Here's a link to an interesting article on how Judge Alito may or may not shape criminal law.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1131098713981

November 1, 2005
Alito Name Too "Vowel-Heavy", Schumer Says
by Scott Ott
ScrappleFace.com

(2005-11-01) - Sen. Charles Schumer, D-NY, today questioned Judge Samuel Alito's commitment to diversity noting that the Supreme Court nominee�s last name is 60 percent vowels and only 40 percent consonants.

In perhaps the most substantive critique of President George Bush's nominee to date, the senator also noted that the federal appeals court judge's full name contains every vowel, but a disproportionately small percentage of consonants.

"Not only is Judge Alito's name too vowel-heavy for mainstream Americans," said Sen. Schumer. "But 'Alito' begins and ends with vowels, suggesting that vowels are the alpha and omega of the alphabet, and clearly denigrating the contribution of consonants to our society."

A Prosecutor Known for His Common Sense and Straightforward Style

By DANIEL J. WAKIN
New York Times
November 2, 2005

After an F.B.I. agent was shot in a motel room while interviewing a suspect in 1987, the newly appointed United States attorney for New Jersey had to pick a prosecutor to handle the trial. He made a surprising choice: himself.

That prosecutor, Samuel A. Alito Jr., is now a candidate for the United States Supreme Court. How he handled that long-ago case, interviews suggest, sheds some light on the short but crucial chapter in his career as New Jersey's top federal law enforcement official in the late 1980's.

The trial represented a rare moment for a lawyer who had spent much of his professional life buried in briefs. But in another way, it revealed what many say were the hallmarks of his stewardship of the office: modesty, a straightforward style, common sense and, in baseball jargon, good pitch selection.

The rest of the story (link)

The National District Attorney's Association almost unanimously endorsed Alito for SCOTUS despite the fact many of us board members are Democrats and strongly pro-choice. That NY Times article gives some darn good reasons....
If you'd like a more personal reflection:

http://joshmarquis.blogspot.com/

Josh,

Welcome to the Texas web site. Glad to get a West Coast voice for prosecutors.

Thanks John, always good to be among friends

What Would Alito's Prosecutorial Experience Mean for High Court?
Marcia Coyle
The National Law Journal
11-10-2005

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.

November 20, 2005
LA Times

The Supreme Court nominee was overruled on capital punishment in an appeal that some say tipped his hand on the subject.

WASHINGTON - With no fanfare, the Supreme Court this summer granted a last-minute reprieve to a man who had spent the last 17 years on death row in Pennsylvania. Convicted of stabbing a tavern owner to death and setting him on fire, Ronald Rompilla had run out of appeals when the high court stepped in.

By the narrowest of margins -- 5 to 4 -- the court vacated the death penalty and returned the case for resentencing. It marked the third time since 2000 that a loose coalition of liberal and swing-vote justices has struck down death-penalty cases because of poor work by defense lawyers.

Of broader importance, the court in the Rompilla case overturned a lower ruling written by U.S. 3rd Circuit Court of Appeals Judge Samuel A. Alito Jr. -- the same man who appears likely to replace one of those swing voters on the Supreme Court early next year.

The Rompilla case, many observers say, is clear evidence that Alito -- nominated to succeed retiring Justice Sandra Day O'Connor -- would help to reverse the court's recent trend toward leniency in death-penalty cases.

For conservatives, the big question about Alito is whether he will live up to their hopes -- or disappoint them, as happened with O'Connor and Justice David H. Souter. It was Souter who wrote the opinion reprieving Rompilla, and it was O'Connor who provided the crucial fifth vote to see it done.

"It would be a real move backward to the court to retreat in this area," said Terri L. Mascherin, chairwoman of the American Bar Assn.'s Death Penalty Representation Project.

But supporters of the death penalty, including Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said Alito would be just the ticket to turn the court to the right.

"The Rompilla case gives us a few clues about the change we can expect," he said. "We will probably have a more consistent jurisprudence, sticking more closely to principles of law."

There never was much question about Rompilla's guilt.

Now 57, he spent much of a night in January 1998 drinking at the Cozy Corner Cafe in Allentown, Pa. After closing time, he sneaked back in through a bathroom window and attacked owner James Scanlon, beating and stabbing him repeatedly and burning him as he died.

The victim's son, Timothy, discovered his father's body in a pool of blood. Rompilla was found with loot from the owner's wallet and the bar's cash register. He was arrested, tried and convicted of capital murder.

At the sentencing phase of his trial, prosecutors presented evidence that Rompilla had struck before.

They told the jury how he had been convicted of burglarizing another bar, where he assaulted the owner with a knife and raped her. They said he never should have been "put out on the street" without help and rehabilitation.

His defense lawyers called only a small knot of family members to the stand to beg for mercy. Their testimony, when later transcribed, was 20 pages long. Darlene, his wife, wept, saying: "We want Ron alive even if it's in jail; we want him alive." Their 14-year-old son, Aaron, said it would not be right for his father to die. Asked if he wanted to say more, the boy simply cried.

The jury sentenced Rompilla to death. But there was one bit of evidence that they never heard -- and thereupon hung the appeals.

His two defense lawyers, working in the local public defender's office, never pulled the records from the earlier conviction. Had they done so, they would have learned that their client was mentally ill, had been severely abused and neglected as a child, and had long misunderstood right from wrong.

He grew up the sixth of nine children in a home with an often absent and alcoholic mother. The house was filthy and smelled of urine. His father drank too, and his parents fought. Sometimes his father locked him in a small wire mesh dog pen filled with excrement. Other times he was made to sleep in the attic with no heat.

He went to school in rags, and it was determined that as an adult he had not progressed beyond the third-grade level in math and spelling. He left school after the ninth grade. He led a "nomadic existence" before his first arrests.

Prison mental health exams showed signs that Rompilla suffered from "schizophrenia, paranoia and neurosis." He was an alcoholic. And he had tendencies that, obvious in hindsight, were "very violent."

The state appellate courts affirmed the death sentence. The case next was appealed to a federal district judge who, citing poor defense work, ordered Rompilla released unless local prosecutors would agree to a life sentence or hold a new sentencing hearing.

Then the case came to Alito and two other judges on a panel of the U.S. 3rd Circuit Court of Appeals.

In January 2004, they voted 2-1 to overturn the district judge and keep the death sentence intact. Alito, a former Justice Department official in the Reagan administration and federal prosecutor in Newark, N.J., wrote the majority opinion.

Alito took note of the fact that the jury had not been told of Rompilla's upbringing and mental deficiencies, which Rompilla's new appellate lawyers argued might have moved the jurors to vote for life over death.

But Alito said the 6th Amendment right to legal representation did not afford everyone "the most resourceful defense attorneys with bountiful investigative support."

"The 6th Amendment is satisfied when [defense] counsel's conduct falls within the wide range of reasonable professional assistance, thereby ensuring that criminal defendants receive a fair trial," he said.

Alito reversed the lower court's ruling and reinstated the death penalty.

On June 20 this year, the Supreme Court weighed in. Souter wrote for the majority and reversed Alito, ordering the death sentence stricken and telling local prosecutors to either agree to a life term for Rompilla or reconvene a new sentencing hearing where a new jury could decide death or life.

At the heart of the Supreme Court's ruling was the defense team's oversight in not reviewing the file in Rompilla's earlier case, which was housed in the clerk's office just down the hall in the Allentown courthouse.

"If the defense lawyers had looked in the file on Rompilla's prior conviction," Souter ruled, "it is uncontested they would have found a range of mitigation leads that no other source had opened up."

In two previous cases since 2000, the Supreme Court overturned death sentences in nearly identical circumstances: the failure of defense lawyers to present all the evidence that would argue against the death penalty.

James B. Martin, the Lehigh County district attorney in Allentown, has vowed not to agree to a life sentence. Instead, he will prepare for another sentencing hearing, mindful that this time defense lawyers will surely bring up the new evidence to help Rompilla.

Martin believes that in all the rounds of appeals, Alito's order affirming the death sentence was the proper ruling. Asked whether he thought Alito would change the course of the court on the death penalty, Martin said:

"I would hope so -- I liked his opinion in the Rompilla case. It was well-reasoned and well-written, and he validated our very strong case."

Voiced stance under Reagan
November 29, 2005

WASHINGTON -- As a young Reagan administration lawyer, the Supreme Court nominee, Samuel A. Alito Jr., took an expansive view of government law-enforcement powers in numerous cases in which he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released yesterday by the Justice Department.

The documents show that Alito once advised against including a ban on capital punishment for minors, in an agreement by the United Nations Convention on the Rights of the Child.

Such matters should be left for individual states to decide, he said.

The draft agreement called for outlawing the death penalty and life sentences without the possibility of parole for those who are younger than 18 when they commit crimes. Alito raised concerns about such a proposal.

''There are states that presently impose the death penalty on such individuals," Alito wrote in January 1987 in a memo to John R. Bolton, who was then an assistant attorney general and who now serves as US ambassador to the United Nations.

''Congress may at some point wish to have such penalties on the federal level," Alito told Bolton. ''We therefore question whether the United States should agree with this provision of the Convention."

States were permitted to impose capital punishment on 16- and 17-year-olds until March 2005. Then, a divided Supreme Court cited a ''national consensus" against the practice, and struck down the juvenile death penalty laws of 20 states in a 5-to-4 ruling.

While working in the Office of Legal Counsel from 1985 to 1987, Alito also wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation.

He backed broader authority for the Drug Enforcement Administration to allow agents to set up shell companies to help them conduct undercover operations.

In January 1986, Alito dismissed concerns raised by the FBI that it might be unconstitutional to add to its files the fingerprints of Iranian and Afghan refugees who had sought asylum in Canada. Alito wrote that those who are not US citizens have no constitutional protections.

''We are inclined to doubt that there is sound legal basis to extend any protections granted to United States citizens or residents concerning the accuracy of information in their files to nonresident or illegal aliens," Alito wrote.

That month, Alito also raised concerns about a proposed ethics rule that would have barred prosecutors from investigating an individual without a ''good-faith" belief that the person had committed a crime.

Alito said that prosecutors need flexibility, particularly in cases in which there are multiple suspects.

''In this situation, there is nothing improper about investigating everyone who might have been involved," Alito wrote in a memo in January 1986.

In September 1986, Alito said the FBI should not be bound by two lower-court decisions that restricted the bureau's power to conduct background checks on government employees whose jobs were not considered critical to national security.

Alito dismissed the opinions as ''wrongly decided," ''without binding precedential effect," and ''narrow." He interpreted them to apply only to the plantiffs directly involved in the cases, and said that the FBI should not alter its background check practices.

''This office . . . recommends that the FBI ignore any possible implications arising from the district court's reasoning," Alito wrote. ''We are not suggesting, of course, that you disobey a court order. The district court's order in this case, however, does not purport to bind the FBI."

After two years as deputy assistant attorney general in the Office of Legal Counsel, Alito became the US attorney for New Jersey. He was confirmed as a federal appeals judge in 1990, a position he continues to hold.

Judicial activist groups on both sides of the Alito nomination are examining the papers for clues about Alito's beliefs and judicial philosophy. His views on police powers may have particular relevance, since Alito would be the only former federal prosecutor on the Supreme Court, if the Senate confirms him.

Alito's backers said the memos reflected the views of the Reagan administration -- and not necessarily his personal views of the time.

Alito's successor as the deputy in the Office of Legal Counsel, Michael Carvin, said yesterday that officials in the office were encouraged to support strong powers for the executive branch.

''We were representing the president, and we were always going to take a muscular view of the president's authority," Carvin said. ''When you're working for the government, you're representing your clients' interests."

Though the memos mostly sided with government power over individual rights, some evidence cut in the other direction.

In January 1987, for example, Alito endorsed a proposal strengthening penalties for government agents who physically abused suspects.

Under the existing law, the agents faced harsh penalties only if their victims died.

Alito criticized this ''odd penalty structure" and lauded a proposal for stronger penalties in cases where victims suffered bodily harm but survived.

''We agree that the current penalty scheme . . . makes little sense, and that it should be corrected," Alito wrote.

Alito also took positions shielding government records from public disclosure, at least in cases in which individuals' privacy would be violated. He wrote that tax information, grand jury records, and information obtained through electronic surveillance should be kept from public view.

''We believe that any doubts should be decided in favor of nondisclosure in the present situation," he wrote in February 1986. ''Once records are opened to the public, privacy interests will be irrevocably sacrificed."

Alito also objected to a proposal by the head of the government ethics office to increase the number of federal employees required to submit financial disclosure forms.

In February 1987, Alito chastised the director of the Office of Government Ethics, David H. Martin, for not consulting with the Justice Department before seeking to expand the number of people filing the disclosure forms.

''In this case, the need for such consultation was acute, since we made it abundantly clear to your office . . . that we had serious legal objections," Alito wrote.

Alito occasionally received requests from the public to determine whether an action was legal. Invariably, Alito responded that the attorney general's office could only provide legal advice to the president or executive agencies. But in some cases, Alito then went on to offer advice.

On Dec. 20, 1985, Alito responded to a question from a Massachusetts man who wanted to know whether it was legal to use the American flag on the logo of the Basketball Hall of Fame in Springfield.

After providing the disclaimer that his office was authorized ''to give legal opinions only to the president" and agency leaders, Alito said that the nation's flag code ''is not legally enforceable."

But he warned that federal authorities could intervene if a person committed the crime of ''knowingly casting contempt upon a United States flag by publicly mutilating, defacing, defiling, burning or trampling upon it."

Similarly, Alito declined to directly answer the question of whether the Anti-Apartheid Act of 1986 applied to companies doing business with the African nation of Namibia.

But he went on to note that the Treasury Department had issued a regulation stating that Namibia was considered part of South African territory under the act.

Alito also wrote that he hoped that the information ''may be of some value."

Alito showed strong support for the principle of federalism, which preserves a strong role for states to govern according to their own laws. In the memo that touched on capital punishment for juveniles, Alito also objected to provisions that he said could be interpreted as requiring states and the federal government to provide basic health care, child-care services, and family planning on a universal basis.

''The Convention reflects a distinct bias in favor of centralized state control over the upbringing of children," Alito wrote. ''There might be disagreement by many states over whether they ought to be involved in guaranteeing the rights and privileges espoused by the Convention."

"States were permitted to impose capital punishment on 16- and 17-year-olds until March 2005. Then, a divided Supreme Court cited a ''national consensus" against the practice, and struck down the juvenile death penalty laws of 20 states in a 5-to-4 ruling."

Does it strike anyone else as odd that the Supreme Court cites a "national consensus" in a 5-4 decision? There's not even anything close to a consensus among the 9 justices who are nearly evenly divided.

As with Atkins, that is just one of the screaming flaws in the analysis of the majority's opinion. Another reminder that the State's do not enjoy sovereignty over their penal laws.

A recent article on Judge Alito's death penalty experience is worth a scan. It is written by academics who don't trust Alito to do the right thing. It probably says more about the authors' viewpoints, but might provide some insights.

See
http://www.acslaw.org/pdf/Alito_Death_Penalty.pdf

I believe the "American Constitution Society" was formed after Bush was elected president; it is intended to be a liberal foil for the Federalist Society, if I recall events correctly. (Which would explain the "sample questions" to be asked of the nominee that they list at the end of their paper.)

But of course, they don't take a position on the nominee himself.

Riiiiiiiight ...