Witnesses do not belong to one side or the other

I use the current situation with Mueller, Manafort, and Trump as a vehicle to discuss the issue this morning in The Hill:

There has been a lot of hand-wringing over the recent revelation that Paul Manafort’s lawyers have been speaking to Donald Trump’s lawyers. Pundits have said breathlessly that such conduct is obstructive and that only mob lawyers engage in such behavior. Nothing could be further from the truth — by itself, there is nothing obstructive about the lawyers speaking with each other and sharing information.
Witnesses do not belong to one side or the other.
Paul Manafort has pleaded guilty and as part of his plea agreement has promised to answer Mueller’s questions truthfully. Mueller did not ask Manafort to keep those questions and answers secret, nor could he make such a request. This situation comes up frequently in federal criminal cases outside of mob cases. In one common scenario, employees who are questioned by federal authorities are often asked by their employers to share information and do so all of the time. There is nothing nefarious or obstructive about this. Several courts have explained that it is improper for a prosecutor to tell a government witness not to talk to the defense.

"Mueller should not get to decide whether Manafort is lying"

That's the title of my latest piece in The Hill.  The intro:

Prosecutors call them cooperating witnesses. The rest of the criminal justice system calls them rats, snitches, chivatos, stool pigeons, informants and sapos, just to name a few of the terms. The federal criminal justice system is built on these witnesses. So long as they tell “the truth,” they receive enormous reductions in their sentences. In some cases, sentences for defendants convicted after trial are 500 percent longer than sentences received by those who plead and cooperate with the government.
So it’s no surprise that trials have dropped from almost 20 percent of all cases in the 1980s to less than 3 percent today (with most all the rest of the cases resolving in a plea).  Like the days of Salem witches, even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences.
There are many fundamental problems with such a system. One such issue is demonstrated in the Paul Manafort case, where the prosecution team just filed a status report with the court explaining that they have concluded that Manafort is not fulfilling his end of the plea agreement because, they say, he has lied to them during interviews (or as they are called in the system, debriefings). Manafort has said he has answered all of their questions truthfully. This may or may not be true.

Trump bashes 9th Circuit for reversal rate...

...but you know which Circuit is reversed more often?

That's right, the 11th Circuit. (82% for the 11th vs. 80% for the 9th over the past 5 Terms).

It's all silly, of course. The reversal rate is pretty consistent across the circuits as the Supreme Court generally takes cases to reverse, not to affirm.

And the 9th Circuit is by far the largest Circuit with the most cases, so on a pure number-of-cases basis, it's going to lead the pack.

Justice Roberts joined the fray with this retort about an independent judiciary.

The Washington Post then roasted Trump explaining that judges on both sides of the aisle have been ruling against him, again and again:

[Roberts] could have noted that the number of rulings against his administration’s actions now stands somewhere in the range of about 40 to 50, according to a rough estimate by The Washington Post. Norman Siegel, writing at Law.com in January, counted 37 “major” losses, and that was in January, before numerous other rulings that thwarted Trump administration decisions.

And he could have observed that all of this is a bit of a surprise. All presidents lose cases. But a losing streak of this magnitude for a president is a new phenomenon.

Despite the endless decades of rhetoric about “judicial activism,” judges at the district court level are generally a timid lot when it comes to confronting presidents. Historically, they are inclined to do what former federal judge Nancy Gertner calls “duck, avoid and evade.”

“Now,” she wrote in the April issue of NYU Law Review, “I am not so certain. . . . Perhaps ‘judging in a time of Trump’ ” is different, she wrote. “It is one thing to ‘duck, avoid and evade’ when you believe that official actors are acting more or less within constitutional bounds. It is another to do so when you are concerned about real abuse of power.”

***
It was U.S. District Court Judge Dana M. Sabraw, for example, a California jurist appointed by President George W. Bush, who ripped the administration repeatedly for its family separation debacle.

And how could Trump forget that it was his own appointee, Timothy J. Kelly of the U.S. District Court for the District of Columbia, who slapped down the effort to ban CNN’s Jim Acosta from the White House.

***
One of the toughest dressings-down came from a decision blocking Trump’s “sanctuary cities” crackdown written by Judge Ilana Rovner, appointed by President George H.W. Bush to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. In a decision joined by a Gerald Ford appointee and a Reagan appointee upholding a lower-court ruling by a Reagan appointee, she lit into the Trump administration for assuming powers to withhold money not granted to it by Congress to punish states and cities that didn’t go along with efforts to round up those in the country illegally.

Her message to Trump and then-Attorney General Jeff Sessions, translated, was basically, who do you think you are?

Our role in this case is not to assess the optimal immigration policies for our country. . . . The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescense of elected legislators, the check against tyranny is forsaken.

Gorsuch and Sotomayor channel Justice Scalia

From ScotusBlog:

But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

In other news, Willie Falcon was deported... but not to Cuba.  He was sent to the DR.  From the Miami Herald:

One of South Florida’s most infamous cocaine cowboys — Willie Falcon — has been deported to the Dominican Republic after his bid to stay in the United States failed following his 20-year prison sentence on a drug-related money-laundering conviction.

Falcon, 62, was deported earlier this month because he was a convicted felon without U.S. citizenship. He had been held in Louisiana since June 2017 by immigration authorities who at first sought to deport him to his native Cuba.

But Falcon, who recently lost his final federal court appeal to block his deportation, won’t be sent to Cuba as he and his Miami family members initially feared, according to federal officials. The Dominican Republic government agreed to accept Falcon as a resident.

Monday news and notes

1.  Donald Trump made a joke about Justice Scalia’s wife being busy. Via USA Today:

Amid introducing the awardees of the nation's highest civilian honor, some online noticed the president seemed to include a joke about Scalia's virility.

Trump welcomed Scalia's wife, Maureen, and their nine children who attended the White House ceremony. After reading the names of each of the nine children, Trump seemed to slip in a joke about the couple's sex life.

"You were very busy. Wow," the president said, causing those in the room to chuckle. "Wow. I always knew I liked him."

2.  Stephen Colbert interviews Justice Sotomayor. Here it is on YouTube.

3.  Trump’s nominee to fill Justice Kavanaugh’s spot on the D.C. Circuit is a defender of dwarf tossing.  From MotherJones:  “Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.”

4.   The Florida Supreme Court says that judges and lawyers can be Facebook friends.  Here’s the Law.com article.

D’oh! Cut and paste job goes bad... charges against Assange revealed in unrelated court filing.

The Washington Post has the story, which is every lawyer’s nightmare when they hit the file button on cm/ecf:

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.
The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”
Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

Joshua Stueve, a spokesman for the U.S. attorney’s office in the Eastern District of Virginia, said, “The court filing was made in error. That was not the intended name for this filing.”

Miami AUSA opens in El Chapo case

It’s AUSA Adam Fels for the prosecution.  He opened this way: “Money, drugs, murder and a vast global narcotics trafficking organization — that is what this case is about, and that is what the evidence in this case will prove.”  More from the NY Post:

Opening statements finally began Tuesday in the trial for Joaquin “El Chapo” Guzman — with prosecutors describing some of the notorious accused drug lord’s most heinous acts for jurors, along with his weapons of choice.

“Some of his favorites include a diamond-encrusted handgun with his initials on it and a gold-plated AK-47,” said federal prosecutor Adam Fels.

He recounted how Guzman allegedly ordered hits on his own loved ones and used a small private army — consisting of hundreds of men “armed with assault rifles” — to take out his rivals.

For the defense:

Guzman’s defense team, meanwhile, claimed during its opening statements that prosecutors were trying to use him as a “scapegoat.”

“There’s another side to this story, an uglier side,” said attorney Jeffrey Lichtman. “This is a case that will require you to throw out much of what you were taught.”

According to Lichtman, the real criminal mastermind is Ismael “El Mayo” Zambada — current leader of the infamous Sinaloa Cartel. The lawyer described the 70-year-old former poppy-field worker as “the biggest drug trafficker in Mexico.”

Chuck Grassley and George Will (and lots of other GOPers) think we need sentencing reform

Here’s The NY Times on Grassley’s push for federal sentencing reform, which now has a real shot of passing:

A bipartisan group of senators has reached a deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.

The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

George Will has this piece, which addresses a state sentence of life for a juvenile:

Parents who have raised sons understand that civilization’s primary task is to civilize adolescent males, a task that is difficult for many reasons, some of which neuroscience explains. The part of the brain that stimulates anger and aggression is larger in males than in females (for evolutionary, meaning adaptive, reasons). And the part that restrains anger is smaller in males. The Supreme Court has noted that adolescent brain anatomy can cause “transient rashness, proclivity for risk, and inability to assess consequences,” thereby diminishing “moral culpability” and, more important, enhancing “the prospect that, as the years go by,” offenders’ “deficiencies will be reformed.” Hence “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ ”

Judges are supposed to be a check on the executive branch. I really don’t understand why sentences aren’t much lower. So many judges have become accustomed to just following the prosecutor/probation officer/sentencing guidelines, that we have one of the highest incarceration rates in the world. It’s absurd. It will be interesting to see how the new crop of Trump judges sentence defendants, especially non-violent first time offenders.

Will Alex Acosta be named Attorney General?

Marc Caputo floats the idea here:

WHAT ABOUT ACOSTA? — It’s well-known that President Donald Trump prizes loyalty and loves guys with Harvard degrees. By those standards, Alex Acosta fits the bill for attorney general. Acosta has also already survived Senate confirmation, too, and serves as Trump’s only Hispanic secretary, for labor. A son of Cuban exiles, Acosta has prosecutorial experience, having served as the U.S. Attorney for the Southern District of Florida before becoming dean of Florida International University. One possible blemish on Acosta’s record: His decision to give accused pedophile billionaire Jeffrey Epstein what many saw as a sweetheart deal.

Acosta would be a fantastic choice.

Also listed in the short list is Pam Bondi.

Election impact on SDFLA

With the Republicans picking up seats in the Senate and Rick Scott flipping Florida to a two-GOP Senate state, it will be that much easier for Trump to push his judiciary picks.  The three pending district court judges should be confirmed shortly.  And it will be interesting to see how quickly those two open seats get nominees.

Florida amended its constitution to allow for restoration of felon voting rights.  Republicans aren't happy about that one and are promising litigation. But that will likely be in state court. 

Two House seats in the SDFLA flipped blue (Shalala and Mucarsel-Powell).  Barzee-Flores couldn't flip the third seat though.

In non-election news, here's a federal judge who allowed jury nullification arguments in a child porn prosecution:

"This is a shocking case. This is a case that calls for jury nullification."
Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge—District Judge Stefan R. Underhill of the District of Connecticut—and he spoke in court about a case over which he presided.
The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce." And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.
That draconian sentence—independent of what was in store in the entirely separate state trial for sex with a minor—was too much for Judge Underhill. "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court. "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."
Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that. I don't feel I'm required to preclude that. And I think justice requires that I permit that."
The judge's appeal to jury nullification as a remedy for runaway prosecution didn't come out of the blue. Defense counsel and prosecutors had already sparred over the case's rather tenuous connection to interstate commerce, by which the federal government claimed jurisdiction.
"Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the statute," Judge Underhill noted in surprise. They also tussled over the extent to which jurors should be informed of the long years in prison that awaited Manzano upon conviction.
"Juries exist for a reason," Pattis argued in court. "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof. And in certain trials in our history, juries have done more than that. They've said the law is wrong, and we, the people, say it's wrong."
In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."

I'm not sure why the judge did not just Rule 29 the case after the government rested.  There's no appeal and it's a way for the judiciary to check the executive on absurd prosecutions.

El Chapo trial expected to last 4 months

So absurd.

No trial should last that long.

It's not fair to the jurors.

If the prosecutors can't prove that case in 2-3 weeks, then something is wrong.

Here's Reuters with the background:

U.S. prosecutors say that as the head of the Sinaloa Cartel since 2003, Guzman directed the movement of multi-ton shipments of drugs including heroin, cocaine, marijuana and methamphetamine across borders and into the United States. If convicted, Guzman faces life in prison.

According to court filings, prosecution witnesses will include former Sinaloa Cartel members and others involved in the drug trade who are now cooperating with the U.S. government. Prosecutors have so far avoided naming the witnesses, saying that doing so would put them in danger. Some are expected to testify under aliases.

Although the charges in the case all relate to drug trafficking, prosecutors are also expected to introduce evidence that Guzman was involved in multiple murder plots in the course of his career, including in wars with rival cartels.

Guzman’s lawyers have so far given few hints about their planned defense. Eduardo Balarezo, one of the lawyers, said in a court filing that he will seek to prove that Guzman was merely a “lieutenant,” acting at the direction of others.

For a local case in the news, the WSJ covers the Andres Arias extradition appeal here. (Disclosure: I am handling that appeal with Professor Ricardo Bascuas). The title of the piece is: Will the U.S. Extradite an Innocent Man?

If Secretary of State Mike Pompeo doesn’t get involved, an innocent man with young children could end up serving a 17-year sentence in a Colombian prison for a crime he didn’t commit.

Forget that murderers in Colombia don’t get 17 years. Forget too that the Arias criminal case was heard only by a politicized Colombian Supreme Court with no chance for appeal—a violation of international human-rights law.

The crux of this matter rests on whether Washington has an extradition treaty with Bogotá. The countries signed one in 1979 but, as the Colombian Supreme Court has said, Colombia never ratified it.

President Santos refused to extradite multiple suspects wanted by the U.S., citing the lack of a treaty. One was Venezuelan drug kingpin Walid Makled, who Colombia captured in 2011 but sent to Venezuela where his secrets would be kept. Mr. Santos said he had no choice but “to comply with the Constitution and with the laws,” adding “we have an extradition agreement with Venezuela, not with the United States.”

Former Colombian President Álvaro Uribe also has stated, in a sworn affidavit presented in court, that there’s no treaty. Colombia uses domestic law to send suspects to the U.S.

In a motion for a stay of extradition pending appeal filed Tuesday in the 11th Circuit Court of Appeals in Atlanta, Mr. Arias’s lawyers argued the point again. “The legality of the order sought to be stayed depends on whether a Treaty that Colombia insists it never ratified and never observes is in force. The Treaty itself states” in article 21(1) “that it is ‘subject to ratification.’ ”

U.S. v. Bruce Wayne [Harrison]

You thought you knew who Bruce Wayne was.  But you were wrong.

He also goes by: Hopper, Grasshopper, and ...

... of course ...

Loose Bruce.

Don’t tell me that this blog never gave you important information.

(And shame on you clerks for Marcus, Pryor, and Rosenbaum, for not including any Batman references).