Friday, February 21, 2020

Stone sentenced to 40 months

The criminal justice world, as well as the political world, are all talking about the Roger Stone sentence.  40 months...

Rumpole has a nice post about it here, calling the sentence too harsh.  He's right of course.  The problem is that so many people see it as lenient because the sentence was below the Sentencing Guidelines.  And that's the problem.  Over 3 years (YEARS!) in prison for a first-time non-violent and elderly offender is not lenient by any stretch.

We've become so accustomed to the Sentencing Guidelines that people -- including judges -- see downward variances as some sort of break.  But once we realize that the guidelines are just made up numbers, which are not based on anything, and that they have completely warped our system into jailing more people for longer amounts of time than any other country in the world, then we will see that downward variances are no break and 3+ years is lenient. 

Maybe we should not call them "downward variances."  That implies that the judge should start off with the guidelines.  Any ideas?

Wednesday, February 19, 2020

Trump commutes sentence of Judith Negron

In one of the worst examples of the trial tax in this District and around the country, Judith Negron -- a first-time non-violent offender -- was sentenced to 35 years (35 years!!!) in prison for Medicare fraud.  President Trump commuted her sentence yesterday to time served (8 years).  Most people are asking what her connection is to the President, and that's the problem with his commutations.  They are being viewed as individual driven instead of being driven by the unfairness of the system (which is the same criticism of his Stone tweets).  I just wish Trump would use this opportunity to grant more commutations and make some broader statements about the issues with our system.  Let's fix the trial tax and the Sentencing Guidelines.

Here's the WH press release on Negron:
Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government.  Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates.  Her prison warden and her counselor have written letters in support of clemency.  According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.”  This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

Monday, February 17, 2020

Roberto Martinez takes on his former colleagues in this Miami Herald op-ed

There are a bunch of former prosecutors calling for AG Bill Barr to resign in light of the recent change in Roger Stone's sentencing recommendation. Former U.S. Attorney Roberto Martinez -- who worked under Barr during the Bush presidency -- did not sign the letter even though he disagreed with Trump's public statements about the Stone sentencing, and he explained why in this Miami Herald op-ed:
Neither the signers of the letter — nor I — have any first-hand knowledge of the facts, the law and the various policy considerations involving the appropriate punishment that were considered by the DOJ and Barr regarding Stone’s sentencing. Neither the signers — nor I — know what conversations took place, when or where they took place, who participated in them, who said what and what issues where considered.

Yet, the letter makes a lot of assumptions and accusations about Barr and his decision that no lawyer or prosecutor (former or current) should ever make without knowing the details. Certainly, none of us would want a prosecutor to make accusations about one of our clients similarly uninformed. And yet, the letter’s signers demand that Barr resign. It is dangerous to make accusations about anyone without fully knowing the facts. Former prosecutors, some of whom are now in the private sector representing clients before the DOJ, probably know that better than anyone.
Meantime, the Federal Judges' Association has called an emergency meeting to address the Stone affair.  From the USA Today:
A national association of federal judges has called an emergency meeting Tuesday to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group’s president said Monday.

Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group “could not wait” until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.

“There are plenty of issues that we are concerned about,” Rufe told USA TODAY. “We’ll talk all of this through.”
This strikes me as strange.  I bet Judge Amy Berman Jackson does not like the idea that the association is having an emergency meeting about a pending case before her.

It will be interesting to see what happens at the Stone sentencing now, as well as the Michael Avanetti sentencing (which is scheduled for June). In both cases, I'm for a sentence way under the made-up Sentencing Guidelines. I just don't think we need to be sentencing non-violent first-time offenders to prison simply because they decided to go to trial (or really for any other reason). My take on the Stone sentencing is here.

Friday, February 14, 2020

Valentine's Day news and notes

1. The SDFLA Court will be celebrating Black History Month with a presentation on "Effective Legal Activism" on February 24 at 11:30 at the Ferguson Courtroom, 13th Floor. RSVP by 2/18/20 to:

2. The 11th Circuit judges went at it in a student loan case this week. Judge Martin called Judge Pryor's reading of the statute at issue as "a grammatically incoherent reading." From
An opinion affirming that one of the nation’s leading federal student loan guaranty agencies isn’t liable for aggressive tactics it employed over a nonexistent debt has ignited the second textualist split this week at the U.S. Court of Appeals for the Eleventh Circuit.

The ruling published Friday and written by Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit provoked a strong dissent from fellow Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Martin chastised Pryor and Judge Gregory Katsas of the U.S. Court of Appeals for the D.C. Circuit, who joined with Pryor in affirming dismissal of the case, arguing that their findings could “only be achieved by a grammatically incoherent reading” of the statute.

Pryor took issue with Martin’s critique in his majority opinion, writing, “Our dissenting colleague is wrong.”

Katsas was appointed by President Donald Trump in 2017. Pryor, a George W. Bush appointee, has twice been on Trump’s short list for the U.S. Supreme Court. Martin was appointed by President Barack Obama.

3. Last week, Judge Robin Rosenberg was assigned the Zantac MDL, one of the largest in MDL history. It's a big deal in civil circles. The MDL panel said Rosenberg was “an able jurist who has not yet had the opportunity to preside over an MDL.”

Wednesday, February 12, 2020

“Let's use Roger Stone's case to fix our broken justice system“

The the title of my latest piece in The Hill, which you can access here.  Please let me know your thoughts.  Here’s the intro:

Every day in courthouses around the country, federal prosecutors ask for grossly outrageous and offensively high sentences. The United States puts more people in prison for longer amounts of time than any other country in the world. And it’s not just violent, repeat offenders who are getting the monster sentences. Those whopping sentences are also doled out like candy to first time, non-violent defendants.

That’s why it should have come as no surprise when the prosecutors handling Roger Stone’s case (involving an elderly first-time non-violent defendant) recommended a sentence of 7-9 years.

As wrong and over the top as that recommendation was, it was not unusual in the slightest. What was unusual was President Donald Trump’s Department of Justice coming in and saying that the recommended sentence was “excessive and unwarranted” and that the sentencing guidelines do not “serve the interests of justice in this case.”

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends. That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned. How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

Monday, February 10, 2020

BREAKING -- Judge Federico Moreno to take senior status.

Wow, this is big news.

Judge Moreno has been the heart and soul of this Court for 30 years.  He's been the Chief and on Trump's short list for the Supreme Court. 

He gave his notice today that he will take senior status when his replacement is confirmed or on July 17, 2020 (he has thirty years of service as of July 16), whichever comes first.

Here is the official letter:

I will write more about Judge Moreno shortly, but a big shout out to him for his service to the bar and the community.

Sunday, February 09, 2020

54 cellphones, 47 amphetamine pills...

... 25 grams of an amphetamine infused leafy substance, two syringes filled with liquid amphetamine, one opiate-infused paper strip, at least nine cellphone chargers and one 11.5-inch, dagger-like shank fashioned from a piece of copper pipe.

That’s what was found during a recent 30-day sweep at FCI-Miami, according to the Sun-Sentinel. More:

On Jan. 24 this year, unrest broke out in the camp. According to corrections officers who work at the facility, the discovery of more than 50 prohibited cellphones in a single day triggered a lockdown, which in turn led to an inmate strike.
The labor strike, according to corrections officers, included a mass refusal by inmates to eat in the facilities’ food hall.
A Jan. 25 police report of a possible escaped inmate, documented in Federal Bureau of Prison’s documents, only increased tensions. A headcount showed there was no escape, but corrections officers suspect it was someone actually breaking into the compound to deliver contraband.

There have been lots of reports about the lockdown at FCI-Miami. Inmates thinking they were serving time at a low or a camp have been subjected to conditions more like a medium or high.

Thursday, February 06, 2020

“Do you have a lot of trouble answering questions in life or just when you come to the court?”

That was Federal Circuit Judge Raymond Clevenger to a DOJ lawyer when she wouldn't answer hypotheticals during oral argument on PACER fees. From Politico:
A lawsuit accusing the federal court system of treating nearly a billion dollars in online access fees like a slush fund got a favorable reception on Monday from an appeals court, where the main question that judges seemed interested in debating was how to calculate the extent to which the public was bilked.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit heard arguments on a class-action lawsuit filed in 2016 that picked up on federal judges’ claims that the user fees from the so-called PACER system were being used to broadly subsidize the courts’ information technology budget, rather than being used solely to cover costs related to making court records available online.

At issue is about $145 million in fees that users pay each year to search for and download federal court filings. The courts typically charge 10 cents a page for electronic copies of those filings. It’s a meager amount, but the bills can add up to hundreds or thousands of dollars a month for law firms, electronic publishers, news organizations and nonprofit groups that use the records for a wide variety of purposes.

Two of the judges, Raymond Clevenger and Todd Hughes, sounded inclined to allow the lawsuit to continue over the objections of the Justice Department, which argued for dismissal of the case.

A Justice Department attorney, Alisa Klein, told the judges that Congress’ directions about what costs could be recovered through user fees were too vague to be the basis for a suit. She also said the alleged overcharges were impossible to calculate because surpluses in the accounts were carried from year to year, with the courts requesting appropriations to make up for shortfalls.

“That’s unknowable,” she said.

Clevenger asked, incredulously, whether the Justice Department was contending that PACER users couldn’t get refunds even if the courts incurred “knowingly, blatantly illegal” expenses on the accounts, like new curtains for the Supreme Court or “gold-plated toilets” for judges. He also raised the possibility that, under the government’s broad interpretation of the law, courts could use the PACER funds to publicize the menu in the Supreme Court cafeteria.

Klein initially resisted those hypotheticals, prompting a barbed response from the judge: “Do you have a lot of trouble answering questions in life or just when you come to the court?”

Wednesday, February 05, 2020

We really need judges to step up prosecutorial misconduct...

...because no one else will.  The legislature in New York tried, setting up a commission on prosecutorial misconduct.  But it was struck down!  From the AP:
A New York judge has struck down a law that would have created a state commission tasked with investigating prosecutorial misconduct.

Justice David Weinstein declared the law unconstitutional in a decision issued Tuesday, marking a win for a prosecutors’ association that sued over the statute.

The law would have set up an 11-member commission to probe misconduct claims against New York state prosecutors. The panel would have been appointed by the governor, Legislature and New York’s chief judge.

Gov. Andrew Cuomo, a Democrat, first signed the law in 2018 and later approved amendments after constitutionality concerns were raised.

Supporters say the law would set up a new way of stopping prosecutors who abuse their power. Cuomo’s office has touted the commission as the nation’s first and said prosecutorial misconduct can lead to wrongful convictions.

The law would have allowed the commission to censure or admonish a prosecutor. It also gave the panel the ability to recommend to the governor that a prosecutor be removed,

Prosecutors have called the law unconstitutional.

In their lawsuit, the District Attorneys Association of the State of New York argued the measure violated the separation of powers and gave state lawmakers too much oversight over independent district attorney’s offices.


Monday, February 03, 2020

Patrick Mahomes is going to Disney World.

And so are all the federal and state judges (and lawyers who want to be judges) to attend the Federalist Society meeting, which was this weekend in Orlando.

But should they?  There's a proposal to limit judicial membership in the organization.  Justice Thomas, who was at the meeting, spoke out against the proposal (via WSJ):
Supreme Court Justice Clarence Thomas questioned a proposed ethics rule that would discourage federal judges from belonging to the conservative Federalist Society and its liberal counterpart, the American Constitution Society.

Justice Thomas has long participated in events sponsored by the Federalist Society, which has groomed many of President Trump’s judicial nominees.

“And now I think they’re about to silence the Federalist Society. So I guess I can’t come back,” Justice Thomas quipped Friday at Federalist Society convention at Walt Disney World.

“Some of us are fighting back,” responded U.S. Circuit Judge Gregory Katsas, a former Thomas law clerk who interviewed his former boss before the audience.

The ethics proposal, circulated last month by the federal judiciary’s policy-making body, the Judicial Conference of the U.S., would tighten existing guidance that lets judges belong to the two groups but not take leadership roles.