Is Jurists' Must-Read
By LAURIE P. COHEN
Staff Reporter of THE WALL STREET JOURNAL
July 19, 2004; Page B1
For the nation's federal judges and the defense lawyers and convicts who come before them, June 24 was a momentous day. For Douglas Berman, a 35-year-old law professor at Ohio State University in Columbus, the day marked the beginning of his Warholian moments of fame.
On that date, the U.S. Supreme Court struck down tough sentencing guidelines used in Washington state. The high court said any factor increasing a criminal sentence must be admitted by the defendant in a plea deal or proved to a jury. Since then, Mr. Berman has become the chronicler of the sweeping effect of the Blakely v. Washington ruling on the nation's courts.
As the creator of a Web log, or blog, called Sentencing Law and Policy (http://sentencing.typepad.com), Mr. Berman has established himself as the go-to guy for all things Blakely for federal and state judges, defense lawyers, prosecutors and prisoners' relatives. Although the 5-4 Supreme Court ruling technically affects only one state's court system, its greatest impact so far has been on federal sentencing guidelines, whose constitutionality has been called into question in dozens of court rulings nationwide, almost all of them posted on Mr. Berman's blog.
Last week, the blog was cited in testimony before the Senate Judiciary Committee, which held hearings to consider a short-term fix to quell some of the chaos resulting from the Supreme Court ruling's effect on the 20-year-old federal sentencing guidelines. Also last week, New York's Second Circuit Court of Appeals cited the blog in a unanimous opinion of the court's 13 active judges, which beseeched the Supreme Court to decide the guidelines' constitutionality quickly. Judge Paul G. Cassell of Utah, the first federal judge to declare the guidelines unconstitutional, cited the blog in his groundbreaking opinion.
Mr. Berman has taught and written about sentencing issues for nearly a decade and is the editor of Federal Sentencing Reporter, a journal that tracks sentencings. But it is his blog, which is getting more than 2,000 visitors daily, that is his claim to fame. "It's like I got tapped and put in the major leagues," he says.
In the vast reaches of the Internet, blogs are small fry compared with commercial Web sites such as eBay Inc. and Yahoo Inc. But their often narrow focus -- the Blakely ruling, for example -- can make them a must-read for the particular community interested in every bit and piece related to the subject at hand.
Last week, U.S. District Judge Lawrence L. Piersol of South Dakota, president of the Federal Judges Association, recommended the Berman blog to members in an e-mail.
"I've been on it four or five times a day," says U.S. District Judge Joseph Goodwin of Charleston, W.Va., who slashed the sentence of a drug felon after finding the guidelines unconstitutional. (Mr. Berman was among the first to report that ruling.)
Judge Cassell says judges and lawyers traditionally get information from paid legal Web sites, such as Westlaw and LexisNexis, which post published court rulings. By contrast, Mr. Berman's blog instantaneously posts unpublished opinions and, on occasion, even documents not intended for public consumption.
Mr. Berman caught flak this month for his posting of one such document -- a memo to federal prosecutors from Christopher Wray, the chief of the Justice Department's criminal division, that detailed how prosecutors ought to handle the Blakely ruling in the drafting of indictments and plea agreements. The memo carried a bold-faced warning: "The material in this document consists of attorney work product and should not be disseminated outside the Department of Justice."
While no one asked him to remove the Wray memo, Mr. Berman says, Justice Department officials made it clear to Mr. Berman that "they weren't ecstatic that it was up there." The Justice Department declined to comment.
Mr. Berman has posted federal-appeals and district-court rulings on Blakely's applicability to federal guidelines from Illinois, Louisiana, Utah, New York, West Virginia, Tennessee and elsewhere. He offers analysis on many of the dozens of sentencing opinions that have been issued since the Supreme Court ruling. Of an Ohio Appellate Court ruling, Mr. Berman says it is "already giving prosecutors nightmares."
New York criminal defense lawyer Gerald Lefcourt says the Berman blog "enables me to keep up with the moment-to-moment chaos of the supreme mess created by the Supreme Court." He recently wrote to Mr. Berman seeking advice about a coming criminal trial.
Mr. Lefcourt is among hundreds who have written to the professor, including relatives of federal prisoners who might be affected by the Blakely ruling if the Supreme Court eventually decides the federal guidelines are unconstitutional. "My brother is serving a 10-year sentence, drug-related," wrote a Maryland woman. "His original plea was to have given him a two-year sentence," but the judge increased it. "I am hoping you will keep an eye towards this for those of us who are trying to help prisoners seek relief from this draconian system."
Another of those who wrote recently was Richard Erpenbeck, whose 45-year-old brother and 69-year-old father both have been sentenced in recent weeks to lengthy prison terms. "Your fantastic resource work on Blakely and your help to a hundred thousand head-scratching attorneys and defendants has not gone unnoticed," wrote the Edgewood, Ky., man. Mr. Erpenbeck's brother was sentenced to 30 years for bank fraud and obstruction of justice, while his dad got 70 months for obstruction.
Both sentences were significantly boosted based on the very "relevant conduct" that the Blakely ruling outlawed in Washington state. A Cincinnati federal judge increased the sentences based on findings, by a preponderance of evidence, of multiple victims of the fraud and the men's leadership roles in the crime.
"Professor Berman's really provided an education and he can help me explain the nuances of this ruling to my brother and dad, who are in jail," Mr. Erpenbeck says.
Mr. Berman has competition, principally from Blakely Blog (Blakelyblog.blogspot.com), which was founded by Jason Hernandez, a 27-year-old law student at Columbia University in New York who is a summer associate at a Washington law firm. There also is SCOTUSblog, run by Washington law firm Goldstein & Howe that posts news articles and analysis of Supreme Court rulings on the firm's Web site. Mr. Erpenbeck says he reads them all. "No other site even comes close," he says of Mr. Berman's blog.
Still, Mr. Berman may be forced to yield ground to competitors next month, when he is scheduled to take a long-planned vacation to Myrtle Beach, S.C. Like it or not, he will have to leave his work behind. The reason: "There's no Internet wiring in that beach house," says his wife, Christine Berman.