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Judicial discretion may not be in vogue with Congress these days, but it remains so with the Ninth Circuit U.S. Court of Appeals. Politicians have recently tried to tie judges’ hands when it comes to sentencing. But a unanimous panel Monday gave judges broad latitude to decide whether to grant bail to convicted crooks pending an appeal, telling courts to look at the “totality of the circumstances” in deciding when defendants should finally be sent up the river. “While we offer some guidance today, we place no limit on the range of matters the district court may consider. Rather, the court should examine the totality of the circumstances and, on the basis of that examination, determine whether, due to any truly unusual factors or combination of factors � it would be unreasonable to incarcerate the defendant prior to the appellate court’s resolution of his appeal,” wrote Judge Stephen Reinhardt. The decision arises out of a high-profile case involving allegations of brutality filed by the Northern District U.S. attorney’s office against two former Pelican Bay State Prison guards, Edward Powers and Jose Garcia. Based largely on testimony from inmates at one of California’s toughest prisons, the two were convicted of setting up inmate fights and encouraging other brutal crimes to occur. Both have appealed their conviction. U.S. District Judge Martin Jenkins denied their bail motion while the appeal was under consideration, which is the ruling at issue in United States v. Garcia, 03 C.D.O.S. 7674. The appeal of the conviction is still under consideration and will not likely be decided until next year. The government and the defense agreed that no circuit court had ever defined the “exceptional reasons” provision of the 1990 Mandatory Detention Act, which limited the availability of bail unless defendants showed “exceptional reasons” why they should be set free pending appeal. The Ninth Circuit panel, with Judges Harry Pregerson and Susan Graber joining Reinhardt, avoided drawing up a strict definition. But it did provide some guidelines, singling out those suffering debilitating medical conditions and those who continue to contribute to society. Reinhardt also gave the example of a man being tried for ending his wife’s life in a “mercy killing.” Normal conditions of bail still exist, such as finding that a defendant represents neither a flight risk nor a threat to society. “At the district court level, Judge Jenkins thought his hands were tied. The good thing about this opinion, from our perspective, is it gives several circumstances that courts can look at,” said Matthew Pavone, the Novato-based lawyer representing Garcia. Garcia is battling cancer, a factor that could weigh in his favor. “We’ve certainly got a lot more to work with than we did before,” Pavone said. Powers was sentenced to seven years in prison; Garcia was given six years and four months. Despite ruling that they must start serving their sentences before any appeal is finalized, Jenkins stayed his order pending an appeal on the bail issue. The Ninth Circuit extended that stay shortly after oral argument. “The guys have been out on bail pending the decision on this bail issue,” Pavone said. “They’ll stay out on bail until Judge Jenkins gives us another hearing.” Dennis Riordan of Riordan & Horgan represented Powers. He did not return a phone call for comment. The case was prosecuted by Assistant U.S. Attorney Melinda Haag, who recently left the office. An office spokesman declined to comment. Though Reinhardt’s opinion gives the former guards an opening to at least postpone the start of their sentences, he did not have many good things to say about them. Reinhardt avoided ruling on the merits of their bail request, but wrote that this does not appear to be a case where the defendant committed a single, aberrant act of violence. “These factors would appear to show that the defendants have a significantly violent nature, thus precluding a finding that their conduct was aberrational,” Reinhardt wrote.

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