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When Judges Clash: 2nd Circuit Dissentals Edition

By Robyn Hagan Cain | Last updated on

Judicial clashes can be pretty amusing, particularly because we expect judges to be stoic and unflappable. But clearly there has been some flapping on the Second Circuit Court of Appeals.

Last August, a split Second Circuit panel upheld a high school field hockey coach's 30-year sentence for attempting to produce child pornography. Circuit Judge Reena Raagi wrote the majority opinion, explaining that the sentence, which fell within the Guidelines range, was reasonable because "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence" within the prescribed range."

Chief Judge Dennis Jacobs dissented, arguing that the sentence unfairly reached beyond "the offense of conviction," which "amounts to a single act of attempted sexting."

The judges strongly disagreed with one another, and Judge Raagi didn't mince words in criticizing Judge Jacobs' dissent. Not much has changed since August.

It seems that court is still quarreling about the reasonableness of a sexting sentence; this time, in the context of a rehearing denial.

This week, the Second Circuit denied defendant Todd Broxmeyer's petition for en banc rehearing. Typically, such votes -- regardless of how they are decided -- are announced with little fanfare. A single line. A yes or a no.

The Broxmeyer vote, however, got a 18-page treatment, re-arguing the original decision. Chief Judge Jacobs offered a 6-page dissental, explaining why the court botched the first ruling and should reconsider the case, and Judge Raagi wrote 12 pages explaining why Jacobs' dissental was all kinds of wrong.

With a nod to self-awareness, Judge Raagi wrote that she concurred in the decision to deny rehearing, "which is hardly surprising given that I authored the panel opinion upholding the challenged sentence." Raagi went on to blast Jacobs for persisting in "trivializing the conduct at issue on this appeal by describing it as nothing more than a sports coach soliciting, 'without success,' a nude photograph from a 17-year-old team member," before concluding:

In fact, that conduct, which supported Broxmeyer's attempted production conviction, was part of a much larger pattern of sexual exploitation of teenage athletes by the 37-year-old man entrusted with their care. Broxmeyer routinely engaged these teenagers in sexual activities that escalated from the verbally flirtatious to the pictorially pornographic to the criminally assaultive. Indeed, the 17-year old from whom Broxmeyer solicited the aforementioned nude photograph -- which she eventually did produce in response to his constant badgering -- would thereafter become one of Broxmeyer's five teenage rape victims, Whatever "two consenting adults" -- to use the dissent's blithe characterization of Broxmeyer and those of his victims who had reached age 17 -- may be free to do together in New York, rape is most definitely not within that sphere."

Chief Judge Jacobs, for his part, compares the majority's take on sentencing to "Dexter."

If you enjoy judicial bickering, we recommend checking out the full-fledged rhetorical slugfest here.

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