Thursday, May 19, 2011

Quick news and notes

1. One of the Mutual Benefits defendants has pled out, which means that Judge Jordan (or whoever takes over his division after he goes up to the 11th Circuit) will only have one lengthy trial, not two. From Jay Weaver's article:

A prominent attorney whose fortunes rose with a Fort Lauderdale viatical insurance company at the center of a $1.25 billion investment fraud case pleaded guilty Wednesday to a single conspiracy charge, marking a major development in the long-running prosecution of executives and others at Mutual Benefits Corp.

Michael McNerney, 62, of Fort Lauderdale, admitted that as its lawyer, he helped the now-defunct company lure thousands of investors worldwide into buying dubious life insurance policies held mostly in the names of people dying of AIDS.

His role was part of an alleged investment scam lasting from 1995 to 2004 that authorities say rivals the $1.2 billion Ponzi scheme of disbarred Fort Lauderdale lawyer Scott Rothstein, convicted last year of selling fabricated legal settlements in a separate criminal case.

The Mutual Benefits and Rothstein cases rank as Florida’s largest fraud prosecutions.

He got a good deal -- a five year cap under Section 371.

2. The 11th Circuit's en banc decision today in Gilbert v. United States has all kinds of great rhetoric. Carnes wrote for the majority on complicated habeas issues, but he characterizes the issue as: "The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does notexceed the statutory maximum."

There are 105 pages of opinions, and I haven't read them in depth yet. But I found some good passages, especially from the dissents.

Judge Hill starts his dissent with this:

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.


The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.

Wow. Now that's good stuff. I will post more as I wade through it all.


Bob Becerra said...

Judge Hill shows a refreshing amount of legal guts for a jurist to say plainly what a lot of us in the criminal defense bar have been thinking for years.

Anonymous said...

I can't help thinking this system is completely broken and completely racist. On the one hand we have the educated lawyer whose properly calculated guidelines are likely life in prison. But because of the plea agreement he will serve at most 5 years and most likely less when he receives his Rule 35. On the other hand we have an African-American man who is serving far in excess of his properly calculated guidelines. But he is told that he has no remedy. Very sad day.

Anonymous said...

Cert will be granted by the Supreme Court. The dissents will be vindicated.

Tim S said...

It was interesting to me that Judge Dubina switched his vote. He was part of the original unanimous panel decision, then concurred with the majority en banc that reversed the panel.

Robert Kuntz said...

I'm just a simple civil litigator, ill equipped, perhaps, to understand the high-stakes complexities of criminal law.

But when you put this decision in Gilbert together with Kentucky v. King (police can create their own exigent circumstances with a knock on the door), then contemplate how this Supreme Court will deal with the Indiana Supremes' decision in Barnes v. Indiana (no right to resist even unlawful police action), you have to wonder what liberty will soon be left, don't you? At the very least, it has been a bad week for those concerned about unrestrained government power.

Anonymous at 11:11 p.m. has a confidence about the ultimate result for Gilbert that I find difficult to share.

Anonymous said...

Kentucky v. King did not hold that "police can create their own exigent circumstances with a knock on the door." The decision did not hold that exigent circumstances existed or that the entry was lawful. The issue was whether the normal exigent circumstances rule applies when the police create exigent circumstances, or whether some other rule applies.

Rumpole said...

Judge Hill is a Hero. He has also ensured that he will advance no further. What a shockingly sad result.

Anonymous said...

Thanks for clearing that up

Anonymous said...


You really are clueless. I don't think Judge Hill is worried about advancing. He's 87 years old. But you're right he is a hero.