Justice Kennedy was at UM Law to welcome new students

Miami in August?  He needs to schedule this trip for beginning of the Spring semester...

Anyway, Justice Kennedy had this to say (via UM News):

He had expected answers such as The Verdict, To Kill a Mockingbird, or A Few Good Men—Hollywood films related to the legal profession that had strong messages and profound meaning.

But when U.S. Supreme Court Justice Anthony Kennedy saw the movie that many of the students applying to China’s first school of law based on the American law school model had cited as the Hollywood picture that most inspired them to want to become an attorney, he was shocked: Legally Blonde, a 2001 comedy that stars Reese Witherspoon as a sorority girl who struggles to win back her ex-boyfriend by earning a law degree.

Kennedy would later learn more about the film and understood why the students related to it. “For them it [law school] was a new and daring adventure,” he said Monday to about 250 first-year University of Miami School of Law students. “This was a risk, a different world…and I want you to feel that way about law school.”

What about Vinny?!

This is an incredible story

What happened here?

The jury agreed with the defense and had reasonable doubt about whether the dad did it..

The jury believed that the dad did it and the jury excused his behavior.

The jury didn't know and didn't care.

 

pollcode.com free polls

The USA Today covers this trial in which a man was accused of killing the man who killed his two sons in a DUI.  The jury acquitted him:

A jury has acquitted a southeast Texas man of murder in the fatal shooting of a drunken driver who had just caused an accident that killed the man's two sons.
David Barajas cried when the verdict was read Wednesday. He faced up to life in prison, if convicted.
Prosecutors had alleged that Barajas killed 20-year-old Jose Banda in a fit of rage after Banda plowed into Barajas and his sons while they were pushing a vehicle on a road near their hometown of Alvin. Twelve-year-old David Jr. and 11-year-old Caleb were killed.
Defense attorney Sam Cammack says Barajas didn't kill Banda and was only focused on saving his sons. The gun used to kill Banda wasn't found and there was little physical evidence tying Barajas to the killing.
After the trial was adjourned, the acquitted father spoke with reporters.
"I thank God. This has been hard on me and my family," he said, surrounded by his wife, lawyers and loved ones.
Barajas explained that he is bitter about be prosecuted, but is praying for that the Banda family get their justice.
Barajas said he is not sure who killed Banda.
***
Legal experts said prosecutors would likely have to overcome jury sympathy for Barajas, who had the support of many residents of Alvin, which is about 30 miles southeast of Houston. Further complicating their case was that there were no witnesses who identified Barajas as the shooter and gunshot residue tests done on Barajas came back negative.
Investigators testified that a bullet fragment found in Banda's car could have come from a .357-caliber gun, and that ammunition for such a gun was found in Barajas' home, along with a holster. Cammack said his client never owned a gun and that tests showed the bullet fragment also could have come from another weapon.
A forensic scientist testified that blood found on the driver's side door and driver's arm rest of Banda's car was consistent with that of Barajas.
The defense called only three witnesses to testify during the trial, which began last week.
But prosecution witnesses told jurors during questioning by Cammack that more gunfire had taken place well after Banda was shot - pointing to the possibility that the actual shooter was still at large - and that a search of Barajas' home failed to find any evidence that directly or indirectly linked him to the crime scene.
Cammack also suggested that Banda could have been shot by his own cousin or half-brother, who told investigators that they witnessed the crash but fled the scene. Both testified that they did not shoot Banda.
Cammack also used 911 calls to create a timeline that suggested Barajas would not have had enough time to shoot Banda.

Daily Report investigates how 11th Circuit handles complaints against judges

Alyson Palmer has this great article about her research into the complaints about judges filed with the 11th Circuit.  The very public suspension of Judge Fuller because of his arrest for domestic violence led her to investigate.  Some of her findings:

None of the orders found in the court's public files going back to 2006 refer to any discipline meted out to the judges. Generally the names of the judges whose conduct was being challenged, as well as those who were complaining, are redacted. Most were dismissed by the circuit's chief judge or someone acting in the chief's stead on the basis that the complaint amounted to an attack on the merits of a judge's decision or was not supported by enough evidence.Based on a complaint filed in 2009, a special committee was appointed to investigate an allegation that an unnamed district court judge had accepted a cash bribe for the promised release of a federal prisoner. According to an order signed by then-Chief Judge Joel Dubina dismissing the complaint, the investigation found no credible evidence to support the charges.In handling a similar allegation of bribery brought against an unnamed magistrate judge a few years later, Dubina simply rejected the complaint on his own as "facially incredible and lacking in indicia of reliability."Complaints from litigants often include allegations of racism. Those are usually brushed aside, but in 2007, then-Chief Judge J.L. Edmondson asked an unnamed magistrate judge to respond to such a complaint. According to Edmondson's order, the magistrate judge said in reference to a courtroom clock that was not working, "The Koreans can put a missile in the air, but the clock doesn't work in the courtroom." Identifying the complaining litigant as black and Asian, Edmondson said, "Judges must be guarded in their remarks, especially when touching on nationality and so on," but he concluded the remark was not derogatory about Asians and dismissed the complaint.A chief judge can conclude a misconduct case if he believes the judge in question has voluntarily remedied the problem raised by the complaint. Dubina in this way resolved a 2010 complaint about a judge's failure to include an expense-paid trip on a required financial disclosure form.The Eleventh Circuit also occasionally receives complaints from lawyers who say a judge is treating them unfairly. Dubina referred to a special committee for investigation a 2010 complaint by an attorney that alleged an unnamed bankruptcy court judge had engaged in an improper ex parte conversation and also told the attorney that if he did not change his phone system—which the judge said made it difficult to reach anyone in the office—the judge would "make things bumpy" for him.An order signed by Dubina later said the special committee, after an investigation that included witness interviews and document subpoenas, determined there was insufficient evidence to support the allegations.???Last year, the circuit received a complaint from an attorney about an unnamed district judge who allegedly had criticized the lawyer on more than one occasion. The attorney said the judge had acted erratically, and the lawyer was concerned that the judge suffered from a mental or physical health problem. Carnes' order dismissing the matter said he had interviewed 16 people, including judges, court staff and lawyers who regularly appear before the judge, and all stated the judge was not suffering from any kind of disability.In 2009, an attorney general of an unnamed state—presumably from Georgia, Florida or Alabama, the states in the circuit—filed a complaint regarding a senior district judge, saying the judge's use of "disrespectful and contemptuous language" suggested a bias against the AG, as well as a lack of respect for his state. Then-Eleventh Circuit Judge Stanley Birch dismissed the complaint in a one-page order saying that even if the judge acted as alleged, his conduct would not indicate a disability or be "prejudicial to the effective and expeditious administration of the business of the courts."

SHOCKER!

This story about a judge shocking a defendant can't be true, can it?  From the Baltimore Post Examiner:

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.
On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.
The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.
In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.
“Stop,” Nalley said, according to the transcript.
“… principles of common right and common reason are …” King said.
“Mr. Sheriff … ” Nalley said
“… null and void,” King continued.
“…do it,” Nalley ordered. “Use it.”
“(DEFENDANT SCREAMS).”
On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.
“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”
“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”
Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.
“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”
Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.
- See more at: http://baltimorepostexaminer.com/maryland-judge-robert-nalley-ordered-officer-shock-defendant-court/2014/08/18#sthash.l4fkYbvK.dpuf

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.
On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.
The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.
In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.
“Stop,” Nalley said, according to the transcript.
“… principles of common right and common reason are …” King said.
“Mr. Sheriff … ” Nalley said
“… null and void,” King continued.
“…do it,” Nalley ordered. “Use it.”
“(DEFENDANT SCREAMS).”
On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.
“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”
“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”
Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.
“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”
Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.
- See more at: http://baltimorepostexaminer.com/maryland-judge-robert-nalley-ordered-officer-shock-defendant-court/2014/08/18#sthash.l4fkYbvK.dpuf

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.
On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.
The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.
In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.
“Stop,” Nalley said, according to the transcript.
“… principles of common right and common reason are …” King said.
“Mr. Sheriff … ” Nalley said
“… null and void,” King continued.
“…do it,” Nalley ordered. “Use it.”
“(DEFENDANT SCREAMS).”
On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.
“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”
“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”
Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.
“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”
Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.
- See more at: http://baltimorepostexaminer.com/maryland-judge-robert-nalley-ordered-officer-shock-defendant-court/2014/08/18#sthash.l4fkYbvK.dpuf

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.

On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.

The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.

In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.

“Stop,” Nalley said, according to the transcript.

“… principles of common right and common reason are …” King said.

“Mr. Sheriff … ” Nalley said

“… null and void,” King continued.

“…do it,” Nalley ordered. “Use it.”

“(DEFENDANT SCREAMS).”

On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.

“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”

“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”

Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.

“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”

Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.
On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.
The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.
In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.
“Stop,” Nalley said, according to the transcript.
“… principles of common right and common reason are …” King said.
“Mr. Sheriff … ” Nalley said
“… null and void,” King continued.
“…do it,” Nalley ordered. “Use it.”
“(DEFENDANT SCREAMS).”
On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.
“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”
“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”
Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.
“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”
Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.
- See more at: http://baltimorepostexaminer.com/maryland-judge-robert-nalley-ordered-officer-shock-defendant-court/2014/08/18#sthash.l4fkYbvK.dpuf

Maryland Circuit Court Judge Robert C. Nalley — who in 2009 deflated the tire of a Toyota parked outside the Charles County courthouse – recently ordered a court security officer to administer an electrical shock to a defendant inside his courtroom.
On Nalley’s order, the Charles County Sheriff’s Department officer pushed a button that administered an electric shock to Delvon L. King, 25, of Waldorf. King, who is not a lawyer, represented himself against gun charges.
The incident occurred July 23 during jury selection, but apparently before any potential jurors were brought into the courtroom.
In the moments before Nalley ordered King to be shocked, the defendant did not threaten Nalley or anyone else, according to the court transcript. King did not make any threatening physical moves toward Nalley or anyone else, and did not attempt to flee, according to the defendant and his parents, Alexander and Doris King who were in the courtroom and witnessed the attack.

Delvon King, 25. (Photo provided by Alexander King to Baltimore Post-Examiner)

Nalley did not warn King in the moments before he ordered the officer to shock King, the transcript obtained by Baltimore Post-Examiner shows. The defendant was trying to cite a court case, and Nalley cut him off.
“Stop,” Nalley said, according to the transcript.
“… principles of common right and common reason are …” King said.
“Mr. Sheriff … ” Nalley said
“… null and void,” King continued.
“…do it,” Nalley ordered. “Use it.”
“(DEFENDANT SCREAMS).”
On Nalley’s order, a uniformed Charles County Sheriff’s Department officer pressed a button, which released a charge from an electronic device authorities had attached to King’s right leg. King crumpled to the ground in agony.
“I got shocked, and I was screaming for help,” King told the Baltimore Post-Examiner. “They had no reason to harm me like that. I really didn’t expect for any of that to happen.”
“He (Delvon) screamed and he kept screaming,” Alexander King said. “When the officer hit the button, it was like an 18-wheeler hit Delvon. He hit the ground that quick. He kept screaming until the pain subsided.”
Nalley asked the officer to shock King once or twice before he gave a more emphatic directive, which the officer followed, Alexander and Doris King said.
“It wasn’t the officer’s idea, from what I saw,” Alexander King said. “He didn’t do it the first time (Nalley gave the order).”
Before Nalley ordered the court officer to electroshock him, King tried to question whether the court had jurisidiction over him by citing legal cases. King considers himself a “sovereign citizen” and believes the government and its laws do not apply to him.
- See more at: http://baltimorepostexaminer.com/maryland-judge-robert-nalley-ordered-officer-shock-defendant-court/2014/08/18#sthash.l4fkYbvK.dpuf

Acquitted conduct issue may be before the Supreme Court again

One issue that non-lawyers (as well as non-criminal lawyers) completely do not believe is that you can be sentenced based on conduct for which you have been acquitted.  That's been the law since 1997 in a case called Watts, which held that acquitted conduct, proved by a preponderance of the evidence, could be used to increase a defendant's sentence.  This concept is being challenged again in Ball v. United States.  From the Blog of the Legal Times:

 The issue comes to the court in a Washington drug case, Ball v. United States, along with significant help from a leading sentencing scholar, the libertarian Cato Institute and the Rutherford Institute. According to the court’s docket, the petition will be before the court for consideration—along with hundreds of others—at its September 29 conference.
After an eight-month trial in 2007, the jury found Antwaun Ball, Desmond Thurston and Joseph Jones guilty of selling between two and 11 grams of cocaine, relatively small amounts. But they were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.
Yet when Judge Richard Roberts sentenced the three men, he said he “saw clear evidence of a drug conspiracy,” and on that basis ultimately sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively—four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to the petition in their case.
“Nobody in the federal system gets this kind of time,” said Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represents the defendants. “In this country, people are punished for charges that are proven to a jury’s satisfaction.”
Asserting that the sentencing judge “marginalized the role of the jury,” Leckar said the jury foreman in his case wrote a letter to the judge. The letter stated, “It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds out their work may not be given the credit it deserves.”
On appeal, the U.S. Court of Appeals for the D.C. Circuit affirmed the sentence even though it was based in part on acquitted conduct.
“Although we understand why appellants find sentencing based on acquitted conduct unfair,” the court said, “binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.” The “preponderance of the evidence” standard for sentencing is easier to meet than the “beyond a reasonable doubt” standard jurors use to find guilt.

RIP Pat Davis

Pat Davis, who was married to our former chief judge Edward B. Davis for 52 years, passed away earlier this week.  She was a very private person and did not want a public service, but I thought it was important to post about her as she was such a special woman.  She loved Judge Davis so much and treated all of his law clerks like family.  She is survived by three children, Diana, Ned, and Traci; five grandchildren; and two great-grandchildren. The federal court family in the SDFLA is thinking of them.

Here are some pictures of her from the Federal Bar's Installation Dinner a few years back(credit Aidi Guerrero), which really capture her (so engaging and enthusiastic):

Interview list for Judge Rosenbaum's seat

Yesterday, I posted the link to the JNC's list of interviewees for Judge Rosenbaum's seat.  The Commission decided to interview 15 of the 24 people who applied.  Of those fifteen, 11 are state court judges.  There is a federal prosecutor and a federal magistrate.   Sadly, there are only two private lawyers.  

Each interview will last 25 minutes in the Judge's conference room in the Ferguson building.  Interviews are open to the public, so please let me know if you'd like to guest blog the interviews.  The JNC has invoked "the Rule" so applicants aren't permitted to watch other applicants.

Here is the list:

Martin J. Bidwell
Beatrice A. Butchko
Jeffrey J. Colbath
Mary Barzee Flores
David A. Haimes
Migna Sanchez-Llorens
Peter R. Lopez
Thomas Rebull
Meenu Sasser
Barry S. Seltzer
Edward N. Stamm
John W. Thornton, Jr.
Daryl E. Trawick
Jack Tuter
Melissa Damian Visconti

JNC announces interviews for district bench

Link here: http://www.flsd.uscourts.gov/wp-content/uploads/2014/08/JNC-NOTICE0001.pdf

More to follow soon. 

Ana Alliegro pleads guilty on eve of trial

Curt Anderson, from the AP, covers it here:

Less than a week before trial, a onetime close associate of former U.S. Rep. David Rivera pleaded guilty Tuesday to four charges in a long-running campaign finance investigation that also implicates Rivera.
Attorneys for Ana Alliegro announced in a surprise that she would plead guilty rather than go to trial Monday. Prosecutor Thomas Mulvihill said there was no plea agreement requiring Alliegro to cooperate as a government witness against Rivera.
Her attorney, Richard Klugh, said there was no written deal in place.
"There is no guaranteed benefit for the plea. She's just accepted responsibility," he said.
Rivera, a Republican, has not been charged and has repeatedly denied wrongdoing. Alliegro, 44, was accused of funneling about $80,000 to an unknown Democratic candidate, Justin Sternad, in the 2012 primary for the House seat then held by Rivera. Prosecutors say the goal was to weaken Democrat Joe Garcia, who won anyway and later defeated Rivera in the general election.
Mulvihill said Tuesday for the first time publicly that Rivera was part of the conspiracy when asked for the name by U.S. District Judge Robert Scola. In the past, Rivera was identified only as "co-conspirator A" in court documents.
Rivera did not immediately respond to an email seeking comment Tuesday.
Earlier this year, Rivera filed papers to run for his old 26th District House seat again, then suspended his campaign in July. Recently, however, Rivera has been participating in campaign events such as a candidates forum over the weekend, and his name will appear on next Tuesday's GOP primary ballot.
Alliegro, meanwhile, is to be sentenced Sept. 10. The four charges against her each carry potential five-year prison sentences, but she is likely to get far less because she has now pleaded guilty and may cooperate in the ongoing investigation. Sternad also pleaded guilty and was sentenced to seven months in prison.

House Pizzi vs. House Slaton (UPDATED)

In addition to the mass chaos this morning because it's the first day of school, there is going to be quite a show over at Miami Lakes City Hall if Michael Pizzi follows through with his promise to appear as Mayor this morning.  Over the weekend, Ben Kuehne sent the following letter on behalf of former-now current (?) mayor Michael Pizzi:

Alex Rey, Town Manager

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

reya@miamilakes-fl.gov

Marjorie Tejeda, Town Clerk

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

tejedam@miamilakes-fl.gov

                             Re:   Mayor Michael Pizzi

                                      Access to Town Hall and Mayoral Office

Dear Manager Rey and Clerk Tejeda:

          In strict accordance with Florida law following Mayor Pizzi’s acquittal on all charges in United States v. Michael Pizzi, U.S.D.C. Case No. 13-Cr-20815-Cooke (S.D. Fla.), Mayor Pizzi has resumed his constitutional duties and responsibilities as the duly elected Mayor of the Town of Miami Lakes to serve the 4-year term to which he was elected in November 2012. His suspension has been automatically lifted as a matter of law as a result of his acquittal.

          Mayor Pizzi appreciates The Town’s assistance in having restored his  mayoral office to him on the evening of August 14, 2014, when he re-entered Town Hall as Mayor immediately following his acquittal. At that time, you also returned his official Town photograph as Mayor to the Town Hall wall, and removed the personal effects of temporary Town Mayor Slaton from Mayor Pizzi’s office. That same evening, Mayor Pizzi was welcomed to Town Hall to resume his official duties and held a series of constituent meetings as Town Mayor.

          I now understand there is some confusion arising from the illegal efforts of the temporary Town Mayor to attempt to exercise official power beyond the temporary term to which he was elected. That is precisely why Mayor Pizzi will be continuing to utilize his mayoral office space effective on Monday, August 18, 2014, at 9 a.m. He will also need the services of an Administrative Assistant, and will require re-issuance of appropriate access credentials.

          Mayor Pizzi also intends to call a Special Council Meeting for the purpose of providing a community update to the citizens and residents of the Town. Please provide suitable dates consistent with public  notification requirements. Thank you for your assistance.

                                                                   Respectfully submitted,

                                                                   S/ Benedict P. Kuehne

                                                                   BENEDICT P. KUEHNE

The Herald covers the City's response:

The town’s response: If he goes into any unauthorized areas including the mayor’s office “he will be deemed a trespasser and subject to arrest.”
“The town of Miami Lakes will not tolerate a breach of the peace or disorderly conduct by Mr. Pizzi or anyone else,” Miami Lakes town attorney Raul Gastesi wrote on Sunday in response to a letter by Pizzi’s attorney Ben Kuehne, sent the day before, about Pizzi’s intentions of returning to office on Monday.
***
Slaton said on Sunday that he hoped Pizzi would change is mind about showing up at town hall.
“I was elected to serve until 2016 and that is exactly what I am going to do,” he said.

Well, who are you rooting for -- House Pizzi or House Slaton?

UPDATE == Chuck Rabin reports on Twitter that Pizzi did indeed show up and met with numerous people behind closed doors.  He wasn't arrested but was told that he wasn't the mayor.  Pizzi said he would instruct his lawyers to take legal action. 

***

 ***
In response, Gastesi said that “there is no confusion.”
“The Mayor of Miami Lakes is Wayne Slaton,” he wrote.
Pizzi called Gastesi’s response “insulting and ridiculous.”
“Mr. Gastesi has never practiced municipal law in his entire life,” he said. “He was appointed by Slaton because of his friendship and political loyalty and for no other reason. Instead of taking an objective position and doing research, Mr. Gastesi is acting as a personal lawyer for Mr. Slaton and leading the city down the wrong path.”
Pizzi said it is his responsibility to Miami Lakes residents for him to go back to work.
“I have no choice,” Pizzi said. “If I was to do anything else I'd be derelict in my duties.”

So are you rooting for House Pizzi or House Slaton?

                                        

Mayor Michael Pizzi acquitted of all counts!

Congrats to Ed Shohat and Ben Keuhne on this big win.

Pizzi jury asking weird questions... (UPDATED -- Pizzi acquitted)

...and Judge Cooke is responding in print.  According to Dave Ovalle who is tweeting about the deliberations, Judge Cooke commented that "a whole generation can't read cursive" so she had to respond in print. She also said that she was "educated by nuns" in regards to her cursive.


On to the actual notes:



1)  The jury wanted "more understanding" about whether count 1 (the conspiracy charge) had to be proven beyond a reasonable doubt.  The answer was obviously yes.



2)  The jury also wanted to know whether the entrapment instruction applied to all of the counts.  Again, the answer was yes.



Ovalle says that this leads him to believe that we are in for a split verdict.  I wonder.  This leads me to think that someone is fighting for the defense, but who really knows. 


UPDATE -- Ovalle was wrong -- NOT GUILTY across the board for Pizzi.

Pizzi jury deliberating

Dave Ovalle covers the closings here:

As depicted by the government, Miami Lakes Mayor Michael Pizzi was a greedy politician who “sold his office” for money from undercover FBI agents posing as crooked businessmen needing his influence in government.
“Mr. Pizzi knew this was a corrupt scheme,” federal prosecutor Bob Senior told jurors Tuesday during closing arguments in Pizzi’s corruption trial. “He participated in a corrupt scheme.”
But as told by Pizzi’s defense team, he was nothing more than a honest politician looking to help his community. He supported the bogus businessmen’s plan while being pushed, prodded and ultimately entrapped into accepting only part of the money — though for legitimate reasons.
“It is impossible that Mike Pizzi could have corrupt intent,” defense attorney Ed Shohat said.
***
“What kind of politician demands more money for simply sponsoring a free program that’s ‘good for the city,’ ” Senior told jurors.
But Shohat insisted that the agents, Kesti and lobbyist Richard Candia — Pizzi’s pal who was arrested and convicted as part of the scheme — consistently reinforced the notion that the program was legitimate. Pizzi supported the supposed grant but consistently shrugged off efforts to implicitly ask for money.
“Any good honest politician, trying to get hundreds of thousands of dollars, if not in the seven figures [for his community], would have done the exact same thing,” Shohat said.

Be nice to Dave Ovalle...

...if you are in federal court this morning.  He will be covering the closing arguments in the Pizzi trial for the Herald.  He's used to non-working escalators and bad coffee, so if you run into him, show him the good spots in and around the federal courthouse. Here's his lead-up story:

Lawyers are scheduled to deliver closing arguments Tuesday morning in a Miami federal court, with deliberations to follow.Pizzi’s defense rested Monday after several days of presenting witnesses aimed at explaining away allegations that the politician accepted money four separate times between 2011 and 2013.A guilty verdict could spell the end of a career for the fast-talking, populist-style politician first elected to the Miami Lakes City Council in 2000, then to the mayor’s seat eight years later. An acquittal would be a resounding triumph for Pizzi, who had long insisted he is innocent, set up by questionable FBI tactics and unscrupulous informants.Federal prosecutors say Pizzi took the money in exchange for supporting a phony federal grant application sought by two crooked Chicago businessmen — actually undercover FBI agents working with a lobbyist-turned-informant Michael Kesti.

***
Pizzi’s defense lawyers have painted Candia as a liar looking to lessen his prison sentence.To shoot down the claim, defense lawyers last week called to the stand Jorge Concepcion, a businessman who told jurors he was actually meeting with Pizzi at a house nearby at the time of the alleged Starbucks encounter.On Monday, for their final rebuttal witness, prosecutors put on a phone company engineer who testified that Pizzi’s phone call likely came south of a cellphone tower — near the Starbucks, in the opposite direction of the home where Pizzi purportedly met with Concepcion.

You be the judge.

1.  How much time should a mailman get for throwing away 700 letters because he couldn't get them all delivered?  Paula McMahon of the Sun-Sentinel covers the story of  South Florida mailman Jimmy Lee Peters Jr.  Judge Cohn rightfully sentenced him to probation:

At his sentencing Friday in federal court in Fort Lauderdale, Peters' lawyer said his client stole nothing and simply became "overwhelmed" by the volume of mail that he was expected to deliver during his seven months as a mail carrier."He basically says that it was a very large district that he had to serve and he was just overwhelmed," defense attorney Ruben Garcia told U.S. District Judge James Cohn. "Instead of just taking it back and admitting that he just wasn't up to it, he took it home."Peters didn't open even one envelope and none of the intended recipients reported any losses, officials said.U.S. Postal Service employees reported that they found "several garbage bags full of U.S. mail" at Peters' Miami residence. Other workers later delivered the delayed mail, which was addressed to ZIP codes 33060, 33064, 33013 and 33014, court records show.Garcia told the judge that Peters – whose prior criminal record consisted of two misdemeanor convictions for possession of marijuana and two arrests for driving with a suspended license – had already been punished significantly by being fired from a good job."I've realized how wrong I was for delaying the mail," Peters told the judge. "I am extremely ashamed and remorseful." 

Peters was sentenced to two years of probation and ordered to undergo substance abuse treatment. The judge said he felt that, considering everything, it was a reasonable punishment.

2.   Next up is a wine counterfeiter.  How much time should Rudy Kurniawan receive for selling *a lot* of counterfeit wine to rich wine collectors?  According to Judge Richard Berman in the SDNY, TEN YEARS! Here's the CBS NY story about the (way too long?) sentence:

He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace.“Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor.“Fraud is fraud,” he said.Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine.He also borrowed money against his collection of fake wines and owes a New York bank several million dollars.Wine consultant Maureen Downey spent hours documenting the deception to help her sniff out future fakes, CBS 2’s Tony Aiello reported in December 2013.“Some of the stuff up there, even the producers say they would not be able to spot it,” Downey said.For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.”

I'm not sure the jury who asked for a "big bottle of wine" discussed in the post below would have cared.

3.  How much should a federal judge get if he is convicted of battery on his wife?  According to the AP, federal judge Mark Fuller from the Middle District of Alabama was arrested Saturday night in Atlanta at the Ritz-Carlton:

U.S. District Court Judge Mark Fuller was charged with misdemeanor battery and taken to the Fulton County jail around 2:30 Sunday morning.Fuller, 55, is a judge in the Middle District of Alabama and presided over the 2006 bribery trial of former Alabama Gov. Don Siegelman and HealthSouth CEO Richard Scrushy. According to a jail official, the judge has a 9 a.m. Monday court appearance and was expected to remain in jail overnight.Police responded to the Ritz-Carlton Hotel at 181 Peachtree Street at 10:47 p.m. According to Atlanta police spokeswoman Kim Jones, officers spoke to Fuller’s wife, “who stated she was assaulted by her husband.” Fuller’s wife, who was not named by police, was treated by paramedics but refused treatment at a hospital.Fuller was nominated to the bench in 2002 by President George W. Bush and has been a controversial figure in Alabama politics, largely for his role in the Siegelman trial. Siegelman’s family members and supporters claim the former governor’s prosecution was politically motivated and that Fuller should have recused himself for conflicts of interest.

Jury in West Palm Beach asks for "big bottle of wine"

And they also include the LOL and :) on their note....

Gotta love South Florida! 

Are lawyers only happy when they're miserable?

That's the discussion over at Above the Law.  From the intro to Bruce Stachenfeld's post:

What I mean is this: You are working round-the-clock so much you haven’t even been home for a full day and hardly at all for a month on a doozie of a deal. You are completely sick of it. All you can think of is when the deal will be “over.” You are clearly “miserable.” If only you could have your personal life back! Then, finally, the deal closes — at last. Your client is wiring out the funds. As the transfer of funds is happening, a (terrible) thought races through your mind. You hate yourself for the thought — you try not to have the thought — but you simply can’t help it… and the thought is that you are kind of worried because you have nothing to do now and that is disquieting… gee, what if work has really slowed… at some point this will be a real problem. You’ve had your personal life back for maybe a second — you haven’t even taken a shower — and you are worrying where your next deal will come from.
Or the other way around. Work has been slow — very slow — for a couple of months. You have enjoyed some rounds of golf and gone out to a bunch of dinners and lunches, but you really would like a nice tricky and challenging deal to sink your teeth into. And of course you are mindful of the fact that like it or not lawyers just have to bill hours. That is how we make a living, and you just aren’t billing hours. Not a good thing. You are edgy — if only you could have a big deal to work on….

The final lament is that work is so damned inconsistent. One day you have nothing to do, and the next day you are swamped. There is no consistency, and therefore it is hard to make plans — it is hard to commit to pilates or pottery class or even going to the gym regularly or anything that requires regular attendance. If only you could have a regular life; however, you know full well that the cutting-edge stuff, the cool stuff, doesn’t fit into regular scheduling. We must always respond to someone’s emergency as that is what a service business is. How often has a client uttered the following three words: “take your time”?
So what should we do about this? Can anything be done about it, or are we lawyers going to have the ultimately pathetic lives, only “happy” when we are “miserably” overworked?
Dang it — I am not going through life that way — no way. And I urge the rest of the lawyers at my firm — and anyone else reading this — to avoid this terrible fate.
But avoiding this negative energy spiral is no easy feat. The fact remains that we are in a service business and we either do an awesome job for our clients — on their unpredictable time frames — or we lose our clients to other law firms that will make the necessary sacrifices. Just saying “no” to the clients or colleagues who make the time demands won’t work. And neither will being miserable and stressed out. Here is another plan.
Do you want a nine-to-five kind of boring job with unchallenging work? Most of us don’t want that. This is one of the reasons we became lawyers in the first place — because the work is incredibly interesting and challenging.
Conversely, do you want a life where you work round the clock, albeit on interesting and challenging matters, so hard that even your health starts to go? I would think you don’t want that either. At some point the work just isn’t fun any more and your job just stinks.
So how about you just flip your brain around. Instead of looking at the negatives, start looking at the positives of each work phase? This is the trick.

Major opinion from the 11th Circuit on structural error

Judge Wilson, joined by a visiting judge, issued this opinion in United States v. Roy, which starts:

This appeal involves a defense attorney’s temporary absence from the courtroom at his client’s trial when inculpatory testimony was admitted into evidence and contributed to his conviction. Appellant Alexander Michael Roy (Roy) alleges that his criminal conviction was obtained in violation of the Sixth Amendment and the Supreme Court’s holding in United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984), which creates a presumption of prejudice and requires a new trial when counsel is absent during a “critical stage” of the trial. Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon session of Roy’s trial commenced while his counsel was actually and physically absent, and (3) during that absence, evidence directly inculpating Roy in a crime for which he was eventually convicted was presented to the jury, we conclude that Roy was denied counsel at a critical stage, and based on Cronic, we are required to reverse Roy’s conviction as to all counts of the indictment and remand the case to the district court for a new trial.

 And concludes:

 Where, as here, structural error has occurred, the entire trial is unfair and the convictions as to all counts are tainted. See Fulminante, 499 U.S. at 309–10, 111 S. Ct. at 1265. The Supreme Court has defined structural errors as those where the reviewing court “can only engage in pure speculation” about what the jury might have done; their consequences are “necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281–82, 113 S. Ct. 2078, 2082–83 (1993). Structural errors are “markedly different” from trial errors (which can be “quantitatively assessed”), and thus, structural errors “defy analysis by harmless-error standards.” Fulminante, 499 U.S. at 308, 309, 111 S. Ct. at 1264–65 (internal quotation marks omitted). There are some errors that courts can accurately measure and hold harmless. This is not one of them. Especially here, where the charges are interrelated and evidence relevant to one count may have influenced the jury as to others.

Chief Judge Carnes dissented, with this "forceful" introduction:

Returning late from a lunch break on the third day of a six-day trial, defense counsel missed a small part of the testimony of the twelfth of thirteen government witnesses. He was out of the courtroom for only seven of the 1,884 minutes, or 31.4 hours, of the trial (not counting recesses and jury deliberations), which amounts to less than one-half of one percent of the trial time. During his absence counsel missed only 18 answers out of a total of approximately 2,745 answers that were given by government witnesses during the trial, which means counsel missed less than one percent of the total number of answers given by witnesses for the prosecution. That’s it. And all of the testimony that he missed was repeated in even more detail by the same witness after counsel returned to the courtroom.
So far as it appears from the record, the judge and the prosecutor did not notice defense counsel’s brief absence. When he returned to the courtroom, counsel did not object to testimony having been taken in his absence. He did not ask the court to strike the questions and answers that he had missed and instruct the jury to disregard them. He apparently did not seek to have the questions and answers he missed read back to him outside the presence of the jury so that he could familiarize himself with them and object to any that were objectionable. For all that we can tell, counsel may have deliberately taken advantage of his own tardiness and carefully avoided any attempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked. The majority decides that the defendant’s convictions for attempted child enticement and for possession of child pornography, most of which the defendant produced himself, must be set aside because of his counsel’s brief absence, even though the record conclusively establishes that the absence could not possibly have prejudiced the defendant.
At oral argument, we could not ask the defendant’s trial counsel about the facts surrounding his absence from the courtroom, why he did not object, if he made any off-the-record effort to familiarize himself with the testimony taken in his absence, or anything else about the matter. The reason we could not ask what really happened, and why, is that trial counsel conveniently did not represent the defendant on appeal. Another attorney did. We could have remanded the case for an evidentiary hearing to find out all of the facts, but the majority refused my request to do that. The majority is content with only a swift sideways glance at the facts because it thinks the facts can be presumed away. But “[t]his is not a matter for polite [or impolite] presumptions; we must look the facts in the face.” Frank v. Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting).
The majority’s view, now the law of this circuit, is that if a witness gives any testimony at all, even a single answer, supporting any count against the defendant while the defendant’s attorney is outside the courtroom, reversal of every count of conviction is automatic. No matter what. Reversal is automatic regardless of the reason for the absence. Regardless of whether the trial judge or prosecutor noticed the absence. Regardless of whether the answer given during the absence was objectionable. Regardless of whether the defendant suffered any actual prejudice from counsel’s absence. Regardless of whether counsel failed to object or seek any kind of corrective action. Regardless of whether counsel made a strategic decision not to seek to correct the problem. Regardless of whether the first mention of the matter was on appeal. And regardless of whether counsel deliberately engineered the whole thing. In other words, absence plus any inculpatory answer equals reversal regardless of any and all other facts and circumstances.
The majority holds that no matter how strong the evidence of the defendant’s guilt, all a defense attorney has to do to guarantee an automatic reversal of his client’s conviction on any and all counts is to be outside the courtroom while a witness gives a single inculpatory answer on any count against his client. The attorney can keep quiet about it until he sees what the verdict is and then claim his right to have any convictions set aside. And under today’s decision they must be set aside.
In fact, under the majority’s holding, it does not even matter if the attorney upon returning to the courtroom does object and does seek corrective actionbecause as soon as a single answer is given in his absence an absolute, conclusive, irrebutable presumption of prejudice arises. Nothing can be done. The law today’s decision puts in place is that absence during any inculpatory testimony at all is all that matters; no prejudice is required, no inquiry is allowed, no cure is permitted. Of course I dissent.

The majority has a lengthy response to the dissent, but I thought interesting the response to the argument that defense lawyers are unethically creating these errors on purpose:

We pause to address the concerns expressed by our dissenting colleague in his forceful dissent:

***

Our dissenting colleague next suggests that Roy’s counsel “may have deliberately taken advantage of his own tardiness and carefully avoided anyattempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked." Further, the dissent says that counsel may have “deliberately engineered the whole thing” and that our decision today could invite misconduct by opportunistic counsel, which, according to the dissent, is prevalent in the three states of the Eleventh Circuit as reflected by statistics evidencing rampant lawyer misconduct in Florida, Georgia, and Alabama by criminal lawyers.
Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licenses to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming, to invite reversible error in the event of a conviction. Nor does the parade of horribles imagined by the dissent permit us to disregard Cronic.
The dissent also maintains that judges are not like, in its words, “kindergarten teachers, [who] will be forced to keep an eye on their lawyer-children.” Contrary to that view, we are unpersuaded that United States District Judges should be excused from the less than onerous burden of ensuring that the defendant’s lawyer is seated at counsel table, next to his client, or is somewhere in the courtroom when the government seeks the admission of incriminating evidence that will be used by the jury to convict his client of a felony, resulting in life imprisonment. Especially in a trial with a single defendant who has a single lawyer.
We conclude that when the accused is deprived of his lawyer at a critical stage of his trial, there has been a denial of Sixth Amendment rights that makes the adversary process itself unreliable. The Constitution gives the defendant the right to “the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64 (1932). Accordingly, counsel’s absence during the admission of inculpatory evidence against Roy at his trial is “‘constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (emphasis added) (quoting Alaska, 415 U.S. at 318, 94 S. Ct. at 1111).
Although we reverse and remand for a new trial, a reversal does not mean that the defendant goes free. Rather, Roy will be retried in accordance with the rules of evidence and procedure, and without constitutional error.