"Judge's Bizarre Ruling Aids Perv."

NY Post headline about Judge Weinstein's decision in the Polizzi case:

Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long....

Weinstein made his stand in declaring a mistrial in the conviction of Pietro Polizzi, 54, a Brooklyn pizza-shop owner.

Weinstein wrote that he "committed a constitutional error" by not telling the jury about the sentence.

Weinstein declared the mistrial on the top count - receiving child porn - and instead gave Polizzi one year in prison on a lesser count of possession.

At trial, Polizzi argued an insanity defense, claiming he was sexually abused as a child and that he'd downloaded the porn only to research his own past.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.

Does that sound bizarre to you? The bizarreness lies in the deviation from precedent. Orin Kerr, who has read — or at least "looked over" — the 266-page case, explains:

[T]he basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent....

The new cases like Blakely and Booker concern whether the judge or jury finds the facts. By contrast, this case is about whether instructions should facilitate or encourage the jury to ignore the facts. That's a very different set of questions. The fact that one line of cases gives power to jurors and the other keeps it away from them does not make the two lines of cases inconsistent.

But Judge Weinstein has written a book of an opinion (PDF) to show that they are inconsistent. We'll see what kind of reviews his book gets.