Wednesday, November 20, 2013

Judge Fay vs. Judge Martin

This opinion about what counts as an aggravated felony got a little heated between Judges Fay and Martin. 

First, a portion of the dissent by Judge Martin:

This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants. 


Here's Judge Fay's response:

The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded. 


Woah. It didn't seem to me at all that Judge Martin was impugning the integrity of the court of which she is also a member. It seemed to me that she was pointing out what all criminal practitioners know about appellate courts. Good for Judge Martin. (As an aside, the majority only had one 11th Circuit judge, who was joined by a judge from the court of international trade.) 

15 comments:

MC Waste Services, Inc said...

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Rumpole said...

We live for getting judges to fight with each other.

Anonymous said...

JUDGE BEEF. Takes me back to when then Chief Judge Hatchett was requesting more judges on the 11th Cir and former chief judge Tjoflat was arguing the exact opposite. The 11th Circuit's long-held view that less (judges) is better is puzzling. The per-judge work load is outrageous and the over-use of visitng judges dilutes the uniformity of the Court's voice.

Good for Judge Martin!

BTW: MC Waste is irritating

Anonymous said...

All you need to know about the 11th is that the two most pro-criminal defendant judges are the two former U.S. Attorneys.

Anonymous said...

Judge Fay doth protest too much. Martin correctly hit a nerve. At least subconsciously if not consciously most of the circuit judges bend over backwards for the government. They invoke all sorts of principles to do so, except of course when those principles hurt the govt's position. She was not impugning the integrity of the court; only its hypocrisy. Good for her. P.S. time for Fay to take up golf full time.

Anonymous said...

"Outrageous"? Who is Fay trying to be now, Jackie Childs?

Anonymous said...

The eleventh produces opinions consistently skewed in favor of the government. Facts are often twisted and arguments disregarded. Go watch Pryor in oral argument as he smirks at the defense lawyers before him and you will see a fair manifestation of how the court often times views criminal defendants.

CAPTAIN JUSTICE said...


THE CAPTAIN REPORTS:

BREAKING NEWS .....

NUCLEAR OPTION EMPLOYED BY SENATE

DOM, I think you'd better explain the significance of this to your readers. The Senate Dems just followed through with their threat to employ the nuclear option and by a vote of 52-48 it passed.

The -hit has just hit the proverbial fan. The D.C. Court of Appeal will now get their three new judges and several other federal courts around the country will finally be getting their open slots filled.

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Anonymous said...

Dear 10:27a.m.,

Whatever your opinion of the Court's opinion, to insult Judge Fay is clearly the most outrageous and unfounded statement of them all. His lifetime of integrity and achievement, and for being fair and balanced, speaks for itself.

Anonymous said...

If she's got a beef with Fay just wait til she sits on a few panels with Carnes, Tjoflat, Anderson, Pryor . . .

Anonymous said...

What does the "nuclear option" mean for Judge Thomas, if anything?

Anonymous said...

nothing; he's not even getting a blue slip from Sen. Rubio

Anonymous said...

Not insult to say someone should hang up the robe. Fay is not alone in that list (see tjoflat) But his reaction to Martin shows time may be right to move on. He was a great judge. Key word is was.

Anonymous said...

1:23 p.m. - oh, please ...

Kissimmee Kid said...

Two explanations: 1) Prosecutors know they are full of shit; that's why when they are on the bench they aren't afraid to rule for a defendant.

2) Prosecutors don't have close contact with Defendants. They can be objective. Defense lawyers spend hours with loathsome assholes. They hate them.