Circuit Split on Victims' Rights:

Check out this Tenth Circuit decision interpreting the expedited review provisions of the Crime Victims' Rights Act.

The Act provides for appellate review that is stunningly quick by the standards of the justice system -- "The court of appeals shall take up and decide such application [for mandamus] forthwith within 72 hours after the petition has been filed." One question this raises is whether the review is the normal appellate review, in which the appellate court reviews the trial court's decision for legal error without any deference to the trial court's legal judgment, or the normal mandamus review, which is considerably more deferential to the trial court. The Second and Ninth Circuit read the statute as mandating the nondeferential "de novo" standard; the Tenth Circuit has just expressly disagreed with those circuits, and went for the deferential standard.

If the Tenth Circuit doesn't rehear the case en banc, this sort of circuit split might well trigger Supreme Court review. The sentencing hearing at which the victims wanted to participate is scheduled for Jan. 14, and if that proceeds on schedule, then it's possible that the victims' challenge might become moot; but my tentative sense is that if need be the hearing can be postponed precisely to avoid such mootness, since speedy trial rights don't apply to the timing of sentencing. I'd love to hear what others think about this procedural question, though, and about the certworthiness of this case more broadly.

Thanks to How Appealing and Prof. Doug Berman (Sentencing Law and Policy) for the pointer.

Greg May (mail) (www):
It does seem cert-worthy to me. And this is a hot-button political issue, so perhaps the crime victim lobby is loud enough to get Congress to spell out a de novo standard in the statute.
1.11.2008 9:02pm
Sean M:
I imagine that the 10th got this one right. Mandamus is a term of art, and Congress has enough lawyers to know to say "appellate review" when it means appellate review and mandamus when it means mandamus.

And given the 72 hour deadline, it seems to buttress the idea that the Court of Appeals is only meant to swat large, obvious mistakes, not engage in full de novo analysis.
1.11.2008 9:06pm
Public_Defender (mail):
Sean M is right, if Congress says "mandamus," that's the standard that should be used.

But Greg May is also right. Even if the mandamus standard stays, Congress will likely change the law quickly. One downside of winning a statutory interpretation case for a criminal defendant is that your "win" will frequently spur a change in the statute.

In at least some cases, there is a harm in delaying sentencing--it could stop the defendant from being transfered to prison, which is must better suited for long-term incarceration than local jails. Local jails just are not suited for long stays. A delay in sentencing could also delay programming. If there are "other" victims, the delay could delay restitution payments to them.

(I admit that my knowledge is based on the state system, so someone with more knowledge of the federal system can correct me if I'm wrong.)

I also don't see why mootness would necessarily stop review. SCOTUS could probably take this case after-the-fact because it is capable of repetition yet evading review.
1.12.2008 11:30am
If Congress wants appellate court's to have de novo review, they should give the court more than 72 hours to make a decision.
1.12.2008 3:50pm