"I bear no animosity toward the prosecutors, even though they pursued false charges based on fabricated evidence."

Ben Kuehne is the only person I know who could say such a thing and actually mean it.  Ben is quoted in Jay Weaver's article about John Sellers, who prosecuted Ben and who also prosecuted banker Sergio Masvidal. 

Masvidal was represented by Joe DeMaria, who was able to get his client's name cleared.  Although OPR concluded that his conduct was "reckless," the Justice Department let him keep his job:

Five years after unsuccessfully targeting two prominent Miami figures — one a banker, the other a lawyer — in separate cases, a Justice Department prosecutor faces a July disciplinary trial by Maryland Bar regulators.


John W. Sellers left the Justice Department in 2010 amid an internal probe concluding that he committed “reckless” misconduct in a money-laundering case against Miami-based American Express Bank International, which was headed by banker Sergio Masvidal.
***
Masvidal’s Miami lawyer, Joseph DeMaria, said the Justice Department should have fired Sellers after concluding that he had committed reckless misconduct, according to the agency’s internal probe in 2010.

Sellers now works as a Treasury Department attorney on the federal bailout program for the banking industry.

“The Justice Department let him sneak out the back door to the Treasury Department so he could keep his same salary, benefits and pension,” DeMaria said. “And now he’s working as an attorney on the federal bailout. How ridiculous is that?”

Indeed. 

The article ends with this quote from Ben:  “Lawyers reap what they sow. He will need to answer for his own conduct.”   But prosecutors who engage in misconduct rarely have to answer for their conduct.  That's part of the problem.  OPR rarely does anything, and the few times it does do something, it's a slap on the wrist.  See, e.g., Ted Stevens' prosecutors. 


In this case, the Maryland Bar has initiated a case against Sellers, so it will be interesting to see what happens. (Here's the Maryland complaint).  The problem is that even when the Bar tries to disclipline prosecutors, DOJ claims that they are immune even from Bar rules, and of course, civil remedies are not available.

Welcome to Amercia!

It's just a typo for goodness sake.





In more important news, what do you think of the 30-day sentence on the Rutgers student convicted of the hate crime?  Not surprisingly, the prosecutors weren't happy, but the judge defended the sentence:

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”

***

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate. The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice. 

 ***

 While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing. Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.  

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend. Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.

But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.” That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail. Under state statute, Mr. Ravi could serve as little as 20 days, if he earns work credits and rewards for good behavior in jail.

The judge said he had relied on the statute’s recommendation in imposing the fine, and set it at an amount he considered “affordable, impactful and proportionate.”

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”

He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.

“I also know his age,” Judge Berman added, calling it a mitigating factor.

“I believe justice compels me to deviate from the guidelines,” he said.

Back in business

A big thanks to Rumpole, SFL, and Jeff Marcus for their wonderful blogging while I took a break.

Nothing much happened while I was gone -- there was naked face eating, the Heat kept on winning, and Heath Bell blew some saves. 

More importantly:

-- Lewis Tein was cleared.

-- Interesting maneuvering in the 11th Circuit with the recent judges taking senior status.  More here.

-- The Unabomber gets into the Harvard alumni book.

-- The Vatican is in chaos because a butler released some documents.

If you want something really interesting to read, check out this article in the WSJ about why we lie.  It's a wonderful piece that explains, in part, that stiffer jail sentences don't really deter criminals.  From the intro:

Not too long ago, one of my students, named Peter, told me a story that captures rather nicely our society's misguided efforts to deal with dishonesty. One day, Peter locked himself out of his house. After a spell, the locksmith pulled up in his truck and picked the lock in about a minute.
"I was amazed at how quickly and easily this guy was able to open the door," Peter said. The locksmith told him that locks are on doors only to keep honest people honest. One percent of people will always be honest and never steal. Another 1% will always be dishonest and always try to pick your lock and steal your television; locks won't do much to protect you from the hardened thieves, who can get into your house if they really want to. The purpose of locks, the locksmith said, is to protect you from the 98% of mostly honest people who might be tempted to try your door if it had no lock.
We tend to think that people are either honest or dishonest. In the age of Bernie Madoff and Mark McGwire, James Frey and John Edwards, we like to believe that most people are virtuous, but a few bad apples spoil the bunch. If this were true, society might easily remedy its problems with cheating and dishonesty. Human-resources departments could screen for cheaters when hiring. Dishonest financial advisers or building contractors could be flagged quickly and shunned. Cheaters in sports and other arenas would be easy to spot before they rose to the tops of their professions.
But that is not how dishonesty works. Over the past decade or so, my colleagues and I have taken a close look at why people cheat, using a variety of experiments and looking at a panoply of unique data sets—from insurance claims to employment histories to the treatment records of doctors and dentists. What we have found, in a nutshell: Everybody has the capacity to be dishonest, and almost everybody cheats—just by a little. Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefit from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people. Sadly, it is this kind of small-scale mass cheating, not the high-profile cases, that is most corrosive to society.

"PROSECUTOR'S RUN OUR SYSTEM"

One last word from Rumpole before your beloved blogger returns from wherever "elite criminal defense attorneys" go when they are not partying at Urban Weekend on Miami Beach. 


Federal judges have had enough with the powers prosecutors wield in federal sentencing, and they are starting to write freely about their frustrations the NY Times reported on Sunday. 

“Prosecutors run our federal justice system today,” Judge William G. Young of Federal District Court in Boston wrote in this
sentencing memorandum.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”

On the twenty year anniversary of his closing argument in USA v. John Gotti, former federal prosecutor and current United States District Judge for the Eastern District of New York Judge John Gleeson is also at his wits end over the decisions of federal prosecutors to seek lengthy minimum mandatory sentences for small time drug offenders. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

From the Times article on the case before Judge Gleeson:
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.

“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time....  The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Rumpole says: There are similar problems in state court. We have written many times before of the strange scenario played out countless times in state courts where the legislature has invested more power and discretion in the hands of a twenty five year old prosecutor two years out of law school than in the hands of a fifty five year old judge appointed by the Governor or elected because of his/her (supposed) wisdom, experience and abilities. 

Strange. Sad and frustrating, but strange nonetheless.  

Welcome back DOM.  

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law --  I think that makes you a moderate in the Peanut State.

Funny Bunny Money? Edwards Jury: Four Days and Counting

It's the old axiom: $400 hair cuts never pay.  Senator Edwards's hairgate episode has resurfaced during the trial in the form of a key handwritten letter written by FOJ heiress, Rachel "Bunny" Mellon, to former Edwards aide and star government witness, Andrew Young.  The letter written in response to negative hair press has been dubbed by trial followers as the "haircut letter."  In it, Mellon wrote, "From now on, all haircuts, etc., that are a necessary and IMPORTANT PART OF HIS CAMPAIGN, please send the bills to me. It is a way to help our friend WITHOUT GOVERNMENT RESTRICTIONS."  Over the next 8 months, Mellon sent Young more than $700,000 in checks made out to Young's wife -- payments to support and stash Edwards's mistress and love child.  Another large donor, Fred Barron, also made similar payments.  Neither Mellon (101 years old) nor Barron (deceased) were available to testify at trial.  The jury has been poring over the letter as well as two related letters written by Mellon's personal attorney during its now-four days of deliberations.  The jury is likely stuck on whether payments made to hide Edwards's affair can be reasonably classified as illegal campaign contributions.  Many legal commentators already have poked holes in the government's novel theory of prosecution so I won't bore you with my defense musings.  You can read more here.

Btw, there is a local angle to the case.  Pictured above (stage center just behind D.C. defense superlawyer Abbe Lowell) is the always-dapper DOJ prosecutor and SDFLA alum, Jeff Tsai.  In my former life, I had the pleasure of second-chairing one of Jeff's first trials in the office.  Jeff is a good trial lawyer (and an even better dresser).  His perfect Windsor knots in an office of government schleps were the stuff of legend.  In a different world, he and Senator Edwards would have a beer summit over hair coif tips.  

College Student to Plead Guilty for Obama Facebook Threats

Hi folks, SFL here.

My knowledge of crim law is limited to booking crim pro in law school about forty thousand years ago, plus sitting through multiple plea hearings as the lawyers wait to finally get in front of a federal judge on one of our civil matters.

Speaking of plea hearings, this kid is set to plea out on his cute Facebook musings which evidently involved our President:

A Miami college student plans to plead guilty in federal court to threatening President Barack Obama on Facebook.

A plea hearing is set for Wednesday afternoon for 20-year-old Joaquin Amador Serrapio Jr.

His attorney says he intends to plead guilty to one count of threatening to kill or harm the president.

Federal prosecutors say Serrapio posted threats on Facebook in February when Obama was in Miami to give a speech.

The posts threatened to put a bullet in the president's head and asked if anyone wanted to help in a presidential assassination.

Oh, the kids today and their social media -- why don't they want to go outside and throw the football around anymore?

(You can read the probable cause affidavit here.)

 

Feeling the Heat

The "other" Marcus in for the King.  I'll try not to pull a James Jones this week.  Let's Go Heat!