Are Justices Alito and Thomas "activist" judges?

Yesterday, the Supreme Court decided 8-1 (per Justice Sonia Sotomayor) that the automobile exception does not justify police officers intruding onto the curtilage of one's home to conduct a search of a motorcycle. The majority:

This case presents the question whether the automobileexception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parkedtherein. It does not.

***

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

According to 8 of the Justices, this was a pretty straightforward application of existing law.  Justice Thomas concurred, saying just that.  But he also said that the Court should reconsider whether the exclusionary rule applies to the States (a rule that has been in existence since 1961, when the Court decided Mapp v. Ohio) because: "[he is] skeptical of this Court’s authority to impose the exclusionary rule on the States."

Alito, the most anti-defendant anti-4th Amendment Justice on the Court, is the lone dissenter.  He goes so far as to call the 8 Justice majority unreasonable, assinine, and idiots:

An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with thereality of everyday life. If that is the law, he exclaimed, “the law is a ass—a idiot.” C. Dickens, Oliver Twist 277 (1867).
The Fourth Amendment is neither an “ass” nor an “idiot.” Its hallmark is reasonableness, and the Court’s strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics.

Back at it

Hope everyone had a nice and relaxing weekend. We’re nearing the end of the Supreme Court Term, with lots of big and interesting decisions left (like Carpenter). In the meantime, check out this NYT article about a study of Republican vs. Democratic judges. The GOP judges are tougher on black defendants but more lenient with women:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.

“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”

The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Douglas A. Berman, an authority on sentencing law at Ohio State University, said the study contained “amazing new empirical research.”

11th Circuit laments inability to address Brady violations; asks for en banc review; UPDATED — 11th also decides important border search issue of cell phones, noting circuit conflict

This entire Judge Rosenbaum opinion (Scott v. U.S.) is worth reading.  The intro goes like this:

Prosecutors are “servant[s] of the law” and should “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But though the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Id.

More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963), established that a prosecutor’s suppression of material evidence favorable to the accused amounts to a foul blow. An actionable Brady violation—where the government withholds evidence that reasonably probably changes the outcome of a defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet because of the nature of a Brady violation, a defendant, through no fault of his own, may not learn that such a violation even occurred until years after his conviction has become final and he has already filed a motion for post-conviction relief concerning other matters.
Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes limitations on post-conviction relief a prisoner may obtain. This case examines whether under those limitations, a Brady claim can ever be cognizable in a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h). And that presents a question of first impression in this Circuit.

But that the case involves an issue of first impression does not necessarily mean we are writing on a clean slate. As it turns out, our Circuit has already written all over this slate. Indeed, we decided this issue’s fraternal twin—whether a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254 petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir. 2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule: a second-in-time collateral motion based on a newly revealed Brady violation is not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for second-or-successive motions.
Though we have great respect for our colleagues, we think Tompkins got it wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based on a newly revealed actionable Brady violation is not second-or-successive for purposes of AEDPA. Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s second-or-successive gatekeeping criteria.

Petitioner-Appellant Gino Scott’s Brady claim may or may not be an actionable Brady violation. But we think that the district court in the first instance should have the chance to address that question by determining whether Scott’s Brady claim is, in fact, actionable—a question the district court never had reason to reach. Tompkins’s rule precludes this from happening because it prohibits second- in-time collateral petitions based on all types of Brady claims—actionable and inactionable, alike—simply because they are Brady claims.

Establishing the correct rule and framework for determining whether any particular second-in-time collateral motion based on a Brady claim is cognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial should be permitted to stand.1 And when a petitioner could not have reasonably been expected to discover an actionable Brady violation before filing his first federal collateral- review motion, precluding the filing of a second-in-time petition addressing the newly discovered violation is doubly wrong. It rewards the government for its unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial may well have acquitted him of. This not only corrodes faith in our system of justice, but it undermines justice itself, and it cannot be allowed. So we urge the Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.

1. See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of Brady violations resulting in criminal convictions).

UPDATE — It’s important decision day at the 11th Circuit. On the other end of the spectrum, Judge William Pryor writes this opinion in U.S. v. Toucet, holding that no reasonable suspicion is required to search a cell phone at the border. Pryor acknowledges that his opinion conflicts with the 4th and 9th Circuits on this issue. Looks like it will be headed up to the Supreme Court as the next big case dealing with cell phones. Meantime, we are still waiting for Carpenter.

Do you like Gorsuch's writing style?

There has been quite a bit made of Justice Gorsuch's writing style (many do not like it). He wrote two opinions today, and even in a pretty straight-forward opinion sending a case back to the lower courts to address some open questions, he writes with quite a unique style:

The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 3–10 (opinion of THOMAS, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 3, 13–14. Both cannot be true. If the immovable property exception presents such an easy question, then it’s hard to see what terrible things could happen if we allow state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences.

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The Vetting Room's take on 11th Circuit Nominee Britt Grant

President Trump has nominated Georgia Justice Britt Grant to the 11th Circuit.  The Vetting Room has a very informative and lengthy post about Grant.  Here's the intro:

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

In other news, longtime federal prosecutor Dick Gregorie is retiring. The Herald looks at his career here.

Eleventh Circuit orders en banc hearing on whether “the risk of force clause in 18 U.S.C. sec. 924(c)(3)(B) is unconstitutionally vague in light of Sessions v. Dimaya?”

The original 11th Circuit ruling by Judge Hull (joined by W. Pryor and Tjoflat) is here (U.S. v. Ovalles).

The letter listing the issues before the en banc court is here:

1. Is the risk of force clause in 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague in the light of Sessions v. Dimaya, 138 S.Ct. 2014 (2018)?
2. Should this Court overrule United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013), insofar as it requires applying the categorical approach to determine whether an offense constitutes a “crime of violence” under § 924(c)(3)?

More on Trump's judicial appointments (UPDATED WITH SUPREME COURT RULINGS)

UPDATE.  A bunch of SCOTUS decisions this morning, including the gambling and rental car cases.  Still no Carpenter.   

The Congressional Research Service covers the statistics here.  This is the summary intro:

This report, in light of continued Senate interest in the judicial confirmation process during a President’s first year in office, provides statistics related to the nomination and confirmation of U.S. circuit and district court nominees during the first year of the Trump presidency (as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton).

Some of the report’s findings regarding circuit court nominations include the following:

 The number of U.S. circuit court vacancies decreased by 1, from 17 to 16, during the first year of the Trump presidency. The percentage of circuit court judgeships that were vacant decreased from 9.5% to 8.9%.
 During his first year in office, President Trump nominated 19 individuals to U.S. circuit court judgeships, of whom 12 (or 63%) were also confirmed during the first year of his presidency.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 15 (79%) were men and 4 (21%) were women.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 17 (89%) were white and 2 (11%) were Asian American.
 The average age of President Trump’s first-year circuit court nominees was 49.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 16 (84%) received a rating of well qualified from the American Bar Association, 2 (11%) received a rating of qualified, and 1 (5%) received a rating of not qualified.
 The average length of time from nomination to confirmation for President Trump’s first-year circuit and district court nominees (combined) was 115 days, or approximately 3.8 months.
 Each of the circuit court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the 12 circuit court nominees confirmed during President Trump’s first year in office, 11 received more than 20 nay votes at the time of confirmation (and of the 11, 9 received more than 40 nay votes).

Some of the report’s findings regarding district court nominations include the following:

 The number of U.S. district court vacancies increased by 38, from 86 to 124, during the first year of the Trump presidency. The percentage of district court judgeships that were vacant increased from 12.8% to 18.4%.
 During his first year in office, President Trump nominated 49 individuals to U.S. district court judgeships, of whom 6 (12%) were also confirmed during the first year of his presidency.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 37 (76%) were men and 12 (24%) were women.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 45 (92%) were white, 2 (4%) were Asian American, 1 (2%) was African American, and 1 (2%) was Hispanic.
The average age of President Trump’s first-year district court nominees was 51.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 26 (53%) received a rating of well qualified, 20 (41%) received a rating of qualified, and 3 (6%) received a rating of not qualified from the American Bar Association.
 Each of the district court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the six district court nominees confirmed during President Trump’s first year in office, two received more than five nay votes.

"Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable."

That's a quote from this Cato Institute article on prosecutorial misconduct.  This is one of the dirty little secrets of the criminal justice system.  Nothing happens when prosecutors withhold Brady...

Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable. Internal discipline does little to nothing, criminal prosecutions are incredibly rare, and — thanks to the Supreme Court’s invention of the doctrine of absolute immunity — prosecutors can never be held civilly liable, even for the most egregious, willful misconduct. This is all the more troubling because prosecutors wield enormous power in our criminal justice system, especially given the immense leverage they can bring to bear on defendants to coerce them into accepting pleas. In light of this background, it is crucial for the SJC to issue broad relief — in particular, to issue standing orders that compel pre-plea compliance with the disclosure obligations of Brady v. Maryland, and that provide for meaningful discipline and sanctions if prosecutors fail to meet these obligations.

One major problem is that there is absolutely no deterrence at all, either to prosecutors themselves for the misconduct (if you ask OPR, there has never been an intentional case and nothing even happens even when a judge finds misconduct) or to the cases when misconduct occurs (because the prejudice standard is made to be impossible). Why don’t all prosecutors have open-file, turn over witness statements and grand jury testimony, etc. It’s not because of concerns of witness safety (when is the last time something happened to a witness?); it’s because of the desire to win. The same thing for bail— why ask for detention... not because of any real fear that the defendant will run (that happens in a statistically insignificant number of cases); it’s for a desire to win. The same for arguing for monster sentences after trial. It’s done to convince people to plead. These incentives cause huge problems. 

It's not a surprise that the U.S. has the largest incarceration rate in the world.  The criminal justice system needs to be revamped to address these issues.  Until that time, we need judges to step up -- order disclosure of material (and not just say that the prosecutors know what their obligations are); grant bail (and not detain so many presumed innocent defendants); give reasonable sentences even after trial (so that the risks of trial don't result in 97.5% of cases pleading out, which means that innocent people are pleading).  And on and on.  Please excuse the rant.

Slow SDFLA

Not much going on in the District right now.  Seems pretty quiet.  Last week was the 11th Circuit conference, and Clarence Thomas gave the keynote address.

This Bloomberg article discusses how Justice's personalities come through in Opinions Related to Orders (ORTOs):

The U.S. Supreme Court’s “opinions related to orders” get less attention than their merits opinions, but they give courtwatchers clues about the justices who write them.

Merits opinions set a binding rule for the entire country to follow. Opinions related to orders—ORTOs—are often the thoughts of one justice on a case the court has decided not to take up.

The justices vary quite a bit in how often they write opinions related to orders, Bloomberg Law analysis shows. Since October 2011, Justice Sonia Sotomayor has written 31 opinions related to orders. Justice Anthony M. Kennedy has written none.

“I think it isn’t surprising that there’s some variation between the Justices,” Daniel Epps, a former clerk for Kennedy, told Bloomberg Law. “But I think it is a bit surprising just how much variance there is.”

Interestingly, although Thomas doesn't speak at oral arguments, he comes in second with 24 ORTOs. 

Trump judges

USA Today has a lengthy and interesting story about the judges that Trump has appointed "flexing their muscles."  It starts by saying that their rulings have mostly been conservative (shocker!):

Nearly a year after the first of them won Senate confirmation, 15 nominees have made their way to federal appeals courts, representing perhaps Trump's most significant achievement in his 15 months as president. A dozen more are in the pipeline.

While it's too soon to detect a definitive trend, Trump's judges are making their presence felt through the weight of their votes and the style of their rhetoric.

Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit led the way last May and has amassed the largest body of work so far. He helped uphold Ohio's method of lethal injection as well as a Michigan county's practice of opening government meetings with Christian prayers.

Judge James Ho, a more recent addition to the 5th Circuit Court of Appeals, dissented from its refusal to reconsider a challenge to strict campaign contribution limits in Austin, Texas, that he said violate the First Amendment.

Judge Amy Coney Barrett of the 7th Circuit Court of Appeals helped block the U.S. Equal Employment Opportunity Commission's attempt to stop an employer from transferring Chicago-area employees based on their race or ethnicity.

Three judges named by Trump to the 8th Circuit Court of Appeals — Ralph Erickson, Steven Grasz and David Stras — joined in its refusal to reconsider a Missouri inmate's plea to change his method of execution because a rare health condition could make lethal injection too painful. The Supreme Court nevertheless agreed to hear the case next fall.

But then the article explains that it's not always so clear that the judges are going to rule as predicted, and uses an example from the 11th Circuit:

Judge Kevin Newsom of the 11th Circuit joined a three-judge panel's unanimous ruling that an Alabama police department's demotion of a female officer seeking to breastfeed her newborn child was discriminatory. The panel said its holding "will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences."

There is no question that Trump, unlike Obama during his presidency, is focused on judicial appointees:

Since coming to office, Trump has nominated more than 100 federal judges, and the Senate has confirmed 33. Another 12 circuit court nominees and 58 district court nominees are in the pipeline. The speed and efficiency of the process far outpaces past Democratic and Republican administrations.

It helped that Trump inherited more than 100 lower court vacancies, and that Senate Democrats in 2013 changed that body's rules to block Republicans from bottling up nominations with just 41 votes. Now Republicans are in the majority — barely — and have been united on the president's appeals court choices.

Conservatives have hailed them for their relative youth — Gorsuch is 50, and the 15 appeals court judges average 49 — and their adherence to the Constitution. Four of them clerked for the Supreme Court's most conservative justice, Clarence Thomas. Nearly all are white; four are women. 

Included among them are several already being touted by conservatives as potential Supreme Court nominees, including Barrett and Thapar, who is Indian American.

Mary Barzee Flores to challenge Mario Diaz-Balart

And Mary (former Assistant Federal Public Defender and former Obama District Court nominee) came out swinging.  According to Marc Caputo from Politico, who broke the story:

“I’m confident that Mario Diaz-Balart can, should and will be beat this fall. And I’m going to beat him,” Barzee Flores told POLITICO.

“Diaz-Balart has voted repeatedly to rip away Floridians’ health care coverage. He has voted repeatedly with the [National Rifle Association], while taking more of their campaign cash than any other Florida congressman in the last 20 years,” she said. “He denies science even as rising sea levels directly threaten our community. He pays lip service to DREAMers while the Trump administration tears apart families.”

Barzee Flores’ decision to run in Florida’s 25th Congressional District was made at the urging of the Democratic Congressional Campaign Committee, the abortion rights group EMILY’s List and Florida Democrats. None wanted to see Diaz-Balart again escape an election cycle without a major Democratic challenger. All three pledged to financially back her.

News & Notes (UPDATED with Esteban Santiago death penalty decision)

1.  Judge Robin Rosenberg wrote this op-ed about civility and law-day:

For our part, in the judicial branch, federal judges in the Southern District of Florida over the past six months have brought into our courtrooms more than 500 high school and college students to give them exposure to, and experience with civil discourse and decision-making practices that are not only legal skills but critical life skills.
Federal judges in West Palm Beach, Fort Pierce, Miami and Fort Lauderdale are the first to launch the program as part of a national civility and decision-making initiative that in Florida we call Teen Discourse and Decisions — TD-Squared (TD²). Volunteer attorneys, including members of local Federal Bar Association chapters, assist the presiding judge in guiding participants through a high-stakes case involving a peer caught up in a fictional but relatable scenario. Students use civil discourse skills during their jury deliberations to come to a verdict.
To prepare for the deliberations, the student jurors commit to ground rules for relating respectfully while working through the issues. However, they quickly learn that civility doesn’t mean the process is devoid of emotion. On the contrary, reason is powered by passions deeply felt but constructively channeled. Through this program and many life experiences as a judge, a lawyer and a mother, I have found that, even when emotions run high, young people have an innate sense of fair play. They understand, even when they fall short, that passion isn’t a license to be disrespectful to others.
I was moved to see how this philosophy came through in a commentary piece my 16-year-old son wrote for his high school newspaper. The title of his editorial is “Challenging Ideas, Not People.” In it, he reminded us that “we must find a way to have our voices heard and stand up for what we believe in, but not in a way that aims to threaten and embarrass others.” That mentality is at the heart of civil discourse. It is a frame of mind that sets the stage for listening to and engaging with others about strongly held beliefs – even when we passionately disagree with their ideas or believe they are wrong.
It is a frame of mind that sets the stage for listening, engaging, and accepting the strongly held beliefs of others – even when we passionately disagree with their ideas or believe they are wrong.

2.  President Trump took the opposite tact and criticized district judges on law-day:

Trump's Law Day proclamation includes criticism of courts for "rulings that exceed traditional limits on the judicial power" pic.twitter.com/W3LcBnKAsv

— Zoe Tillman (@ZoeTillman) April 30, 2018

3.  The feds have charged a juvenile detention officer.  From the AP:

An officer at a South Florida juvenile detention center was arrested Monday on federal civil rights charges after a 17-year-old died in a beating by other inmates that was allegedly encouraged by the officer using a bounty and reward system.

An indictment unsealed Monday accuses Antwan Lenard Johnson, 35, of conspiracy and deprivation of the teenager's rights under color of law. Johnson had an initial court hearing Monday but did not enter a plea. His lawyer declined comment.

The indictment claims Johnson used bounties and rewards so inmates at the Miami-Dade Regional Juvenile Detention Center would use violence to punish bad behavior by other inmates. The 17-year-old who died was identified only as "E.R." in court documents but a Department of Juvenile Justice statement identified him as Elord Revolte.

Prosecutors said Revolte was fatally assaulted by other juveniles in August 2015 because of unspecified "statements and behavior" that challenged Johnson's authority. The inmate rewards included extra recreation time, such as watching more television, and snacks.

UPDATED 4. It appears that the feds and Esteban Santiago (the FLL shooter) have reached an agreement that he will plead guilty (and receive a life sentence) in exchange for the government not seeking the death penalty.