Chris
Temple On Line
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“MARTHA’S Free-But I’m Not” –March 6, 2005 Dear Friends, As you already know, Martha Stewart finished the incarceration part of her 10-month sentence this past week. Now, she’s back at one of her homes to finish her term via house arrest. Yours Truly has not been so fortunate yet. Though both my plea agreement with the government and the U.S. Supreme Court’s January decision in U.S. v. Booker both argue that the 6-month (maximum) sentence I argued for last July is the correct (and constitutional) one, I remain one of nearly 900 guests at the Federal Prison Camp in Duluth, Minnesota. This brief update will give you a quick explanation why this is the case. Simply put, the conduct of the court-appointed lawyer in my case (Jordan Loeb, of the Madison, Wisconsin-based firm of Cullen, Weston, Pines and Bach) to date has been of a lawyer more interested in “running interference” for the government than in being MY advocate. Mr. Loeb is either 1.) Part incompetent and part coward, or 2.) A fairly crafty ally of the government tasked with sabotaging my appeal. (NOTE: I’m in the process of compiling a complaint against him with the office of Lawyer Regulation and other bodies). Loeb’s most recent effort at scuttling my appeal was the most outrageous; and my ongoing protests to the Seventh Circuit Court of Appeals in Chicago MIGHT finally be having some impact (more on this in a moment). In a January 14 letter to me, Loeb offered to file a motion with the Seventh Circuit to withdraw if I was unhappy with him. I replied that my preference was that he 1.) Continue to represent me but by changing his behavior (to include that he cure the defects in my pleadings he was already responsible for) 2.) ONLY stay on if he was going to file my final brief as I had instructed him. OTHERWISE, AS I TOLD HIM, HE WAS INDEED TO FILE A MOTION TO WITHDRAW. In the end, Loeb not only didn’t withdraw, but he AGAIN filed a weak, off-point brief with the Seventh Circuit instead of what he was instructed (numerous time, in fact) to argue. As succinctly (and, I hope, understandably) as I can put it, the MAIN issue (where my prison term is concerned, anyhow) is as follows: The U.S. Supreme Court in the consolidated cases of U.S. v. Booker and U.S. v. Fanfan DID in its opinions announced in January hold last June’s doctrine in Blakely v. Washington applicable to the federal sentencing guidelines. As you’ll remember (if you’ve read my prior postings on christempleonline.com or otherwise have kept up with all this) that landmark decision threw a big monkey wrench into prosecutors’ practices of obtaining sentences on convicted defendants that were in excess-sometimes, as in my, case, obscenely so-of what the defendant was ACTUALLY CONVICTED OF OR PLED GUILTY TO. In the decision in U.S. v. Booker, the same five justice majority that stood up for the U.S. Constitution and due process (Justices Scalia, Thomas, Stevens, Souter and Ginsburg) held that the federal sentencing guidelines could not be used to add punishment for acts not pled to or not found by a jury beyond a reasonable doubt. Far from settling this issue, though, a different five-judge majority in the U.S. v. Fanfan decision seemingly muddied the waters even more on the whole issue of sentencing at the federal level. With no explanation why, Justice Ginsburg decided to side with the four dissenters in Booker when it came to the Court’s remedy for the Constitutional violation it identified in Booker. Together with Chief Justice Rehnquist and Justices O’Connor, Kennedy and Breyer, Ginsburg decided that the way to “save” the guidelines was to make them advisory rather than mandatory. In this way, some of the opinion’s many detractors say, Breyer (who authored this almost entirely unexpected “remedy”, revealing in so doing his stunning contempt for the right to trial by jury) was making sure it was STILL possible for prosecutors to procure sentences from judge far in excess of what WAS (under the guidelines) permissible. The judge need only call it something else. Now, I don’t quite buy this, which is the most pessimistic view of many as to the mess Breyer and Ginsburg helped cause. To be sure-whether it likes it or not-the Supreme Court is not through with this yet. Already, the various circuit courts of appeal are (as Justice Scalia predicted) all over the place with how they read this. In the new (or renewed?) world of discretionary sentencing, we’ve seen some great, just outcomes in some cases that weren’t possible before. In other cases, we’ve seen lunacy. The ongoing fight over the nature and justice of sentencing will continue, for better or worse. AS FOR MY CASE—The government and the Southern Poverty Law Center want me jailed, as you know, for as long as possible. Thus, in on of its briefs to the Seventh Circuit, the government suggested that the “discretionary” sentence of six years in my case was “reasonable” and should stand. My appointed attorney Loeb complained that my sentence was unreasonable, yet gave the Court very weak arguments while leaving out a variety of FACTS that would have bolstered that contention. What Loeb refused to do, though, was make the PRIMARY argument that I instructed him to; namely, that my plea agreement with the government DID NOT ALLOW for a “discretionary” sentence! Law in the Seventh Circuit and elsewhere is both well established and substantial in holding that plea agreements are generally deemed to have the same attributes as most any contract. A plea deal IS a contract. Mine said I would be sentenced pursuant to the federal sentencing guidelines; a provision which, in fact, Judge Barbara Crabb make especially sure I understood when she engaged me in what is know as the “Rule 11 colloquy” to make sure I understood what I was getting myself into. What I did not know at that particular point was how much the government would be “enhancing” me (something that my first court appointed lawyer-quite obviously, in retrospect, inept more than a knowing partner of the feds as Loeb seems to be-misled me on). Now that the Supreme Court has spoken via Booker, however- rendering all my “enhancements” unconstitutional-I intend to hold the government to the terms of our plea agreement! To do so, I am attempting to get the Seventh Circuit to allow me to file a supplemental brief to bring these issues out-those that Loeb refused to bring on my behalf. I have JUST sent a motion off to Sue to type and send them. We’ll see what happens. I will ALSO be arguing in that brief other issues that Loeb dropped the ball on; namely, that the other punishments meted out to me by Judge Crabb at the behest of the Southern Poverty Law Center violated my plea agreement as well. These, as you’ll remember, were her 1.) Finding me guilty of being an “associate” of Aryan Nations and the Militia of Montana, and 2.) The unprecedented attempt to, in effect, end my career (and deprive me of my First Amendment rights) as a journalist and newsletter editor/publisher. I know such a thing is at least unprecedented in the Seventh Circuit, as Assistant U.S. Attorney John Vaudreuil was recently unable (in a brief he filed with the Seventh Circuit) support of such a broad condition of supervised release as he and the SPLC’s Morris Dees nevertheless pushed for and, for the time being, have won. Well, there you have it. Though this has ended up longer than I’d planned (what else is new, right?) you have the picture. I covet your prayers and support; for me, as well as for my family. I’ll do my best to keep you up to date via this website; in the mean time, if you want to reach me directly, you may write to me at: Chris Temple 05442-090
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