No more appellate judges till election

That's according to the BLT.  Totally ridiculous. The 10th Circuit nominee was supported by both parties and yet the Senate won't confirm because of election year politics.  Absurd.

Rumpole is asking about the all-time great judges.  I'm biased -- hands down it's Judge Edward B. Davis.  Everything you could ever want from a judge.  Fair, treated lawyers and clients with respect, funny when appropriate...  didn't care about stats, or pushing cases, or reversals.  Just cared about doing the right thing in the right way.

On a different topic, here's an article about an army trial in which the jury acquitted the defendant on some serious charges and convicted on lessers.  According to the article, the military jury will conduct a sentencing hearing and then sentence the defendant.  I absolutely love this idea and think we should use it in federal court, at least as a recommendation.  The jury -- which has heard the actual evidence -- is much better able than the federal sentencing commission to give advice to the federal judge as to the appropriate sentence.  Agree?

Monday morning

1.  Justice Scalia is still making the circuit.  His Fox News appearance was entertaining.  Here's one exchange, as summarized by Ann Althouse:
Wallace quoted [Judge] Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

2.  SCOTUSblog covers the dog-sniffing cases coming up:

Police forces across the country have found that dogs, which have a highly developed sense of smell, can be trained to detect specific odors, such as scents from a human body, or the odors given off by illegal drugs. This makes police dogs highly valued partners to police as they search for missing persons, or for illegal narcotics. When a trained dog’s capacity to detect a certain odor has been formally certified by an expert, the evidence that police gain from dog searches frequently is permitted in criminal cases in court. But the Supreme Court several times has had to rule on whether a search by a trained police dog is the kind of inspection that must be done so that it does not violate the constitutional right to privacy of the individual targeted. The Court will give further constitutional guidance in two new cases, both originating in Florida.

3.  BLT is discussing the Senate showdown over judicial nominees:

A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.
Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule."

If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.
If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

 

4.  Rumpole is all over the registry controversy in state court.  I don't like the posting of attorneys' names and numbers though.
5.  Roy Black has been a busy blogger lately.  Good stuff, especially his stuff on cross-x.

It's Scalia all the time

He's making the rounds for his new book, and he's talking *a lot* about the Court.

• The AP: 

The justice refused to discuss recent reports from CBS News that Chief Justice John Roberts changed his vote in the health care case and provoked hard feelings among his fellow conservatives who thought Roberts would side with them to strike down the law.

"I was out of the country for who struck whom. It's terrible stuff. I'm not going to play any part in the recounting of it," Scalia said during a 40-minute interview in a private sitting room at the court.

President Ronald Reagan named the 76-year-old Scalia to the high court in 1986, making him the longest-serving justice.

Scalia is giving a round of media interviews to promote the new book "Reading Law: The Interpretation of Legal Texts" that he co-authored with legal scholar Bryan Garner.

He went on to say that disagreement over the tough legal issues the court must decide is a part of the job. "I disagree with my colleagues now and then. It happens all the time. If you can't do that without taking it personally and getting sore and picking up your ball and going home, you ought to find another job."

• BLT:

Asked if there is too much money in politics, Scalia said no, arguing that as in other First Amendment contexts, more speech is better."I forget what the figures are, but I think we spend less on our presidential campaigns each year, when there's a presidential election, than the country spends on cosmetics," Scalia said.
***
Lamb asked Scalia about the controversy following Scalia's dissent last month in the Arizona immigration case, in which Scalia cited recent statements by President Barack Obama on changes in immigration policy. Critics said that by doing so, Scalia was making more of a political than a legal statement. Washington Post columnist E.J. Dionne called on Scalia to resign. It seemed from the interview that Scalia was unaware of Dionne's attack, and he said using material from outside the record of a case is not uncommon.
"I cited the president's statement, which seemed to me perfectly fair," said Scalia. "I did not say the president's statement was wrong. I just said that what the Attorney General had told us, concerning enforcement priorities, was simply, as the public record shows, not -- not the sole problem."

• CSPAN, with a bunch of clips including this one on cameras in the Court:

• ABA, with this audio clip.

And if that's too much Scalia, then this is a little closer to home: a blog post about vacancies in the 11th Circuit.  From the intro:

This month, Eleventh Circuit Judge J. L. Edmondson assumes senior status after a quarter century of valuable service. His decision leaves the bench with 13 vacancies in the 179 appeals court judgeships and the Eleventh Circuit with two in twelve. These openings, which comprise more than seven percent of the judgeships nationwide and 17 percent in the Eleventh Circuit erode the delivery of justice. Therefore, President Barack Obama must swiftly nominate, and the Senate promptly confirm, appellate judges, so that the vacancies will be filled systemwide and in the Eleventh Circuit.

President Obama has vigorously consulted by seeking the advice of Republican and Democratic senators where openings materialized before official nominations. Obama has proffered nominees of balanced temperament, who are smart, ethical, hard working and independent, and are diverse vis-à-vis ethnicity, gender and ideology. For instance, he consulted Georgia Republican Senators Saxby Chambliss and Johnny Isakson, who enthusiastically supported Eleventh Circuit Judge Beverly Martin, and she won confirmation 97-0.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished over months. For example, on June 29, the Senate recessed without considering any of 17 well qualified appellate and district nominees whom the committee approved because the GOP refused to vote on them.

Bad week for ICE

First, it was the Chief Anthony Mangione, who pleaded guilty to child porn charges.  And yesterday, officer Paulo Morales pleaded to groping women at the airport.  Via NBC:

A U.S. Customs and Border Protection Officer admitted Tuesday in federal court he sexually assaulted three women in his custody.

Paulo Morales, 47, pleaded guilty to three civil rights offenses for sexually groping the women, the U.S. Department of Justice said in a release.

Morales, who worked as an officer with U.S. Customs and Border Protection at Miami International Airport, said in January 2011 he groped the breasts of three women that were in his custody without their consent.

Pretty lazy reporting though:  It was not immediately known who was representing Morales.

Translation:  We just reprinted the U.S. Attorney's Press Release and didn't pull the docket from Pacer to check who Morales' lawyer was or whether he had a comment on the case.

 UPDATE -- feisty comments to this post...  so let me answer some of the questions: Morales is represented by Jude Faccidomo and the government is represented by William White and Henry Leventis.  Each of the three counts Morales pleaded to has a one year max, so his exposure is 3 years.

11th Circuit today

The courtroom on the 12th floor of the King building was packed with law clerks and other observers this morning because Paul Clement was in the house to argue whether religious symbols can be trademarked: Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta, Appellant v. Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (docket).

The panel was Judges Wilson, Pryor, and Martin.

Cool stuff. 

Others appellate studs in the courtroom -- Elliot Scherker who argued a civil case; Paul Rashkind from the PD's office; Anne Schultz from the USAO; and rising AFPD appellate star Tracy Dreispul. 

And a special for you appellate geeks this morning -- the Green Bag has announced a new bobblehead for Justice Ginsburg.

Gene Stearns wins Bank Atlantic case in 11th Circuit

Here's the 11th Circuit opinion, affirming Judge Ungaro's decision to toss the jury verdict (prior coverage here).

Big win for Stearns Weaver-- Gene Stearns, Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan.

From Judge Tjoflat's conclusion:

As Bancorp acknowledged in several public SEC filings during the class period, BankAtlantic’s assets were concentrated in loans tied to Florida real estate. As a result, BankAtlantic and Bancorp were particularly susceptible to any deterioration in the Florida real estate market, in addition to any national developments. To support a finding that Bancorp’s misstatements were a substantial factor in bringing about its  losses,therefore, State-Boston had to present evidence that would give a jury some indication, however rough, of how much of the decline in Bancorp’s stock price resulted not from the fraud but from the general downturn in the Florida real estate
market—the risk of which Bancorp is not alleged to have concealed. ... None of its evidence excluded the possibility that class members’ losses resulted not from anything specific about BankAtlantic’s commercial real estate portfolio that Bancorp hid from the public, but from market forces that it had warned of—and that would likely have caused significant losses for an investor in any bank with a significant credit portfolio in commercial real estate in Florida in 2007. Bancorp is therefore entitled to judgment as a matter of law.

Monday morning

Seinfeld has this new web-only TV show.  I like.

SFL is covering the Emmanuel Roy case before Judge Turnoff and this letter.  SFL highlights this line:  "I trust that the court will not conclude that I have decided to stump my nose at it, for any party who does so does it as his own peril."  Too funny.

And here's the Herald interviewing Ervin Gonzalez: 

Q. What was your first job?
I worked as a bag boy and stock man at Winn Dixie while in High School at LaSalle high.
Q. What advice would you give to today’s law students?
Find and pursue your passion.
Q. What’s the last book you read.
“The last Boy,” a biography about Mickey Mantle.

The 11th Circuit is in town, and I have an argument tomorrow morning, so I'll be off-line until after that...

Read more here: http://www.miamiherald.com/2012/07/23/v-fullstory/2907544/miami-lawyer-ervin-gonzalez-tackles.html#storylink=cpy

Ex-Ice Chief Anthony Mangione pleads guilty

And he was immediately taken into custody.  He's looking at a minimum of 5 and max of 20 under his plea deal. Judge Marra is his judge.

 From the Sun-Sentinel:

The former leader ofU.S. Immigration and Customs Enforcementin South Florida has gone from spearheading the local fight against child pornography to facing at least five years in prison for transmitting sexually explicit images of children.
Anthony V. Mangione, 51, pleaded guilty Friday morning to a child pornography charge in the shocking case against the former ICE chief who once oversaw investigations of countless predators who exploited children. The 27-year law enforcement veteran was brought down the same way as many of those other defendants: an Internet provider flagged files being sent from Mangione's email account and alerted authorities.

***
Federal prosecutors said Mangione transmitted at least 15 images of children between the ages of 3 and 15 years old with their genitals exposed.
According toBroward Sheriff's Officesearch warrants, his suspicious Internet activity dated back to 2003 with Mangione using a multitude of online screen names in recent years, including thismomspanks33 and PastorRobertM.
Mangione had no visible supporters in the courtroom Friday morning. He arrived at the West Palm Beach federal courthouse with his attorney, David Howard.
He answered U.S. Magistrate Judge James Hopkins' questions in a clear, steady voice. After the hearing, he took off his suit jacket, tie and belt, and held his hands out to be handcuffed by two U.S. marshals.

Scalia vs. Zimmerman

Piers Morgan had Justice Scalia on last night and Hannity landed George Zimmerman. Must see TV for law nerds!

Scalia had lots of interesting things to say, and I liked how Morgan pushed him a bit.  Scalia said he is most proud that the Court doesn't really cite legislative history anymore and that he has helped move the Court to focus on just the text of the statute or Constitution.  Yet earlier in the interview, he said that he frequently reads the Federalist Papers to see what the Framers intended.  I'm not sure why the Federalist Papers are an okay source for intent, but legislative history is not...

Anyway, here is one clip from the interview:



And here is the NY Times coverage of the interview:

Asked by CNN’s Piers Morgan whether he and Chief Justice Roberts “have had a parting of the ways, gone from best buddies to warring enemies,” Justice Scalia first ducked the question. “Who told you that?” he asked. Mr. Morgan cited news reports, prompting Justice Scalia to respond: “You should not believe what you read about the court in the newspapers. It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.” After protesting that he would not talk about internal matters, Justice Scalia relented. “No, I haven’t had a falling out with Justice Roberts,” he said. Asked whether there had been loud words or slammed doors, he said, “No, no, nothing like that.” More generally, Justice Scalia said his colleagues had good personal relationships even as they disagreed on legal matters. That is consistent with reports from other justices. “There are clashes on legal questions but not personally,” he said. “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

The NY Times also covers the Zimmerman interview:

The assault happened while Mr. Zimmerman tried to pull his cellphone out, he said. Mr. Zimmerman said he had yelled “help” repeatedly, hoping that the police would hear him. After he shot Mr. Martin, he said, he was “terrified” and nervous the police might shoot him if they saw him with a gun.

Mr. O’Mara said the state’s stand-your-ground self-defense law was appropriate for the case. The law permits people who fear great bodily injury or death at someone else’s hands to use lethal force to defend themselves.

Mr. Zimmerman said he had volunteered to take lie detector tests and voice tests, which he said he had passed. “I didn’t have anything to hide,” he said.

The interview ended with Mr. Zimmerman apologizing to the Martin family, and to America for any racial polarization the shooting may have caused.

To Mr. Martin’s family, “I would tell them again that I’m sorry,” he said, adding: “I am sorry they buried their child. I can’t imagine what it must feel like, and I pray for them daily.”

$3 million stolen Henri Matisse recovered by FBI

The one on the left is the real "Odalisque in Red Pants" and the one on the right was a fake on display Sofia Imber Contemporary Art Museum of Caracas, Venezuela.  According to the USAO press release Marcuello Guzman and Ornelas Lazo were arrested today:


According to the affidavit filed in support of the criminal complaint, this case was the result of an FBI undercover investigation. According to the allegations in the complaint affidavit, Marcuello negotiated the sale of the Matisse painting, which had been previously stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSI)) in Caracas, Venezuela in December 2002. The painting is valued at approximately $3 million. Marcuello allegedly admitted to the undercover agents during a meeting that he knew the painting was stolen and offered to sell the stolen painting for approximately $740,000.00. As part of the negotiations, Marcuello further agreed to have the painting transported by courier to the United States from Mexico, where the painting was being stored. The courier was subsequently identified as co-defendant Ornelas.

According to the affidavit, on July 16, 2012, Ornelas arrived at the Miami International Airport from Mexico City, Mexico, hand-carrying a red tube containing the painting. On July 17, 2012, defendants Marcuello and Ornelas met with undercover agents and produced the Matisse painting titled “Odalisque in Red Pants” from inside the red tube. Upon inspection by the undercover agents, the painting appeared consistent with the original Henri Matisse painting reported stolen from the MACCSI museum. At the conclusion of the meeting, Marcuello and Ornelas were arrested.

The Huffington Post has some interesting details:


In 2002, Venezuelan-born Miami art collector Genaro Ambrosino contacted SICAM after hearing that the painting was for sale. Director Rita Salvestrini told him "Odalisque in Red Pants" wasn't on the market, at which point museum officials discovered that the one in their collection had been swapped for a forgery.
One Venezuelan newspaper argued the Matisse may have been swapped during an exhibition loan in Spain in 1997, according to the Daily Mail, while other evidence points to the exchange having happened in 2000.
Either way, “Odalisque in Red Pants” had been a fixture on Art Loss Register's list of most valuable missing artwork. If convicted, according to the U.S. Attorney's office, Marcuello and Ornelas each face a possible maximum statutory sentence of up to ten years in prison.
Unfortunately, most stolen artwork is rarely recovered. According to the Christian Science Monitor, only about 15 percent of missing or stolen art returns to its rightful owner.
In 2004, the FBI created an Art Crime Team and set up a National Stolen Art File database. In the past 9 years, they have recovered over 2,650 items that amount to over $150 million, according to the Daily Mail.
"Generally speaking, art thieves are fairly good criminals, but they're terrible businessmen," Robert Wittman, an art-security consultant and former investigator for the FBI's national Art Crime Team, told the Associated Press. "And the true art is not the stealing, it's the selling."

"Our system of pleas then looks more like a system of railroading."

That's the NY Times op-ed discussing appellate waivers, one of the dirty little secrets of the federal criminal justice system. Here's more:

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself. 

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

Blogger's block

I wish I had something exciting to blog about this Monday morning...

I could try to tie in Miami by discussing how great the traffic is compared to, say, DC:

The usually punctual Sen. Patrick Leahy (D-Vt.) had some choice words for District of Columbia leaders this week, when he blamed their policies for making his 11-mile commute to Capitol Hill last an hour and 40 minutes on Wednesday.
"We go through a city that will spend millions of dollars and enforce parking meters and get fines, and pay for speed cameras which mainly make out of town companies rich, and so on," Leahy said after arriving about 10 minutes late to a 9:30 a.m. hearing. "But they can't coordinate their street lights when their street lights are broken."
Leahy, while pouring himself water on the dais of the Senate Judiciary Committee, didn't say where he was driving from or what roads he took. But he observed that "the main thoroughfares have a green light that will go on for one second and go 10 minutes red."

That prompted Sen. Chuck Grassley (R-Iowa) to joke: "Aren't you sure the problem probably is that they purposely don’t coordinate?"

Or compare the 11th Circuit conference to the 9th Circuit, which was planning a $1 million affair in Hawaii until Congress got wind of it:

Political controversy persists over a conference planned for federal judges on Maui, with two Republican senators calling for the event to be canceled or at least scaled back.

Sen. Jeff Sessions of Ala­bama and Sen. Chuck Grassley of Iowa, who have been questioning the need to hold the August conference at a "far-flung island paradise," sent another letter Friday to the chief judge of the 9th U.S. Circuit Court of Appeals.

"During this time of extraordinary debt, and given the history of opulence — including repeated trips to the Hawaiian Islands — we believe you should cancel the million-dollar conference," the letter said. "Failing that, ample opportunities to scale back costs at this event and at future conferences remain."

After that letter, the Circuit cancelled the conference.  Maybe they should call Adam Rabin to plan the next one.

But those comparisons seem like too much of a stretch.  The District is quiet.... Maybe we'll hear some exciting news today.  Send me your tips!

Judge Beverly Martin says what criminal practitioners are thinking about 11th Circuit's sentencing jurisprudence:

District judges only get reversed when they go way down, but not when they go way up. It's a fabulous concurrence and it invites en banc review.

The case is United States v. Early, and Judge Martin starts her concurrence way:


Where a sentencing court addresses the factors set out in 18 U.S.C.
§ 3553(a) and imposes a sentence within the statutory maximum, this court’s
precedent teaches deference to that judgment on any variance above the Guideline
range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent
upward variance from the maximum Guideline sentence); United States v.
Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence
representing a 161 percent upward variance); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281
percent upward variance). Indeed, in all the cases decided by this court since
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none
in which we vacated an upward variance from the Sentencing Guidelines on
reasonableness grounds. For this reason, even though Mr. Early’s sentence of
210-months imprisonment represents a 116 percent variance above the 97-month
sentence set by the top of his Guideline range and a remarkable 169 percent
increase from the 78-month sentence requested by the government itself, I cannot
say the panel’s decision here is contrary to our precedent.

At the same time, I write separately to note that this Court has declined to
exercise similar deference toward a sentencing court’s decision to grant a
downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19
(11th Cir. 2011) (holding that a 42 percent downward variance was substantively
unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)
(holding that a 100 percent downward variance was substantively unreasonable).
This, even where the extent of the variance from the Guideline range was far
smaller and where the reasons given by the sentencing court were more
substantial.

My reading of these cases tells me that in considering sentences above the
Guideline range, we look only to whether the sentencing court seemed to consider
the § 3553(a) factors and we ignore whether the court might have disregarded one
of the factors or weighed the factors in an unreasonable way. In contrast, for
downward variances, we show no such deference and instead scrutinize how a
sentencing court applied each and every § 3553(a) factor. We even go so far as to
decide for ourselves whether the factors were weighed correctly. See Irey, 612
F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

And Judge Martin finishes like this:


In sum, even though our case law purportedly requires “a significant justification”
to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, 
the panel’s review of Mr. Early’s 116 percent upward variance evinces little
indication that such a requirement even applies here.

Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.

One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case.  There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied.  But, the case is far from over.  Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:

In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter, made an explosive claim in a federal court filing: the "enemy combatant" was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum," according to a declassified Department of Defense (DoD) inspector general's report that probed the use of "mind-altering drugs" during the interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.
The inspector general's investigation determined that although Padilla was not administered mind-altering drugs (such as LSD), "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted] he had been administered a mind-altering drug."

 How long till the motion for new trial is filed?

Thunderstorm Wednesday News & Notes

Looks like everyone is gonna be dragging this morning after those loud storms woke us in the middle of the night.  Some news and notes for this rainy day:

1.  The Herald supports Judge Cooke's ruling in the Docs vs. Glocks case and urges the Governor not to appeal.

2.  The 11th Circuit decides a Stolen Valor case (in this unpublished opinion, USA v. Amster) right after the Court rules.  The opinion basically says -- we have to follow the Court's holding that the Act is unconstitutional but we can still affirm the false statement convictions under other statutes. 

3.  AUSA Lynn Rosenthal is now a Circuit judge in Broward (via DBR).

4.  A defendant calls the former US Attorney in Chicago a "rooster with no nuts." (via Main Justice)

5.  Jay Weaver covers this semi-secret hearing in which an ex-Haiti official gets a year in prison.

Are across the board appellate waivers also unethical?

Perhaps.  Professor Berman has the story on a judge rejecting a plea deal with an appellate waiver here.

From the Denver Post:


They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office. Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied.
"The concept is simple," Dorschner said. "If you are sentenced within the guideline you agree to in the plea agreement, then you don't have the ability to appeal that sentence. ... This is the most narrow, limited appellate waiver I think you're going to find."
In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff's attorney also urged Kane to accept the deal.
"Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.
Harris did not return a call for comment.
Kane, though, viewed the waiver dimly.
"[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."



 From the opinion:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.
Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Inside baseball at SCOTUS

Tom Goldstein has all the goods here on how SCOTUSblog got it right on Health Care day and CNN/FOX got it wrong.

One thing that is totally annoying:

The Supreme Court will not grant SCOTUSblog a press credential. Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston. There are six other members of our team nearby, running nine computers on eight separate Internet connections.

Why wouldn't the Court give SCOTUSblog access when it is the site most people are relying on for SCOTUS news?  And to boot, the Court won't email the opinion:

The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.
But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever. It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

The article explains how CNN and Fox do not at all get it right.  Fun read.
Another fun article, but not related to the law, is this piece on the '83 Fleer baseball card set:

A fan here named Scott Mortimer has his own pursuit, with July 31 as the date to watch. That is when the Class AA Erie Seawolves come to Manchester to play the New Hampshire Fisher Cats. The hitting coach for Erie is Jerry Martin, a former outfielder who hit .251 for five teams from 1974 to 1984. Scott Mortimer needs him.
Mortimer, 41, is a stay-at-home father on a worldwide baseball scavenger hunt. He is trying to get autographs on all 660 cards in the 1983 Fleer baseball card set. After six years of trying, he is down to his final 99. One of the blank cards is Martin’s.
“I don’t know what kind of person Jerry Martin is, if he’d be willing to sign the card, if he would even pop out of the dugout before the umpires come out,” Mortimer said at his home last Sunday. “But that’s part of the excitement.”
Mortimer calls it the 83F Project and runs a blog with images of the autographs. He is part of a tribe of collectors who put their twist on a child’s hobby, mining a subset of the industry for fun, not profit. He trades with other collectors pursuing their own autographed sets, and has friends in other countries — scouts, in a way — who keep a lookout for his targets.

Judge Carnes...

...starts off his latest opinion (Larry Butler vs. Sheriff of Palm Beach County) this way:

In one of his ballads, Jim Croce warned that there are four things that you
just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/
You don’t pull the mask off that old Lone Ranger/ And you don’t mess around
with Jim.” He could have added a fifth warning to that list: “And you don’t let a
pistol-packing mother catch you naked in her daughter’s closet.”

It gets better:

It all started with a phone call.2 Nineteen-year-old Uzuri Collier called
Larry Butler, who was of a similar age, and invited him to her house. Butler
responded to the invitation the way most young men over the age of consent
would have—he went. Once Butler was at Uzuri’s house, he and she consented to
watch television for a while. Then they consented to do what young couples alone
in a house have been consenting to do since the memory of man (and woman)
runneth not to the contrary. The record does not disclose how long these two
young people had known each other in the dictionary sense, but that afternoon in
Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,
and while clothed in the manner that is customary in such matters, which is to say
not at all, they heard someone coming into the house.

The opinion is packed with this sort of fun writing, and it ends this way:

The amended complaint and Butler’s briefs leave no doubt that he feels
mistreated, and with what appears to be some justification. If the allegations are
true, Collier’s treatment of Butler was badder than old King Kong and meaner
than a junkyard dog. She might even have acted like the meanest hunk of woman
anybody had ever seen. Still, the fact that the mistreatment was mean does not
mean that the mistreatment was under color of law. Because the alleged
mistreatment of Butler was not inflicted under color of law, the district court
correctly dismissed his § 1983 claims. Butler will have to seek his remedies under
state law and in state court.

Florida Bar proposes advisory opinion re 2255 waivers

Back in September, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement (see Blog coverage here). Over strong opposition by the government, the Bar just proposed this advisory opinion on the subject:

A member of The Florida Bar has requested an opinion regarding the ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether particular plea agreements are lawful, enforceable and meet constitutional requirements are legal questions outside the scope of an ethics opinion. Reviewing these issues in light of ethics considerations, the committee concludes that both offering and recommending acceptance of such a plea offer is improper. ***

The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer's own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer's own performance.

Regarding the prosecutor's conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee's opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.

As I've said before, it's odd to me that the government opposed this opinion:

Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up. Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

Well, now it's unethical for prosecutors to ask or defense lawyers to advise clients to sign 2255 waivers. Congrats to all of the lawyers who pushed for this rule. I know Michael Caruso spoke at the Florida Bar meeting in support of the opinion. Also, Bruce Reinhart was the member of the Florida Bar who requested than an opinion be issued.

Fourth of July

Hope everyone had a nice holiday yesterday.  Those in San Diego were supposedly disappointed that all the fireworks for the show went off at once, but it looks pretty cool to me:



Meantime, everyone is still debating "tax" or "penalty." Romney says it's now a tax because the Supreme Court said so, but he is not happy about it:

Emphasizing his disagreement with the Supreme Court’s decision to uphold President Obama’s healthcare law, Mitt Romney criticized Chief Justice John G. Roberts Jr. on Wednesday, stating that Roberts reached a conclusion that was inappropriate and “took a departure” from sound reasoning. Before the healthcare ruling, Romney had praised Roberts. His website says he would “nominate justices in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito,” candidates who “exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.” But Romney displayed a cooler attitude toward Roberts in his interview with CBS News’ Jan Crawford on Wednesday near his vacation retreat of Wolfeboro, N.H. When Crawford asked whether he would nominate a justice like Roberts, now that the chief justice voted to uphold the president’s healthcare law, Romney answered that he “certainly wouldn’t nominate someone who I knew” was going to come out with a decision that I “vehemently disagreed with.” Roberts’ decision to side with the liberals of the court, Romney added, gave the impression his “decision was made not based upon [a] constitutional foundation but instead, [a] political consideration about the relationship between the branches of government.” Romney called Roberts “a very bright person,” according to a transcript provided by CBS News, and said he would look to nominate justices with intelligence who “believe in following the Constitution.”

Judge Cooke sides with Docs over Glocks

Jay Weaver covers the story here:

A federal judge has blocked the state of Florida from enforcing a new law pushed by firearm advocates that banned thousands of doctors from discussing gun ownership with their patients.
U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted the state violated their free speech rights. She said the law was so “vague” that it violated the First Amendment rights of doctors, noting the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”
The physicians’ lawsuit, an ideological battle between advocates of free speech and the right to bear arms, has been dubbed “Docs vs. Glocks.” The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.
In her 25-page ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began “self-censoring” because of the “chilling” effect of the legislation.
“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”
“The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms,” Cooke wrote in another section about the Second Amendment issue. “I do not disagree that the government has such an interest in protecting its citizens’ fundamental rights. The Firearm Owners’ Privacy Act, however, simply does not interfere with the right to keep and bear arms.”

Read more here: http://www.miamiherald.com/2012/07/02/2879089/miami-federal-judge-sides-with.html#storylink=twt#storylink=cpy

Bill Matthewman sworn in today

Congrats to our newest Magistrate Judge. Judge Matthewman will be sitting in West Palm Beach, along with another new Magistrate -- Dave Brannon.

End of Term

The Supreme Court is now on summer break till October. There are a bunch of good articles about the end of the Term, but the place to go is SCOTUSBlog, which has pages and pages of stats-- really anything you could ask about the Term is broken down statistically. Here are some of the take-away stats highlighted by the blog:

The Sixth Circuit continued its abysmal streak in the Supreme Court. Between OT08 and OT10, cases originating in the Sixth Circuit were affirmed only once in 18 attempts. All 5 cases from the Sixth Circuit were reversed during OT11. [Page 3].

The Court released a rare 5-4 summary reversal this Term in American Tradition Partnership v. Bullock — a rarity because four Justices can usually grant certiorari in a case and force oral arguments, thereby eliminating the need for a dissenting opinion. [Page 5].

The Court has decided fewer merits cases after oral argument, 65, than it has during any time in the last twenty years. The Court was already cruising to a relatively low number of merits cases when it finished granting cases for oral argument during OT11 in January, but the dismissals of Vasquez v. United States and First American Financial v. Edwards, the rebriefing of Kiobel v. Royal Dutch Petroleum, and the eventual consolidation of Jackson v. Hobbs with Miller v. Alabama for purposes of the opinion have resulted in the Court issuing a record low number of opinions in fully briefed merits cases. [Page 9].

Although it issued a low number of signed merits cases, the Court did released a high number of summary reversals, 10. From OT00-OT10, the Court averaged 6 summary reversals per Term. [Page 10].

Justices Scalia and Thomas have finished the Term with the highest rate of agreement on the judgment across all cases. They agreed 93.3% of the time. Justices Scalia and Ginsburg finished with the lowest rate, agreeing 56.0% of the time. [Page 23].

The two fastest signed majority opinions of OT11 were authored by Justice Scalia. He produced Greene v. Fisher in 28 days and RadLax v. Amalgamated Bank in 36 days. Justices Ginsburg, Sotomayor, and Kagan each authored 2 of the top 10 fastest opinions. [Page 27].

Fascinating stuff. I thought this stat was particularly interesting:

Justice Kennedy is, for the fourth consecutive Term, the Justice most likely to appear in the majority. This Term he voted with the majority in 69 out of the 74 cases he voted in, marking the second-highest percentage of the past five Terms (93.2%) and falling only to his frequency in the majority from last Term (93.8%). Chief Justice Roberts, who himself has become a mainstay of recent majority opinions, had the second-highest frequency in the majority (91.9%). In 3 of the last 4 Terms, the Chief Justice has been either the most likely or second-most likely Justice to appear in the majority of a decision. Just as she was last Term, Justice Ginsburg is the Justice least likely to vote with the majority; she votes with the majority in 69.3% of all cases.

69 out of 74 for Kennedy is amazing. It really is his Court. One big asterisk though in that he lost the biggest case of the Term. It must kill Kennedy that he had to dissent in the Health Care cases and that he couldn't convince Roberts to come back to the conservative Justices.

Enjoy the summer SCOTUS.