"How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

 That's the title of this NY Times editorial, which is a question that the criminal defense bar has been pressing for decades. From the conclusion:

There is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

“To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

By Michael Caruso:

This story is both remarkable and not. In 1982, Anthony Broadwater was convicted of raping the author Alice Sebold when she was a student at Syracuse University. He served 16 years in prison. Two weeks ago, a court vacated his conviction after prosecutors reexamined the case.

Sebold wrote in 1999′s “Lucky” of being raped and then spotting a Black man in the street several months later who she believed was her attacker. Sebold, who is white, went to the police. An officer said the man in the street must have been Broadwater, who had supposedly been seen in the area. After the police arrested Broadwater, Sebold failed to identify him in a police lineup, picking a different man as her attacker because she was frightened of “the expression in his eyes.”

But prosecutors put Broadwater on trial anyway. He was convicted based largely on Sebold identifying him as her rapist on the witness stand and testimony that microscopic hair analysis had tied him to the crime. That type of analysis has since been deemed junk science by the U.S. Department of Justice.

Broadwater always insisted he was innocent and was denied parole several times for refusing to acknowledge guilt. He took two polygraph tests, decades apart, with experts who determined that his account was truthful.

In a statement, Sebold wrote to Broadwater that she was truly sorry for what he’d been through.“I am sorry most of all for the fact that the life you could have led was unjustly robbed from you, and I know that no apology can change what happened to you and never will,” she wrote.

She wrote that “as a traumatized 18-year-old rape victim, I chose to put my faith in the American legal system. My goal in 1982 was justice — not to perpetuate injustice. And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine.”

Broadwater said he was “relieved that she has apologized.” “It took a lot of courage, and I guess she’s brave and weathering through the storm like I am,” he said. “To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

This story is not remarkable in that a man suffered a wrongful conviction because of a misidentification and the introduction of junk science at his trial. The story is remarkable as an example of our capacity to forgive grievous wrongdoing. A lesson for all of us. 

We're doomed.

 That's the feeling of Roe supporters after the Supreme Court argument yesterday.

SCOTUSblog covered the oral argument:

Sotomayor is also prepared to put the case in stark perspective.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.

“Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Sotomayor says.

I’ll confess that I thought I heard her say “political hacks,” as if she were playing on the phrase Justice Amy Coney Barrett used during a speech this summer, when she insisted the justices are not “a bunch of partisan hacks.” But a close listen to the recording seems to confirm what is in the transcript: “political acts.” There was no mistaking, though, that Sotomayor said “stench,” a strong word not often heard in this courtroom.

Stewart has an answer for her.

“Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we’ve laid out,” he says.

“Casey did that,” she replies.

“No, it didn’t, Your Honor, respectfully,” he says.

The chief justice, as he has done before, decides to interrupt Sotomayor after she has gone on at some length. (She will come back a few minutes later with, “May I finish my inquiry?”)

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

Rikelman, who argued and won June Medical Services v. Russo in 2020, which struck down Louisiana’s abortion restrictions, takes to the lectern and tells the court, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent.”

After a few questions from Thomas, the chief justice zeroes in on Mississippi’s 15-week ban. Fifteen weeks is well before the point of fetal viability, which occurs around 24 weeks of pregnancy.

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” Roberts asks. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman says that, among other reasons, “without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”

Justice Samuel Alito presses Rikelman on a more philosophical question.

“What is the philosophical argument, the secular philosophical argument, for saying [viability] is the appropriate line?” he says. “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”

“No, Your Honor, it is principled,” she says, “because, in ordering the interests at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”

Prelogar, arguing for the United States in support of Jackson Women’s Health, says, “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. … If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

A Place at the Table

By Michael Caruso

Earlier this week, David posted an article that lamented Judge Charles Bryer's status as the sole member of the United States Commission (USSC). But that description is not entirely accurate. Judge Breyer is the sole voting member of the USSC. There are currently two “ex officio” members of the USSC. Both ex officio members are employees of the Department of Justice—a designee of the Attorney General of the United States and the Chairperson of the United States Parole Commission. 

Since the creation of the USSC in 1984, and despite persistent efforts, there never has been an ex officio representative from the Federal Defender community.  Unlike the USSC, the majority of state sentencing commissions have a public defender representative to provide them with advice and input at crucial stages of the decision-making process. Because we represent over 65% of those charged in federal criminal cases, a public defender representative would improve transparency and accountability in sentencing policy and provide the Commission with an internal defense perspective and balance.

Today, Senators Booker and Durbin introduced legislation to repair this long-standing structural issue. The self-described mission of the USSC is “to reduce sentencing disparities and promote transparency and proportionality in sentencing.” These are laudable goals, and this reform undoubtedly will further that mission. Congress hopefully will act expeditiously. 

Can prosecutors get an automatic 6 month extension under the statute of limitations for any reason they want?

 That's the issue in United States v. B.G.G., which I will be arguing in the 11th Circuit in January.  I will be defending Judge Middlebrooks' order, which Jay Weaver covers in this lengthy Herald article.  The Herald is covering the issue again because since B.G.G. was decided, Judges Ruiz and Altman have issued orders coming out the other way.  From the Herald:

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants. In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment. This story is a subscriber exclusive Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant. Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago. “Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami white-collar defense attorney Jon Sale told the Miami Herald. “These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.” 

Back at it

Hope everyone had a nice Thanksgiving break.

I am thankful for judges who work with lawyers on scheduling and grant continuances.

I can't imagine Judge Breyer is thankful about the status of the Sentencing Commission.  From Reuters:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum. Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed. Armstrong and Raskin cited his potential departure as another reason to act.

Elizabeth Holmes takes the stand

 Unfortunately we can't watch it (as we did with the Rittenhouse trial).  How absurd.

So, we need to rely on short news stories about the drama in court, which of course, are always skewed toward the government.  Here's NBC News:

Theranos founder and former CEO Elizabeth Holmes returned to the witness stand Tuesday, confirming key aspects of the prosecutor’s allegations behind the 11 counts of fraud she faces, but asserting that there was nothing wrong in what she did.

The prosecution has repeatedly shown jurors lab reports emblazoned with logos of the pharmaceutical companies Pfizer and Schering-Plough. Witnesses from those companies who worked with Theranos testified that the use of the logos was unauthorized and they were unaware of it at the time.

Holmes admitted that she was the one who had added the logos to Theranos lab reports and sent them to Walgreens as she pursued a deal to put her blood-testing startup's diagnostic machines in the pharmacy's retail stores.

Holmes acknowledged that in some cases, Theranos used third-party devices, rather than its own equipment.

“This work was done in partnership with those companies and I was trying to convey that,” she said by way of explanation. "I wish I had done it differently,” she added.

Addressing another key point made by the prosecution, Holmes said that when Theranos switched from using on-site analyzers to process samples to a centralized lab approach, it used third-party devices rather than its own equipment as an “invention” because there were too many samples to handle. Witnesses have testified that Theranos' signature blood-testing machine repeatedly failed quality assurance tests and delivered erroneous results. Holmes said the company didn’t tell its business partners about this arrangement because it was a trade secret.

She rebutted the prosecution's arguments about some of the alleged misrepresentations she made to investors, the media and business partners, affirming that she had received specific positive reports from employees and outside experts and believed their statements to be true.

And we can't even see images of the courtroom... we get sketches instead.  

Anyway, I hope all of you have a Happy Thanksgiving... even you Rumpole.

Biden pardons two turkeys...

 ...but we are still waiting on the first human pardon.

Not a good look for a President who said he would be open to criminal justice reform.  

The New York Post covers Biden's response to the question of when to expect some real pardons:

As if there was any doubt — “Peanut Butter” and “Jelly” will not be on the Thanksgiving dinner table this year.

President Biden pardoned turkeys named after the common kids lunch ingredients Friday, continuing a pre-Thanksgiving tradition in the Rose Garden after he laughed off a question about whether he would also pardon human beings — as clemency advocates asked him to honor his pledge to free “everyone” in prison for marijuana offenses.

“Will you be pardoning any people in addition to turkeys?” The Post asked Biden as he returned to the White House after receiving a physical and colonoscopy at Walter Reed Medical Center outside Washington.

Biden, wearing aviator sunglasses, pointed at a reporter and joked, “Are you — you need a pardon?” In response to a follow-up question about whether he would free pot inmates, whom he vowed to release during the 2020 Democratic presidential primary, Biden said, “just turkeys.”

This is why we really need judges to grant more compassionate release motions and issue large variances.  There's no reason why America should lead the world in people imprisoned and lead the world in length of sentences.   

One reason we see these numbers is the "trial tax."  Clark Neily from CATO just wrote an important piece about how rare trials are and how we need to get back to the basics in our criminal justice system -- the right to a trial without fear of an enormous sentence.  The intro:

The most remarkable thing about the Kyle Rittenhouse trial is that there was a trial at all.

The vast majority of criminal prosecutions in our system are not resolved by trial but instead by an ad hoc and often extraordinarily coercive process that we refer to euphemistically as “plea bargaining.” Because of the way it unfolded, however, the Rittenhouse case sheds important light on our decision to generally substitute plea bargaining for constitutionally prescribed jury trials, in open defiance of the Founders’ deliberate and very wise decision to make citizen participation integral to the administration of criminal justice. The lesson here is clear: We can be certain that other prosecutions would collapse as spectacularly as Rittenhouse’s if we reined in the government’s ability to spackle over weak cases with coerced pleas.

Former UM professor Bruce Bagley sentenced to 6 months

One of the country's most thoughtful sentencing judges, Jed Rakoff, had the case.  From the NY Times:

Prosecutors had argued for a sentence below guidelines of 46 to 57 months, but did not specify exactly how much lower. In court papers this month, prosecutors said that although Dr. Bagley’s age and health should be taken into consideration, some incarceration was necessary to serve as a deterrent.

In court on Tuesday, Judge Rakoff said that a sentence of up to five years, as recommended by federal guidelines, would be “irrational” and “overly punitive,” according to The A.P. But like prosecutors, the judge said some incarceration was needed. The judge recommended that Dr. Bagley’s sentence be served in a medical facility, according to a Justice Department spokesman.

According to prosecutors, Dr. Bagley opened a bank account in Florida under his company’s name, Bagley Consultants, in 2016. But there was hardly any activity in the account until a year later, when he started receiving large deposits from bank accounts in the United Arab Emirates and in Switzerland.

Those accounts ostensibly belonged to a food company and a wealth management firm but were actually controlled by a Colombian national whose money came from “the proceeds of foreign bribery and embezzlement stolen from the Venezuelan people,” according to an indictment.

Dr. Bagley knew the source of the money and entered into “multiple sham contracts” in order to conceal it, according to the indictment.

After each deposit, Dr. Bagley would go to his bank and get a cashier’s check for about 90 percent of the money, which he would then give to another individual, and wire the rest to his personal bank account, the indictment said.

In October 2018, the bank closed the company’s account because of suspicious activity, according to the indictment. But Dr. Bagley opened another account in his name that December and continued the scheme until April 2019, receiving at least 14 illegal deposits, prosecutors say.

Though Dr. Bagley lives in Florida and the laundered funds were sent to Florida banks, prosecutors said they were prosecuting the case in Manhattan because the money passed through New York City as it came from abroad.

 Law360 also covered the case, and included this awesome statement by Judge Rakoff:

Prosecutors asked for prison time below Bagley's non-binding federal guidelines range of 46–57 months, while the defense had asked for time served, citing the 75-year-old's age, pulmonary nodules, diabetes and hypertension in a heavily redacted sentencing submission.

The judge said prison was warranted to send a message of deterrence, but also acknowledged Bagley's health problems as he quipped that "some might describe" the Federal Bureau of Prisons' repeated assurances that it can handle any medical issue as "a repeated fraud on the court."

Say it ain't so

 The CARES Act is expiring on 11/25/21.  Unless it gets extended again, there will be no more video conferences for criminal proceedings.  That's bad news!  

Zoom hearings for various criminal proceedings has been really efficient and beneficial for criminal defendants and lawyers.  Here's hoping that we find a solution and that Zoom can continue for some of our proceedings.

In other news, Rumpole's blog turns 16 today.  That's an incredible run for a blog.  Head over there and wish him well.

"Why the Supreme Court needs an ethics code"

That's the title of this interesting piece by Nicholas Rostow. The introduction:

President Joe Biden’s Supreme Court reform commission has had a tumultuous past month. A draft report’s warnings about court-packing upset liberals, while two conservatives resigned for reasons that remain unclear.

Ultimately, these issues symbolize the American people’s warped views of the “highest court in the land.” Too many Americans expect justices on their “team” to legislate from the bench, rather than simply interpret the law as the Constitution requires.

The answer to this polarization is not court-packing or confirming more pro-life judges. Instead, Congress should pass an ethics code for the Supreme Court.

A code of conduct for the justices would be fair, practical, and effective. Such a nonpartisan reform would not change the fundamental structure of the court. But it would constrain the justices from conducting partisan or unethical activities that undermine public faith in the court and the law. A code of conduct could have held Chief Justice John Roberts accountable when he did not recuse himself from a 2016 case involving a company in which he owned stock. And ethical guidelines could have penalized Justice Ruth Bader Ginsburg after she told The New York Times in 2016, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

The reality is that the American people are losing faith in the Supreme Court as a neutral arbiter. In October, the court’s approval rating sunk to 40 percent, the lowest since Gallup began tracking this statistic in 2000. Over half of Americans disapprove of the court’s job performance. But an ethics code could rebuild public faith in the judiciary at this critical time.

Our friend Fletcher Peacock

By Michael Caruso 

Our friend and colleague Fletcher Peacock has passed away. Sadly, we all have far too many reminders that life is fragile and fleeting. But this is a real gut punch. The lesson we should take and rarely do, but that Fletcher exemplified, is not to waste a moment and embrace life completely. And to Fletcher, that meant treasuring each other, whether family, friends, or colleagues.

I first met Fletcher while clerking and had the privilege to see him in action defending his clients that came before Judge Zloch. His commitment to his clients and his zealous advocacy stood out and cemented my desire to join the office.

When I first started at the FPD, I tried my first case as "lead counsel" with Fletcher by my side. Before trial, we had decided that Fletcher would direct our client. But, that morning, a critical defense witness who lived in Delray Beach--and who was going to testify after our client--had no way to get to court. Fletcher said he would get her, and I would put our client on the stand. Fletcher surely saw the look of terror that overcame me at this suggestion. But, he explained that this was best for our client and the case, and I was ready. Of course, he was half-right. I always will remember his willingness to do--without hesitation--what was best for the client and his confidence in me. 

For most of his time in Miami, Fletcher had the office next to our boss--now Judge Kathleen Williams. It was a testament to Fletcher's personality and friendship (and not the box of Goldfish he always had at the read) that his office routinely overflowed with colleagues for brainstorming or other less lawyerly exchanges. In most offices, the person who occupies the office next to the boss is quite lonely. Not Fletcher.

After Fletcher left to become the FPD in the Middle District, running into him at a conference or seminar was a highlight. He always was a welcome face, whether we would talk family, trade war stories, or celebrate/lament the Gators. Sitting next to Fletcher at these events was a prime spot because you not only obtained his insight as a seasoned lawyer and manager, but you also laughed yourself silly at his dry wit.

We were very, very fortunate to have Fletcher come back to our office. Although older, he was still the same committed and zealous advocate, but more importantly, the same friend. Rest in peace, Fletcher. 

News and notes

1. The Rittenhouse trial.  Lots of talk about the defendant taking the stand and the tongue lashing that the state is getting throughout the trial.  But how about the judge not understanding how zooming works on an ipad.  Oh boy: 

The man responsible for overseeing the Kyle Rittenhouse murder trial has some questions about how iPad's pinch-to-zoom feature works, and he’d really like an expert witness to explain it to him. On Wednesday, Judge Bruce Schroeder disallowed Kenosha County prosecutor Thomas Binger from showing evidence on an iPad that would require the use of the built-in zoom feature. The reason? Well, as Judge Schroeder tried and failed to articulate, maybe pinching and zooming, you know, does stuff to change the image?

"What [the defense is] saying, I think, and I know less than anyone in the room, I'm sure, about all of this stuff, but I'm hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed," observed the judge.

This, as anyone who uses a modern smartphone knows, is not how pinch-to-zoom works. But, in the hopes of explaining it to the judge, we reached out to Apple for its thoughts on this technical dilemma.

We received no immediate response. Which is too bad, as Judge Schroeder really wanted someone to explain it to him.

"You're the proponent," he told the prosecutor, "and you need to assure me before I let the jury speculate on it that [pinch-to-zoom] is a reliable method that does not distort what is depicted."

The judge's dumbfounding technical obliviousness kicked off when Rittenhouse’s defense attorney, Mark Richards, also admitted he didn’t understand what he was talking about. You can watch the jaw-dropping exchange, starting around the the 5 hour, 2 minute and 26 second mark, in the below video uploaded by the Washington Post.

 

"iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms," he told the judge. 

 

Again, this was in service of Richards' effort to prevent the use of pinch-to-zoom.

2. Blogs matter.  Congress is investigating a law clerk's "a history of nakedly racist and hateful conduct."  Jerry Nadler and Hank Johnson have sent the following letter to Chief Justice Roberts.  Footnote 1 of the letter cites to posts at Above the Law about the clerk.

3. Finally, defense lawyers are trying to keep Al Sharpton out of the Ahmaud Arbery trial gallery.  Another oh boy:  

An attorney representing one of three men on trial in the deadly shooting of Ahmaud Arbery made a bizarre request Thursday afternoon when he called for the judge in the case to ban Black pastors from the courtroom gallery.

“We don’t want any more Black pastors coming in here,” Kevin Gough, who represents William “Roddie” Bryan, told the judge before the jury returned from their lunch break.

The Brunswick attorney for the man who recorded the cellphone video of Arbery’s death has repeatedly taken issue with the ongoing demonstrations on courthouse grounds during the widely publicized, racially charged trial.

Gough was referring to an appearance by the Rev. Al Sharpton, who sat in on some of Wednesday’s court proceedings and held a lunchtime prayer vigil outside the courthouse. During his remarks on the courthouse steps, Sharpton criticized the racial composition of the nearly all-white jury overhearing the case, calling it “an insult to the intelligence of the American people.”

 

What can stop the death penalty at the Supreme Court?

 Not much as we have seen in recent years.  But now the ultra-conservative Court has a religious liberty challenge that has the Justices all twisted.  From SCOTUSblog:

The Supreme Court on Tuesday appeared divided over a Texas inmate’s plea to have his pastor touch him and pray out loud while he is being executed. The justices have wrestled with the question of spiritual advisers at executions for two and a half years, but Tuesday’s oral argument in Ramirez v. Collier was the first time that they heard argument on the right of inmates to receive religious comfort and guidance in their final moments. The justices weighed the inmates’ religious rights against the state’s concerns about security and its desire to have the execution proceed smoothly, as well as their own worries about the prospect of endless last-minute litigation by inmates facing execution.

Arguing on behalf of inmate John Ramirez, lawyer Seth Kretzer told the justices that, before changing its policy in 2019, Texas had carried out hundreds of executions in which spiritual advisers were allowed to touch the condemned inmate and pray out loud.

Chief Justice John Roberts pressed Kretzer on the limits of his rule. Is it enough, Roberts asked, that Ramirez’ pastor, Dana Moore, touch him anywhere on his body, or does he have to touch him somewhere specific? When Kretzer responded that anywhere on the inmate’s body would be fine, Roberts inquired whether his answer would be different if an inmate’s religion required the spiritual adviser to touch the inmate on the forehead, for example, or the heart? Kretzer indicated that it would be a closer case, but that both of those body parts were still not located near the place where an IV would be inserted.

Justice Brett Kavanaugh suggested that any form of touching could pose a problem because the lethal injection process is delicate and complex. Kavanaugh pushed back against Kretzer’s contention that Texas had repeatedly carried out executions with spiritual advisers touching inmates, telling him that such examples “don’t move me at all” because those chaplains had been state employees. Kavanaugh was more worried, he said, about “someone from the outside,” like Moore, “coming in.” Kavanaugh returned over and over again to the idea that the state was trying to reduce the risk of having something go wrong in the execution. Allowing a spiritual adviser to touch the inmate during the execution, Kavanaugh contended, will increase that risk.

Kavanaugh voiced a related concern when Kretzer told Roberts that courts should analyze a state’s failure to provide the religious accommodations that an inmate requests on a case-by-case basis. A ruling in favor of Ramirez, Kavanaugh complained, would mean that similar claims would be “a heavy part of our docket for years to come.”

Justice Samuel Alito echoed Kavanaugh’s alarm at the prospect of “an unending stream of” litigation, coming to the Supreme Court at the last minute to delay executions.

Justice Clarence Thomas suggested that Ramirez might have been “gaming the system” because he had “changed his request a number of times.” If that is the case, Thomas asked Kretzer, how should courts determine whether his religious beliefs are sincere?

Kretzer pushed back against the premise of Thomas’ question, telling the justices that Ramirez has “always asked as quickly as possible” for relief and that his religious beliefs are both sincere and “consistently stated.”

Justice Amy Coney Barrett, who in February 2021 provided a key vote to block the execution of an Alabama inmate who wanted to have his spiritual adviser in the execution chamber with him, was more sympathetic to Ramirez. Responding to Kavanaugh’s characterization of the state’s interest in barring touch and prayer by spiritual advisers as one that reduces the risk of something going wrong, she pushed Kretzer to disagree – and in so doing, appeared to signal her own disagreement. The real compelling interest, she suggested, is prison security or “carrying out the execution in a humane and safe way.”

Cert grant in another outlier 11th Circuit case

 The 11th Circuit is way out there on criminal cases -- it is, by far, the most conservative court in the country.  It's no surprise that the Supreme Court has granted cert again to fix what the 11th has done in this doctor case, Ruan v. United States.

In that case, the doctor wanted to raise a good faith defense to his pain medication prescriptions.  The district court refused to give him a subjective (or even an objective) good faith instruction.  The court of appeals said that if the doctor was acting outside of appropriate medical care, that was all the government needed to prove, regardless of whether he was acting in good faith or not.  Every other circuit disagrees with this approach and requires a good faith instruction (some circuits say subjective good faith and some say reasonable good faith).  The Supreme Court granted cert on this question:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

I give our 11th Circuit judges the benefit of the doubt (I'm sure they are acting in good faith!) but it's disheartening that they rule against defendants more than any other court out there.  The Supreme Court will certainly reverse this case... in the meantime, how many well-intentioned doctors have gone to prison because of outlier appellate court? 

Linda Lopez has her Senate Judiciary hearing

Linda Lopez took the next step in becoming a district judge today with her judiciary hearing.  Hopefully she will get her floor vote by the end of the year.  We are all rooting for her!

Another person with Miami roots was nominated today: 

Judge Cristina D. Silva: Nominee for the United States District Court for the District of Nevada
Judge Cristina D. Silva has served as a judge on the Eighth Judicial District Court, Department IX, in Las Vegas, Nevada since 2019. From 2011 to 2019, Judge Silva served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Nevada. Judge Silva held numerous leadership positions in the office, including Chief of the Criminal Division from 2018 to 2019 and Deputy Chief of the Criminal Division from 2013 to 2018. From 2007 until 2010, she worked as an Assistant State Attorney in the Miami-Dade State Attorney’s Office, serving as Assistant Chief of Litigation for the Domestic Violence Unit in 2010. Judge Silva received her J.D. from American University Washington College of Law in 2007 and her B.A. from Wellesley College in 2001.

And finally, Magistrate Judges in Miami are dumping Zoom for duty calendars (not other hearings). Starting on Monday, all future duty hearings will be in person. This is too bad as I thought that the quick status hearings were great by Zoom.

"Justice Department wrong to encourage prosecutions it's fearful of losing"

That's the title of my latest piece in The Hill.  Below is the introduction.  Would love your feedback.

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.

There's a new guideline manual!

 

We haven't had a new one since the red 2018 version because we haven't had enough Sentencing Commissioners.  Now we have the blue cover with yellow lettering.  The sole Commissioner, Charles Breyer, wrote a letter explaining what's up:

"As many of you know, since early 2019, the United States Sentencing Commission has been operating without the quorum of four voting members required by statute to promulgate amendments to the sentencing guidelines, policy statements, and commentary...

The Commission has received feedback indicating that hard copies of the 2018 Guidelines Manual are significantly worn and that there is a limited supply of new copies available. In addition, the Commission has identified the need to update Appendix B, the accompanying volume to the Guidelines Manual that compiles the principal statutory provisions governing sentencing, the Commission, and the drafting of sentencing guidelines. Congress has amended several of the statutory provisions contained in Appendix B since the Commission released the 2018 Guidelines Manual.

As acting chair of the Commission, I am pleased to transmit this edition of the Guidelines Manual..."

You can listen to Judge Breyer discuss sentencing and other issues on my podcast here.

Big ABA White Collar Conference in Miami

 The annual White Collar Conference is back on after the COVID pause.  It's being held at the Miami Hyatt.  Typically 1,500 lawyers descend in Miami and try to fit in at all of the clubs on Brickell and Miami Beach.  This year, though, only about 500 lawyers are here. 

In addition to COVID-anxiety, many have speculated that attendance isn't at normal levels because of the ABA fight with the Florida Supreme Court over CLE credits.  Florida Bulldog covers it here:

The Florida Supreme Court seems to be buffing its ultra-rightist image by picking a fight about diversity with Florida Bar leaders and the American Bar Association.

Propelling it all is a controversial 1978 U.S. Supreme Court decision that outlaws “reverse discrimination,” Regents of the University of California v. Bakke. Florida’s high court is resurrecting Bakke to suggest that a diversity policy is really an unfair quota intended to displace white men in favor of women and minorities.

Traditionally the court wields its power over the Florida Bar only after weighing all sides of an issue. It takes in facts and opinions from the legal community, then makes or changes rules for everything from lawyer discipline to divorce procedures.

Not this time. The subject is Continuing Legal Education (CLE), the tightly regulated system that licensed lawyers use to keep up with developments in their practice areas.

In an unusual move, the justices accepted no input before rejecting a pro-diversity policy for CLEs that was recently adopted by the Bar’s Business Law Section, copying a 2017 ABA guideline. Both set numerical goals for CLE faculties so they represent all races, genders, ethnicities and viewpoints.

“We don’t exclude anybody from participating in the panels,” ABA President Patricia Lee Refo has explained. “What we do, where necessary, is to expand the size of the panel to include nontraditional voices.”

Although no white male Florida lawyers had reason to complain about getting kicked off Continuing Legal Education panels, the Florida Supreme Court decided to strike down the diversity policy on its own. Not a single self-identified injured party presented a “case or controversy,” the standard trigger for litigation.
Court: ‘Quotas’ taint Continuing Legal Education

The court’s April 15 ruling prevents Florida lawyers from earning CLE credits for ABA courses. According to a majority of the justices, the courses are corrupted by “quotas” just like Business Law Section courses would have been under the rejected policy.

“It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination,” the court declared in its unsigned opinion.

Sentencing Commission trying to pull a fast one on district judges

 This is crazy.  The Sentencing Commission released a sentencing tool called JSIN so that judges can see average sentences before making a decision.  The problem -- the statistics exclude all sentences in which the judge did not impose incarceration.  Michael Yeager discusses the flawed data in this article at Law360:

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Supreme Court new argument style

 The Supreme Court has a new argument format, as detailed in this Court guide to oral advocates on page 7.  Jonathan Adler explains it here:

The Supreme Court has been utilizing a new oral argument format this term. Audio of the arguments is streamed live through the Court's website. Advocates get a brief opportunity to introduce and frame their case, followed by a period of open questioning, followed by an opportunity for each justice, in order of seniority, to ask additional questions they may have. ... The new format seems to result in longer arguments, but also more probative ones, and live audio is great.

One interesting development with the new format is that Justice Thomas has asked the first question in the vast majority of arguments thus far. Indeed, as of yesterday, Justice Thomas had asked the first question to all but one of the advocates so far this term. This is a positive development, as Justice Thomas' questions are good ones.

That last part about Justice Thomas now asking questions has been really interesting.  Many have said that he really enjoyed asking questions during the telephonic arguments where questioning would go in order of seniority.  And because he liked it, he likes to get his questions in first after the advocates finish their brief introduction.

Justice Sotomayor explained that the format of questioning changed because the female Justices were getting interrupted more often than their male counterparts.   

Shame on you prosecutors. Shame.

 Prosecutors were very bad in a recent trial before Judge Cooke. So bad, the 11th Circuit called them out:

More broadly, however, I feel compelled to address the  prosecution’s conduct and the tactics it employed throughout the trial. The prosecution fell short of the high level of professionalism that we expect prosecutors to embody, even if their actions did not rise to the level of misconduct. An unfortunate but notable feature of this trial was that the district court exerted considerable time and energy corralling the prosecution’s often wayward tactics. Starting in voir dire and continuing through the testimony of multiple witnesses, the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them, eliciting remarks from the court including:

• “Counsel, you know that’s improper.”
• “[W]hy would you go there?”
• “We went over this. . . . I may be wrong, but I ruled. Let’s go.”
• “We’ve had this conversation through other witnesses. Counsel, move on.”
• “We did this yesterday. I’m not revisiting. Anybody [who] wants to go back to the transcript, can.”
• “I don’t know . . . how many other languages to speak to you. . . . I said how to proceed. Proceed that way.”
• “What you have to do is to remember we have had some rules in this trial and somehow they seem to have been forgotten.”

The court’s admonitions, it seems, had little effect. After a particularly volatile exchange between a prosecutor and defense witness Miller, in which the prosecutor admitted that he lost his composure, the district court warned that he was “close” to causing a mistrial. Afterward, outside the presence of the jury, she admonished the prosecutor, telling him: “You’re better than having to go to the lowest part of your anger in order to examine this witness. . . . [Y]ou’re an experienced cross-examiner. You didn’t have to do
that. I would have expected that of someone of less experience than you.” The district court lamented that things “got very messy and uncontrolled.”

But apparently not bad enough to get a new trial or reversal. Instead of any actual consequences, the court says, in a concurrence by all three judges, that the prosecutors shouldn't do this again.  

Ha!  

Nothing is going to change regarding the epidemic of prosecutorial misconduct until there are some consequences.  I mean, the prosecutors in this case aren't even named in the opinion.  Defendants receive obstruction enhancements for less.  Walks of shame are not enough...

11th Circuit changes font and format of its opinions

 You thought we only covered the bickering amongst our district judges?  No, dear readers! We also break the important news in the 11th Circuit, including that the court finally updated its font and format.  It used to look like this:

And here's the new one:

Breaking -- Ryon McCabe is your new Magistrate Judge

 

It looks like the judges worked through their deadlock... by turning to the AO's published guidance which permits for a revote and if that doesn't result in a majority, then the Chief Judge gets to choose.  It's unclear whether the revote broke up the logjam or whether the Judge Altonaga had to make the selection, but either way, it's over.

Congratulations to Ryon McCabe, a really good guy.  We had cases against each other when we were both new lawyers (he was an AUSA and I was an AFPD).  He was also honorable and is a smart guy.  He's been in private practice for some time now and McCabe Rabin.  The FBI will do its background check, which usually takes a few months, and then he will sit in West Palm Beach.