Saturday, December 4, 2004

Sentencing Tensions Boil Over Between Judge and Prosecutor

The Federal Sentencing Guidelines have heightened the tension between judges and prosecutors, and it boiled over into a nasty confrontation between the U.S. District Judge Mark Bennett, Chief Judge for the Northern District of Iowa, and Assistant U.S. Attorney Kevin Fletcher.  According to an article in the Des Moines Register (Dec. 1):

A national debate over federal sentencing has taken a confrontational turn in Iowa, where Chief U.S. District Judge Mark Bennett recently tried to hold in contempt a prosecutor who had repeatedly challenged Bennett's efforts to reduce prison terms.

Prosecutor Kevin Fletcher and his attorney, a former solicitor general for the U.S. Department of Justice, responded with allegations of judicial misconduct against Bennett, who presides over Iowa's northern judicial district. They alleged in a recent court filing that the judge's behavior toward prosecutors signaled "a pattern of abuse and intimidation" that merited further review.

The U.S. Attorney's Office retained former Solicitor General Seth Waxman to represent Fletcher, and the Judge has now asked that the contempt be dismissed because it was inappropriate.  According to the article, "A week after being interviewed by The Des Moines Register about the dispute, Bennett on Tuesday asked a fellow judge to dismiss the contempt case, conceding that his courtroom disagreement with Fletcher 'upon further reflection and study . . . did not provide a basis for a contempt charge.'"  A copy of the brief seeking Chief Judge Bennett's recusal in the matter is here (Brief on Motion to Recuse Download mo_recuse_memorandum.pdf ).  The much anticipated Supreme Court decisions in Booker and Fanfan may not do much to quell the tensions between prosecutors and federal judges, and could even exacerbate it if the decision involves a split that does not provide clear guidance. Moreover, even if the outcome favors greater judicial discretion in sentencing, the Department of Justice has not been reluctant to seek a more favorable resolution of the issues in Congress.  (ph)

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