Thursday, April 23, 2015

It's been a bad week for law enforcement and dogs

First was the well-covered story of the Supreme Court ruling that traffic stops couldn't be extended, even briefly, to allow for drug-sniffing dogs to take a whiff around the car (yes, Rumpole, that was Scalia in the majority).

And next is this awful story about the FBI lying in courtrooms around the country about hair samples. In this particular case, the FBI convicted a man using hair analysis when the hair at issue was a dog's hair!

In one particularly shocking case from 1978, two FBI-trained hair analysts who helped in the prosecution of a murder case couldn’t even tell the difference between human hair and dog hair.

The case involved a murder in Washington D.C. that year. The victim, a cab driver, was robbed and killed in front of his home. Before long, police centered upon Santae Tribble, then a 17-year-old local from the neighborhood, as a suspect.

Tribble maintained his innocence. But no matter what he said and how much his friends vouched, two FBI forensics experts claimed that a single strand of hair recovered near the scene of the crime matched Tribble’s DNA. Thanks to that evidence, which was groundbreaking at the time, Tribble was found guilty and sentenced to 20 years to life in prison after 40 minutes of jury deliberation, reported the Washington Post.

He would go on to serve 28 years until the truth came out: an independent analysis found that the FBI testimony was flawed. Not a single hair that was found on the scene matched his DNA. After attorneys brought the evidence to the courts, Tribble was exonerated of the crime, though he’d already been released from prison. “The Court finds by clear and convincing evidence that he did not commit the crimes he was convicted of at trial,” a judge wrote in the certificate of innocence released at the time, in 2012.

It gets worse. Not only did none of the hairs presented as evidence in trial belonged to Tribble, the private lab found that one of the hairs actually came from a dog.

“Such is the true state of hair microscopy,” Sandra K. Levick, Tribble’s lawyer, wrote at the time, in 2012. “Two FBI-trained analysts… could not even distinguish human hairs from canine hairs.”

Tribble’s case in not unique. In a Washington Post story released over the weekend, officials from the FBI and the Justice Department acknowledged the extent of their flawed use of hair forensics prosecutions prior to 2000.

The numbers are staggering. Over 95 percent of the cases involving hair evidence that the FBI has reviewed so far contained flawed testimony—257 out of 268 cases.

Ho hum. No one seems to care.

Wednesday, April 22, 2015


That's how the appellant in this Federal Circuit case cited to a case so that it counted as one word instead of 14. The court wasn't amused:

The Federal Rules of Appellate Procedure limit an
appellant’s opening brief to 14,000 “words.” Fed. R. App.
P. 32(a)(7). Appellants attempted in their first corrected
brief to create “words” by squeezing various words together
and deleting the spaces that should appear between the
words. For example, the following is not one word, although
that is how it appears on page 3 of Appellants’ first
corrected opening brief:


Instead, when written properly, it is 14 words: Thorner v.
Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012). Similar matters appeared throughout
the brief.
In the alternative, Appellants move for leave to file a
new “corrected brief.” The new corrected brief does not
bring the actual word count below 14,000 words. For
example, the new corrected brief would, instead of deleting
spaces between words in case citations, replace various
phrases or case citations with abbreviations such as
“TOA1” and list those citations only in the table of authorities.
The Appellants also use abbreviations such as
“CR1” to cross-reference to something that was stated
earlier in the brief, although it is so poorly explained that
it is nearly incomprehensible. Neither the previously filed
brief nor the most recent proffered corrected brief comply
with the court’s rules. Instead, they represent an attempt
to file briefs that, if written properly, exceed the permitted
word limitation.
Appellants have failed to show cause why the brief
should not be stricken and why the appeal should not be
dismissed. Pursuant to the court’s March 17, 2015 order,
the appeal is dismissed.

In local news, the feds are targeting local businesses in a particular geographic area for money laundering. Can they do that? From the AP:

Federal investigators are targeting 700 businesses in the Miami area for enhanced scrutiny to detect trade-based money laundering schemes involving Latin American criminal organizations, authorities announced Tuesday.

U.S. Immigration and Customs Enforcement said the focus would be on electronics exporters, including those in the cellphone business, in five ZIP codes near Miami International Airport. The targeted companies will be required to file certain Treasury Department forms for transactions over $3,000 rather than the current $10,000 threshold.

In addition, the companies will be required to identify people involved in the transactions, focusing especially on third parties who put up the money to complete the deals. Authorities say the program enhances law enforcement's ability to find and prosecute money launderers, including those in the illicit drug trade, counterfeit merchandise sales and human trafficking.

"It's very prevalent among the electronic exporters," said John Tobon, assistant special agent in charge of ICE homeland security investigations in Miami. "These are items that are very easily sold overseas."

The Miami businesses were not identified by name. Tobon said not all of them are wittingly involved in money laundering, although some are created solely for criminal groups to evade U.S. currency laws. Some legitimate exporters view the complex, often all-cash transactions as necessary for doing business in Latin America.

"We want to let them know this is not an acceptable business practice," Tobon said.

The new rules, formally known as a Geographic Targeting Order, were issued by the Financial Crimes Enforcement Network, or FinCEN, which is part of the Treasury Department. A similar order was issued last year covering some 2,000 businesses in the Los Angeles area after raids in that city's fashion district resulted in seizure of $90 million in cash and $30 million in bank accounts traced to Mexican drug cartels.

Tuesday, April 21, 2015

What should the courts do about confusing statutes?

That was the question yesterday before the Supreme Court, which was looking at the Armed Career Criminal Statute. From the Washington Post:

Johnson was subject to an enhanced sentence because he had previous convictions. But he said that one of them — mere possession of a sawed-off shotgun — should not qualify as violent.

The Supreme Court originally took the case to decide that question. But months after the first argument, apparently unable to agree about the proper disposition of the case, the justices scheduled a new hearing on whether the clause was unconstitutionally vague.

As might be expected, Scalia led the questioning of whether the law could be saved. “Can we just patch up this statute in ways that have nothing to do with its text?” he asked Deputy Solicitor General Michael R. Dreeben, representing the government. He suggested that was a job for Congress.

Scalia said he did not believe it was enough that everyone agreed that some convictions would qualify.

“I suppose you could have a statute that criminalized annoying conduct, right?” Scalia asked. “And according to the government, that would not be unconstitutional, because there’s some stuff that is clearly annoying, right?”

Dreeben said the concern should be less because the burden is on the government.

If a court is not satisfied that a crime fits within the category, “the government loses,” Dreeben said. “The tie goes to the defendant.”

So my question to our district and circuit judges is why aren't more statutes found unconstitutionally vague? It is almost unheard of for the lower courts to do so, leaving it to the Supreme Court to step in. But so few cases get to the Supreme Court that the law is rarely tested. If more district and circuit judges were willing to say what we all know -- that many of these statutes make no sense and criminalize all sorts of benign conduct, the Supreme Court would examine more cases and the law would progress.

Monday, April 20, 2015

Go Dore Go!

Tiffany Foster gambled and lost a lengthy trial before Judge Altonaga.  She was taken into custody after the verdict was read and by all accounts was facing a substantial jail sentence.  But Dore Louis didn't give up -- and he won his post-trial motion for judgment of acquittal based on his defense of withdrawal.  From the Miami Herald:

A woman branded by prosecutors as the “matriarch of patient brokers” for a Hollywood hospital that fleeced about $40 million from Medicare has been freed by a federal judge in a rare ruling that spares her from spending potentially the rest of her life in prison.

U.S. District Judge Cecilia Altonaga threw out a Miami jury’s guilty verdicts against Tiffany Foster, 49, saying the trial evidence showed that she had “withdrawn” from the scheme to bilk Medicare more than five years before prosecutors filed an indictment against her and others in May 2014.

As a result, Foster should not have been charged because the statute of limitation for that period had already run out. Altonaga concluded that Foster “cannot be punished for the offenses for which she was convicted.”

The clock was ticking for Foster, who faced up to 25 years in prison at her sentencing on April 30.

Foster’s defense lawyers said they were “elated” with the judge’s answer to their post-verdict bid for acquittal — almost always a long shot.

“It is an important decision not only for Tiffany, but for anybody who has made mistakes in the past and long since moved beyond them,” said Miami attorney Marshall Dore Louis, who worked on the defense with Hilary Metz.

Good stuff. A shout out to Dore, but also to Judge Altonaga for having the courage to throw the case out.

Meantime, Paula McMahon is covering the Swap Shop trial in Broward. It's really entertaining and you should check out this entire article. Here's a snippet:

Jurors in the civil suit that pits luxury brand Louis Vuitton against the owners of the Swap Shop flea market in a fight over designer fakes got their first chance Friday to hear from the multimillionaire couple.

And the testimony from Preston and Betty Henn was a doozy.

"Ask me a sensible question," Preston Henn, 84, fired off.

"It's none of your business." "Don't want to." "Don't ask me dumb questions." "I. DON'T. KNOW."

Though lawyers had warned the jury that Henn is "petulant" and "quirky," jurors laughed out loud at times when they saw him in action.

The couple testified about condoms, crayons and cash. They discussed their strong work ethic and how they run their business. But above all else, both Henns — who sat in the courtroom but testified via pre-recorded video footage — made it crystal clear they don't have much patience for other people's questions.

Louis Vuitton's lawsuit accuses the Henns of contributing to the violation of the ritzy designer's trademarks by allowing vendors to sell fake Louis Vuittons at the market on Sunrise Boulevard in Lauderhill. If the Henns are found liable, they could face civil penalties of $1,000 to $2 million per proven trademark violation.

Louis Vuitton argues the Henns knew what was going on right under their noses because they both work at the market seven days a week.

The defense says the couple has taken reasonable steps to try to shut down the sale of counterfeits but that even Louis Vuitton, a multi-billion-dollar operation, has been unable to stem the tide of fakes.

The Henns are millionaires many times over and travel from their Hillsboro Mile home to their Aspen, Colo., retreat in a private jet they bought for about $18 million.

But they don't put on airs.

Preston Henn wears faded blue jeans to court most days and refills his Hard Rock Casino commuter mug from containers he carries to court in a variety of bags — an insulated vinyl shopping tote, a canvas book bag and, one day, one of the family's genuine Louis Vuitton leather handbags.

Betty Henn, 80, told the jury she and her husband resolve their disputes "by screaming at each other." But he gets the final say because, "He's a man."

At the market, they call her "Miss Betty" and vendors know they're playing with fire if they tick her off.

But when the lawyers asked what her job title was, she deadpanned: "Slave."

Jurors laughed. Preston Henn chuckled and patted her arm lovingly.

Thursday, April 16, 2015

Thursday news and notes

1.  Would you pick the Chief Justice for jury duty?  These lawyers passed in a state civil case:
Rubin eventually asked people to raise their hands if they were involved in certain professions or were close to people involved in those professions. When the topic turned to medicine, Roberts spoke up.
“Juror 49,” he began. “My sister is a nurse.”
Rubin asked for a few more details and got them – she lived in Indiana, with a specialty of cardiology. Then Rubin asked the highest ranking member of his profession a question he obviously knew by rote: “Would that in any way make it difficult or impossible for you to be fair and impartial?”
“Nope,” the chief justice said.
Rubin moved on to whether panelists knew people involved in the accident investigation field.
Several prospects answered, including Roberts, who told Rubin about his brother-in-law. Rubin again asked if that would keep him from being fair and impartial.
“No sir,” Roberts said.
The judge – Rubin – moved on to questions about whether anyone had been in a bad accident. A man in the back said he’d totaled his dad’s Volvo as a teenager. Rubin asked if he was OK, heard that he was, and started an exchange that had Roberts and his other juror candidates laughing.
“Did you work it out with him?” Rubin asked.
“I had to work at a Cheesecake Factory for a couple of summers,” Juror No. 54 said.
Minutes later, Rubin asked No. 49 to step to the bench, asking the lawyers in the case to join them for a quiet conversation out of the presence of the other prospective jurors. It seemed clear what Rubin was doing: He was about to ask the panelists if they had any experience as a lawyer or close connections to lawyers, and Rubin wanted to save Roberts from having to answer in the detailed affirmative in front of everyone else.
“Sir, good morning. How are you?” Rubin asked No 49.
“Very good, thank you,” No. 49 said.
“I’ve discussed this with counsel. Obviously we know what you do for a living, sir.”
The huddle quickly concluded, and Roberts was allowed to remain silent during the lawyers question.
That Roberts wasn’t selected could have had as much to do with his juror number as anything.
After taking into consideration which jurors attorneys wanted stricken, Rubin went in numerical order. The panelists selected – six for the trial, with two alternates -- started at No. 2 and ended at No. 14.
The high court resumes oral arguments Monday.

2.  Would you try Ruth Bader Ginger ice-cream?

3.  What's the dillio with Judge Fuller.  Senators want to know.