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Judge Weinstein Makes the Case, Part II

Yesterday, I wrote about the Second Circuit's takedown of Judge Jack Weinstein's love letter to a young adult convicted of child pornography.  One thing I neglected to mention is that the defendant admitted before sentencing to three episodes of actual child abuse, with his eight year-old half-sister.  That is unusual; most distributors of CP have not personally abused a kid. The great majority of sentencing judges would view such behavior as ominous, and would tend to enhance the sentence because of it.  Not so  -- to say the least  --  with Judge Weinstein, who saw even the rock-bottom statutory minimum sentence as far too harsh.

The Second Circuit's assessment of Judge Weinstein's effort has received some attention, although not as much as it deserves.  My friend Prof. Orin Kerr at the Volokh Conspiracy had this to say:

There are a lot of debates about "judicial activism" in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates. The latest contribution to the Second Circuit's reversal docket is a 400-page sentencing opinion from earlier this week, United States v. C.R..

I ended my snarky post with this line: "One thing is for sure: When the Second Circuit reverses Judge Weinstein, they will do it in fewer than 400 pages."

The Second Circuit handed down its reversal today in United States v. Reingold. The page count: 50 pages for the majority, with a 6-page concurrence.

As one might expect, Judge Weinstein's war with the Second Circuit has also received some attention on other blogs.  Doug Berman, on Sentencing Law and Policy, has discussed the case here.  I couldn't resist having my say, which I started out in much the same way Orin did, by noting that, over the heated

objections of many in the CP-just-ain't-that-bad crowd -- whose numbers on this blog are large -- I said two and a-half years ago that Weinstein's nose-in-the-air monstrosity would not garner a single vote on the Second Circuit. I also offered a $250 bet on this.

No one took me up of course, because, notwithstanding the rote embrace of even the sleaziest defendants that often occurs in the comments section of Doug's site, the defense lawyers who speak up there can generally spot a clunker when they see one.

I have also been interested to see the newspaper coverage of Weinstein's getting reversed.  The New York Daily News picked it up right away.  So did the New York Law Journal.  The New York Times must know about it, since the Times has had gushing reports on Jack Weinstein before, in particular for his complacent views about CP ("complacent" is not the word the Times uses).  See, for example, the NYT's glowing article here.  Oddly, however, the Times doesn't have a word about yesterday's opinion exposing Weinstein as  --  how to put this?  --  a self-righteous vigilante able to flout the law because, irony or ironies, he's a federal judge.

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