Tuesday News & Notes

1.  Justice Breyer has been released from the hospital following shoulder surgery after his biking accident. (via AP)

2. Justice O'Connor regrets Bush v. Gore:

“It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”

3.  Is 100 years a life sentence under Graham (via NY Times)?:

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question. Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16. He was sentenced to 89 years. Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.

“Some courts have held that such a sentence is a de facto life without parole sentence and therefore violates the spirit, if not the letter, of Graham,” Judge John M. Rogers wrote for a unanimous three-judge panel. “Other courts, however, have rejected the de facto life sentence argument, holding that Graham only applies to juvenile non-homicide offenders expressly sentenced to ‘life without parole.’ ”

Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court. 

4.  Judy Clarke has been appointed to assist the Boston Fed PD in the Marathon Bombing case. She also represented Jared Loughner.

5.  President Obama isn't getting his judicial nominees confirmed. Who is to blame? Via Huffington:

It's bad enough that there are 82 vacant federal judge slots around the country, a level so high that many observers have deemed it a crisis situation.

But perhaps even more startling is the fact that of those 82 vacant slots, 61 of them don't even have a nominee.
On its face, the absence of nominees would appear to be a sign that President Barack Obama is slacking. After all, he is responsible for nominating judges, and he did put forward fewer nominees at the end of his first term than his two predecessors. But a closer look at data on judicial nominees, and conversations with people involved in the nomination process, reveals the bigger problem is Republican senators quietly refusing to recommend potential judges in the first place.

Maybe it's time to stop riding the bike

Justice Breyer had a horrible biking accident this weekend, requiring reconstructive shoulder surgery.  It was his third bad biking accident.  From CNN:

In 1993, he had a nasty accident when a car stuck him in Harvard Square while he was on his two-wheeler. He suffered a punctured lung and broken ribs.

Then, over Memorial Day weekend in 2011, Breyer broke his right collarbone after falling off his two-wheeler in Cambridge, Massachusetts, where he has a second home.

 

Man, that's rough.

 

Closer to home, Judge Jordan is explaining that prosecutors actually have to prove up guideline enhancements. From the Court's opinion in United States v. Washington:

 

Sometimes a number is just a number,* but when the number at issue triggers an enhancement under the Sentencing Guidelines, that number matters. In this appeal we decide whether the government presented sufficient evidence that 250 or more persons or entities were victimized by the fraud scheme in which Gary Washington participated. Because the government failed to put on any evidence that there were 250 or more victims, we vacate Mr. Washington’s sentence and remand for the district court to resentence Mr. Washington with a 2-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) rather than a 6-level enhancement under § 2B1.1(b)(2)(C).
*See, e.g., J. Keefe, Dow 10,000: Sometimes a Number is Just a Number, CBS Moneywatch (Oct. 15, 2009).

This part of the decision was also interesting:

The government asks that it be allowed to prove on remand that there were 250 or more victims for whom Mr. Washington was responsible. We decline the government’s request. Nothing prevented the government -- which was aware of Mr. Washington’s objection -- from putting on evidence concerning the number of victims at the sentencing hearing, and a party who bears the burden on a contested sentencing issue will generally not get to try again on remand if its evidence is found to be insufficient on appeal. We have discretion to permit the government to present evidence at resentencing even though it amounts to giving the party a second bite at the apple. But often a remand for further findings is inappropriate when the issue was before the district court and the parties had an opportunity to introduce relevant evidence, and here the government failed to present any evidence concerning the number of victims.

Friday news and notes

1.  Judge Ryskamp sentenced an elderly woman to "5 seconds of probation"; she was charged with tax evasion in the Swiss bank crackdown where she inherited $43 million.  She was represented by Roy Black and Jackie Perczek.  Via the Palm Beach Post:

A 79-year-old Palm Beach woman on Thursday didn’t just avoid a prison term for evading taxes on $43 million in foreign accounts. A federal judge said Mary Estelle Curran deserves a presidential pardon.
Blasting the government for prosecuting the woman who had already paid a whopping $21.6 million penalty to the Internal Revenue Service, U.S. District Judge Kenneth Ryskamp placed Curran on probation for one year. He then immediately revoked it.
“You were on probation for about five seconds,” he told her.
He then urged Curran’s attorney, Roy Black, to seek a presidential pardon.

Here is the transcript from the hearing.

 2.  Meantime, Judge Cohn sentenced a fraudster on the other end of the spectrum to 26 years.  From the Sun-Sentinel:

The ringleader of a brazen South Florida identity theft ring that sought $11.7 million worth of fraudulent income tax refunds was sentenced Thursday to more than 26 years in federal prison.
Federal prosecutors said the scheme was one of the biggest and most successful they've seen and a prime example of the "epidemic" that is more rampant in South Florida than anywhere else in the nation. The trial judge said the fraud was so convincing that the IRS approved some $4.5 million of the requested refunds.
"To put it bluntly, ma'am, you are a parasite and a blight on society," U.S. District Judge James Cohn told Alci Bonannee, 36, of Fort Lauderdale, after she tearfully apologized and asked for mercy while trying to cast blame on others. He sentenced her to 26 years and five months in prison and ordered her to pay more than $1.9 million in restitution.
The judge told Bonannee her "egregious crime" required a stern response from the criminal justice system to punish her sufficiently and to deter other people from doing what she did.
"You have created a mountain of work for [federal authorities] in order to clear up the mess that you have created," Cohn said. "Ensnared in that mess is the innocent taxpayer faced with the task of restoring his or her good name and credit rating. It is a hurtful crime that follows its victims for many years."

3.  It's furlough Friday again for the Federal Defenders, but not for the U.S. Attorney's Office.  Congress has ensured that AUSAs and FBI agents will not be furloughed.  But Defenders and Probation Officers are having no such luck.  Explain to me how that works.  From the San Francisco Chronicle:

Federal budget cuts have caused delays in at least one terror-related court case in New York and prompted a federal judge in Nebraska to say he is "seriously contemplating" dismissing some criminal cases.
The automatic cuts are also causing concerns about funding for the defense of the Boston Marathon bombing suspect, who is being represented by a public defender's office that's facing three weeks of unpaid furloughs and whose defense costs could run into millions of dollars.
Federal defenders' offices have been hit especially hard by the cuts, which amount to about 10 percent of their budgets for the fiscal year that ends Sept. 30. Some offices have laid off staffers. The head public defender in Southern Ohio even laid himself off as a way to save money.
Much of the reductions are due to automatic cuts known as the sequester, and public defenders warn they could face even more cuts next year.
Members of the Federal Bar Association, including federal lawyers and judges, were on Capitol Hill on Thursday, meeting with members of the House and Senate and their staffers and appealing to them for adequate funding, said Geoff Cheshire, an assistant federal public defender from Arizona, who was among them.
"The federal defenders are the front bumper of this fiscal crunch, getting hit first and hardest. But behind it is the third branch of government as a whole. The message is, this is having real effects on the federal courts and the rule of law," Cheshire said.
He and others are pushing for Congress to make an emergency appropriation for the judiciary that would mitigate some of the cuts to defenders and the court system. Cheshire said $61 million would be enough to eliminate the furloughs.
In New York, furloughs have caused delays in the case of Osama bin Laden's son-in-law, charged with conspiring to kill Americans in his role as al-Qaida's chief spokesman. A public defender told U.S. District Judge Lewis Kaplan this month that furloughs in his office were making it impossible to prepare for trial quickly, prompting the judge to say he found it "extremely troublesome" and "stunning" that sequestration was interfering with the case.
***
The Department of Justice told employees on Wednesday that despite budget cuts it would not furlough anyone, including FBI agents and prosecutors. While that's good news for prosecutors, it leaves an imbalance that affects cases, several defenders said. By law, prosecutors and defenders are supposed to be paid the same but effectively are not when some defenders have to take three weeks off, they said.
Boston federal defender Miriam Conrad is representing marathon bombing suspect Dzhokhar Tsarnaev. She told The Associated Press on Wednesday that it was too early to tell what the impact of the furloughs would be on Tsarnaev's case.
Other public defenders warned of the imbalance when one side has the resources of the entire Department of Justice behind it and the other is trying to handle deep cuts that could affect its investigations, ability to pay experts, and the ability to show up in court five days a week.
"Imagine the imbalance now of having people working on the case losing two or three weeks of pay," said Michael Nachmanoff, a federal public defender in Virginia.
One month before the bombings happened, Conrad told the AP in an interview that she worried furloughs could cause delays, hurt the cause of justice, be devastating to her office and demoralize her staff. She noted at the time that the office can't require or even allow its lawyers to work on furlough days.

Where in the world is the Federal JNC?

Apparently the Florida Federal JNC has not been constituted yet, leaving Judge Seitz's opening just sitting there -- with no ability to even apply. 

Meantime, Judge William Thomas' nomination to the District bench hasn't moved forward yet. 

What's going on?

Don't rush to judgment

See, e.g., the Ricin case.  From the NY Times:

Criminal charges were dropped Tuesday against a Mississippi man accused of mailing poisoned letters to President Obama and two other officials

One day after the F.B.I. said it could find no evidence that the man, Paul Kevin Curtis, was behind the plot, a federal judge released him from jail and federal authorities shifted focus to another person of interest in the case.

Lawyers for Mr. Curtis, 45, a celebrity impersonator, said he had been framed by a longtime personal enemy, J. Everett Dutschke, a martial arts instructor from Tupelo, Miss. F.B.I. agents raided Mr. Dutschke’s house but did not immediately bring charges against him. Mr. Dutschke, reached by phone, denied involvement but did not elaborate.

At a news conference after his release, Mr. Curtis said he did not harbor any ill feelings toward prosecutors or the president and was relieved to be free. “I respect President Obama,” he said. “I love my country and would never do anything to pose a threat to him or any other U.S. official.”

Mr. Curtis, a party entertainer who dresses and sings as Elvis, Prince, Johnny Cash, Bon Jovi and others, had been in jail since Wednesday. He said he had never even heard of ricin. “I thought they said rice,” he said. “I said I don’t even eat rice.” 

How was an arrest made without any evidence?  

Is Miriam Conrad now the most hated lawyer in the United States?

Conrad, the well-respected FPD in Boston, now represents the Boston Marathon bomber.  From Business Insider:

The lawyer leading his defense, Miriam Conrad, is a Harvard Law grad who's represented unpopular defendants including "shoe bomber" Richard Reid, the Wall Street Journal reports.
Conrad — who's been a public defender for two decades — also represented 27-year-old Mulsim-American Rezwan Ferdaus, who got 17 years in prison after admitting he plotted to blow up the Pentagon and the Capitol.
Law professor Tamar R. Birckhead, who was a lawyer in Conrad's office, told the Journal that Conrad was doesn't suffer fools when defending her unpopular clients.
"Miriam is tough," Birckhead said. "She will provide the most rigorous dedicated defense humanly possible."
In an interview with Rhode Island Lawyers Weekly, Conrad gave some insight into why she makes a living representing hated defendants.
"If you scratch the surface, many have had difficult lives, and, as their lawyer, I sort of see them whole — not just as a person charged with a crime," she said in the interview. "No one has ever stood up for them, and that is a very powerful, emotional thing.”
Other lawyers currently on the team are public defenders Timothy Watkins and William Fick, who appeared in court on Tsarnaev's behalf on Monday. Despite the undeniable horror of the Boston Marathon bombing, that team may be able to elicit some sympathy for her 19-year-old defendant.

Rumpole has an interesting post about representing hated defendants. Would you do it?

What's the strangest thing you've ever been offered as a fee?

Paula McMahon has this very entertaining article in the Sun-Sentinel about fees paid to criminal defense lawyers:

Furs, guns, jewelry, a whole lot of boats and fancy cars, a hotel, an army tank, a ranch in Wyoming, a herd of cattle in Venezuela, a tray of lasagna, two Yorkie dogs and a lifetime supply of live bait.
All offered as payment to South Florida lawyers by clients who ran out of cash.
No property to give? Not to worry — there's always the bartering of personal services. Like the accused fraudster who offered to serve as a nanny for her attorney's kids. Or the guy accused of posing as a lawyer who offered to work as a paralegal. And yes, everyone has heard tell of some other lawyer being offered sexual favors or drugs to cover the legal tab.

Fred Haddad has some good stories:

Veteran criminal defense lawyer Fred Haddad said he grew up the son of an old-fashioned doctor who often bartered his services and taught his son to do the same — at least, on occasion.
"I've taken lasagna and meals from clients who run restaurants," Haddad said. "It's hilarious valuing some of this stuff for the tax man."
He said he accepted, and later sold, a ranch in Wyoming about 25 years ago, and he still regrets that he turned down a house on the Hillsboro mile because he didn't want to pay the taxes.
Back in the day, he and his former law partner accepted some airplanes, but Haddad now confesses to having a weakness for boats and nice cars. "I've taken everything from Ferraris on down."
But Haddad said there can be a downside: "A lot of the stuff I've taken wound up costing me. I took a '67 Camaro and I'm into it for $14,000 already, rebuilding the engine."

I wish Paula would have interviewed my dad, Stuart Markus. He has some great bartering stories from over the years including a barely sea-worthy sail boat that he and I tested out before accepting (I was in high-school at the time).  After we had to call Sea-Tow to pick up us, we decided not to keep it....

Thursday news and notes

1.  Victory for Lewis Tein and its lawyer Paul Calli.  No perjury finding by Judge Dresnick.  Bottom line is that people shouldn't rush to judgment.

2.  Tom Goldstein has gotten press creds for reporter Lyle Denniston of SCOTUSBlog.  About time.  When does this blog get press credentials?

3.  Professor Berman examines how Judge Pryor will do on the Sentencing Commission:

Some comments to the prior post direct particular criticism directed toward Judge Pryor, perhaps because he was a controversial figure when appointed to the bench by President Bush.  I submit that, in this context, any assessment of Judge Pryor would be premature unless and until one has read Judge Pryor's own recent account of his history with sentencing and his perspective on the federal sentencing system.  That account appeared in the Spring 2011 issue of my own Ohio State Journal of Criminal Law as William H. Pryor Jr., Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011). I recommend that all sentencing fans read the entire OSJCL article by Judge Pryor. 

4.  The Supreme Court grappled yesterday with the meaning of silence and whether it can be used against a criminal defendant:

"It's a little scary to me that that an unanswered question is evidence of guilt," Justice Sonia Sotomayor said, calling it "a radical position."
Justice Ruth Bader Ginsburg said under Texas' reasoning, a savvy suspect pleading his Fifth Amendment rights would be protected from having his silence used in court, but someone who simply said nothing would be jeopardized.
"To make a difference between those two people on whether comment can be made on the failure to respond is troublesome," Ginsburg said.
Nevertheless, the state and the federal government argued that Salinas should have invoked his Miranda rights, and because he did not, his speech -- or silence -- was fair game.
Some of the court's conservative justices had less of a problem with that. Because police do not have to read Miranda rights until a suspect is in custody, his words, behavior and even silence have been fair game in court -- at least, until now.
"It would be up to the jury, wouldn't it?" Justice Antonin Scalia asked. "The jury might well agree with Justice Sotomayor that it doesn't prove anything ... The question is whether you can ask the jury to consider that."
But Jeffrey Fisher, Salinas' attorney, had the last words in court, and he used them to make what appeared to be an effective argument -- that silence is a right, not a confession.
"It evokes an inquisitorial system of justice," Fisher said of Texas officials' reasoning. "It effectively shifts the burden of proof onto the defendant, and it demeans individual dignity by conscripting the defendant as a product of his own demise."