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The last person with substantial hands-on prosecutorial experience to ascend to the Supreme Court was Earl Warren, whose 18 years in those trenches influenced the Warren Court’s revolution in criminal procedure. But don’t expect former federal prosecutor and now Judge Samuel A. Alito, if confirmed, to steer a similar course. Before Warren was tapped for the Supreme Court, he was known to most people as the governor of California. But before becoming governor, Warren had spent his entire legal career in law enforcement — 18 years as a local prosecutor and four as state attorney general. “It is no accident that Dwight Eisenhower, the president who warned us about the military-industrial complex, was a former five-star general. Nor do I think it an accident that the justice who wrote Miranda was a former crime-busting district attorney,” criminal procedure scholar Yale Kamisar of the University of San Diego School of Law wrote recently in the Ohio State Journal of Criminal Law issue on the Warren Court. Alito, nominated last week to fill the seat of retiring Justice Sandra Day O’Connor, spent seven years as a federal prosecutor in the U.S. Attorney’s Office for the District of New Jersey, with time off in between for appellate and management posts in the U.S. Department of Justice. On the high court today, the closest justice to Warren and Alito in terms of hands-on experience is Justice David H. Souter, who was neither a local nor a federal prosecutor, but a state prosecutor for three years before moving up to deputy attorney general and then attorney general of New Hampshire. “Having the U.S. Attorney perspective is very useful,” said Mark I. Levy of Kilpatrick Stockton’s Washington office, who went to Yale with Alito and served with him as an assistant to the solicitor general. “The Court now has a real business lawyer in [Chief Justice] John Roberts and that was a perspective missing on the Court,” he said. “Sam really will bring something Roberts didn’t.” But as Alito’s rulings as a judge on the 3rd U.S. Circuit Court of Appeals reflect, his prosecutorial experience does not lead him in the same direction as it did Warren. “It is a different time, a different place and a different set of realities,” said sentencing law scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law. Alito’s rulings, as many noted last week, have something for everyone. In the criminal justice area, he doesn’t always rule in favor of the government, but he does more often than not. “If you canvass his decisions, there are far more in favor of the government than the defendant, but that’s the case with the federal system,” noted Alan L. Zegas of Chatham, N.J., former president of the New Jersey Association of Criminal Defense Lawyers. “The reversal rate in the 3rd Circuit is less than 3 percent. It’s a very small population of cases that gets reversed.” As the Senate prepares to sort out exactly what kind of conservative Alito is, scholars, practitioners and others are quite sure that he would have an impact, either alone or in combination with Roberts, in two key areas of criminal law: sentencing and death penalty/habeas corpus. SETTING AN AGENDA A bare majority of the high court, led by Justice Antonin Scalia, has roiled the world of state and federal sentencing in the last five years with a series of rulings that require juries — not judges as previously done — to find certain facts justifying enhanced sentences. Last term, the high court, in another 5-4 ruling, held that the federal sentencing guidelines violated the Sixth Amendment right to a jury trial because judges, not juries, were able to find facts that could lead to sentences enhanced beyond the maximum authorized by a jury verdict or a guilty plea. U.S. v. Booker, 125 S. Ct. 738 (2005). The loyal opposition to these rulings, which has included O’Connor and the late Chief Justice William H. Rehnquist, was able to impose two important limits on the scope of the sentencing decisions: Prosecutors do not have to prove beyond a reasonable doubt to juries the fact of a prior conviction or a mandatory minimum sentence. Judges still can find those facts. Those two exceptions are “hugely important” for a number of reasons, said Ohio State’s Berman. “Most of the legislative proposals to respond to Booker, particularly in the federal system — like Attorney General [Alberto] Gonzales’ comments about minimum guideline systems — are premised on the continuing validity of the mandatory-minimum exception and that judges can still find facts,” he said. “There already are lots of laws and interpretations that depend on the prior-conviction exception [allowing sentence enhancements for previous crimes] still being valid,” he added. “In the states, there are very interesting nuances on not just the validity of that exception but its scope. A number of states have exceptions built in, like being on parole or previously having served a prison term. So, in addition to all of the states with guideline systems, frequently states without guideline systems have sentencing schemes depending on those exceptions.” The continuing validity of those exceptions is unknown now that Rehnquist has died and O’Connor is retiring, noted Berman. And, he added, there is an “endless array” of post- Booker and post- Blakely cases moving up the pipeline to the Supreme Court. Blakely v. Washington, 124 S. Ct. 2531 (2004), overturned Washington’s sentencing regime based on the Sixth Amendment right to jury trial. For prosecutors, defense lawyers and judges around the country, these are the front-burner issues, said Berman and others. The “jury is still out” on Alito and Roberts on these issues because neither has had post- Booker experience on the bench, said Berman. In post- Booker cases alleging “plain error” in sentencing, the 3rd Circuit has remanded all cases back to the district courts for resentencing. While Alito has yet to delve into the post- Booker world on the bench, he has been studying it off the bench as a member of the Constitution Project’s Sentencing Initiative, a blue-ribbon committee of current and former prosecutors, defense attorneys, judges, academics and other sentencing experts, trying to develop consensus recommendations for revising sentencing laws to comport with the new constitutional rules, according to Virginia Sloan, co-director of the project which is part of Georgetown University Law Center’s Institute on Public Policy. Alito was recruited, recalled Sloan, because “We wanted a diversity of views, including Republicans and Democrats and sitting judges appointed by both. He also was a former prosecutor and that was helpful to us. He is extremely thoughtful and meticulous in his thinking on this.” Sloan noted that Alito joined in the committee’s unanimous vote on a statement of principles that supports sentencing guidelines and opposes mandatory minimum penalties. His role on the project, said Berman and others, could translate into an important agenda-setting role on the Supreme Court, bringing to the fore simmering sentencing issues that many lawyers are clamoring for the justices to address. “My general sense is he is a prosecutor’s prosecutor and likely to view the world from that perspective,” predicted Berman. “He generally thinks guidelines are OK and he’s confident prosecutors will exercise discretion properly. You can see that reflected in a lot of his criminal justice decisions. Do I think he will bend over backward for prosecutors? Not exactly. But I think criminal defendants should hope he is more like Scalia than Rehnquist and O’Connor in that Scalia is more willing to take his concerns about the Constitution and government power and bring them home in the criminal justice context.” IMPACT ON DEATH PENALTY CASES Alito’s potentially dramatic impact in death penalty cases can be seen by the high court’s 5-4 reversal last term of one of his rulings — Rompilla v. Beard — a capital case involving ineffective assistance of counsel. O’Connor was the key vote to the Court’s holding that Rompilla’s defense counsel had an obligation to review for mitigation purposes a prior conviction file that counsel knew the prosecution intended to rely on in the sentencing phase. Writing for the 2-1 panel decision below, Alito said that Rompilla was arguing for “the most resourceful defense attorneys with bountiful investigative support.” But the panel’s dissenter, Judge Dolores K. Sloviter, said Rompilla’s case was an example of “shocking ineffective assistance of counsel.” In the past few years, O’Connor and Justices John Paul Stevens and Ruth Bader Ginsburg have voiced growing concern about the quality of counsel in death cases and appear to be giving greater scrutiny to that issue when it arises. And death cases continue to represent an unusually large percentage of the Court’s criminal docket. “At a time when we all know there are big problems in indigent defense and in capital cases in particular — and surely that is a problem here in Pennsylvania — [Alito's] opinion in Rompilla is not a confidence builder,” said one capital litigator who wished to remain anonymous. But Kent Scheidegger of the Criminal Justice Legal Foundation believes that Alito was right and O’Connor wrong. Responding to criticism of Alito’s opinion, Scheidegger recently wrote that “It is painfully evident from reading this opinion that the majority, including Justice O’Connor, decided the case on their gut reaction and skipped lightly over rules of law that stood in the way of the desired result.” If Alito is confirmed, he predicted, “We will probably have a more consistent jurisprudence, sticking more closely to principles of law, without detours to reach particular results in particular cases.” He’s more predictable than consistent, said another defense attorney. Alito has granted habeas relief in a few cases to come before him, he explained, “But the bottom line is he is a very predictable, very conservative law enforcement vote in criminal cases. There is now on the Supreme Court a very strong voting block of four in criminal cases to be extremely receptive to most arguments made by the government.” One of the capital cases in which he granted habeas relief was Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005), in which Alito held that Pennsylvania’s time limit on state collateral review was inconsistently applied in death penalty cases for the first few years after its enactment in 1996, and because of that, the defendant was not blocked from review of his case on the merits. Thomas Dolgenos, chief of the federal litigation unit in the Philadelphia district attorney’s office, recently testified before the U.S. Senate Judiciary Committee that as a result of Alito’s ruling, “There is now apparently no such thing as default [a procedural bar against untimely claims] in Pennsylvania capital cases pending in the late 1990s, which is virtually all of the cases now pending in habeas.” The state has appealed to the Supreme Court.

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