More Montejo, Mostly

Update: Another statistical analysis of Judge Sotomayor’s work in criminal cases appears here. The conclusion — that she’s pretty close to the middle of the road — is the same as the conclusion in the McClatchy story I referenced originally, but the figures are very different, showing that she has ruled in favor of the defendant in only 7% of criminal cases. I assume that the difference is explained by differences in the data sets, like McClatchy’s exclusion of habeas cases.

Original Post: Bob Farb’s detailed exploration of Montejo v. Louisiana is available here. (My previous post on the case is here.) Two terrific things about Bob’s summary are (1) the amount of context that it provides, and (2) the clear explanation that it provides of how Montejo will affect officers’ work.

The decision has, justifiably, begun to attract some public attention, including a New York Times editorial, here, and a National Law Journal piece, here, juxtaposing the case against Judge Sonia Sotomayor’s nomination to the Supreme Court, and emphasizing the importance of a single vote.

Speaking of Judge Sotomayor, an interesting piece about her criminal law decisions by the McClatchy Newspapers appears here. The conclusion is that she’s “far from soft on crime,” a conclusion based in part on statistics showing that she voted in favor of the defendant in 28% of the criminal cases she’s heard over the past five years. Apparently, that’s par for the course on the Second Circuit. (In the Fourth Circuit, or in our state appellate courts, that number would put her on one end of the bell curve, but perhaps different courts see different types of issues.)

4 thoughts on “More Montejo, Mostly”

  1. Bob’s memo on Montejo is spectacular. Thanks for the link.

    Any chance you’ll do a write-up of today’s COA opinion in State v. Wallace & Benton? Interesting holding re: fists as a deadly weapon, as well as sufficiency of the evidence for serious injury.

  2. I’ve seen [insert obligatory cliche here] with more substance than that McClatchy piece.

    It is misleading to claim that a judge is not, “soft on crime,” based on her appellate decisions. Given that criminal appeals are very one-sided (rarely can the State appeal anything), it is highly misleading to try to use any type of statistical breakdown in order to explain an appellate court judge.

    Where you really have to look for an appellate court judge, and where it especially shows with her, is in what she writes, how she writes it, and ultimately what she thinks. The idea that she truly believes that a, “wise latina woman,” would reach a *better* ruling than a white judge, just shows how utterly unqualified she is. Also, the fact that she thinks that appellate courts, “are where policy is made,” also shows her fundamental disregard for the law. (Do not believe for one second that she did not mean that remark. Watch the video and see how casually she lets it just roll right out before she realized what she said and that it was on video.) Actually, given some of her quotes while sentencing criminal defendants, she seems to be one of the reasons why mandatory minimums are a good idea.

    As for the story, the (ab)use of statistics is completely intentional on McClatchey’s part. The article is really nothing more than a pro-Obama puff piece produced by a company who is looking for a bailout because their stock price is so low, they were close to being de-listed from the NYSE. (See )

  3. Prosecutor, you might want to check out this article from today’s Wall Street Journal entitled, “Nominee’s Criminal Rulings Tilt to Right of Souter”:

    Or is the Wall Street Journal also prone to running pro-Obama puff pieces?

    Also, didn’t that great model of judicial restraint and noted originalist Justice Antonin Scalia author one of the most defendant-friendly decisions in recent years — Crawford v. Washington? I guess you can never tell where those accursed judicial activists are hiding!

  4. Prosecutor, you might also want to check out this lengthy and well-researched piece by Kent Scheidegger, Legal Director of the conservative Criminal Justice Legal Foundation:

    The piece includes this summary of his analysis of Judge Sotomayor’s AEDPA opinions:


    On the whole, these are well-considered, well-written opinions that apply the language of the statute and the precedents of higher courts, easily within the limits in which reasonable people may differ.


    If you’re really concerned with how Judge Sotomayor has viewed her role as a federal judge, this piece is important because it summarizes the actual legal reasoning she has used in actual opinions.


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