Judge Quits S.D. Bench Over Sentencing Rules : Courts: U.S. District Judge J. Lawrence Irving is frustrated by new guidelines that restrict his authority.

TIMES STAFF WRITER

Saying strict new federal sentencing guidelines had taken much of the fun out of being a judge, U.S. District Judge J. Lawrence Irving announced Wednesday that he is leaving the bench.

Irving, 55, who has drawn a succession of high-profile cases, including financier Richard T. Silberman's just-concluded money-laundering case, said he planned to notify President Bush today that he will resign as of Dec. 31 because of the new sentencing rules.

Widely regarded as one of the keenest federal judges in California, Irving said he believes he is the first judge in the nation to quit because of the rules, which sharply reduce a judge's discretion in sentencing convicted criminals.

"To me, the job just isn't as much fun as it used to be," Irving said.

A multimillionaire who was considered one of San Diego's finest trial lawyers before his appointment to the federal bench--and the promise of lifetime tenure--in 1982, Irving said his plans upon leaving are indefinite. He said he might teach and he might mediate lawsuits--and most certainly will play a lot of golf, to improve his already low 7 handicap.

His departure seems certain to leave the San Diego federal court--besieged by drug cases, many stemming from arrests at the U.S.-Mexico border, and already short one full-time judge--even more beleaguered.

Like many federal judges, Irving has made no secret of his displeasure with the rigid sentencing guidelines, which took effect in November, 1987, based upon the idea that prison is designed to punish, not rehabilitate.

The guidelines use a point system, based mainly on the severity of the crime, to determine sentences. A person's background, role in the crime, past record, remorse--none of these can be used to reduce the sentence below the minimum guideline.

Before 1987, some judges gave light sentences, often because they believed circumstances called for leniency or because they simply believed prison failed to rehabilitate. By reducing a judge's discretion, the guidelines also aim to eliminate disparity in sentencing.

In a March, 1988, case, Irving ruled the guidelines unconstitutional, joining three other San Diego federal judges who had issued similar rulings in the previous few weeks. The San Diego judges were among the first in the nation to challenge the guidelines.

However, the U.S. Supreme Court upheld the guidelines in January, 1989.

Despite that ruling, the arguments over the guidelines have continued. In a report issued in April, the Federal Courts Study Committee--a blue-ribbon panel charged with recommending changes in the federal courts--urged making the rules advisory rather than compulsory.

Irving, in sentencing Silberman to 46 months in prison, said Monday from the bench that the guidelines had "dehumanized the sentencing process" into a "numbers game."

Silberman, a one-time governor's aide and wealthy financier, was sentenced under the guidelines. Under a plea bargain, he had pleaded guilty in August to a single felony count--and been convicted in June after a lengthy trial of one other felony count--in connection with a scheme to launder $300,000 in cash that an undercover FBI agent had portrayed as drug money.

Irving said from the bench that, because of the financier's "many contributions to the community," he might have considered sentencing Silberman to less than the 41 to 51 months prescribed by the guidelines. But Irving said that the guidelines eliminated that option.

Before the new rules took effect, Irving said Wednesday, "it used to be that a judge could do some good in sentencing," by being lenient when leniency was called for. "Now I can't do that. It tugs at your heart.

"The purpose of the guidelines is admirable--to do away with disparity in sentencing," he said. "It just doesn't work out that way."

Judy Clarke, head of Federal Defenders of San Diego Inc., the 17-lawyer federal public defender's office, said her office will be among those "really sorry to see (Irving) go. I have to admire him for making that kind of statement."

Clarke added, "And it's a real blow to the bench here."

The San Diego court, which normally carries a complement of seven full-time judges, has been operating with only six since July, when Judge William B. Enright took senior, or part-time, status upon reaching age 65.

And as of today, Irving no longer will take new civil or criminal cases, meaning five judges will be doing the work of seven, Chief District Judge Gordon Thompson Jr. said.

"There's no way on earth we're going to get (a new judge) until well into next year," Thompson said. "And (Irving's) replacement--probably not until toward the end of next year, if then. It's a devastating blow to the court."

Irving was due to begin a trial next week in a case connected to Silberman's. Trial was due to start Oct. 3 for reputed mobster Chris Petti, who was indicted along with Silberman in the same alleged money-laundering scheme.

But because Irving may no longer be on the bench when the trial concludes, he said Wednesday he is not certain whether it will begin as scheduled. If the lawyers in the case wish, they may opt to have another judge hear the case, which would almost certainly delay it, Irving said.

Assistant U.S. Atty. Charles F. Gorder Jr., the lead prosecutor in the case, said prosecutors want Irving to stay on the case. So did Petti's defense attorney, Oscar Goodman.

Irving set a hearing Friday on Petti's case.

"I think by his resigning he's trying to make a statement," Goodman said. "It's my experience those sorts of statements fall on deaf ears. But because he is so admired and distinguished, maybe someone will listen."

Besides the Silberman and Petti cases, Irving has drawn a significant number of high-profile cases in his eight-plus years on the San Diego federal bench.

A civil case--the J. David & Co. bankruptcy--attracted tremendous attention as Irving jailed financier J. David Dominelli for contempt, showed up in person for the bankruptcy auction of Dominelli's La Jolla securities firm and rode herd on federal prosecutors to advance a slow-moving investigation of the J. David scandal.

Dominelli pleaded guilty in 1985 to fraud and tax evasion in connection with his firm's fraud and is serving a 20-year sentence in federal prison. Some 1,500 investors lost about $80 million in the J. David fraud.

In 1987, Irving generated headlines when he let it be known he was interested in becoming director of the FBI. He was not, however, appointed to the post.

Irving, a Reagan appointee, joined the San Diego federal bench in July, 1982.

From 1963 to 1982, Irving ran a private practice in San Diego, specializing in legal and medical malpractice defense.

Irving went to college and law school at the University of Southern California. He is a graduate of Point Loma High School in San Diego.

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