Big defense wins in the 11th Circuit

Friday afternoon was a rare time in the 11th Circuit -- two published opinions in favor of criminal defendants.

First up is a win by rising star AFPD Sowmya Bharathi in U.S. v. Rojas, No. 10-14662 (11th Cir. June 24, 2011):

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.
***
We conclude that the FSA applies to defendants like Vera Rojas who had
not yet been sentenced by the date of the FSA’s enactment. The interest in
honoring clear Congressional intent, as well as principles of fairness, uniformity,
and administrability, necessitate our conclusion. Accordingly, we reverse and
remand to the district court for re-sentencing.

Next up is a win by Richard Klugh in U.S. v. Ladson, No. 10-10151 (11th Cir. June 24, 2011):

Ladson argues that the Government did not file and serve an information
containing notice of an enhanced sentence in accordance with § 851(a)(1). We agree
that he was not served before trial with a copy of the information in accordance with
§ 851(a)(1), and thus the district court lacked authority to impose an enhanced
sentence on Counts I and II under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), (C), and 846.
We therefore vacate Ladson’s mandatory term of life imprisonment on Count I and
ten-year sentence on Count II, and remand with instructions to resentence Ladson on
Counts I and II without the § 851 sentence enhancement under the second
information. We affirm the judgment of conviction on Counts I, II, and IV.

Shhhhhhhhhhhhh.

“Do you pray to God to forgive you for shooting that boy down?”

That's the question that Van Chester Thompkins was asked after 3 hours of questioning in which he remained silent. Thompkins said yes and the statement was used to convict him. The Supreme Court held 5-4 that staying quiet for 3 hours wasn't enough to invoke one's right to remain silent. From the NYTimes:

Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.
Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.
Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”
Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

At least the cops offered him a mint:

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

While the Supremes are chipping away at Miranda, I see that the 11th reversed a conviction yesterday on a suppression issue. Richard Klugh won the case, United States v. Lance Lall.

Jay Weaver covers Liberty City verdict

Check out the interesting piece in the Herald today.

Here's the intro:

Did booting a holdout juror off the panel seal the fate of the Liberty City Six?

That is a central issue in the courtroom documents released last week after the five guilty verdicts that attracted national attention.

Known only as Juror No. 4, the woman was accused by 11 fellow jurors, prosecutors and the judge of refusing to deliberate in the federal terrorism-conspiracy case. However, in jury notes the woman said she wanted to ''see this trial to the end'' but could not withstand the pressure she was facing to change her stance -- presumably ``not guilty.''
Had she held out, prompting a third mistrial in the controversial case, the five men now facing lengthy prison sentences could have walked out of the courtroom free, because the U.S. attorney's office in Miami had already said it wouldn't try them a fourth time.

U.S. District Judge Joan Lenard's removal of the juror will be the centerpiece of defense appeals, based on claims that their clients didn't receive a fair trial. After Juror No. 4, a black woman, was replaced by a black male alternate, the 12-member panel convicted five of the six defendants Tuesday on charges of conspiring with the notorious global terrorist organization al Qaeda.

''Her note clearly shows that the other jurors tried to convince her to change her beliefs about the case,'' said attorney Richard Houlihan, who represented the sole acquitted defendant, Naudimar Herrera.

''They didn't agree with her, but that doesn't mean she wasn't deliberating with them,'' Houlihan said. 'Her factual beliefs were at odds with the other jurors'. Absolutely it was going to be a hung jury if she had been allowed to stay on.

The article even has a Moran/Abbell reference, citing back to when Judge Hoeveler dismissed a juror:

To follow up, Judge Lenard reviewed a precedent-setting appeals court decision from a 1998 trial in which a Miami juror was removed from a 12-member panel because she refused to deliberate. U.S. District Judge William Hoeveler removed the woman because she spent the time working on her nails.

Lenard heeded Hoeveler's example, first by questioning the 11 other panelists about Juror No. 4. They all said she was turning her back on them when they sought her opinion, and most quoted her as saying that she doesn't believe in or trust the law.

Appellate lawyer extraordinaire Richard Klugh got all Survivor on us and had this to say about the law:

An appeals expert in South Florida said the ultimate question is whether a juror is doing his or her job.

''It seems that the jurors in this case tried to make that decision themselves, as they appeared deadlocked,'' said attorney Richard C. Klugh Jr., who reviewed the notes. ``What you don't want is a situation like [the TV show] Survivor, where the majority of the jurors vote to kick a juror off the island just because of preference.''

Klugh said the removal of the juror will be a ''substantial issue'' in the defense team's motion for a new trial and eventual appeals.