Judge Weinstein has set off a little bit of a legal firestorm (which was probably his intention) by releasing a lengthy opinion in a child porn case holding that he should have instructed the jury that mandatory minimums applied in the case. I don't think I've ever read such faux self-flagellation in a judicial opinion. Needless to say, this case, Polizzi, is being covered around the blogosphere. From Sentencing Law & Policy:
Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.
The most obvious difficulty with Judge Weinstein's decsion is that the perceived spirit of the Supreme Court's latest decisions doesn't trump otherwise binding precedents simply because older precedents may be in some conceptual tension with new cases. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And even if they did, I don't see the inconsistency between the new Sixth Amendment decisions and the traditional rules on what the jury is told about sentences.
This is what Jeralyn at TalkLeft had to say (it's nice to see election coverage has not completely drown out criminal justice posts there):
I find Weinstein's reasoning persuasive. But then, I'm not a scholar, just an advocate.... Kudos to Judge Weinstein, and may his opinion be read and considered by judges everywhere. As always (think Arlo Guthrie and Alice's Restaurant here) first it takes one person, then two, then three, until it becomes a movement.
Ultimately, despite Jeralyn's wishes, I think Kerr has the better end of the legal argument. And I don't think Judge Weinstein's revolution will be more than a revolution of one.
From a sex crimes perspective, I'm amazed that Weinstein picked this case to make his point. Child pornography defendants are hardly the sympathetic posterboys on which to hang a tenuous legal claim.