June in SCOTUS

It's June. The country is re-opening.  Everyone is getting back to work, vacations, travel, in person court hearings, and jury trials.  It's cool to see.  Two things are closing for the summer -- school and the Supreme Court.  All outstanding opinions will be issued this month.  Here are some things to watch at the end of the Term, according to USA Today:

After mostly avoiding controversy for the past eight months, the Supreme Court is heading into the final, frenzied few weeks of its 2020-21 term with a docket full of outstanding cases and rampant speculation about one its most senior justices.

From health care to voting to a dispute pitting LGBTQ rights against religious freedom, the nation's highest court will soon start churning through blockbuster cases, dropping decisions that will reshape the law – and the political landscape.

Twenty-six cases – all of which were argued virtually because of the COVID-19 pandemic – remain on the docket. 

 "This term is a lot like the first few episodes of a new TV show," said David Lat, a court observer who founded a legal newsletter and website called Original Jurisdiction. "It's really just setting the stage. Sometimes you wish you could just fast forward through it, but it's still important because we're getting to know the characters...and we're getting to know the issues."

After the flurry of opinions, attention is sure to shift to Associate Justice Stephen Breyer, who at 82 is under pressure from progressives to retire so that President Joe Biden can name his replacement while Democrats hold their tenuous majority in the Senate. When justices step down, they often do so at the very end of the term.

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.”

Friday

Finally, some good cool weather.

Justice Stevens gave this cool speech -- and he uses trilogies too:

Today I plan to say a few words about memorials, mosques, and monuments. Like Lieutenant Ichikawa, who is being honored today, I served in the Pacific theater during World War II. The Empire of Japan was our principle enemy in that theatre. Lieutenant Ichikawa, like literally thousands of other patriotic Japanese Americans including residents of Hawai'i as well as residents of the Mainland -made a magnificent contribution to our war effort there.

In other news:
Gary Kravitz, Murray Greenberg, and Nathaniel Persily of Columbia Law School, along with the St. Thomas Law Review have put together a symposium next weekend (November 12-13, 2010) entitled Bush v. Gore: A DecadeLater. Panelists inclue Greenberg, Persily, Ben Ginsberg, Kendall Coffey, Ben Kuehne, Joe Klock, Jim Bopp, Justice Fred Lewis, Judge Nikki Clark, Jeff Erlich, Paul Hancock, Kim Tucker and an academic panel including Jim Gibson, Nelson Lund and Edward Foley.

This event will be held at St. Thomas and admission is free. The symposium has been approved for a maximum of 7 CLE credits.

SCHEDULE OF EVENTS:

Friday, November 12, 2010

Welcoming Remarks 4:00-4:15 p.m.

The View from the Litigants 4:15-5:45 p.m.

Saturday, November 13, 2010

Continental Breakfast 8:30-9:00 a.m.

The View from the Administrators 9:00-10:30 a.m.

The View from the Bench 10:30 a.m.-12:00 p.m.

Luncheon Panel-
The View from Academia 12:15-2:00 p.m.

Closing Remarks 2:00-2:15 p.m.

Registration is required prior to November 10, 2010. Please contact the Law Review Office at lawrev@stu.edu or phone (305) 623-2380.

St. Thomas Law Review
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, FL 33054

Joe Cool conviction affirmed...

... in a short non-published opinion, without oral argument. It seems to me that an appellate court should at least have oral argument after a trial that results in a life sentence. I mean, it's just a half an hour to hear argument. Just saying.

In other 11th Circuit news, the court found that a district court errs by admitting a defendant's MySpace page. But, of course, it was harmless, and the defendant's conviction and sentence (of 2005 months) was affirmed. From the opinion:

The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed
banks like a gangster. The subscriber report proved nothing more than
Phaknikone’s nickname, the only name by which Lavivong had already testified he
knew Phaknikone. The profile photographs accompanying the subscriber report
and the photograph of Phaknikone and his ex-wife at a social event offer nothing to
support a modus operandi about the bank robberies. The photograph of a tattooed
Phaknikone, his face completely visible, in a car, holding a handgun sideways in
his right hand, and with a child as a passenger, proves only that Phaknikone, on an
earlier occasion, possessed a handgun in the presence of a child. Although the
photograph may portray a “gangster-type personality,” the photograph does not
evidence the modus operandi of a bank robber who commits his crimes with a
signature trait. The MySpace evidence is not evidence of a modus operandi and is
inadmissible to prove identity.

Because the MySpace evidence fails the first requirement of the Miller test,
we need not address its second and third requirements. The MySpace evidence is
classic evidence of bad character, which was offered by the government to prove
only “action in conformity therewith.” Fed. R. Evid. 404(b). The government
wanted the jury to infer that, because Phaknikone is willing to publish these kinds
of photographs online, under an incendiary alias, he is a gangster who is likely to
rob banks. The district court abused its discretion by admitting the MySpace
evidence.

I have always wondered what would happen if a district court read this opinion and then said -- well, I know it's error, but it's harmless so I will admit it.

The comments were active yesterday in the debate about the probation office. Good stuff.

Zarabozo sentenced to life

Judge Huck imposed five consecutive life sentences plus 85 years on 21-year-old Guillermo Zarabozo for his role in the murders and other crimes committed aboard the Joe Cool. Zarabozo maintained that his accomplice Kirby Archer, who is serving a life sentence, was solely responsible for the killings.

Will the feds retry Helio Castroneves?

As you all know by now, the jury acquitted Helio Castroneves and his co-defendants of all counts, save for one conspiracy count. Technically the government has the ability to retry Helio on that count. But will they?

In the past, this U.S. Attorney's office has retried defendants after hung juries -- for example, we are on the third Liberty City trial, and the office retried the Joe Cool case after it hung. But this is different because the jury acquitted Helio of every substantive count. I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case. What say you readers -- should the U.S. Attorney's office retry Helio on the one hung count?

(p.s. Rumpole, let me know if you want to double down on your last bet).

Is It Friday Already?

By SFL

Boy the federal court beat is...a little beat today.

Does it count as SD FL news that I saw Judge Moreno having a nice lunch at La Loggia yesterday?

No, guess not -- darn, where's Julie Kay when you need her?

Anyways, the always-in-trial big man already updated us on Joe Cool. Judge Huck set sentencing for May 6.

Third time's the charm in the Liberty 6 retrial, which is starting to feel like Jarndyce and Jarndyce -- only longer.

What do you all think of this line from the defense opening:

“This case is a 100 percent setup; this is a manufactured crime,” the lawyer, Ana M. Jhones, said in her opening argument, which drew several objections from the prosecution, most notably when she remarked that “taking an oath to Al Qaeda is not a crime.”

True, but do must jurors think it should be?

And finally, more details on the IRS v. UBS showdown unfolding right here in sunny South Florida:

With today’s lawsuit, the U.S. asked a federal judge to enforce its so-called John Doe summonses. On July 1, a federal judge in Miami approved an IRS summons seeking information on thousands of UBS accounts owned or controlled by U.S. citizens. Negotiations between the U.S., Switzerland and UBS have been at a standstill since then, according to a Justice Department filing.

UBS said in a statement that it expected today’s filing.

“UBS believes it has substantial defenses” to the U.S. attempt to enforce the summonses and will “vigorously contest” the case, the bank said in the statement. The bank’s objections are based on U.S. laws, Swiss financial privacy laws, and a 2001 agreement between UBS and the IRS, according to the statement.

Anyone know who has been retained to represent UBS on this? I know a certain humble blogger who's available.

Have a great weekend all!

Joe Cool verdict

Guilty.

I am loving guest-blogger South Florida Lawyer. Great stuff below...

Thanks.

Exhaustion

Trial the last two days from 8:30 am to 6:30pm. I'm tired...

Updates you probably know already:

Openings in the Liberty City 6 today.

Closings in the Joe Cool case and the jury is out.

Good news -- South Florida Lawyer has agreed to guest blog. THANK YOU!

''He said if I blamed it on him, he was going to turn it around on me."

That was Guillermo Zarabozo, the Joe Cool defendant, testifying on Friday. Here's a snippet of the Herald article:

''I told them what he told me to say,'' Zarabozo testified at the murder retrial in federal court in Miami. ``It was the biggest mistake of my life. I lied. That's why I'm here.''
Zarabozo, testifying after the government rested its case, admitted that he and Archer lied that Cuban ''pirates'' had hijacked the boat on their chartered one-way trip to Bimini and then killed the crew. Zarabozo is charged with 16 counts of conspiracy, hijacking, kidnapping, murder, robbery and use of a firearm in commission of those crimes.
Archer, 36, pleaded guilty before the first federal trial in September and was sentenced to life in prison -- Zarabozo's fate if he is convicted of any of the offenses.
Prosecutors will return on Tuesday to cross examine Zarabozo. It is expected to be an intense confrontation. They have argued that Zarabozo has been lying about his role in the murders.
But rather than try to prove conclusively that Zarabozo fatally shot the crew, prosecutors have unveiled newly discovered evidence showing that he and Archer plotted for months to hijack the chartered vessel to Cuba. The evidence supports the conspiracy charge and refutes Zarabozo's claim that he thought the boat was a charter to Bimini.

Joe Cool

Jury picked.

Opening statements starting up now.

Dead Friday

Anyone working today?

Back to regular blogging on Monday.

2009 should be exciting -- trial #3 of Liberty City 7, trial #2 of Joe Cool, trial (or dismissal) of the Ben Kuehne case, Dolphin playoffs, and possibly 2 new district judges in the SDFLA because of judges taking senior status. What else?

Have a nice long weekend.

Don't make me angry. You wouldn't like me when I'm angry.

Ah, those spell checkers... Today the Herald's op-ed pages support Judge "Hulk's" decision in the Joe Cool case. Judge Hulk is discussed throughout the op-ed, which I agree with wholeheartedly... Here's the intro:

Better late than never. This is the best that can be said about U.S. District Judge Paul Hulk's decision last week to throw out four guilty verdicts against a Hialeah security guard whose gun was used in the murders of a Miami Beach charter-boat captain and crew. It's a pity that Judge Hulk didn't realize the mistake earlier -- during trial -- when it could have spared the victims' grief-stricken family members another round of trauma.
Relatives of charter-boat captain Jake Branam, his wife and two crew members were initially relieved with the guilty verdicts against Guillermo Zarabozo, 20. The jury had convicted Zarabozo of providing one of the guns used to kill the captain and crew of the charter boat Joe Cool. However, the jury was deadlocked on 12 other charges against Zarabozo alleging conspiracy, kidnapping and murder. Zarabozo faces a retrial on those charges on Jan. 20, and the dismissed weapons charges should be added to that case.
Jury sought clarification
The jury obviously was confused in its deliberations. It sent a note to Judge Hulk asking for clarification of whether Zarabozo would ''automatically'' be considered a participant in the kidnappings and murders if he brought the gun aboard the boat not knowing that crimes would be committed. The judge didn't clarify the point, and sent them back to deliberate.
That was a mistake, Judge Hulk said last week. He acknowledged that he should have told the jurors they could find Zarabozo guilty of the gun charges only if they also found him liable for the kidnappings or deaths. It is rare for a judge to publicly admit to a trial error, especially after a verdict has been rendered. For this, Judge Hulk deserves credit. It took courage and conviction for him to do so.

Judge Huck tosses gun verdict in Joe Cool slayings

Breaking news!

That's clearly the right result, especially if the prosecution was going to retry the other counts.

Now, will there be an appeal before the retrial is scheduled?

No surprise here...

Kirby Archer, the Joe Cool defendant who pleaded guilty, was sentenced to life in prison today. No ruling yet by Judge Huck on the co-defendant's motion for a new trial on all counts.

"We should start from scratch, because justice hasn't been achieved.'

That was AFPD Brian Stekloff for Guillermo Zarabozo in the Joe Cool case asking for a new trial on all counts. He continued: "Everyone in this courtroom knows how this jury reached this inconsistent and irrational verdict: They didn't understand the law." AUSA Karen Gilbert responded: "This scenario is not one where the court should set the verdict aside. We live with it. That's the verdict."

Judge Huck took the matter under consideration and set trial for January on the hung counts. Judge Huck did note that the jury's verdict "raises on eyebrow."

(via Sun-Sentinel, AP, Herald)

"I never believed for a minute that he was guilty of any of the charges, not even the ones we convicted him of"

That's one of the jurors in the Joe Cool case. Articles in the Sun-Sentinel and the Miami Herald detail how at least 3 jurors still believe Guillermo Zarabozo is not guilty of all counts, even the 4 they voted guilty on.

From the Sentinel:

Three jurors in the Joe Cool murder-at-sea trial said Wednesday they felt pressured to convict the 20-year-old defendant on gun charges even though they believed he did not kill anyone or know his companion planned to hijack the boat.One said she voted to convict, even though she felt the man on trial was innocent. Another seemed to believe he had cast a not-guilty vote, though guilty verdicts in federal court must be unanimous.After four days of heated deliberations, the 12 jurors voted Tuesday to convict Guillermo Zarabozo of supplying the firearm used to kill Capt. Jake Branam, 27; his wife, Kelley, 30; his half-brother, Scott Gamble, 36; and the first mate, Samuel Kairy, 27.In interviews with the Sun Sentinel, two women and one man from the panel said they were confused about the gun charges and badgered — even bullied — to vote guilty by fellow jurors.

From the Herald:

''I want to take back my vote to convict. I'm just sick over this whole thing. I think there has been a great miscarriage of justice, and I need to correct it,'' Venora Gray, 51, said.
Her disclosure came one day after she and 11 other jurors deadlocked on the major charges of first-degree murder, kidnapping and robbery in the fatal shootings of four Miami Beach charter boat crew members last year. But they all agreed to convict Zarabozo of four counts of using a firearm in a violent crime -- a charge she and the other panelists did not realize carried a life sentence, she said.
''No one in that jury room knew those were such serious charges,'' said Gray, a waitress from North Miami, who years ago served as a juror in another murder trial and convicted the defendant. ``There was no way I would have voted on that if I had known.''
The jurors' revelations could have a serious impact on an already challenged conviction. Seconds after Tuesday night's verdict, Zarabozo's defense team said the jurors could not convict on the charge of using a firearm to kill when they had not convicted Zarabozo of any of the murder charges.


Judge Huck is having a hearing on Monday to determine whether he should grant a new trial on the four counts on which the jury convicted. These interviews seem to support the defense view that the jurors were confused on the gun count.

As an aside, this bolsters my view that every jury should know the potential penalties of the crimes they are voting on. Judge Jack Weinstein in the Eastern District of New York recently wrote a 200+ page opinion holding that in some cases jurors should know the penalties.

Joe Cool jury hangs on first degree murder counts

That's a victory for the defense.

The jury did convict on 4 gun counts. The prosecution will be happy with some convictions after it looked like the jury would hang on everything yesterday, especially since the potential sentences on those counts are life.

Food for thought -- should Judge Huck order a new trial on all counts because the jury may have been confused on the gun counts based on its previous note and because it appears that the jurors compromised after the Allen charge? If the case has to be retried anyway, why not try the whole thing? What are your thoughts?

Hung?

The Joe Cool jury says it can't reach a verdict: "As a jury we feel stuck in the sand and no hope or expectation that we will be able to move to consensus one way or the other."

Judge Huck read them the Allen charge:

I'm going to ask that you continue your deliberations in an effort
to reach agreement upon a verdict and dispose of this case; and I have
a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time,
effort, money and emotional strain to both the defense and the
prosecution. If you should fail to agree upon a verdict, the case will be
left open and may have to be tried again. Obviously, another trial would
only serve to increase the cost to both sides, and there is no reason to
believe that the case can be tried again by either side any better or
more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the
same source as you were chosen, and there is no reason to believe that
the case could ever be submitted to twelve men and women more
conscientious, more impartial, or more competent to decide it, or that
more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a
conviction, those of you who disagree should reconsider whether your
doubt is a reasonable one since it appears to make no effective
impression upon the minds of the others. On the other hand, if a
majority or even a lesser number of you are in favor of an acquittal, the
rest of you should ask yourselves again, and most thoughtfully, whether
you should accept the weight and sufficiency of evidence which fails to
convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an
honest belief he or she may have as to the weight or effect of the
evidence; but, after full deliberation and consideration of the evidence
in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to
establish guilt beyond a reasonable doubt the Defendant should have
your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may
require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your
deliberations with these additional comments in mind to be applied, of
course, in conjunction with all of the other instructions I have previously
given to you.

Joe Cool jury still out

They are coming back Monday (one of the jurors can't deliberate tomorrow, so they are taking the day off).

Apparently, people can hear shouting from the jury room....

Vanessa Blum reports on this juror question, which the defense should be happy about:

Would a South Florida man automatically be guilty of a crime for bringing his gun on board the Joe Cool charter vessel, even if he didn't know a crime was going to take place? (emphasis added)

That's what a federal jury panel in the murder-at-sea case asked the trial judge Thursday after two full days of deliberations.U.S. District Judge Paul Huck did not answer the question directly, instead referring jurors to his previous instructions on the law. The jury is still deliberating.At roughly 5:30 p.m., Huck sent home the seven men and five women with instructions to return Monday for continued deliberations. The jury was given Friday off so one juror could attend a funeral.

Interesting. Any thoughts?