I really don’t see a problem here…
.
IgotBupkis (79d71d) — 2/3/2010 @ 3:17 pmPCD and AD — I actually know quite a bit about that process, having lived and practiced law in Calif for 15 years, starting in 1988, and having known people involved in the judicial selection process.
The truth is that for Circuit Court appointments, the Senators from the various states do not have the same influence as they do for District Court appointments.
In the 9th Circuit there is a “history” of certain seats belonging to certain states because the seat has maybe been held by one judge or another from a particular state for many years or even decades. And the Senators from smaller states want to always have at least some representation on the Circuit since the decisions will bind their states as well as the others.
For example, Hawaii has had continual presence in the 9th Circuit by one judge for many many years. When that seat opened up, another person from Hawaii was nominated to replace him. Same for the other states in the Circuit, while California has 6 or 8 judges on the Circuit.
But that is generally by custom only, and the Pres. can disregard it if he chooses. So, its not the same as district court appointments where the candidates are actually solicited from elected officials representing that state.
But, when a state has two Senators from the other party, a lot of influence then passes to the Gov., if the Gov. is from the same party as the Pres. If not, then the senior member of Congress gets a lot of influence on who gets nominated.
The Senators from the party out of the WH have limited influence over the selection. So, while Calif has Boxer and Feinstein, they didn’t really play a role in “selecting” who would be district court judges. But, as Senators who enjoy the “blue slip” privilege of the Senate, they could block any nominee by not returning the blue slip. The Senate has a tradition of not scheduling votes for judicial nominees if such a vote is not authorized by one of the in-state Senators, even if they are from the other party.
Most Senators understand that this is something to be done only rarely, and before someone is nominated the WH has usually gone to the Senator to see if the person in mind would draw an objection, or if the Senator was open to allowing that person to be nominated.
Bottom line is that just because Calif. has two liberal Dems in the Senate, that didn’t mean that Bush could only nominate moderate to liberal judges because of them. He nominated several very conservative judges to the 9th, and they were not blocked by any Dem senators.
Shipwreckedcrew (58dde3) — 2/3/2010 @ 3:19 pmshipwreckedcrew (#20 — 2/3/2010 @ 6:41 am): I think you’ve hit the nail on the head. Judge Coughenour lost his objectivity at some point along the way. I’m not saying he’s a bad or stupid judge in general, much less that he’s a friend of terrorists and terrorism. But something obviously was keeping him from grasping and appreciating — and giving due weight in sentencing to — the evils being wrought by Ressam after he repudiated the cooperation agreement and recanted his testimony, long after he was tried and convicted.
Sentencing is hard. We try our best to avoid disproportionalities and inequities; we tinker with the balance between judicial discretion and legislative prescription. Recent SCOTUS sentencing cases have made for some odd bedfellows, with splits that defy conventional wisdom about “conservative” and “liberal” judges. And I guess that overall, that may be a good thing — in the context of law enforcement and punishment in the domestic, civilian arena, when we’re dealing mostly with U.S. citizens or, in any event, with the rights of people found within the territorial jurisdiction of the United States who are not infiltrating our territory as part of an international terrorist jihad bent on destroying America and the rest of western civilization.
But as Patterico argued in his original post, watching someone like Ressam “play the system” is just disgusting. He and his ilk emphatically do not deserve the whole spectrum of substantive and procedural rights that our civilian justice system is crafted and continually re-balanced in order to protect our civil society (of which Ressam was never a part, and to whose utter destruction he was, and remains, committed).
This guy is not just a criminal. Treating him like “just a criminal” and entrusting his prosecution and sentencing to the civilian justice system has been disastrous. It’s preposterous that the Ninth Circuit is in a position to be evaluating his sentence. But because of the 9/10/01 mentality, the Clintonista-Obama mentality, under which we’ve treated him and so many of his fellows as “just criminals,” we have the ridiculous spectacle of the Ninth Circuit testing, under the “clearly erroneous” standard no less, Judge Coughenour’s equally ridiculous “finding” that Ressam is “a quiet, solitary and devout man whose true character is manifest in his decision to cooperate.”
He should have been charged and tried in a military commission with capital crimes. When he broke his cooperation agreement after being convicted, he should have had a quick trip back to the sentencing officer(s), been re-sentenced to death by hanging, completed a perfunctory but mandatory appeal (whose outcome would have been foreordained, there being no doubt about either his guilt or his violation of the agreement); and he ought then have been hanged. Simple justice is all that was needed here; doing the whole section 3553 dance for purposes of applying the civilian sentencing guidelines has been yet another example of our society’s self-destruction by failure to acknowledge the war being waged upon us all.
Beldar (13b30d) — 2/3/2010 @ 3:28 pmAck. I apologize for the violence I did to the English language with this sentence:
How about instead:
Mea culpa.
Beldar (13b30d) — 2/3/2010 @ 3:32 pm[…] Big Government: Barack Obama’s Land of the Mostly Free Patterico’s Pontifications: Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit? and Change: Obama to Continue Indefinite Detention and Coakley on Crime and Terrorists Kevin […]
Dangerous: Obama’s Muddled, Confusing Stance on Terrorists’ “Rights” Leaves Military Unsure of How to Handle Detained Enemy Combatants « Frugal Café Blog Zone (a66042) — 2/3/2010 @ 5:30 pm[…] Overwhelmingly Disagree With Obama On Civilian KSM Trial Patterico’s Pontifications: Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit? Andrew McCarthy, National Review Online: ‘Bring my lawyer! — That’s what’s so […]
New Offense to Jihadists: Secret Bible Messages on Advanced Optical Scopes Used by Our Military Against Terrorists « Frugal Café Blog Zone (a66042) — 2/3/2010 @ 5:37 pm[…] Overwhelmingly Disagree With Obama On Civilian KSM Trial Patterico’s Pontifications: Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit? and Thank God Goodness None of the Pagans Were Vampires Nice Deb: Was The Intelligence Gained By […]
TGIF… Attorney General Holder Reveals That Justice Department Officials Have Worked for Terrorist Detainees « Frugal Café Blog Zone (a66042) — 2/19/2010 @ 2:52 pm[…] Overwhelmingly Disagree With Obama On Civilian KSM Trial Patterico’s Pontifications: Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit? and Thank God Goodness None of the Pagans Were Vampires Nice Deb: Was The Intelligence Gained By […]
Casualties of War… Absent from NY Times During “Age of Obama” « Frugal Café Blog Zone (a66042) — 2/25/2010 @ 12:50 pm[…] War’ Stop The ACLU: Anti-Gun Government Tyranny in Canada Patterico’s Pontifications: Millennium Bomber’s Lenient Sentence Reversed . . . By the Ninth Circuit? Nice Deb: Was The Intelligence Gained By The Obama Administration From The Xmas Panty Bomber, […]
Sanity Prevails: Judges Rule That Unlawful Enemy Combatant Prisoners Held at Bagram Air Field in Afghanistan Can’t Use US Courts to Challenge Their Imprisonment « Frugal Café Blog Zone (a66042) — 8/24/2010 @ 1:06 pm