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Sotomayor's record reveals
that she's far from soft on crime</font size></center>
Judge Sonia Sotomayor of the Court of Appeals for the
Second Circuit
McClatchy Newspapers
By Michael Doyle
May 29, 2009
WASHINGTON — Before her Supreme Court nomination, Sonia Sotomayor put some crooks in prison and cut others some slack.
She's confronted killers and empowered police. She has also sympathized with inmates and challenged prosecutors. While tilting liberal in some areas, Sotomayor's five years in the Manhattan district attorney's office and 17 years on the federal bench appear to place her near the center in criminal law matters.
"She's a moderate," said Judge Guido Calabresi, a colleague on the 2nd Circuit Court of Appeals.
Like her colleagues, Sotomayor faced her share of sketchy prisoner appeals and complaints about lengthy sentences. More often than not, she agreed with the government's position. On substantive law enforcement powers, too, she's pleased police with rulings that, for instance, have upheld certain warrantless searches.
A McClatchy review of Sotomayor's appellate decision-making reveals her criminal-law inclinations. Of 90 criminal law-related cases considered by an appellate panel on which Sotomayor has served since January 2002, she's sided with the government 65 times and prisoners and defendants 25 times.
More telling may be the company she keeps.
Whether she's ruling for prosecutors and prison officials or for inmates and defendants, Sotomayor is nearly always in the majority. Among the cases McClatchy reviewed, Sotomayor dissented on a defendant's behalf only once. Overall, she's a team player on criminal law matters — undercutting one potential Republican line of attack.
"She's the opposite of an activist judge," Calabresi said.
Criminal law matters account for only a portion of the 75 or so cases considered annually by the Supreme Court. Among politicians and members of the public, though, these can be the most incendiary. Consequently, Sotomayor's service as an assistant district attorney in New York beginning in 1979 started her inoculation against potential soft-on-crime charges.
"There, Sonia learned what crime can do to a family and a community, and what it takes to fight it," President Barack Obama said.
Sotomayor says she focused on "street crimes, i.e, murders (and) robberies," although she also went after others. In 1983, for instance, she successfully prosecuted New York-area residents Clemente D'Alessio and Scott Hyman for selling pornographic films featuring children as young as 7. That same year, she won a murder conviction for a high-profile Harlem killer named Richard Maddicks, who's now serving a sentence of more than 67 years.
"I appeared almost daily in court as a prosecutor," Sotomayor told the Senate Judiciary Committee in 1992.
During her subsequent six-year stint as a U.S. District Court judge, Sotomayor started showing more nuance than that of a "street crimes" avenger.
In 1995, for instance, a man convicted of bribery and conspiracy named Wlodek Jan Lech sought to sanction federal prosecutors who'd kept secret information that would've helped the defense. Sotomayor agreed that the prosecutors' actions were "disturbing" and "astonishing," and she said she was "placing them on notice" that a recurrence could bring more serious consequences. Nonetheless, she sustained the prosecution's case.
In a similar vein, two years earlier, Sotomayor had voiced anguish in sentencing a nonviolent first-time offender named Louis Gomez to a mandatory minimum of five years — but her dismay didn't stop the punishment.
"This is one more example of an abomination being committed," Sotomayor told Gomez. "You do not deserve this, sir. I am deeply sorry for you and your family, but . . . I have no choice."
Asked about the episode in her 1997 appellate court confirmation hearing, Sotomayor stressed that she "imposed what the law required" even though she would've preferred "a different result."
An appellate court reversed or found errors in six of Sotomayor's trial court rulings, out of some 450 cases she presided over. None of the problematic rulings involved criminal matters.
Once Sotomayor joined the appellate court in 1998, she began ruling as part of a rotating three-member panel. She's participated in a total of more than 3,000 decisions, with criminal law-related cases that cover sentencing decisions, habeas corpus petitions and prosecutorial decision-making.
Sometimes, she's seen unsympathetic characters who happen to have a reasonable argument to make.
Last February, for instance, Elvin Lebron, a convicted member of a street gang that called itself "Sex, Money and Murder," sought more time to file an appeal. In agreeing, Sotomayor and two colleagues showed one facet of what might be called, for want of another word, empathy.
"We are concerned about the impact on the appearance of justice when (impoverished) litigants may not have financial access to (information needed) to understand and assert their legal rights," Sotomayor and the other two judges declared in an unsigned opinion.
More common, though, was Sotomayor's September opinion upholding the conviction of New York resident David J. Falso on child pornography charges. Sotomayor agreed that the FBI's 26-page affidavit "falls short of establishing probable cause," but she nonetheless concluded agents were "justified" in searching Falso's home.
"The search . . . uncovered over 600 printed-out images of child pornography," Sotomayor noted, adding "at least 50 of these images depicted pre-pubescent children engaging in explicit sexual poses and sexual conduct, including intercourse with adults."
Falso, 68, is currently scheduled to be in prison for another 22 years.
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