A bad day for Broward lawyers

First is this report from Paula McMahon about a lawyer charged in a horrific child porn case:

Broward lawyer, arrested on federal child porn charges, is also accused of abusing two underage girls, according to court records.

David Rothenberg, 47, was arrested Saturday at his Margate home. An undercover investigation revealed he was logging on to a "daddaughtersex" chat room from the Internet protocol address of his Fort Lauderdale law firm and trying to persuade a stranger to let him have sex with her 13-year-old daughter, authorities said.

Rothenberg did not realize he was communicating with an undercover officer for about six weeks.

Authorities said they moved swiftly to arrest Rothenberg on the child porn charges when they found evidence he was sexually abusing a real teenage girl.

When agents from the Florida Department of Law Enforcement and the FBI's taskforce on crimes against children went to arrest him, they uncovered evidence that he was abusing a second underage girl in Broward County, according to the criminal complaint.

Rothenberg, who said he is married but has no children, has not yet indicated if he will fight the charges.

***

Rothenberg came to the attention of law enforcement Jan. 13 when he chatted online with an undercover officer from the Vermont State Attorney General's office, authorities said. The officer was posing as a divorced mother with two children in the "daddaughtersex" chat room.

Rothenberg, using online nicknames that included "D Roth," asked if the "mother" would "be accepting of" letting her 13-year-old girl be "sexually explored and cultivated by a more strong man in her life," investigators wrote.

In the chats, Rothenberg told the undercover officer he had sexually exploited an underage girl and said the abuse was ongoing. He also explained how he had access to her, agents wrote.

Investigators traced the online Internet protocol address he was using to the Fort Lauderdale law firm where Rothenberg worked. During chats that continued into February, he revealed he was a lawyer and gave the undercover officer his birth date when he said he was celebrating his birthday. Investigators said he also sent a beach scene photo they traced to South Florida.

Oh, and then there was this lawyer who was forging judges' signatures on order. Not good:

Miami lawyer is facing multiple forgery charges after investigators found he forged the signatures of seven different Broward County and Circuit judges on documents related to civil cases involving structured settlements, according to court records.

Jose Manuel Camacho was arrested in October after Broward County Judges Marina Garcia-Wood and Carlos Rodriguez found their forged signatures on legal documents filed with the clerk of courts.

After the judges complained, Broward Sheriff's Detective John Calabro interviewed them and five other judges. In all, Camacho, 46, was accused of forging 114 signatures. The other judges were Eileen O'Connor, John Luzzo, John Bowman, Thomas Lynch and Mily Rodriguez Powell.

Camacho worked for the Miami-based Camacho Law Group and graduated from the University of Miami Law School. He was admitted to the Florida Bar in April 2000.

In structured settlement cases, someone expecting a large payout in installments over a period of time will negotiate a deal with a buyer who agrees to pay a lump sum immediately in exchange for the future payments. Judges have to sign off on the transactions and will reject them if they conclude the original recipient of the payments is not getting a fair deal.

According to an arrest report, Camacho admitted forging the judges' signatures and filing the orders with the clerk of courts.

The case against Camacho was originally assigned to Broward Circuit Judge Matthew Destry, but because it involved other judges as victims, Destry recused himself. He asked Broward Chief Administrative Judge Peter Weinstein to have it transferred to another jurisdiction.

The case is now being handled by Miami-Dade Circuit Judge Ellen Sue Venzner. Assistant Broward State Attorney Ryan Kelley is continuing to prosecute.

Government asking for life sentence for convicted fraudster (Updated)

Update-- Judge Martinez sentenced him to 40 years. 

Original post:

According to this Herald article:

The former chief of the failed Clubs Resorts and Marinas will learn his sentence in a 9:30 a.m. Monday hearing at the Key West federal courthouse. Maximum combined sentences for the counts carry a potential 200 years behind bars, prosecutors wrote in a filing last week.

A life sentence "would be reasonable" for convicted bank-fraud defendant Fred D. "Dave" Clark, former chief of the failed Cay Clubs Resorts and Marinas, federal prosecutors say.

Clark "has repeatedly advanced his view that everyone is to blame for his conduct but himself," prosecutors wrote. The "defendant has exhibited a decades-long pattern of making up his own rules and avoiding responsibility for breaking the law. Until now."

The 11-page sentencing memo describes prison terms in other financial fraud cases, including the 50-year sentence imposed on disgraced Fort Lauderdale attorney Scott Rothstein.

Clark was convicted Dec. 11 after a five-week retrial, after a jury could not reach a verdict in his first trial.

Federal authorities say Cay Clubs was a $300 million Ponzi scheme.

Yikes, a life sentence for this crime... when Rothstein -- the supposed worst of the worst -- gets 50. That seems way too high. What say you?

Meantime, it's the first oral argument without Justice Scalia this morning, in this exclusionary rule case: "Should courts suppress evidence obtained from a suspect after a police officer executes a valid arrest warrant, if the officer first illegally detained the suspect?"

Big Federal Bar Shindig tonight

It's the 35th annual judicial reception.  It's so big that you can win a free iPad Air!!

FREE iPad Air GIVEAWAY! We will be conducting a membership drive. If you sign up for membership in the Federal Bar Association at the federal judicial reception, you will be entered into a raffle to win an Apple iPad Air. 

Hopefully, it won't be able to be backdoored...

Good for Tim Cook and Apple.

"The bottom line is that President Obama’s nominee is not getting confirmed before the election."

That's SCOTUSblog's Tom Goldstein in this post about who might get the nomination.  His latest thinking is Ketanji Brown Jackson, a district judge in D.C.:

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent – that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).
She is a young – but not too young (forty-five) – black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.
Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court.
I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

 Another reason to support her -- she is also a local, having gone to Palmetto High School.  If I remember correctly, she won nationals in oratory, which was a big deal to us debate nerds back then. I also knew her in law school, so if it's Judge Ketanji Brown Jackson, I hope Tom is wrong about the nominee not getting confirmed.

Adalberto Jordan makes SCOTUS shortlist

Yesterday I raised the possibility of President Obama nominated 11th Circuit Judge Adalberto Jordan:

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

Today, the New York Times also lists Jordan as a potential candidate:

Adalberto J. Jordan

AGE 54.

CURRENT ROLE Judge on the United States Court of Appeals for the 11th Circuit.

BACKGROUND Hispanic man. Born in Cuba. Attended University of Miami School of Law. Clerked for Justice Sandra Day O’Connor, a Reagan appointee. A former federal prosecutor. Appointed to Federal District Court by President Bill Clinton in 1999 and elevated to the appellate court by Mr. Obama in 2012. Confirmed 94 to 5, with 41 Republicans voting in favor.

DISCUSSION Judge Jordan would be the second Hispanic and first Cuban-American justice on the Supreme Court. The White House may calculate that a decision by Republicans to block him could have political consequences in places with sizable Latino voting populations — including his home state of Florida, a swing state in presidential elections, which also has a Senate election this year.

SCOTUSBlog's Tom Goldstein hasn't mentioned Jordan yet.  His money is on Loretta Lynch.  But he does say this:

Minority voters are a different matter.  Traditionally, black and Hispanic turn-out has trailed white turn-out.  In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%.  In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%.  The 2012 election was the first in which the proportion of black turn-out exceeded that of whites.  The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.
Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic).  For that reason, many attribute President Obama’s reelection to minority turn-out.
The best candidate politically would probably be Hispanic.  Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.  In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court:  Sonia Sotomayor, the Court’s first Latina.

Some quick thoughts on Scalia and going forward

Love him or hate him, he was the most gifted (and entertaining) writer we have ever seen on the Court. "Applesauce" "Jiggery-pokery" "Argle-Bargle" "SCOTUScare"

And he was not at all predictable (like Alito/Thomas). In fact, he jokingly called himself the "best friend" of criminal defendants. And he was!  He was the lone vote to strike down he sentencing guidelines many years before Booker. 

He led the charge on the confrontation rights of those accused of crimes. See, e.g., Melendez-Diaz v. Massachusetts (5-4 opinion where Scalia was deciding vote in favor of criminal defendant).  He was much more defense oriented than Breyer or Kagan, that's for sure.

Even on 4th Amendment issues, he was much better than the so-called liberals.  Check out his dissent in Maryland v. King (the DNA case): "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. These DNA searches have nothing to do with identification. ... If the Court’s identification theory is not wrong, there is no such thing as error. ... The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." 

He also has written majority opinions rejecting infrared surveillance, GPS tracking of cars, and dog sniffs of our homes.  

Of course, he wasn't perfect (see gay marriage, Bush v. Gore, etc), but he was by far the most interesting Supreme Court Justice in our lifetime. RIP.

But now the fight comes.  Who can get confirmed?

Donald Trump said last night in the GOP debate that he would nominate someone like Judge William Pryor.  Judge Pryor and I had this case where we butted heads.  He's also had this recent battle with Judge Jordan.  

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

So, what do you think?  Is Judge Jordan a viable choice for President Obama?

RIP Justice Scalia

Wow, this is sad news. Everyone is talking replacement right now, but we should give the guy his due. He will be remember as the best writer ever on the Supreme Court. And, although Rumpole and I disagree on this, he is one of the best Justices for criminal defendants and criminal justice issues. More to follow...

BREAKING -- Judge Abdul K. Kallon nominated to 11th Circuit

This is big news.  The nomination comes out of Alabama to fill Judge Dubina's seat.  This would be the first African American judge to serve on the 11th Circuit out of Alabama.  More to follow...

(H/T Glenn Sugameli).

Huge win for the FPD's office...

...in the Florida Supreme Court for Tracy Dreispul who raised the issue in the 11th Circuit.  This is going to affect a lot of cases.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir. 2015), the court certified the following question to this Court:

Florida law prohibits a person from “own[ing] or . . . hav[ing] in his or her care, custody, possession, or control any firearm . . . if that person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.1 Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is “convicted” for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.

WOW!

Love is in the air...

... at the PD's office!  Check out this nice Herald article about two APDs:

It was not love at first sight, no. Brad Horenstein and Daniela Torrealba met when they were taken to lunch by their respective bosses while working as interns at the Miami-Dade Public Defender’s Office. Their reaction was … well, meh.
"I got a very bad reading," recalls Horenstein, 35. "She was so serious. I didn’t talk to her for a year after that."
From Torrealba, 29: "I didn’t even remember meeting him at the lunch until he reminded me about it. I was in my final semester of law school and I had blinders on."
A few months later the assistant public defenders were singing a different tune — quite literally. On a road trip to Orlando for a legal conference, they realized how much they loved the same music. They sang along to Kavinsky’s Nightcall and Radiohead’s Idioteque and Crystal Castles’ Vanished. They talked. And talked. And talked.
Horenstein was smitten, but it still took him four months to ask her out. Their first date, in February 2013, was at Scarpetta, a high-end Italian restaurant in Miami Beach’s Fontainebleau. They finished the night at The Corner, a hip bar downtown. Soon they became inseparable.
"I knew he was a wonderful guy who was genuinely concerned about his clients and his work, but I had never dated a friend before," Torrealba says. "When he asked me out, it opened my eyes.”
Two years and four months later, Horenstein popped the question. They’re getting married February 2017.
In the meantime the couple has lived together for 16 months in a Brickell area apartment. They spend most of their work hours together, too. They believe the closeness has helped burnish their new love.
He says: "She’s incredibly bright and quick-witted and positive. She’s so much fun to be around."
She says: "He has what people call good moral fiber."

Cool story!   This one from the 6th Circuit, not so much:

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

Oh boy.  Big brother is watching!

Read more here: http://www.miamiherald.com/living/health-fitness/article59222768.html#storylink=cpy

Legal debates...

First: "What's harder, for a man to do 30 pushups or a woman to do 14?"  That's from Althouse discussing the 4th Circuit case of Bauer v. Lynch, which addresses the requirements for the FBI:

"Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.... [T]he numbers of push-ups men and women must complete are not the same, but... the fundamental issue [is] whether those normalized requirements treat men in a different manner than women.... [A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Second, is Cruz eligible to be President?  From Harvard Law Today:

“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe, who taught Cruz when he was a student at HLS in 1994.
The crux of the matter is that the Constitution, in Article II, Section 2, Clause 5, states that “no person except a natural born citizen” can be president.
Under English common law, upon which U.S. law was based, a “natural born citizen” would be someone born on American soil. For Tribe, according to this definition, Cruz does not qualify. He compared Cruz to Alexander Hamilton, a founding father who was born in St. Croix, Virgin Islands, but qualified as a U.S. citizen at the time of the adoption of the Constitution, and former presidential candidate John McCain, who was born in the Panama Canal Zone when it was under U.S. control.
“Unlike Cruz, McCain was born in U.S. territory,” said Tribe. “And unlike Cruz, McCain was born to two U.S. citizens, parents who had been deployed to the Panama Canal Zone by the military to serve the country.”
But for Jack Balkin ’81, a constitutional law professor at Yale University, Cruz is a “natural born citizen” because under U.S. immigration law in 1970, he automatically became an American because his mother was one. The law grants birthright citizenship to a child born overseas if one parent is a U.S. citizen.

I think question 1 might get more commenters' blood boiling...

Monday morning update

So like the rest of you, I watched the Super Bowl and the commercials.  zzzzzzzzzzzzz

What a snoozer.  Seemed more like a Thursday night Raven/Titan game than the Super Bowl.

Politics this weekend was far more entertaining.

Of course, you had SNL with Larry David/Bernie Sanders:


But the better comedy was at the GOP debate:



In terms of the actual debate, I thought Marco got crushed in this exchange:

Docs v. Glocks going en banc

Here's the order.

The third opinion was back in December.

Jordan and Pryor agree...

...that sleeping during a murder trial is not ineffective.  After a strenuous debate earlier in the week (Jordan v. Pryor), we get this per curiam unpublished doozy (Julie Carnes also joined):

We issued a certificate of appealability to address Williams’s argument that “he was denied his Sixth Amendment right to counsel when his counsel allegedly dozed or slept during a part of [his] trial.” Because it was not an unreasonable application of clearly established federal law for the state trial court to conclude that Williams was not prejudiced by counsel “[falling] asleep a couple of times” while the state replayed a recording of an interview that was cumulative to earlier testimony from the interviewee, we affirm.

Despite Rumpole's objections, the opinion starts with a description of the crime:

When Austin Joseph Paine intercepted burglars in his home, they shot and killed him. Chad Michael Leon afterward overdosed on morphine and checked himself into a hospital, where he implicated himself, Williams, and Randy Carter Jr. in Paine’s murder. Leon later showed officers where in the ocean he had discarded a revolver and a semiautomatic firearm used by Williams and Carter.

 Here's the analysis:

In the absence of controlling precedent, fairminded jurists could disagree about whether a defendant is entitled to a presumption of prejudice because defense counsel, who was otherwise actively engaged in the trial, “fell asleep a couple of times” while the jury listened to a recorded interview that was cumulative to testimony earlier provided by the interviewee.

Wow.  All I have to say is: zzzzzzzzzzzzzzzzzzzzzzz

It's a very old Supreme Court

Four Justice are older than 75.  This op-ed wonders whether that's a problem.  It certainly will be a big deal for the next President.  From the conclusion:

The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98% of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use interstate commerce or expect due process.
If there's a silver lining, no pun intended, it's that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it's hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one's keys is innocuous, or portentous.
Unfortunately, the 9th Circuit program and a handful of others across the country exist in isolation, as there is no judiciary-wide strategy to cope with cognitive decline. That should change. Chief Justice Roberts should use his authority as head of the federal judiciary to require his high court colleagues and others to undergo regular mental health checkups.
Further, he could recommend a judicial retirement age of 70 or 75, as is done in the rest of the Western world. He and future nominees to the bench could even pledge to serve for no more than 18 years, as has been suggested by constitutional scholars and interest groups on the left and right as a reasonable limit on judicial tenure.
Our court system and the law benefit from the wisdom of judges with many years of experience. But the federal judiciary, especially given congressional dysfunction, is simply too important to leave in the hands of old fogeys.

Our district has gotten a lot younger recently.  What judge would you rather appear before -- old or young?

Jordan v. Pryor

It's a pretty interesting debate, both in terms of style and substance, in this habeas case between Judges Jordan and Pryor.  Jordan ends up in the majority with a the vote of a visiting judge.  This angers Judge Pryor even though it usually happens in the reverse.  He starts his dissent this way:

Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas lottery today. The majority gives him a second chance to collaterally attack his convictions in federal court, seventeen years after his trial and nine years after he filed his first federal petition for a writ of habeas corpus. Most state prisoners are not so lucky, as the Antiterrorism and Effective Death Penalty Act prohibits the filing of a “second or successive” petition for a writ of habeas corpus. 28 U.S.C. § 2244(b). But Patterson is luckier still. In a sleight of hand, the majority rules that a 2009 order sparing him from chemical castration—an unopposed order that benefited Patterson—somehow hit the reset button on his ability to obtain federal habeas relief, even though the 2009 order is not “the judgment authorizing [Patterson’s] confinement” and is irrelevant for purposes of the bar on second or successive petitions. *** The clear text of the statute makes “the judgment of a State court” that holds the prisoner “in custody” the judgment that matters for our collateral review. 28 U.S.C. § 2254(b)(1). And for good reason. Patterson, after all, does not object to anything in the 2009 order that spared him from chemical castration or allege that the removal of chemical castration somehow violated his federal constitutional rights. He instead seeks to collaterally attack the judgment of convictions  entered against him in 1998—a judgment he has already collaterally attacked once in federal court and four times in state court. And the majority lets him do it. Because that ruling is wrong in every way, I dissent.

Even though it's easy to disagree with his decision, you gotta give it to Judge Pryor -- he is a gifted writer.  Here's some more, this time from the conclusion:

When it comes to federal habeas petitions, the more is not the merrier. Relaxing the bar on second or successive petitions will “prejudice the occasional meritorious application” for a writ of habeas corpus by “bur[ying] [it] in a flood of worthless ones.” McCleskey, 499 U.S. at 492, 111 S. Ct. at 1469 (quoting Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397, 425 (1953) (Jackson, J., concurring in the result)). Despite the best efforts of Congress to prevent that “flood,” the majority is praying for rain. This case is not hard. And nobody should be fooled by the majority’s atextual decision. After seventeen years of repeated and often frivolous attempts to overturn his convictions, Patterson is being given another go-round based on an order issued in 2009 that both the State of Florida and the guardian ad litem thought was meaningless. That order does not authorize his confinement, and he does not allege that it violates his constitutional rights. Nor should he: the 2009 order gave him all of the relief that he requested. Today’s decision is gimmickry that will require the State of Florida to defend a child rapist’s convictions for the umpteenth time and will threaten a twenty-six-year-old woman to relive the horror of his monstrous crimes.

I dissent.

Judge Jordan goes for the even-tempered approach, expressing his disappointment in the anger from Judge Pryor's opinion, calling him out by name over and over again:

We respect the passionate dissenting views of our colleague, Judge William Pryor. Yet we suspect that Judge Pryor’s real disagreement is with Magwood and our prior decision in Insignares.

***

Finally, to the extent that Judge Pryor is suggesting that we are in some way trying to undermine AEDPA, such an accusation is as disappointing as it is wrong. As the Seventh Circuit recently noted, see Kramer v. United States, 797 F.3d 493, 502 (7th Cir. 2015), reasonable jurists can disagree about what constitutes a new judgment under Magwood. We have tried to faithfully apply AEDPA and Magwood in light of binding circuit precedent, and that binding circuit precedent is Insignares. We believe we have  accomplished that task, Judge Pryor’s protests notwithstanding.

And the visiting judge, District Judge Haikala, calls out Judge Pryor on his appeal to emotions.  Her concurrence begins like this:

Judge Pryor and Judge Jordan have prepared thorough opinions in this case. I have studied both opinions. I agree with Judge Pryor that this case is not hard. I agree with Judge Jordan’s analysis of the issue presented to the Court. Like Judge Jordan, I conclude that the rationale of Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014), requires reversal. I write separately to address a few points in Judge Pryor’s opinion. In his opinion, Judge Pryor describes Mr. Patterson’s reprehensible criminal behavior. Minority Op. at 2-3. There is no doubt that the conduct that gave rise to Mr. Patterson’s conviction and sentence is heinous, but that conduct has no bearing
upon the legal standard that governs the issue before the Court. As the United States Supreme Court wrote in Chessman v. Teets: “On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution.” 354 U.S. 156, 165 (1957). 

"will do anything to stay at the trough"

That was one of Donald Trump's recent tweets about Jeb!.  The New York Times has compiled this entertaining list of all of his "insult" tweets.  Enjoy.

Meantime, in Broward, there was sex [allegedly] in the jail between a lawyer and a client.  The Sun-Sentinel has the details.

And today's moment of zen comes from the Pac-10 where Michael Phelps distracted a college basketball player shooting a free throw...  watch the video here.

Can a bankruptcy judge order the marshals to arrest a lawyer?

There is some debate about whether a non-article III judge has that power.  But in any case, the answer is certainly NO after a district judge has issued a stay of the order.  Julie Kay has the very interesting story here:

Palm Beach bankruptcy lawyer Tina Talarchyk said she was getting ready to drive her twin girls to school Tuesday when federal marshals showed up to arrest her on a civil contempt order.
Talarchyk said she persuaded the marshals that an arrest order issued last week by U.S. Bankruptcy Judge John Olson was stayed U.S. District Judge Marcia Cooke in Miami pending appeal. She said the marshals left after getting new instructions.
"I think Judge Olson overreached when he entered an incarceration order without due process of having an evidentiary hearing," Talarchyk said in an interview. "I am shocked that after Judge Cooke entered her order that Judge Olson continued to personally reach out to the marshals to have me apprehended. I think it shows he lacked impartiality. The fact that it happened with my children in the car was traumatizing."
Olson held the Talarchyk Firm partner in contempt of court, suspended her from practicing in bankruptcy court and ordered her to be detained until she paid $10,949 into a client trust account. She insists she paid the money and doesn't owe her client anything.
Cooke issued an emergency stay of Olson's order Thursday after Talarchyk appealed, so Talarchyk and her lawyer are baffled about why the marshals showed up.

Be careful what you ask for

See, e.g., this prosecution of two abortion opponents who had asked for an investigation of Planned Parenthood:

A grand jury here that was investigating accusations of misconduct against Planned Parenthood has instead indicted two abortion opponents who made undercover videos of the organization.

Prosecutors in Harris County said one of the leaders of the Center for Medical Progress — an anti-abortion group that made secretly recorded videos purporting to show Planned Parenthood officials trying to illegally profit from the sale of fetal tissue — had been indicted on a charge of tampering with a governmental record, a felony, and on a misdemeanor charge related to purchasing human organs.

That leader, David R. Daleiden, 27, the director of the center, had posed as a biotechnology representative to infiltrate Planned Parenthood affiliates and surreptitiously record his efforts to procure tissue for research. Another center employee, Sandra S. Merritt, 62, was indicted on a felony charge of tampering with a governmental record.

The record-tampering charges accused Mr. Daleiden and Ms. Merritt of making and presenting fake California driver’s licenses, with the intent to defraud, for their April meeting at Planned Parenthood in Houston.

And congrats to the Canes last night for crushing Duke at home.  

SCOTUS decides jury instruction issue

What happens when the jury is instructed on a higher level of proof than is required by the law?  Does the prosecutor need to meet that higher burden or not?  Justice Thomas, for a unanimous Court, said the prosecution does not need to meet the higher standard, even though the jury instructions so stated.  From Law360:

The U.S. Supreme Court held Monday that a shipping executive sentenced to five years in prison for hacking his former employer can’t parlay erroneous jury instructions into an acquittal, rejecting his claim that those instructions meant the federal government had to meet a higher burden of proof than required by law.

In a unanimous decision, the high court rejected former Exel Transportation Services Inc. CEO Michael Musacchio’s claim that prosecutors had to abide by the incorrect instructions, which stated that a guilty verdict rested on two prongs of the Computer Fraud and Abuse Act rather than just one.

U.S. Supreme Court Justice Clarence Thomas wrote the opinion, which held that the executive had to held accountable to the letter of the law, not faulty instructions.

“The government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review,” the court said. “Because Musacchio does not dispute that he was properly charged with conspiracy to obtain unauthorized access or that the evidence was sufficient to convict him of the charged crime, the Fifth Circuit correctly rejected his sufficiency challenge.”

Musacchio left Exel in 2004 to start his own shipping company, Total Transportation Services Inc., but a forensics firm hired by Exel hired discovered that Musacchio had accessed confidential information after he left, according to court filings.

Exel settled its civil claims against its ex-CEO for $10 million, but the federal government then indicted Musacchio in 2010, leading to a Texas federal jury’s guilty verdict against Musacchio three years later.

The jury convicted him on three counts under the CFAA, but part of its instructions stated that a conviction rested on proof that he made unauthorized access to Exel’s information “and” that he exceeded his authorized access.

Musacchio appealed to the Fifth Circuit, arguing that the government didn’t provide evidence sufficient to satisfy both prongs, but the court of appeals affirmed, stating that the substitution of “and” for “or” was an “obvious clerical error.”

After the Supreme Court agreed in June to review the Fifth Circuit’s decision, Musacchio said the jurors didn’t know the instructions they received were wrong and convicted him without enough proof to meet the standard they believed to be correct.

On Monday, the Supreme Court also rejected Musacchio’s attempt to show that the government’s allegations were barred by a five-year statute of limitations, finding that he could not raise that defense for the first time on appeal.

“When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment,” Justice Thomas wrote. “When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error.”

And here's your Monday Moment of Zen:

Another PD Not Guilty

What a way to start the year for the FPD's office.  This one is out of West Palm and the lawyer was Peter Birch.  From Paula McMahon:

Jurors deliberated less than 10 hours over two days before finding a Palm Beach sheriff's corrections deputy not guilty of federal charges he violated jail inmates' rights and falsified a record to obstruct an FBI investigation.
William D. Wheeler, 46, was acquitted of three charges after a two-week trial in federal court in West Palm Beach.
"We are very grateful for the jury's verdict and Deputy Wheeler is very happy to put this behind him and hopefully get back to work at the Sheriff's Office as soon as possible," said Assistant Federal Public Defender Peter Birch, Wheeler's lawyer.
Phone messages left for Wheeler were not immediately returned.
Wheeler has been on administrative leave without pay since he was indicted in February. The corrections deputy was receiving a salary of $88,980 a year when he was removed from his position.
Wheeler was accused of using excessive force against two inmates, Joreel Sine and Jermaine Smith, in September and October 2013 while they were locked up in the Palm Beach Sheriff's jail system.
Smith, 22, is serving 10 years in state prison for carjacking, records show. Sine's whereabouts were unclear.Federal prosecutors did not call either of the inmates to testify in Wheeler's trial but security video of both incidents was shown to the jury, according to court records.
Wheeler testified in his defense that he used an appropriate level of force to prevent one inmate from spitting at him and that he did not cause the other inmate to bang his head against a door.

UPDATE -- I've been informed that the PDs also had two other wins this month: Bob Adler got a NG in a mortgage fraud case and Fletcher Peacock got one in a gun case.

"Worse than Death"

That's the name of this article about solitary confinement by Judge Alex Kozinski.  The intro:

For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we hear remarkably little about what may be the most severe punishment of all: solitary confinement. Lurking in the shadows of the conversation about inhumane punishments are some 100,000 souls who spend 23 hours a day alone in a cell the size of a parking space. In a world where making a rap video can earn you three years in the box,6 we should all be asking more questions about how prisoners get into solitary confinement, what “life” is like once they get there, and how they can get out.

The Liman Program’s Time-In-Cell Report begins this important conversation. The Report’s shuddersome findings confirm what I have long suspected: Solitary confinement is just as bad as the death penalty, if not worse.

There is a growing consensus that criminal justice reform is desperately needed.7 The difficult question is how best to allocate the scarce resources of lawyers, activists, and academics. I argue here that society should shift some resources and attention away from the death penalty and towards the problem of solitary confinement. If such a shift is not made, death penalty abolitionists may succeed in their campaign only to discover that they have won a Pyrrhic victory. Sending hardened criminals from death row to solitary confinement is no triumph. It merely swaps one type of death for another.

Meanwhile, the Washington Post has a piece about innocent people pleading guilty:

The presumption of innocence helps to combat prejudice and prejudging in the U.S. criminal justice system. But because plea bargains have supplanted trials in our criminal justice system, that presumption does not apply to most cases in the United States.
Prejudice against the accused is quite common. Consider your own experience: If you see that a police car has pulled a driver over to the side of a highway, what do you make of the situation? Most people probably think to themselves, “Hmm, that driver was probably caught speeding.” Similarly, if you heard that one of your neighbors had been arrested, you would likely say to yourself, “I wonder what crime he committed.” It is a common reaction to presume that the authorities had a good reason to detain or arrest someone.
To protect the innocent, however, the law demands that incriminating evidence be presented in court. The Constitution says every person accused of a crime has the right to an impartial jury trial. If the jury is persuaded that a person is guilty, then that person can lose his liberty and be punished. That is a sensible procedure for a just system, and it is why Americans have taken pride in our Bill of Rights.
Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.

 While the drumbeat of criminal justice reform is getting louder, many in the GOP are opposing commonsense measures.  

"How about the rest of us? Right-wingin', bitter-clingin', proud clingers of our guns, our God, and our religions and our Constitution. Tell us that we're not red enough? Yeah, coming from the establishment."

That was Sarah Palin yesterday endorsing The Donald.  There are so many good quotes.  More here.

Meantime, the Republicans are duking it out over sentencing reform.  Politico covers the story:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.
Criminal justice legislation is backed by the two top vote-counters of each party in the Senate and a powerful right-left coalition. It was bolstered by a presidential shout-out in the State of the Union last week. Passing a bill would advance McConnell’s favorite narrative — that the Senate is working again.

But loosening some mandatory minimum sentences is still a toxic suggestion among a vocal segment of the GOP, criticism that the presidential primary could amplify. Some backers of the bill fret that Sen. Ted Cruz, who’s vaulted into the top tier in the GOP presidential primary, might seize on the issue ahead of the Iowa caucuses. The Texas Republican has warned that a bill pending in the Senate could release violent criminals into the streets.
Still, backers are pressing ahead. Sen. John Cornyn (R-Texas), McConnell’s top deputy, has lobbied the majority leader to take up the proposal early this year. Backers say the Senate has to move on criminal justice reform quickly, perhaps as soon as next month, for the measure to have any hope of reaching President Barack Obama’s desk.

3-0

That's the defense record in Chinese importation trials. The latest was by AFPDs Sowmya Bharathi and Bunmi Lomax before Judge Seitz. There was also another January not guilty casting shade on Rumpole's "no-trials-in-January" mandate. Bottom line -- we need more trials! 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54763750.html?ppRandom=0.12800472962753218&pp_u=EpszNZmQZ2sGUh1MEMIQCA#storylink=cpy

Anthony Bosch's sentenced reduced

From the Herald:

Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars including Alex Rodriguez, had the goods on his partners in crime.
Once Bosch’s Coral Gables anti-aging clinic shut down and baseball’s biggest doping scandal erupted in early 2013, it wasn’t long before Bosch began assisting baseball and U.S. authorities to save his neck.
On Thursday, the 52-year-old Bosch received his benefit for snitching when a Miami federal judge reduced his four-year prison sentence by one-third for helping federal prosecutors convict other defendants who participated in his steroid-distribution racket. His sentence was lowered to two years and eight months.
Prosecutors recommended that Bosch, 52, former owner of the anti-aging clinic Biogenesis of America, be given lesser punishment because of his “substantial assistance” in the investigation. His parallel cooperation with baseball authorities resulted in lengthy suspensions of Rodriguez, the New York Yankees star, and 13 other professional ballplayers who purchased banned performance-enhancing drugs from Bosch.
“He provided us with viable information that led to the prosecution of various defendants,” said prosecutor Sharad Motiani, noting that Bosch met with criminal investigators more than a dozen times for lengthy interviews and reviewed hundreds of medical, phone and text records that contributed to the successful prosecutions of at least four other defendants.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article54650210.html#storylink=cpy

CJA hearings in Miami conclude

Celia Ampel for the DBR covers it here:

Lawyers appointed to represent federal defendants who can't afford an attorney sometimes have trouble securing expert witnesses, wading through voluminous e-discovery and persuading judges to approve their expenses, according to testimony at a public hearing Monday and Tuesday in Miami.
The Criminal Justice Act, which provides a system for compensating those attorneys, is under a two-year review by a committee appointed by U.S. Supreme Court Chief Justice John Roberts. The committee's stop at the Wilkie D. Ferguson Jr. U.S. Courthouse was the second of seven hearings in cities from Portland, Oregon, to Philadelphia.
Attorneys and judges from across the Southeastern U.S. testified at the hearing, including the Southern District of Florida's Federal Public Defender Michael Caruso, U.S. Attorney Wifredo Ferrer and U.S. District Judges Robert Scola Jr., Donald Graham and Kathleen Williams.
The committee questioned the witnesses on whether the authority to approve CJA panel attorney compensation should rest with the judiciary, the public defender's office or an independent body. The group also discussed the challenges of e-discovery.

***

But regardless of their independence, CJA panel attorneys have far fewer resources than federal defenders and the U.S. attorney's office, lawyers testified.
That inequality extends to discovery, which in a multidefendant case can amount to three terabytes of data — or 6,000 filing cabinets of documents, Caruso said.
"You can imagine the CJA lawyer who's a solo practitioner trying to make sense of 6,000 filing cabinets," particularly in a trial-heavy and fast-paced district like the Southern District of Florida, he said.

Judge Graham was really strong on this point saying that prosecutors should be required to hand over hot documents to defense lawyers as a matter of proportionality and basic fairness.  Seems like a no-brainer.

Florida Death Penalty found unconstitutional

The case, 8-1 per Justice Sotomayor, is Hurst v. Florida:

A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death.

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.

Kudos to Judge Jose Martinez who was way ahead of this issue and found Florida's scheme unconstitutional many years ago.

"Not many people want to be locked up in a federal penitentiary serving a life sentence." (UPDATED)

But Harlan Salmona does, according to this opinion by Chief Judge Carnes.  The intro:

Not many people want to be locked up in a federal penitentiary serving a life sentence. Harlan Salmona does because it beats the alternative, which is being locked up in a state penitentiary that he believes is less safe. The problem for Salmona is that his life sentence was imposed by a Florida state court, not by a federal court. Salmona claims that because of a promise made to him by the United States Attorney’s Office in a long ago plea agreement the federal government is required to get him transferred from state to federal custody for the remainder of his state sentence. This is his appeal from the district court’s order denying his “Motion to Compel Compliance” with that plea agreement.

The conclusion:

Because the district court lacked subject matter jurisdiction over Salmona’s claim, its judgment is VACATED and the case is REMANDED with instructions to dismiss for lack of jurisdiction.

UPDATE -- from a tipster: The back story on him is fascinating. He is ex U.S. Coast Guard who was arrested by Feds for drug smuggling. He then decided to work off his case by informing on the marijuana organization he worked with. The Government indicted members of the organization based upon the anticipated testimony of Salmona and another informant.  Salmona then murdered the other Government informant in order to enhance his importance to the Government and become the sole key witness.  His state sentence of life was for that murder.

Meantime, it's CJA day at the federal courthouse.  Here's the live-stream of the committee hearings if you are interested.

The district bench is losing one of its stars

Judge John Gleeson is leaving the EDNY bench to go into private practice.  A huge bummer.  He was one of the best judges we had.  We wasn't afraid to rule against the government.  He wasn't afraid to do what was right.  And he wasn't afraid to write opinions explaining his reasoning.  We need more like him.

From the NY Law Journal:

Eastern District Judge John Gleeson is stepping down from the bench after more than 20 years to practice law.
In an email sent Monday to fellow judges, magistrate judges, bankruptcy judges and others, Gleeson wrote, "as difficult as it is to leave the work I love and the colleagues I love, this is the right decision for me and my family."
The email did not give specifics on his next move but said he would be leaving on March 9. The judge, through his chambers, declined to comment Monday.
...
As a judge, Gleeson has been vocal in his rulings about matters like sentencing law and judicial discretion.

"[T]he singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.”

That was the 11th Circuit last week in Buehrle v. Key West.  The whole footnote:

Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr. Craig in his deposition and once by the City’s attorney in oral argument before the district court, to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett, “Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).

Here's the intro to the opinion by Judge Jill Pryor:

The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an Case: 14-15354 Date Filed: 12/29/2015 Page: 1 of 14 2 ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.

The AP covered the case here:

A Virginia man who wants to open up a tattoo parlor in Key West can thank Jimmy Buffett's "Margaritaville" for helping him with his latest court case.
City officials twice referenced the song in opposition to Brad Buehrle's proposal for a new tattoo shop, saying drunken tourists would be more likely to get tattoos and then regret it if more ink shops were open in Key West's historic district.
But the 11th Circuit Court of Appeals said the city misunderstood the song lyrics in which the languorous narrator reflects on a brand new tattoo - but how the "Mexican cutie" got there, "I haven't a clue."
The judges wrote in a footnote to their ruling that the character in the song deems his new tattoo "a real beauty" and seems far from embarrassed about it.
The appeals court ruled last week that the city failed to show that more tattoo shops would erode the historic district's "character and fabric," The Key West Citizen (http://bit.ly/1R73FIK) reported.
According to the ruling, the city feared that "rash tourists will obtain regrettable tattoos, leading to negative association with Key West."

Happy New Year from the Chief Justice

Here's his year end report.  He starts with a story about dueling, including this gem:

Public opinion ultimately turned against dueling as a means of settling quarrels. By 1859, eighteen of the 33 States of the Union had outlawed duels. Following the Civil War, a public weary of bloodshed turned increasingly to other forums, including the courts, to settle disputes. But reminders of the practice persist. When Kentucky lawyers are admitted to the bar, they are required, by law, to swear that they have not participated in a duel. Today, Wilson’s pamphlet stands on the bookshelf as a largely forgotten relic of a happily bygone past. But it is also a stark reminder of government’s responsibility to provide tribunals for the peaceful resolution of all manner of disputes. Our Nation’s courts are today’s guarantors of justice. Those civil tribunals, far more than the inherently uncivilized dueling fields they supplanted, must be governed by sound rules of practice and procedure.  

The Chief highlighted changes in the Rules of Civil Procedure that attempt to get rid of some of the bickering:

Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 7 The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.

And the conclusion:

As for the lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results. I am hardly the first to urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice. 

But I am motivated to address the subject now because the 2015 civil rules amendments provide a concrete opportunity for actually getting something done. In the nineteenth century, a change in culture left dueling by the wayside and left us with lessons learned. Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result. 

Another year has quickly passed, and once again, I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. Best wishes to all in the New Year.

Speaking of the new rules and proportionality, there are no rules helping the criminal defense bar with discovery. It used to be that prosecutors would give so little to the defense that most of the pretrial litigation would be focused on getting important documents and information to help prepare a defense.  Now the government has taken the opposite tack -- drown the defense with every possible piece of paper out there.  When the defense attorney complains to the judge, the prosecutor will say, "but judge, I gave them everything." (Many judges have caught on to this tactic and are now ordering the prosecution to disclose discovery indexes and exhibit lists well in advance of trial, as well as Jencks material and witness lists. But some judges still refuse to do so.) Providing terabytes of data, of course, is not much better than providing nothing at all because most of these documents are completely irrelevant and impossible to wade through.

This costs the judiciary lots and lots of money when the CJA panel lawyer, who has no choice but to go through all of the paper because the prosecution refuses to narrow the discovery to important documents, bills for all of this time.  This is one of the issues that will be discussed at the public hearing to address the Criminal Justice Act Program on January 11 and 12 in Miami. Here is the agenda.

I will be testifying.  So will Judge Graham.  Judge Graham has asked that if you have any issues that you'd like him to address to please let him know.  Feel free to email me at dmarkus@markuslaw.com and I will forward your email to him.