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.