Friday news and notes

Your pre-spring break reading list:

1.  The Federal Public Defenders Association strikes back against the TRAC report on sentencing, saying "TRAC’s analysis fails to meet minimal academic standards and should not be a basis for policy making."  For example: 

● The cases sentenced by the judges in the study are not similar.
○ The only similarity among the cases sentenced in each district is that prosecutors
categorized them as “drug,” “white collar,” etc. All other case differences are ignored.
Heroin or marijuana cases, involving 1 gram or 1 ton, are all called “similar” drug cases.
First-time offenders are lumped with lifetime criminals.
○ Academic researchers studying disparity use data from the U. S. Sentencing Commission
to categorize cases along dozens of different variables, but this data was not used in
TRAC’s analysis.

 2.  Justice Scalia spoke yesterday at Wesleyan.  Some highlights:

Near the end of the speech, some of the demonstrators dropped banners from the balcony railing. One read, “There can be no justice in the court of the conqueror.”

The justice looked up and read it and quipped, “Oh, that’s very persuasive.”
***
At the end of the speech, Scalia took questions from the audience. One person asked about the Bush-Gore case, where the Supreme Court had to determine the winner of the election.

“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.

Scalia reminded the audience it was Gore who took the election to court, and the election was going to be decided in a court anyway—either the Florida Supreme Court or the U.S. Supreme Court.

“It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close,” he said.

3.  Inmate can sue for having to wear pink underwear:

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said a jury should consider whether Maricopa County Sheriff Joe Arpaio's policy of requiring inmates to wear pink underclothes had led to the death, and questioned whether the policy was legal.
"Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine," Judge John Noonan said in the majority opinion. "... The dress-out in pink appears to be punishment without legal justification."

4.  The Constitution Project is calling for Brady Reform.  It's interesting to see the signatories, including many former U.S. Attorneys.  They say:

We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act. Self-regulation by the DOJ has been tried and has failed. It is ultimately not a solution to the injustices that continue to occur. Nor is an amendment to the Federal Rules of Criminal Procedure a solution. Such a proposal has been considered at least twice by the Advisory Committee on the Rules of Criminal Procedure, only to be rejected by either the Advisory Committee or the full Standing Committee on Rules of Practice and Procedure, at least partly in deference to the DOJ’s attempts to address the issue internally. But, again, DOJ’s own internal efforts have not remedied the problem.

5.  10 Years of Rakontur.  Very cool.  Check it out at the O Cinema March 26-30.

6.  Watch out what you say on Twitter and Facebook (and here on the blog).  You could be committing a crime (via NY Times):

Last month, at a Supreme Court argument over a federal law that makes it a crime to lie about military honors, Justice Elena Kagan asked about laws like the one that had ensnared Mr. Miller. “There are more of them than I thought that there would be,” she said, though she did not say which ones she had in mind.

It turns out there are at least 17 states that forbid some kinds of false campaign speech, according to a pending Supreme Court petition in a case involving a Minnesota law. The lower courts are split about whether such laws are constitutional.

At the argument last month, Solicitor General Donald B. Verrilli Jr., who was defending the federal law banning lies about medals, said the broader state laws are harder to square with the First Amendment because they “are going to pose a particular risk of chill.”

The dynamic duo strikes again

AFPDs Helaine Batoff and Sam Randall are on an incredible trial streak -- they've won 3 not guilty verdicts in a row. The most recent was yesterday in a rape on the high seas case before Judge Martinez.

The federal public defender's office in the Southern District of Florida in general is tearing it up this year. I'm trying to get the actual statistics but I believe that the office has won around 10 federal trials already this year. Many districts don't try, let alone win, 10 cases all year...

What's worse than sentencing disparity?

Sentencing consistency.  Hobgoblins and all that. 

Professor Doug Berman is all over the new study by TRAC examining sentencing practices of the individual federal judges.  From his most recent post:

Unfortunately, based only on the publicly available materials set out by TRAC here in this simple report, I find it extremely hard to reach any new or refined views or conclusions about post-Booker sentencing practices. It seems that one must purchase a TRAC subscription to be only able even to understand the nature and potential limits of the data that TRAC has assembled concerning the sentencings of individual judges. Moreover, based on the TRAC reporting, I fear that the TRAC data only includes final sentencing outcomes and lacks any refined information about applicable mandatory minimums, calculated guideline ranges, offender criminal histories and other obviously relevant considerations that may be driving different sentencing patterns in different sets of cases.


Notably, at the end of the TRAC report, the folks at TRAC praise their justifiably praise their data compilation efforts with this comment: "TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts." I very much like this sentiment, and hope in the days and weeks ahead to see judges, law schools, scholars, public interest groups, Congress and others trying to unpack the TRAC data so we can all better understand and assess what it may be telling us.

The AP gives some generalities about the study:

A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.


Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.

The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....

The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.

Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.

On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.

The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.

TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
  

In my view, the old system in which sentences were driven by mandatory sentencing guidelines created by sentencing commissioners is much much worse than federal district judges evaluating the particular case and individual appearing before the court.  Cases are different.  Defendants are different.  Districts are different.  Sentences then must be individualized. 

Come one, come all

This should be a good one (and not just because I'm moderating a panel).  From the FBA website:

Don't miss the Federal Bar Association, South Florida Chapter's, Ethics in Federal Practice CLE Seminar! Hear the latest on ethical issues from the perspective of several of our federal judges and practicing lawyers, and earn three Florida Bar ethics credits (applied for), and catch up with our local federal practitioners and judges.

       Featured Speakers:

Hon. Cecilia M. Altonaga United States District Judge Hon. Jonathan Goodman United States Magistrate Judge Hon. Paul C. Huck United States District Judge Hon. Kathleen M. Williams United States District Judge

  

          Date & time:  Thursday, March 8, 2012, 8 a.m. – noon

                                Breakfast will be served

          Location:       Hyatt Regency Hotel (downtown Miami)

                                400 Southeast Second Avenue

                                Miami, Florida  33131

          Cost:              $25  government, academic, and young lawyers

                                admitted in 2005 or later)

                                $50 for members

                                $75 for non members ($50 if you join our chapter now at

                                www.fedbar.org)

Purchase your ticket now at:   www.fedbar.org/chapters/south-florida-chapter

Schedule & Panels:

8 a.m.  --  Doors open, check-in, breakfast is served, time to mingle with guests and panelists

9 a.m.  --  Civil Ethics Issues:  United States District Judge Cecilia M. Altonaga,

                 United States Magistrate Judge Jonathan Goodman, and Adolfo Jimenez of Holland & Knight.

                 Moderator - Candace Duff, Greenberg Traurig, P.A.

10 a.m. -- Ethics & Discipline:  Key note speaker - United States District

                 Judge Paul C.  Huck, Florida  Bar counsel Jennifer Moore,

                 and Chair of the United States District Court Attorney Grievance

                 Committee John Delionado.

       Moderator - Ana Maria Martinez, Assistant United States Attorney.

11 a.m. -- Criminal Ethics Issues:  United States District Judge Kathleen

                 M. Williams, Assistant Federal Public Defender Miguel Caridad, and

                 First Assistant United States Attorney Ben Greenberg.

       Moderator - David O. Markus, Markus & Markus.

ABA White Collar Conference

Lots of "white collar" criminal defense lawyers and prosecutors were in town this week at the Eden Roc for the big ABA White Collar Conference.  The conference is different than others I have been to because many of the speakers are current and former prosecutors speaking of the virtues of cooperation and pleading.  It's a much different atmosphere than the NACDL conferences that I've been to. That said, it isn't all bad and there are lots of interesting and smart people in town. 

I didn't see many of the lawyers who had won big white collar cases on the agenda.  For example, it's pretty amazing to me that Michael Caruso wasn't invited to speak when he won the biggest securities fraud trial of the year...

In other very sad news, Rumpole and SFL covered the passing of Judge Maxine Cohen Lando, who I really liked a lot.  Her funeral is today.  RIP.