High court hears arguments in Mobile case
Wednesday, April 16, 2008
By SEAN REILLY
WASHINGTON -- By almost any standard, Richard
Irizarry was a troubled man
when he pleaded guilty in late 2004 to a federal charge of threatening his
As part of the plea deal, Irizarry admitted
sending the woman, who had
moved to Baldwin County, an e-mail saying he would kill her and her new
husband. According to an FBI agent, Irizarry -- originally from California
-- also told him that he planned to leave "a trail of blood."
On Tuesday, however, the U.S. Supreme Court
was preoccupied with a
bloodless legal tangent: Should Chief U.S. District Judge Ginny Granade of
Mobile have informed Irizarry before his sentencing that she planned to
hand him the maximum possible term of five years in prison -- nine months
more than the upper limit recommended under federal guide lines.
In a brief filed with the court, Irizarry's lawyers argued that a legal
heads-up would have let him introduce expert testimony showing that his
symptoms could be successfully treated through medicine and therapy.
In such circumstances, advance notice is
required and "is essential for
purposes of advocacy on the issues," lead attorney Arthur Madden of Mobile
told the nine justices during the hour-long oral argument.
Several reacted skeptically.
Even without advance notice, Irizarry's
lawyers knew that his "future
dangerousness" would be on the table, Chief Justice John Roberts said.
"I assume you would have prepared for that," Roberts said. That argument
was amplified by Justice Ruth Bader Ginsburg who called Granade's
reasoning "not at all mysterious."
After hearing evidence of Irizarry's repeated
threats to kill his ex-wife
and other members of her family, "'I'm going to put him away for as long
as I can,'" Ginsburg said in purporting to summarize Granade's thought
Madden later got some support from the U.S.
Justice Department. Although
the department wants Irizarry's sentence to be upheld on the grounds that
advance notice wouldn't have made a difference, it also wants to preserve
the requirement when judges are considering a sentence outside the
When judges depart from those standards, they
are far more likely to veer
in the direction of greater leniency, statistics show.
At Tuesday's hearing, Justice Department
lawyer Matthew Roberts pointed to
the case of a man convicted of soliciting child pornography who was
sentenced to probation because the judge believed that the prison couldn't
provide the necessary treatment.
Although prosecutors hadn't presented any
evidence on treatment programs,
Matthew Roberts said, "we certainly would have done that if we had had
notice that the court was contemplating varying (from the guidelines) on
Shadowing Tuesday's proceedings was the
Supreme Court's landmark 2005
ruling that federal judges are not bound to follow sentencing guidelines.
With judges now freer to use their discretion, Justice Antonin Scalia
questioned whether the advance notice rule still makes sense, given that
there may be an "infinite" number of grounds for departing from the
Madden answered that "there has to be some
kind of notice" in the few
cases involving "extraneous" considerations that could drive a sentence up
or down. Appellate courts have split on the question, Madden said after
the hearing, leaving it to the Supreme Court to provide a definitive
The high court is expected to rule by the end
of June. Whatever the
decision, it's unlikely to affect Irizarry. Now rounding out his sentence
-- which apparently included time he had served before pleading guilty --
at a California halfway house, he is scheduled to be released next month,
according to information on the U.S. Bureau of Prisons' Web site.
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