One many saved and another to be executed

1.  Big win for Alfredo Izaguirre, who got an acquittal on murder and kidnapping charges before Judge Moore yesterday.  From the Herald:

A member of the Santiesteban clan’s pot-peddling ring bear-hugged his defense attorney Monday after he was acquitted of killing a rival gang member who stole a load of marijuana from the Southwest Miami-Dade grow-house organization.
Norge Manduley was found not guilty of kidnapping and killing the robber after a handful of government witnesses testified in federal court that he was the shooter, but a couple of defense witnesses countered that he wasn’t the triggerman who killed Fidel Ruz Moreno four years ago.
If convicted, Manduley, 39, would have faced a mandatory life sentence.
“There was a lot on the line here,” Manduley’s attorney, Alfredo Izaguirre, said after the 12-person jury concluded deliberations following a one-week trial.
“The government had a bunch of co-defendants who were all dirty and the jury didn’t like that,” Izaguirre told The Miami Herald. “The government brought no independent witnesses. I brought two independent witnesses who identified another person as the shooter.”
The jury, which began deliberations late Friday, found Manduley guilty of one count: conspiring to possess with intent to distribute less than 100 marijuana plants. Sentencing is set for July 30 before U.S. District Judge K. Michael Moore.

2.  In another case, the 11th Circuit affirmed Florida's decision to execute John Ferguson, who believed he was the "prince of god."  Here are the key portions of the 65-page opinion:

The habeas petitioner in our case, John Ferguson, contends that under the Panetti decision he is mentally incompetent to be executed. As the facts come to us, Ferguson has a mental illness but he does understand that he is going to die by execution, and he understands that it is going to happen because he committed eight murders. Ferguson also believes, as tens of millions if not hundreds of millions of other people do, that there is life after death. Countless people also believe, as he does, that they are among God’s chosen people. But Ferguson’s religious belief is more grandiose than that because he believes that he is the Prince of God. The Florida courts rejected Ferguson’s Panetti claim, and we must decide whether their decision to do so “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” or was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). The key words being “clearly established law.” Or the lack of it.

***

AEDPA “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 786 (quotation marks omitted) (emphasis added). There was no extreme malfunction in his case. The Florida Supreme Court properly applied Panetti’s “rational understanding” standard, considered conflicting expert testimony about the nature and severity of Ferguson’s mental illness, and made a determination about his competency to be executed that is by no means beyond any possibility for fair-minded disagreement. AEDPA requires that federal habeas relief be denied and that we affirm that denial.

 Prior blog coverage of the case here.

Read more here: http://www.miamiherald.com/2013/05/20/3407160/miami-dade-man-acquitted-of-killing.html#storylink=cpy

Joint post by Justice Building, South Florida Lawyers, and Southern District of Florida Blogs

You lose your rights, not with a bang, but with a whimper. One small encroachment after another. A bureaucrat pushes the edges here, a prosecutor challenges the boundaries in a few cases there. No one says or does anything and then you look up and suddenly a cherished right is gone.
Nothing is more insidious and dangerous to our constitutional rights than a bureaucrat who, under the cover of a government agency, seeks to intimidate someone. That is why the letters we have posted  from the Florida Bar to attorney and blogger William Gelin have so alarmed us:the bloggers who run the Justice Building Blog, the South Florida Lawyers Blog, and the Southern District of Florida Blog.

WIlliam Gelin runs the JAA Blog which covers the Broward County Courthouse. To Mr. Gelin's credit he has never sought to hide his identity as the lawyer behind the blog. As a blogger who has openly challenged the way things are done in Broward, Mr. Gelin has courageously taken on numerous people in Broward County, including judges. Now, apparently after a series of posts about two Judges in West Palm Beach and Broward County, (ironically) anonymous bar complaints have prompted the Bar to send Mr. Gelin letters seeking him to admit or deny his involvement in the JAA Blog.

We as the legal blogging community in Miami view these letters as an unprecedented attack on the First Amendment and freedom of speech. The letters are chilling, and will have a chilling affect on the free speech of lawyers. Judges are invested with responsibilities and powers and all too often those powers cloud their judgment. The ability of lawyers to freely comment on a Judge represents an important check on those powers. The ability of citizens to write about the issues of the day has a long and storied history in our country. James Madison anonymously published many of the federalist papers under the pseudonym Publius in the local newspapers of the time. Blogging, anonymous and otherwise, serves a similar purpose.

The Florida Bar's letters to Mr. Gelin amount to both a fishing expedition and a veiled threat for him to stop criticizing Judges from the pages of his blog.  We jointly condemn the letters the Bar has written, and stand behind our colleague in this matter. That is why all three blogs have taken the unprecedented step of running this post simultaneously.We urge our readers to voice their support of Mr. Gelin by writing to the Bar to condemn the actions of the Bar Counsel in this case.


Thank you.

Justice Building Blog
South Florida Lawyers Blog
Southern District of Florida Blog

Friday morning news and notes

1.  The former Hialeah mayor and his wife have been indicted on tax evasion charges.  Via Jay Weaver:

In 2010, while peeling back the layers of Hialeah’s “shadow banking’’ industry, federal prosecutors pressed the city’s mayor about allegations that he had collected exorbitant cash interest payments on more than $1 million in loans he made to friends and acquaintances.
Julio Robaina’s answer? Not true.
On Thursday, Robaina’s words came back to haunt him, when a federal grand jury indicted him and his wife on charges of conspiring to evade income taxes, making loans at sky-high interest rates, failing to report secret cash payments — and lying to federal authorities.
He made the statements at issue in August 2010, while preparing an unsuccessful run to become Miami-Dade County mayor.
Robaina, 47, and his wife Raiza Villacis Robaina, 39, who operated two loan companies, are accused of receiving the undisclosed cash payments as interest on the personal loans they made to friends, including convicted Ponzi schemer Luis Felipe Perez. The loans were doled out as part of an informal banking system operating below the radar in Hialeah.
The indictment alleges the couple tried “to enrich themselves by concealing, disguising and failing to report the true and correct amount of their income to the Internal Revenue Service.”
Husband and wife, scheduled to surrender to authorities and have their initial court appearance Friday, proclaimed their innocence through Julio Robaina’s defense attorney.

 

2.  The defendants in the B-Girl case who went to trial and lost got whacked; the judge went above the guidelines for each of them according to the Herald.  Jay Weaver is all over the courts today:

A South Beach nightclub operator was sentenced Thursday to 12 years in prison for directing a bunch of “bar girls” to seduce and swindle customers at a string of Russian-style lounges.
Albert Takhalov was convicted in December along with two other businessmen of fleecing hundreds of thousands of dollars from dozens of male patrons by racking up bogus bills for champagne, vodka and caviar on their credit cards at seven private Miami Beach clubs.
Takhalov, 31, cried as he apologized to U.S. District Judge Robert Scola, saying he made a “great mistake” but “had no intention of breaking the law.” Other tearful family members asked for leniency, to no avail.
Scola, who found that Takhalov committed perjury on the witness stand at his trial, expressed no sympathy for the defendant, saying “he doesn’t have a right to lie.”

3.  Paula McMahon covers the big takedown in the staged accident case:

The vehicle collisions looked like typical South Florida accidents with motorists and passengers reporting they needed treatment from chiropractors and massage therapists.
But investigators said the crashes were carefully staged by willing participants who were trained how to defraud the insurance system to make money for themselves and a highly organized group of medical professionals, clinic owners and recruiters.
Investigators announced charges Thursday against 33 people they said were involved in staging accidents for insurance fraud — the latest hit in a three-year investigation that identified about $20 million in fraudulently obtained payouts from insurers.
"If you get upset about your car insurance premiums going up, this crime is one of the reasons why," said William J. Maddalena, the assistant special agent in charge of FBI Miami. "Every time an insurance payout is made for a staged accident in Florida, we all feel the pain in the pocketbook."
Operation Sledgehammer, a state and federal investigation, has led to charges being filed against a total of 92 defendants from Palm Beach, Broward and Miami-Dade counties. Those already convicted have been ordered to pay more than $5 million in restitution to insurance companies so far, prosecutors said.

The operation got its code name when undercover investigators saw suspects using a sledgehammer to make vehicles look like they'd been in an accident.
The fraud involved a "massive," complicated, highly organized scheme that investigators said included everyone from clinic owners and medical staff who provided fraudulent diagnoses and prescribed fake treatment, to office workers who billed for the services, and recruiters who found accident "victims" and trained them to stage collisions on the streets and highways of South Florida.
 

AUSA Mike Garofola's profile on ABC.com for the Bachelorette

Well, you all remember that local AUSA Mike Garofola is going to be appearing on the Bachelorette.  Now, his profile is on ABC.com.  Here's the picture:




Below is the questionnaire that he filled out for the show, and here are the highlights posted on the site:


What do you hope to get out of participating in this television show?
I hope to find the woman I am going to marry and have a blast doing it while friends watch it unfold on television.

If you were stranded on a desert island, what 3 things would you bring and why?
1. Insulin - to survive
2. Food/water - see #1
3. Fully charged cell phone - To ask for transportation off said island

Describe your best friend of the opposite sex and why she deserves that title.
Ashley - She has always been there for me during my worst times, is very perceptive and very feisty. She sugar coats nothing, which is good because I can't have sugar.

Where do you see yourself in five years?
I will be married with two children and another on the way, in an amazing home, and at another stage of my professional career.

If you wanted to approach a woman you had never met before, how would you go about it?
I just go up to her and introduce myself. Nothing to it. No gimmicks.

What's your biggest date fear?
I don't have any "fears" when I go on a date.

Kosher Prisons

Curt Anderson is covering the kosher meal dispute in Florida jails.  Here's the latest twist and turn from the 11th Circuit:

Despite Florida's recent change of policy, a federal appeals court Tuesday reinstated a lawsuit filed by a Jewish prison inmate who claimed his rights were violated by the state Department of Corrections' previous refusal to serve kosher meals.
The 11th U.S. Circuit Court of Appeals ordered a lower federal judge to reconsider the lawsuit filed in 2010 by Bruce Rich, an Orthodox Jew who is serving a life sentence at Union Correctional Institution. The judge previously dismissed the lawsuit at the state's request, citing lack of evidence.
Florida announced earlier this year it would resume offering kosher meals statewide by September to prisoners who qualify. The appeals judges, however, determined that Rich deserved a new hearing on his lawsuit despite the policy change.
"There is nothing to suggest that Florida will not simply end the new kosher meal program at some point in the future, just as it did in 2007," they wrote. The judges also noted that the policy was changed just two weeks before oral arguments were held in Rich's appeal and initially affected only his prison.
The ruling comes as a federal judge in Miami is considering a similar lawsuit filed by the Justice Department's Civil Rights Division, which contends that the new prisons diet program should be overseen by court order. U.S. District Judge Patricia Seitz has scheduled a June 4 hearing in that case.
State officials "continue to argue that they may deny a kosher diet to prisoners at any time," the federal lawyers wrote.

Tuesday News & Notes

1.  Which group is more diverse?  The U.S. Supreme Court or the lawyers who argue before it? 

The Supreme Court by a long shot.  From the AP:

In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

***

The statistics from the court term, though, also reveal a lack of African-American and Hispanic lawyers in the elite Justice Department unit that represents the federal government at the Supreme Court.

The top supervisory positions in the Office of the Solicitor General all are held by men, though there are six women in the office who argued high court cases this term.

The office serves as a pipeline to the big firms that dominate the argument calendar at the court. Lawyers in the office make several arguments a term and acquire the experience and ease of standing before the justices that make them attractive to private firms.

2.   What does defalcation mean? Even though the Urban Dictionary doesn't define it, the High Court has finally decided:

After a century and a half of uncertainty, the U.S. Supreme Court on Monday finally decided the meaning of "defalcation," a word in the bankruptcy code that can refer to embezzlement but also, more generally, misuse of funds.
Under federal bankruptcy law, anyone acting as a fiduciary who later seeks bankruptcy relief cannot discharge debts if there is evidence of "fraud or defalcation."
In a unanimous decision, the court said that for a court to make a defalcation finding about a trustee, the person in question must be acting with gross negligence or have some knowledge that what he or she is doing is improper.
In the past, the precise meaning of defalcation had not been determined by the Supreme Court. The term was first used in bankruptcy law in 1841 and in relation to discharge of debt in 1867.
In making its views known, the court handed a victory to Randy Bullock, an Illinois man who is filing for bankruptcy.
Bullock wanted to discharge debt concerning money he owes for his role overseeing his father's life insurance trust. He used money from the trust to make investments for himself and other family members. He eventually paid the money back with interest.
The question before the court was whether Bullock's actions, which did not deprive the trust of any money, fitted within the legal definition of defalcation.
The court did not make a final determination on that point, instead remanding the case back to the district court so that the new definition of defalcation can be applied.

3.  Sixty percent of the time the Supreme Court is unanimous.  I was surprised (via USA Today):

With three more 9-0 rulings issued Monday, the nine justices of the Supreme Court have now reached unanimous decisions in nearly 60% of the cases decided this term -- a loftier rate of agreement than in recent years.
That percentage is sure to drop as more controversial cases are decided between now and the end of June, when the 2012 term ends. Last term, the justices were unanimous 45% of the time. The recent high was 48% two years ago. From 2006-08, fewer than four in 10 rulings were unanimous.
For this time of year, however, the 60% mark is quite an achievement for a court narrowly divided between Republican and Democratic nominees. During the past three years, slightly more than half the decisions were unanimous at this time, according to detailed statistics kept by Scotusblog.com.
Chief Justice John Roberts puts a premium on reaching consensus. So he likely was pleased Monday when the three decisions announced by Democratic nominees Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan each garnered nine votes. None of the other justices even chose to write separate concurring opinions.

11th Circuit conference criticized

Seems like every judicial conference is under attack these days.  From Jaime Dupree of the AJC:

Even as automatic budget cuts force various federal agencies to cut spending, a group of federal judges from the Atlanta-based Eleventh Circuit went ahead with their 2013 Judicial Conference last week, spending several days - and maybe several hundred thousand dollars - at a golf resort and spa in Savannah, Georgia.
"The Eleventh Circuit did not cancel the 2013 conference because it is an infrequent and valuable meeting of judges and attorneys that improves the administration of justice within the circuit," said James Gerstenlauer, the Chief Executive of the Eleventh Circuit, as he defended the legal gathering.
"In addition, there were significant financial costs associated with cancelling the conference because of contractual guarantees made to the hotel and the conference center," Gerstenlauer added in an email.
The gathering of 167 federal judges from Georgia, Florida and Alabama came just weeks after the Chief Judge for the Eleventh Circuit was quoted on a legal web site as saying the $85 billion sequester was having a "devastating impact" on the federal judiciary.
The last judicial conference held by the Eleventh Circuit was in May of 2011 at the Swan Hotel in Orlando, Florida; Gerstenlauer said that gathering cost "about $211,000 in travel and lodging expenses" for 159 judges.
"The government travel costs for the 2013 conference are not yet compiled," Gerstenlauer said.
***
The theme of the conference was, "Justice, History, and Civil Liberties," and featured "historical presentations about Thomas Jefferson and the trial of the slave ship Wanderer."
"No taxpayer funds were spent for speakers for the conference or for the slave ship Wanderer presentation," Gerstenlauer said.

 The article also has a response from the 11th Circuit, which is interesting. Here's a portion of it:

No taxpayer funds were spent for speakers for the conference or for the slave ship Wanderer presentation.

Attendees received retractable pens, which cost approximately 58 cents each; no taxpayer funds were used to purchase the pens. No gifts were provided to conferees.

The Eleventh Circuit did not cancel the 2013 conference because it is an infrequent and valuable meeting of judges and attorneys that improves the administration of justice within the circuit.  In addition, there were significant financial costs associated with cancelling the conference because of contractual guarantees made to the hotel and the conference center.

The travel expenses for federal judges were paid with government funds pursuant to travel regulations.  No reimbursements were provided for either their spouses or family members.  Attorney attendees paid a $375 conference registration fee and paid their own travel expenses. The government travel costs for the 2013 conference are not yet compiled.  

What are your thoughts on judicial conferences?

Gen. William Suter

The Clerk of the U.S. Supreme Court addressed the Federal Bar Association yesterday at the Hyatt.  It was a very entertaining speech.  Lots of good stories about the Court.

But Suter was also substantive.  For example, he predicted that the exclusionary rule would be abolished in the near term.  He reasoned that the exclusionary rule was not as necessary any longer because police are better trained than they used to be.

He also made predictions about the affirmative action case, and said that if the case was remanded for strict scrutiny analysis that it would have a hard time getting back before the Supreme Court because Justice Kagan was recused.

Judge Graham asked him about cameras in the courtroom and explained that no one had taken advantage of the pilot program here in his division the SDFLA.  Suter was not in favor of cameras, saying Congress should pass a budget first and that cameras would demean the Court.  He also said no one would watch.  Not a convincing argument for me, but that seems to be the feeling of the Court.

I asked him if he read SCOTUSBlog.  He said yes, he needed to find out what was going on in the Court every morning.  Good stuff.

U.S. Supreme Court Clerk William Suter to speak to the Federal Bar today

They call him "The General" and he'll be at the Hyatt at noon. 

He's retiring at the end of this Term after 20 years at the High Court.

Should be an entertaining talk.

11th Circuit

The judges are back from the 11th Circuit conference, which was in Savannah, Georgia last week.

Apparently the agenda included a re-enactment of a slavery trial that occurred in Savannah and also a speech by a Thomas Jefferson impersonator.



Meantime, there are still two openings on the 11th Circuit and apparently no progress being made in moving those nominations forward.

Since the 11th got back to business this week, it has ruled on an interesting case involving Cuba.  From Bloomberg:

Florida lost a court bid to reinstate a law prohibiting state agencies from entering into contracts worth $1 million or more with companies that do business with Cuba.
The U.S. Court of Appeals in Atlanta said today that the Florida measure “reaches far beyond the federal law in numerous ways and undermines the president’s exercise of the discretion afforded him by Congress.” A three-judge panel upheld a July ruling by a lower court in Miami barring enforcement of the law.
The “Cuba Amendment” legislation was signed on May 1, 2012, by Florida Governor Rick Scott, a Republican, and covers an estimated $8 billion in annual state contracts, the appeals court said. The law, designed to apply economic pressure to the communist regime in Cuba beyond the U.S. government sanctions already in place, was challenged by Odebrecht Construction Inc. 

And back home in South Florida, it looks like Judge Rosenbaum will be busy with this case filed by Frank Haith.  From the Herald:


Former University of Miami basketball coach Frank Haith on Monday morning filed a petition in Miami-Dade federal court seeking subpoenas to try to uncover whether his checking account records were accessed illegally by unauthorized parties as part of the NCAA Nevin Shapiro investigation.
He and his attorney, Michael Buckner, want to be able to depose Bank of America employees and make sure the bank preserves evidence in anticipation of a civil lawsuit.
The Rule 27 Petition, obtained by The Miami Herald, states that in October 2012, Haith and his wife, Pamela, became suspicious of a possible privacy breach and have tried unsuccessfully to resolve the issue through repeated requests to the bank. If a Bank of America employee or agent permitted an unknown party to view or procure the records, it could be a violation of federal and state laws.
Haith, now at the University of Missouri, had been asked by the NCAA to provide microfiche copies of three checks dated June 10, 2010. He had already provided photocopies of those checks, and other financial documents, in October 2011, but the NCAA wanted clearer images. Each check was for $3,200 andmade out to his assistant coaches — Jorge Fernandez, Jake Morton and Michael Schwartz.

Read more here: http://www.miamiherald.com/2013/05/07/3383416/bank-account-of-ex-um-coach-frank.html#storylink=cpy

How pro-business is this Supreme Court

Apparently, the most pro-business Supreme Court ever... From the NY Times:

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

 

I wonder how district courts around the country as a whole rank now -- I would bet that like the Supreme Court, they are more pro-business now than ever. 

Cuban spy to give up citizenship and remain in Cuba

Curt Anderson has all of the details:

One of the convicted spies known as the "Cuban Five" will be able to permanently remain in Cuba in exchange for renouncing his U.S. citizenship, a federal judge ruled Friday after U.S. officials dropped their initial opposition.
Rene Gonzalez, 56, has been in Cuba since April 22 to attend memorial services for his father, who died earlier last month. Gonzalez was released from U.S. prison in October 2011 but was still serving three years' probation, which the Justice Department had previously insisted must be completed in the U.S.
This week, however, the Justice Department reversed its position, leading to U.S. District Judge Joan Lenard's ruling accepting Gonzalez's offer to give up U.S. citizenship.
Reached in Havana, Gonzalez told The Associated Press he was thrilled but wanted a chance to review the judge's decision.
"First I have to read the order," he said. "If the order is real, it will be a great relief to me."

Nominees for Florida Circuit Court

The blog generally doesn't cover state court appointments (that's Rumpole's domain), but that latest Circuit Court seat has some interesting applicants from the federal family.  The Governor will decide from the following five, three of which have federal court ties:

Jason Bloch
Donald J. Cannava
Wendell M. Graham
Ayana Harris
Robert Luck

Bloch is a county attorney.  Harris is a AFPD.  Luck is a AUSA.  Cannava and Graham are county judges.

Above the Law ranks law schools

It's a very interesting read and analysis:

The basic premise underlying the ATL approach to ranking schools: the economics of the legal job market are so out of balance that it is proper to consider some legal jobs as more equal than others. In other words, a position as an associate with a large firm is a “better” employment outcome than becoming a temp doc reviewer or even an associate with a small local firm. That might seem crassly elitist, but then again only the Biglaw associate has a plausible prospect of paying off his student loans.
In addition to placing a higher premium on “quality” (i.e., lucrative) job outcomes, we also acknowledge that “prestige” plays an out-sized role in the legal profession. We can all agree that Supreme Court clerkships and federal judgeships are among the most “prestigious” gigs to be had. Our methodology rewards schools for producing both.
Now more than ever, potential law students should prioritize their future job prospects over all other factors in deciding whether to attend law school. So the relative quality of law schools is best viewed through the prism of how they deliver on the promise of gainful legal employment. The bottom line is that we have a terrible legal job market. Of the 60,000 legal sector jobs lost in 2008-9, only 10,000 have come back. So the industry is down 50,000 jobs and there is no reason to believe they will ever reappear. If you ignore school-funded positions (5% of the total number of jobs), this market is worse than its previous low point of 1993-4. The time has come for a law school ranking that relies on nothing but employment outcomes.

Tuesday News & Notes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maybe it's time to stop riding the bike

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

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

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

 

Man, that's rough.

 

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

 

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

This part of the decision was also interesting:

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

Friday news and notes

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

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

Here is the transcript from the hearing.

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

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

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

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

Where in the world is the Federal JNC?

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

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

What's going on?

Don't rush to judgment

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

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

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

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

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

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

How was an arrest made without any evidence?  

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

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

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

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

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

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

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

Fred Haddad has some good stories:

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

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

Thursday news and notes

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

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

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

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

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

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

Reality Steve cites to the SDFLA Blog

Well, now the blog has officially made it.  Yes, links from Above the Law and How Appealing are nice, but now we've been cited to on Reality Steve:

Let me first confirm two more contestants for you. The first guy was really the only bit of info I’ve tweeted out in the last two weeks. I tweeted him out last Wednesday right before I left for California.
_________________________________________________________

14. Mike Garofola: 31 or 32, Florida, Assistant United States Attorney. I first tweeted him out last Wednesday before I left for California once I was notified this blogger had posted him. So a big thanks to David Oscar Markus on that one. He’s one of the two unidentified guys on the red team during the dodgeball date.

In other news, Hafiz Khan is seeking a new trial based on Curt Anderson's story about the snitch.  Curt Anderson covers the story about his story:

A Muslim cleric convicted of terrorism support charges for sending thousands of dollars to the Pakistani Taliban is seeking a new trial, partly because of an Associated Press interview with the key FBI informant, according to documents filed in federal court.

The attorney for 77-year-old Hafiz Khan said in the motion filed Monday that the informant provided previously undisclosed information in the March 8 interview with the AP. Informant David Mahmood Siddiqui gave the interview describing his work for the FBI a few days after a jury convicted Khan of four terrorism support-related charges.

Khan's attorney, Khurrum Wahid, said in the documents that examples of new material include the length of time Siddiqui worked on the case and details about his perilous fall 2010 undercover trip to Pakistan's Swat Valley to meet people the FBI suspected were Taliban operatives financed by Khan.

"Mr. Khan was unaware of the information that came to light only when the informant Siddiqui spoke to the press after the verdict," Wahid wrote. "This information should have been disclosed."

Obama nominates Judge Bill Pryor to Sentencing Commission

From the Montgomery Advertiser:

President Barack Obama nominated former Alabama attorney general and current U.S. circuit judge Bill Pryor to be a commissioner on the U.S. Sentencing Commission, the White House announced Monday evening.
Pryor, who served as attorney general from 1997 to 2004, serves on the U.S. Court of Appeals for the 11th Circuit. President George W. Bush appointed Pryor to the federal bench in 2004.
The sentencing commission, according to its website, is an independent agency within the judicial branch that was set up to establish guidelines and practices for sentencing in federal courts, to assist Congress in developing policy related to crime, and to analyze and research issues related to federal crime and sentencing.
Pryor would serve a term that expires Oct. 31, 2017, and would replace commissioner William B. Carr, whose term has expired.
Obama also intends to nominate Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, and U.S. District Judge Charles Breyer of the Northern District of California to the sentencing commission, according to the White House.

Michael Caruso stepping up

The blog previously covered how sequestration was forcing the federal defenders to be furloughed every Friday for the rest of the year, resulting in a 20% pay cut.  Really horrible.  The Sun-Sentinel has picked up the story and discusses how the bosses at the FPD's office are really stepping up:

They say good bosses never ask employees to do something they wouldn't do themselves – even in a federal budget crisis.
The sequester has forced the Federal Public Defender's Office to close on Fridays because of employee furloughs.
But low-income people still get arrested, so the top boss in the office – the appointed Federal Public Defender Michael Caruso – has been personally handling Friday magistrate court duty in Miami while supervisors Robert Berube and Peter Birch represent inmates in Fort Lauderdale and West Palm Beach.

Congrats to Chief Judge Moreno

The Notre Dame Law Association has awarded Chief Judge Federico Moreno with its St. Thomas More award:

The Notre Dame Law Association will award the St. Thomas More Award to the Hon. Federico A. Moreno (A.B. ’74) on April 12, 2013.

Judge Moreno was born in 1952 in Venezuela, and received his A.B. from Notre Dame, cum laude, in 1974. After graduation, he worked briefly as a teacher and then attended the University of Miami Law School, from which he received his J.D. in 1978.After law school, Judge Moreno was in private practice, and served indigent clients while employed by the Federal Public Defender’s Office in Miami. In 1986, Judge Moreno was appointed to the Dade County Court bench and then to the Circuit Court a year later. President George H. W. Bush appointed Judge Moreno in 1990 to the United States District Court for the Southern District of Florida. He currently serves as Chief Judge for one of the largest federal courts in the country.

Judge Moreno served on the boards of Legal Services of Greater Miami, the Cuban American Bar Association’s Pro Bono Program, and the United Way. He received the Pro Bono Service Award of the Cuban American Bar Association and the United Way’s “People Helping People” Award. His activities also include the membership in the Notre Dame Club of Miami and the University of Miami Law School Alumni, of which he was a Director.

Federico Moreno has been married for 35 years to his wife, Cris. They have three children: Cristi, who graduated from Notre Dame Law School and is currently an Assistant U.S. Attorney; Ricki, who graduated from Notre Dame with a degree in accounting and received his MBA from Wharton; and Victoria, who is in her senior year at Notre Dame.

The St. Thomas More Award honors graduates of the University of Notre Dame “who have distinguished themselves as jurists or public servants, while exhibiting uncompromising integrity and loyalty to conscience.”

Since instituted by the Notre Dame Law Association in 2000, the award has been presented two other times: to Rev. Theodore Hesburgh, C.S.C., in 2004, and to Dean Patricia A. O’Hara in 2009.

  

Congrats!