LAW PROFESSOR'S WEB LOG IS JURISTS' MUST-READ

For the nation's federal judges and the defense lawyers and convicts who
come before them, June 24 was a momentous day. For Douglas Berman, a
35-year-old law professor at Ohio State University in Columbus, the day
marked the beginning of his Warholian moments of fame.

On that date, the U.S. Supreme Court struck down tough sentencing
guidelines used in Washington state. The high court said any factor
increasing a criminal sentence must be admitted by the defendant in a plea
deal or proved to a jury. Since then, Mr. Berman has become the chronicler
of the sweeping effect of the Blakely v. Washington ruling on the nation's
courts.

As the creator of a Web log, or blog, called Sentencing Law and Policy
(http://sentencing.typepad.com), Mr. Berman has established himself as the
go-to guy for all things Blakely for federal and state judges, defense
lawyers, prosecutors and prisoners' relatives. Although the 5-4 Supreme
Court ruling technically affects only one state's court system, its
greatest impact so far has been on federal sentencing guidelines, whose
constitutionality has been called into question in dozens of court rulings
nationwide, almost all of them posted on Mr. Berman's blog.

Last week, the blog was cited in testimony before the Senate Judiciary
Committee, which held hearings to consider a short-term fix to quell some
of the chaos resulting from the Supreme Court ruling's effect on the
20-year-old federal sentencing guidelines. Also last week, New York's
Second Circuit Court of Appeals cited the blog in a unanimous opinion of
the court's 13 active judges, which beseeched the Supreme Court to decide
the guidelines' constitutionality quickly. Judge Paul G. Cassell of Utah,
the first federal judge to declare the guidelines unconstitutional, cited
the blog in his groundbreaking opinion.

Mr. Berman has taught and written about sentencing issues for nearly a
decade and is the editor of Federal Sentencing Reporter, a journal that
tracks sentencings. But it is his blog, which is getting more than 2,000
visitors daily, that is his claim to fame. "It's like I got tapped and put
in the major leagues," he says.

In the vast reaches of the Internet, blogs are small fry compared with
commercial Web sites such as eBay Inc. and Yahoo Inc. But their often
narrow focus -- the Blakely ruling, for example -- can make them a
must-read for the particular community interested in every bit and piece
related to the subject at hand.

Last week, U.S. District Judge Lawrence L. Piersol of South Dakota,
president of the Federal Judges Association, recommended the Berman blog to
members in an e-mail.

"I've been on it four or five times a day," says U.S. District Judge Joseph
Goodwin of Charleston, W.Va., who slashed the sentence of a drug felon
after finding the guidelines unconstitutional. (Mr. Berman was among the
first to report that ruling.)

Judge Cassell says judges and lawyers traditionally get information from
paid legal Web sites, such as Westlaw and LexisNexis, which post published
court rulings. By contrast, Mr. Berman's blog instantaneously posts
unpublished opinions and, on occasion, even documents not intended for
public consumption.

Mr. Berman caught flak this month for his posting of one such document -- a
memo to federal prosecutors from Christopher Wray, the chief of the Justice
Department's criminal division, that detailed how prosecutors ought to
handle the Blakely ruling in the drafting of indictments and plea
agreements. The memo carried a bold-faced warning: "The material in this
document consists of attorney work product and should not be disseminated
outside the Department of Justice."

While no one asked him to remove the Wray memo, Mr. Berman says, Justice
Department officials made it clear to Mr. Berman that "they weren't
ecstatic that it was up there." The Justice Department declined to comment.

Mr. Berman has posted federal-appeals and district-court rulings on
Blakely's applicability to federal guidelines from Illinois, Louisiana,
Utah, New York, West Virginia, Tennessee and elsewhere. He offers analysis
on many of the dozens of sentencing opinions that have been issued since
the Supreme Court ruling. Of an Ohio Appellate Court ruling, Mr. Berman
says it is "already giving prosecutors nightmares."

New York criminal defense lawyer Gerald Lefcourt says the Berman blog
"enables me to keep up with the moment-to-moment chaos of the supreme mess
created by the Supreme Court." He recently wrote to Mr. Berman seeking
advice about a coming criminal trial.

Mr. Lefcourt is among hundreds who have written to the professor, including
relatives of federal prisoners who might be affected by the Blakely ruling
if the Supreme Court eventually decides the federal guidelines are
unconstitutional. "My brother is serving a 10-year sentence, drug-related,"
wrote a Maryland woman. "His original plea was to have given him a two-year
sentence," but the judge increased it. "I am hoping you will keep an eye
towards this for those of us who are trying to help prisoners seek relief
from this draconian system."

Another of those who wrote recently was Richard Erpenbeck, whose
45-year-old brother and 69-year-old father both have been sentenced in
recent weeks to lengthy prison terms. "Your fantastic resource work on
Blakely and your help to a hundred thousand head-scratching attorneys and
defendants has not gone unnoticed," wrote the Edgewood, Ky., man. Mr.
Erpenbeck's brother was sentenced to 30 years for bank fraud and
obstruction of justice, while his dad got 70 months for obstruction.

Both sentences were significantly boosted based on the very "relevant
conduct" that the Blakely ruling outlawed in Washington state. A Cincinnati
federal judge increased the sentences based on findings, by a preponderance
of evidence, of multiple victims of the fraud and the men's leadership
roles in the crime.

"Professor Berman's really provided an education and he can help me explain
the nuances of this ruling to my brother and dad, who are in jail," Mr.
Erpenbeck says.

Mr. Berman has competition, principally from Blakely Blog
(Blakelyblog.blogspot.com), which was founded by Jason Hernandez, a
27-year-old law student at Columbia University in New York who is a summer
associate at a Washington law firm. There also is SCOTUSblog, run by
Washington law firm Goldstein & Howe that posts news articles and analysis
of Supreme Court rulings on the firm's Web site. Mr. Erpenbeck says he
reads them all. "No other site even comes close," he says of Mr. Berman's blog.

Still, Mr. Berman may be forced to yield ground to competitors next month,
when he is scheduled to take a long-planned vacation to Myrtle Beach, S.C.
Like it or not, he will have to leave his work behind. The reason: "There's
no Internet wiring in that beach house," says his wife, Christine Berman.