Doug Berman Needs a Break!

Douglas Berman is one of the hardest working lawprofs in the blawgosphere, bringing us fascinating decisions from across the country so that trench lawyers like me don’t have to scan the advance sheets daily to know what’s happening.  And isn’t he entitled to a vacation?

So while he’s enjoying a two week cruise, Doug has arranged for others to keep us in the loop in his absence.  Who, you ask?


We are attorneys at the firm of Proskauer Rose, where we practice across several different practice groups, including Corporate Defense & Investigations, Corporate Governance/Corporate Defense, and Securities Litigation & Enforcement.  We share a special interest in the world of sentencing, both as defense lawyers and commentators.  We are also great fans of the criminal law blogosphere, which unites academics, practitioners, politicians, jurists, and others interested in the field of criminal law and policy and encourages them to share their insight and experience.

Is there another blogosphere that no one told me about?  Is there a hidden group of defense lawyers that no one told me about?  Who are these people and what they doing in Doug Berman’s house?

The group of vacation-blawgers consists of Mark Harris, Anna Kaminska and Jennifer O’Brien, with “summer associate” Katie Gerber chipping in with color commentary.  Except for Katie, who signs her name to her posts, the rest go anonymous under the “guest bloggers” handle.

So why do I bring this up?

Doing my normal rounds of the odd and curious things in the blawgosphere, I happened upon a post at Sentencing Law & Policy about an 8th Circuit affirmance of a sentence of probation for a “major crack dealer.”  The first thing I noticed was that the post failed to provide the case name, which happens to be U.S. v. Pinkey McFarlin.  What a great name, I said to myself. A combo of Pinky Lee and Spanky McFarland. Who could leave out a name like that?  But I digress.

Pinkey pleaded to selling 102 grams of crack.  Whether I would put him into the category of “major crack dealer” is highly questionable.  While 102 grams may sound like a lot, it is .224871 lbs (or 3.59 ounces).  Major?  Not really.  But major is qualitative, so given an extremely limited depth of experience, I guess someone could think of Pinkey as a major dealer if they’ve never actually seen a real dealer before.

But Pinkey, as a result of extremely poor health, age, obesity, and having been installed as a preacher in the Church of God and Christ in Newport, Arkansas in the interim, was sentenced to 3 years probation.  Now this is interesting and instructive, as it tells defendants that if they want probation, they should become a preacher, gain a few hundred pounds and allow themselves to deteriorate to desperate physical condition. 

As the Circuit decision notes up front, they “affirm the sentence of probation upon these unique facts.” 

So what is the gist of the guest bloggers’ post on poor/lucky Pinkey?

While some may find such extensive health departures to be controversial, the Eighth Circuit’s case is proof that departures on these grounds are available to all, regardless of the type of offense, as they should be.

Say what?  Available to all?  Has Proskauer Rose moved its New York offices to a different planet?

Now I realize that “special interest” falls a little shy of having actual experience in criminal law, leaving some observations and conclusions in doubt.  But I thought that Biglaw types could brief a case like there’s no tomorrow.  Boy, was I disappointed.

I don’t plan on beating up on this subject any more than I’ve done here, and I certainly don’t begrudge Doug taking a vacation.  God knows he deserves one.  But I’m sure going to miss the ability to rely on what’s posted at Doug’s blog until he comes back.

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