Gorsuch and Sotomayor channel Justice Scalia

From ScotusBlog:

But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

In other news, Willie Falcon was deported... but not to Cuba.  He was sent to the DR.  From the Miami Herald:

One of South Florida’s most infamous cocaine cowboys — Willie Falcon — has been deported to the Dominican Republic after his bid to stay in the United States failed following his 20-year prison sentence on a drug-related money-laundering conviction.

Falcon, 62, was deported earlier this month because he was a convicted felon without U.S. citizenship. He had been held in Louisiana since June 2017 by immigration authorities who at first sought to deport him to his native Cuba.

But Falcon, who recently lost his final federal court appeal to block his deportation, won’t be sent to Cuba as he and his Miami family members initially feared, according to federal officials. The Dominican Republic government agreed to accept Falcon as a resident.

Monday news and notes

1.  Donald Trump made a joke about Justice Scalia’s wife being busy. Via USA Today:

Amid introducing the awardees of the nation's highest civilian honor, some online noticed the president seemed to include a joke about Scalia's virility.

Trump welcomed Scalia's wife, Maureen, and their nine children who attended the White House ceremony. After reading the names of each of the nine children, Trump seemed to slip in a joke about the couple's sex life.

"You were very busy. Wow," the president said, causing those in the room to chuckle. "Wow. I always knew I liked him."

2.  Stephen Colbert interviews Justice Sotomayor. Here it is on YouTube.

3.  Trump’s nominee to fill Justice Kavanaugh’s spot on the D.C. Circuit is a defender of dwarf tossing.  From MotherJones:  “Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.”

4.   The Florida Supreme Court says that judges and lawyers can be Facebook friends.  Here’s the Law.com article.

D’oh! Cut and paste job goes bad... charges against Assange revealed in unrelated court filing.

The Washington Post has the story, which is every lawyer’s nightmare when they hit the file button on cm/ecf:

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.
The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”
Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

Joshua Stueve, a spokesman for the U.S. attorney’s office in the Eastern District of Virginia, said, “The court filing was made in error. That was not the intended name for this filing.”

Miami AUSA opens in El Chapo case

It’s AUSA Adam Fels for the prosecution.  He opened this way: “Money, drugs, murder and a vast global narcotics trafficking organization — that is what this case is about, and that is what the evidence in this case will prove.”  More from the NY Post:

Opening statements finally began Tuesday in the trial for Joaquin “El Chapo” Guzman — with prosecutors describing some of the notorious accused drug lord’s most heinous acts for jurors, along with his weapons of choice.

“Some of his favorites include a diamond-encrusted handgun with his initials on it and a gold-plated AK-47,” said federal prosecutor Adam Fels.

He recounted how Guzman allegedly ordered hits on his own loved ones and used a small private army — consisting of hundreds of men “armed with assault rifles” — to take out his rivals.

For the defense:

Guzman’s defense team, meanwhile, claimed during its opening statements that prosecutors were trying to use him as a “scapegoat.”

“There’s another side to this story, an uglier side,” said attorney Jeffrey Lichtman. “This is a case that will require you to throw out much of what you were taught.”

According to Lichtman, the real criminal mastermind is Ismael “El Mayo” Zambada — current leader of the infamous Sinaloa Cartel. The lawyer described the 70-year-old former poppy-field worker as “the biggest drug trafficker in Mexico.”

Chuck Grassley and George Will (and lots of other GOPers) think we need sentencing reform

Here’s The NY Times on Grassley’s push for federal sentencing reform, which now has a real shot of passing:

A bipartisan group of senators has reached a deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.

The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

George Will has this piece, which addresses a state sentence of life for a juvenile:

Parents who have raised sons understand that civilization’s primary task is to civilize adolescent males, a task that is difficult for many reasons, some of which neuroscience explains. The part of the brain that stimulates anger and aggression is larger in males than in females (for evolutionary, meaning adaptive, reasons). And the part that restrains anger is smaller in males. The Supreme Court has noted that adolescent brain anatomy can cause “transient rashness, proclivity for risk, and inability to assess consequences,” thereby diminishing “moral culpability” and, more important, enhancing “the prospect that, as the years go by,” offenders’ “deficiencies will be reformed.” Hence “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ ”

Judges are supposed to be a check on the executive branch. I really don’t understand why sentences aren’t much lower. So many judges have become accustomed to just following the prosecutor/probation officer/sentencing guidelines, that we have one of the highest incarceration rates in the world. It’s absurd. It will be interesting to see how the new crop of Trump judges sentence defendants, especially non-violent first time offenders.