DOJ’s stunning admission in the Roger Stone case shows unfairness of criminal justice system

Assistant United States Attorney Aaron S. J. Zelinsky’s opening remarks before the House Judiciary Committee sets out his argument that Roger Stone received preferential treatment because of his friendship with President Trump.  Most would agree that similarly situated criminal defendants should be treated the same, regardless of their relationship with the President.  But what if that means treating everyone unjustly?

That’s the shocker in Zelinsky’s testimony — he admits that the Department of Justice always seeks to penalize those, like Roger Stone, who proceed to trial. He says: “For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of.”

A quick history.  The Federal Sentencing Guidelines were enacted in 1984. The stated intent of the Guidelines were to bring uniformity to criminal sentencings.  A defendant who robbed a bank in New Hampshire should get the same sentence as the defendant who robbed a bank in Texas.  The system was point based — use a gun, get more points.  Recruit others into the scheme, add some more.  For a while these Guidelines were not guidelines at all — they were mandatory, and judges were forced to impose the calculated sentence absent very rare exceptions.  On first blush, that goal of consistency seems admirable.

But the Guidelines have been a complete disaster.  Judges had no discretion and complained that they were mere calculators, adding and subtracting points.  What were these points even based on? 

Until the Supreme Court stepped in, judges were not even permitted to consider mitigation evidence.  Had the defendant led an otherwise good life?  Served in the military?  Raised a family on her own? Was she elderly or sick? None of it mattered.  Unsurprisingly, sentences dramatically increased in the wake of the Guidelines.  

In addition to sentences shooting up, the number of trials sank.  Before the Federal Sentencing Guidelines were enacted in 1984, about 20% of criminal cases proceeded to trial and 80% pleaded guilty.  After the Guidelines, the number of trials decreased every year and now only about 3% of cases proceed to trial. Judge Jed Rakoff pointed out that even innocent people were pleading guilty. Former Judge Gleeson explained that “the Department of Justice got in the habit long ago” of “strong arming guilty pleas” in part by using urging judges to impose “excessively harsh sentencing ranges” for defendants who have the temerity of proceeding to trial.

Roger Stone’s case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the Guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his guideline range jumped to 7-9 years even though he was a first-time non-violent offender.

Zelinsky, without any sense of horror, says everyone who goes to trial should get this severe punishment determined by some made up point system, while at the same time not taking issue with the fact that the judge in sentencing Stone determined that the Guidelines were way too harsh.  He concedes that the Department of Justice advocates for these absurdly high sentences in every single case where a defendant proceeds to trial with no exception.  That’s the true injustice of our system and that is what needs to be reformed.  Prosecutors should never be seeking 7-9 years for an old, first-time, non-violent offender.  Zelinsky is right that everyone should be treated the same, but that should be with compassion, not with a hammer. 

"As the writer of the Sparks opinion, I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence."

That was Judge Rosenbaum, concurring in this en banc opinion which abrogated United States v. Sparks, 806, F.3d 1323 (11th Cir. 2015).  I'm certainly in favor of having an open mind and re-evaluating past decisions. It's just that I've never seen a judge apologize for an earlier mistake.  Refreshing! Judges can make mistakes. And even acknowledge them!

Justice Jackson had a nice way of putting it when he made mistake:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

I got that Jackson quote from a Twitter comment in response to a tweet I had posted earlier about the decision.  I've been thinking for a long time about switching form the blog to Twitter full time.  Thoughts?  Isn't Twitter easier to follow than a blog?

Anyway, the actual en banc decision is summarized in the first paragraph by Judge Newsom:

Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks, we held that a suspect who “abandons” his privacy or possessory interest in the object of a search or seizure suffers no “injury”—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect’s abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect’s alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue 

D.C. Circuit orders Flynn case dismissed

The 2-1 decision is here.

It’s right on, as I have argued in the Washington Post, USA Today, The Hill, and in this debate hosted by The Federalist Society.

The majority concludes this way:

Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.

The dissent starts like this:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.

What will happen when the SDFLA reconvenes grand juries and starts having jury trials again?

Will it be business as usual?

In New York, there is a huge backlog of criminal cases.  According to the New York Times:

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.

Certain precautions that are being considered may raise legal issues. “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.

“Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.

“If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books.

And grand juries are also presenting a problem, but not as much in the smaller offices:

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis. Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip. And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.

But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Take the capital case of the Uzbek man accused in a 2017 terrorist attack that killed eight people on a Manhattan bike path. More than 1,000 prospective jurors had come in to fill out jury-selection questionnaires, but later were dismissed after Judge Vernon S. Broderick postponed the trial indefinitely because of the pandemic. The process would have to be redone.

At a teleconference in April, a jury official explained that bringing in so many potential jurors might take three days “with things being normal.”

But, with social-distancing guidelines, she added, “I don’t know what the new normal would be.”

Thought experiment

What would have happened if President Obama had Attorney General Eric Holder fire SDNY U.S. Attorney Preet Bharara because Bharara was investigating Obama and members of Obama’s inner circle?

I mean, remember the reaction when Bill Clinton said hello to AG Lynch on the tarmac...

It is a shame that Berman resigned.  It would have been interesting to see the legal showdown between him and Barr/Trump.  This really was a script from Billions...

This is not The Onion.

This is your President:

Do you get the impression that the Supreme Court doesn’t like me?

— Donald J. Trump (@realDonaldTrump) June 18, 2020

When they rule for Trump, he says it's the greatest Supreme Court -- and of course, he takes credit for it. When they rule against him, he cries.

Justices are people too. And they can’t be pegged into ruling exactly one way or the other on all cases — except Justice Alito, of course, who is always on brand.

Law clerks unite

This is a great story about a law clerk rightfully taking on a very powerful federal appellate judge in a group email and winning.  So great.  The whole article is worth a read, but here’s the intro with the law clerk’s responsive email:

The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. “Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”

[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.

The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential. 
 

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:

While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.

Tennessee v. Garner

You'll be hearing a lot about that old 1985 case in the coming weeks.  It's interesting to re-read the case and to listen to oral argument (which you can do here).

The case, per Justice White, held: Under the Fourth Amendment, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Here, a state police officer shot and killed Garner as he was fleeing the scene of the crime. Despite knowing that Garner was unarmed, the police officer believed that he was justified in shooting him to prevent his escape. Garner's father brought a constitutional challenge to the Tennessee statute that authorized the use of deadly force in this situation. The state prevailed in the trial court, but the state appellate court ruled that the statute was unconstitutional. The Supreme Court decided that when a non-violent felon is ordered to stop and submit to police, ignoring that order does not give rise to a reasonable good-faith belief that the use of deadly force is necessary, unless it has been threatened.

Justice White was joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens.

Justice O'Connor wrote the dissent and was joined by Justices Burger and Rehnquist.

One local connection -- former UM Law Professor, Steve Winter, argued for Garner.  Winter is now at Wayne State University Law School.

"Cellphones haven't stopped cops from lying — only courts can do that"

That's the title of my latest piece in The Hill.  Here's the intro:

A 75-year old man was injured when he “tripped and fell.” That was the scenario the Buffalo police department released to the public before it knew that there was a video showing two officers shoving the old man to the ground and then walking over him while blood poured out of his head.

Many express shock that police officers would misrepresent — even lie — with such impunity. Those people naively ask what would happen if there wasn’t a video of the whole affair. Criminal practitioners know exactly what would happen — because, sadly, it’s what has been happening in courtrooms around the country every day for years. Too many officers are known to lie under oath, and there are judges and prosecutors who let them get away with it. This dirty secret is a true epidemic in the criminal justice system; it’s called “testilying,” and it has been around a long time.

Please let me know your thoughts. Have a nice weekend!

Flynn OA day

You can listen here at 9:30am. 

Also, check out SDNY Judge Nathan's order in a case where the Government obtained a conviction at trial and then moved to dismiss post-trial because of all of the Brady violations.  Judge Nathan says not so fast... you need to explain yourself first via a response to the defense motion for new trial, as the defense has requested and then dismiss with prejudice. This is a  big difference from Flynn where the parties have agreed.  Judge Nathan is doing the right thing.

Justice Sotomayor slaps 11th Circuit

Thanks to helpful readers in the comments yesterday and through email, I saw Justice Sotomayor issued this statement yesterday just crushing the 11th Circuit on its unique (and awful) practice of how it handles successive habeas petitions.  Although cert wasn't granted, congrats to Brenda Bryn and FPD's office for getting the Court's attention.

Part of the intro:

Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application. In re Williams, 898 F. 3d 1098, 1102 (2018) (Wilson, J., concurring). Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F. 3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc). That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture. The Eleventh Circuit has published several of its orders denying permission to file a second or successive petition, and determined that all future litigants (including those on direct appeal) are bound to the holdings of these orders unless and until an en banc Eleventh Circuit or this Court says otherwise. See 909 F. 3d 335, 346 (2018). These factors make out a troubling tableau indeed. Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process. The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case. In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

Here's some coverage by NLJ:

In the Supreme Court petition denied Monday, Michael St. Hubert had sought authorization from the circuit court, as required by federal law, to file a second or successive habeas petition. To be successful, the prisoner must show that the habeas petition will be based either on new evidence sufficient to establish that no reasonable fact-finder would have found the defendant guilty or on a new constitutional rule made retroactive on collateral review.

Sotomayor, contrasting the Eleventh to other circuits, said the Eleventh publishes "far more" denials of authorization (45 from 2013-2018 compared to 80 from all circuits combined); mandates a decision within 30 days; requires prisoners to state their legal argument on a form with space for fewer than 100 words; does not grant oral argument in noncapital cases; generally does not require briefs from the prisoner or government, and often decides the merits of the habeas claims when the circuit court is only to decide whether the prisoner's application meets the authorization requirements.

"Surprisingly still," Sotomayor wrote, the circuit court has published a number of authorization denials stating that all future litigants, even those on direct appeal, are bound by the orders until overruled by the en banc court or the Supreme Court.

In opposing review, U.S. Solicitor General Noel Francisco said some members of the circuit court "expressed concerns" about publishing and giving precedential weight to certain denials of authorization.

"Yet, in the course of those opinions, no member of the court addressed the possible application of the Due Process Clause," Francisco told the justices. "Given the court of appeals’ active internal deliberation about the proper treatment of published orders on applications for leave to file second or successive Section 2255 motions, that court should decide in the first instance whether or to what extent due process principles should affect the court’s approach."

Sotomayor ultimately agreed with the government's recommendation. "The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case," Sotomayor wrote. "In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative."

What upppppp?

The federal courts are extremely slow.
No jury trials.
No grand juries.
Prosecutors have been told to work at home whenever possible.
It's slow.

In the meantime, here is some reading material.

• Professor Ricardo Bascuas and I, along with Jeffrey Green from Sidley, filed this NACDL amicus brief in support of the Rule 48 motion to dismiss the Flynn case.

• The DBR covers John Couriel's appointment to the Florida Supreme Court:

Born in 1978, Couriel grew up in West Miami. In his application to the Florida Supreme Court, Couriel said he was the son of hardworking Cuban immigrants that sacrificed their income to support their son’s educational endeavors. Couriel was always interested in the law and excelled academically.
In high school, Couriel’s interest in law led him to participate on the debate team. Debate was more than just a means to sharpen his speaking skills — in the final round of one particularly competitive showdown, Couriel was pitched against his future wife, Rebecca L. Toonkel. Ultimately, he triumphed in the debate, and they would later connect during their undergraduate years at Harvard College.

• Trump is tweeting crazy theories about the 75-year old Buffalo man who was shoved and injured by police officers:

President Donald Trump put forth an unsubstantiated conspiracy theory Tuesday about the 75-year-old protester in Buffalo who suffered head injuries after he was pushed to the ground by police and hit his head on the sidewalk.

"75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment," Trump said in a morning tweet. Citing a report on conservative news network OANN, Trump said, "I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?" He said Gugino "could be" an anarchist "provocateur" but provided no evidence for that assertion. Two suspended Buffalo police officers were charged with assault and accused of intentionally pushing Gugino, who bled from the back of the head after he hit the sidewalk.

News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:

Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
***
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

Chief Judge Bill Pryor

Today was Judge Ed Carnes’ last day as chief. Judge Bill Pryor takes over. The 11th Circuit website already has been updated.

This anonymous account is a great follow on Twitter for judicial updates. Here’s his thread today:

Bruce Bagley pleads guilty

The Miami Herald has the story of the UM professor and money laundering expert pleading guilty to money laundering in the SDNY:

University of Miami professor Bruce Bagley pleaded guilty on Monday to two counts of money laundering after being charged with using bank accounts in his name and in the name of a company he created in Florida to launder over $2 million in proceeds from a Venezuelan bribery and corruption scheme.

Bagley, recognized as an international scholar on drug cartels and money laundering, pleaded not guilty soon after his arrest in November 2019 in the New York case linked to South Florida, but filed a notice in March indicating that he planned to change his plea.

“Bruce Bagley (…) went from writing the book on crime — literally writing a book on drug trafficking and organized crime — to committing crimes,” said Geoffrey S. Berman, the United States Attorney for the Southern District of New York, in a press release. “Professor Bagley admitted today to laundering money for corrupt foreign nationals — the proceeds of bribery and corruption, stolen from the citizens of Venezuela. Bagley now faces the possibility of a long tenure in prison.”

“There is no such thing as rock bottom. So, assume that the worst is yet to come.”

I try to keep this blog apolitical, but wow, what a piece by George Will in the Washington Post.  Here's how it ends:

In life’s unforgiving arithmetic, we are the sum of our choices. Congressional Republicans have made theirs for more than 1,200 days. We cannot know all the measures necessary to restore the nation’s domestic health and international standing, but we know the first step: Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for . . . what? Praying people should pray, and all others should hope: May I never crave anything as much as these people crave membership in the world’s most risible deliberative body.

A political party’s primary function is to bestow its imprimatur on candidates, thereby proclaiming: This is who we are. In 2016, the Republican Party gave its principal nomination to a vulgarian and then toiled to elect him. And to stock Congress with invertebrates whose unswerving abjectness has enabled his institutional vandalism, who have voiced no serious objections to his Niagara of lies, and whom T.S. Eliot anticipated:

We are the hollow men . . .

Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

or rats’ feet over broken glass . . .

Those who think our unhinged president’s recent mania about a murder two decades ago that never happened represents his moral nadir have missed the lesson of his life: There is no such thing as rock bottom. So, assume that the worst is yet to come. Which implicates national security: Abroad, anti-Americanism sleeps lightly when it sleeps at all, and it is wide-awake as decent people judge our nation’s health by the character of those to whom power is entrusted. Watching, too, are indecent people in Beijing and Moscow.

Jury trials and grand juries continued till August 31

Not too long ago, all of the Miami courthouses informally closed for the summer.

Now it’s official. Because of corona, there will be no juries or grand juries this summer. We will regroup in September. Chief Judge Moore’s order was issued last night. I will post it shortly.

In the meantime, go read Rumpole's blog who is doing a lot of good coverage of what's going on in the community with the protests. 

And Udonis Haslem is trying to bring people together. 

An open letter to former prosecutors outraged about the Flynn dismissal

I wrote a letter in the Hill to my friends who are former prosecutors who are upset about the Flynn dismissal.  It starts this way:

There are fair-minded people who are concerned about the Department of Justice’s decision to dismiss the Michael Flynn case. And for many, it’s more than concern. For example, a group of former prosecutors were so outraged by the decision, that they wrote a letter asking for the Attorney General’s resignation because the motion to dismiss, they believed, “undermined [DOJ’s] mission to ensure equal justice under the law.”
For prosecutors legitimately concerned about equality under the law — to be sure, a hallmark of any legitimate justice system — there are bigger issues to be angry about than the dismissal of one case charging a relatively minor crime.

Let me know your thoughts.

News & Notes

1. David Ovalle covers Zoom hearings in Miami here.  I like Phil Reizenstein's quote. Many people don't know that Phil is an avid poker player:

“There are subtle in-person clues you can’t pick up when you’re questioning someone during an online hearing. It’s the difference between playing poker at a table versus online,” said Miami defense lawyer Philip Reizenstein, who by mistake appeared recently in an online court hearing in front of a virtual background created by one of his children: a pink-and-purple Minecraft cartoon house.

Scott Fingerhut also makes an important point about Zoom:

Lawyers also worry about witnesses being coached by people off screen, or looking at notes. “You need a full shot of a witness,” said lawyer H. Scott Fingerhut, who teaches criminal procedure at Florida International University’s law school. “How else do you know if they are holding a phone for texting for advice, or a script nearby?”

2.  The SDFLA is now soliciting feedback on Magistrate Judge Patrick Hunt for his reappointment.  I urge all of you to support Judge Hunt here.

3.  I will be debating Professor Carissa Hessick about judicial power and the Flynn case next Friday at 2pm at this Federalist Society Event.  Clark Neily of Cato will be hosting.  Should be fun.  It's free and via Zoom.  You can register here.

Florida Supreme Court gets two South Florida appointees

Former AUSA John Couriel and Palm Beach Circuit Judge Renatha Francis are the two newest members of Florida’s highest court.  Couriel is a good guy and a smart lawyer.  He has been at Kobre Kim for some time now.  I don’t know Francis personally, but she has a very good reputation as a judge, and I really like the addition of the first Jamaican American to the bench.  She won’t be able to take the bench till September when she has 10 years under her belt as a member of the bar.  Congratulations to both.

RIP Luis Perez (updated with funeral arrangements)

I was planning on a lengthy post-long weekend post this morning, but unfortunately, I have some sad news to pass along.  Longtime prosecutor Luis Perez has passed away.

Luis has been battling cancer for many years and passed away this morning.  He was an Assistant United States Attorney for as long as I can remember.  Most recently he was the chief of economic crimes.  He always seemed to be around, whether walking the streets of downtown Miami during the lunch hour or in court or in a case meeting.  We didn’t always agree on cases obviously, but he was a nice guy, always friendly, and a dedicated public servant.

UPDATED — The service will take place this Thursday at 1:00 p.m. and will be live streamed: http://church.stamiami.org/ . The church is not allowing open physical attendance. For those of you who are interested in making donations, they can be made in Luis’ memory and honor to Sylvester Cancer Center (pancreatic cancer).

More on the Michael Flynn case.

This time I have a debate with the USA Today editorial board.  Here is their piece.  And here is a link to mine, which starts this way:

Chief Justice John Roberts said judges, like umpires, are there “to call balls and strikes and not to pitch or bat.” The Justice Department and Michael Flynn agree that their contest is over, so Judge Emmet Sullivan should not force the parties to keep playing.

And the conclusion:

In our system, each side is responsible for its own case. Judges ensure that government treats the defendant fairly. They have no interest in forcing prosecutors to prosecute. The parties have resolved their dispute, so there is nothing left to judge. As Justice Roberts put it, “Nobody ever went to a ball game to see the umpire.”

Mackenzie Garrity selected for the UM School of Law Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law after he passed away.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.  Other winners include Lindsay MacDonald, Brittany Hynes, Sarah Bujold, and Romney Manassa.

This year the Markus Award goes to Mackenzie Garrity.  I received this letter from Professor Kele Stewart summarizing her accomplishments:

In the fall 2019, the Innocence Clinic received the State’s response to a federal habeas petition filed in the United States District Court for the Northern District of Florida. Mackenzie naturally emerged as the leader of the group, while dealing with the time pressure and learning about a case the Clinic had been litigating since 2012. The specific law involved in federal habeas petitions is complex, which added to the pressures of the case. Mackenzie remained calm and focused in her work and kept the team calm and focused. Her research and writing on the project was excellent. Her ability to work with other students, while learning the area of federal habeas law was exemplary. She identified the weaknesses in the State’s arguments with a logic that far exceeded her status as a 2L. While this project took the majority of the semester to complete, Mackenzie performed other clinic duties with great detail, care and timeliness.
Mackenzie was also assigned to draft a Petition for Writ of Mandamus in case where the clinic had been waiting for a year to get a ruling on a 3.850 motion. Based on her draft of the Petition, the First District Court of Appeal issued a show cause order which in turn prompted the court to issue its long overdue order. 

The challenges posed by COVID-19 did not diminish Mackenzie’s dedication. She was assigned a case in which the Clinic has represented the client since 2013. The case has been hard-fought and an evidentiary hearing remains to be scheduled due to COVID-19 court restrictions. Mackenzie drafted a motion for the compassionate release of our elderly client who will be 80 in August and has diabetes among other ailments. This puts him at risk of death from COVID-19 according to the CDC. Mackenzie not only drafted the motion, but recognized the time sensitivity and drafted it  expeditiously. While there is no Florida law on the subject, she was able to find some authority and
analogize current federal law on the issue. After the motion was filed, the Judge ordered the State to respond and also ordered a response from the Department of Corrections. Most importantly, the Clinic was contacted by the prosecution to discuss a resolution that would result in the client’s release. Mackenzie has already drafted a response to the State’s forthcoming and anticipated response. Once the State’s response is received, her draft will be edited and a reply will be filed within hours.

Super Impressive.

My dad practiced law in Miami for over 50 years.  Throughout his career, he fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something my dad did every day.

Congratulations to Mackenzie! 

And thanks to Professor Ricardo Bascuas and Georgina Angones for their help in both setting up this award and for looking after it every year.  It means a lot to me and my family.

RIP Albert Krieger (UPDATED with incredible stories from the judiciary and the bar in the comments)

UPDATE -- please take a moment and read the comments, which have wonderful stories and touching memories from judges and lawyers who saw Albert in action (including from Scott Srebnick, Judge Federico Moreno, Judge Milton Hirsch. Marty Weinberg, Jeffrey Kay, and many others).

This is a really sad one... Albert Krieger, one of the founding fathers of criminal defense, has passed away at 96.

After I saw him in court for the first time, I said to myself: "I could never be that good."  His voice.  His demeanor.  The way he crushed cooperating witnesses.  And he was so engaging out of court.  Happy to sit down with young lawyers and guide them.  If you had to craft a criminal defense lawyer, it would be Albert. He inspired so many of us. He will be missed.

He has defended some of the biggest cases in America, including John Gotti and Sal Magluta.  In the Gotti case, he was opposite John Gleeson, the lawyer that was just appointed in the Flynn case.

Check out Albert in this Charlie Rose interview. Classic Albert.  At the 9:30 mark, he explains why he decided to represent Gotti.  And at the 16 minute mark, he explains why maximum security prisons are unacceptable in a civilized society. He will fire you up! The guy was the best.



I will be posting stories and memories of Albert as they come up.  Please either email them to me at dmarkus@markuslaw.com or post them in the comments. 

News & Notes

1. Judge Singhal wrote this interesting and well-written order saying that it wasn't for courts to get involved in the decisions regarding the pandemic, which is left to other branches of government. Unlike the Wisconsin Supreme Court, Judge Singhal said it's up to the government, not the judiciary:

There are no manuals on how to handle crises. However, there is a framework that provides an answer to who handles them. To govern is not the court’s role; rather, the power of judging must be separated from legislative and executive powers. See generally The Federalist, No. 47 (Hamilton). Under our system, leaders elected by the will of the people are entrusted with awesome responsibility. They must act within the framework set forth in our Constitution, using reasonable measures to further public health while safeguarding the citizenry’s inalienable rights. It is a balance, no doubt. And so long as the people’s elected leaders are working within the confines of the people’s constitutional rights, courts are not here to second-guess or micromanage their already unenviable jobs guiding us through profoundly unprecedented challenges.

2. Speaking of well-written and interesting, here's an article that Federal Defender Michael Caruso wrote about the awesome Cathy Wade:

At every court investiture and ceremony, no matter the honoree or occasion, there is one common denominator: a big shout out to Cathy Wade Babyak for making the event a success. But, Cathy, the Court’s Executive Services Administrator, does much more than plan courthouse functions—she is the person who is integral to the successful and smooth operation of one of the busiest federal judicial districts in the country.

There are also some good stories:

As you may imagine, Cathy has some stories to tell about the courthouse. One night at 10 p.m., Cathy received a call from the Warden of the Federal Detention Center. The
warden wanted to know why there were semi-trucks being parked around the courthouse. Apparently, a film crew had been given permission to film a movie in the ceremonial
courtroom. Little did anyone know that the crew would take over the entire 2nd floor of the Courthouse as well as the surrounding streets. In her typical fashion, Cathy stepped in, coordinated with the movie crew, and actually directed the director to be quiet because they were disturbing court. The highlight for Cathy was meeting and
spending time with Bill Murray.

 3.  My friend Lawrence Zimmerman has this thoughtful post on the presumption of innocence on Don Samuel's new blog. You know Don... he's the guy who writes the 11th Circuit Handbook (our federal cheat sheet in court).  The post is worth reading, and the blog is worth following.  Here's the conclusion:

We have a duty to educate the public when we can and not allow the media machine to cloud the public’s view of the trial process - with their instinct to condemn, convict and move on to another story. By failing to give these men accused of heinous crimes a fair trial, we will deprive the community of the justice that was already denied Arbery. Despite the clamor of the rightfully outraged public for a rush to judgment it is our job to uphold the Constitution. And it may take time.

4.   Finally, we have some really great magistrate judges.  One of them is Patrick Hunt who is up for re-appointment.  Jon Sale is heading up the committee.  Please make sure to send him your positive feedback at FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov

Washington Post opinion piece on Michael Flynn

I wrote this editorial for the Washington Post today.  It was going up on the website just as the news broke that Judge Sullivan appointed Judge Gleeson to argue against DOJ's motion to dismiss.  Really interesting.  I'd love to hear your thoughts.  Here's the introduction:

U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.

The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.

Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.

"Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?"

That’s how Judge Charles Breyer ends this must read opinion in which he rejects a plea agreement where the government tried to get a defendant to agree to waive bringing a compassionate release motion until 180 days after asking BOP.

Breyer makes so many good points in his Order:

— that Congress said compassionate release should be available after 30 days, not 180.  So why should DOJ undue that provision.  (And even the 30 days can be waived in an emergency like this pandemic).

— Compassionate release isn’t only available in times of global crisis, like corona.  But there are lots of other times both for the individual and for other people in the family: “A terminal diagnosis. The death of a parent caring for his or her children alone while their other parent is imprisoned. An accident that renders a person unable to feed, bathe, or move without assistance. Compassionate release exists to address these calamities as well."

— It’s not good enough to say that this is a contract with parties bargaining because those parties are not on equal footing:  "It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table."  This is one reason why courts should be able to reject plea deals when they are too harsh but not when they are too lenient.  Courts are there to check the government’s immense power, as Breyer is doing in this case.

Read the whole thing.  In the meantime, here’s the introduction and the conclusion:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed? Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences? What if the defendant’s children are effectively orphaned by the death of their other parent? What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it? What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence? What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail? When should a court be able to consider such events and revise a previously imposed sentence accordingly? How difficult should it be for a defendant to request this type of relief?
Congress has provided one set of answers to these questions, in the First Step Act of 2019. See 18 U.S.C. § 3582(c)(1)(A). The United States attorney’s office has very different answers in this case, for this defendant. See Plea Agreement (dkt. 206) ¶ 5. Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement.
***
It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010). As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”). If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940). Now imagine the choice the Government has put Funez Osorto to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.
That leaves only one question, which is why? Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion? Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner. Inspector General Report at 49–50. And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities. Id. at 45–48. The waiver of compassionate release is senseless.

The order reminds me of one of the first cases I had as a young public defender before Judge Norman Roettger.  For those of you who don’t know Roettger, he had a handlebar mustache and wore a gun around his ankle in court... The young prosecutor at the time put in an appellate waiver into the plea agreement as was his orders from above.  I told him we couldn’t agree to it.  But the prosecutor told me that he had no discretion to take it out.  Either we go to trial, plead straight up to the indictment, or agree to the provision.  I couldn’t understand why the prosecutor was being so difficult about it.  My supervisor at the time told me that Judge Roettger was vocal about not accepting these provisions and that we should just set it for plea and let the judge know what was happening.  So we show up for court and tell the judge about the proposed deal.  He asked the young prosecutor: “So do you work for the Department of Justice of the Department of INJUSTICE!!?? What if I commit legal error?  Shouldn’t the defendant be permitted to appeal and correct that legal error?!”  He then made the prosecutor scratch out that provision in front of a packed courtroom and took the plea agreement without it.  Quite a moment, especially for a young lawyer who was nervous about the gun making an appearance.

What a week in the world of white collar criminal law (UPDATED)

Last week was white collar law overload. Bridgegate (convictions reversed by SCOTUS). Varsity Blues (motion to dismiss for prosecutorial misconduct denied). Michael Flynn (prosecutors move to dismiss). And more.

Some random thoughts about these cases:

1. Why does it take the Supreme Court (9-0) to continue to reverse fraud convictions. The government is clearly overreaching with these statutes and yet lower courts almost never dismiss.

2. Same with respect to lower courts and prosecutorial misconduct. They almost never dismiss on prosecutorial misconduct claims, so it was no surprise that the district judge did not dismiss the Lori Loughlin case. Why not? How will prosecutors ever get the point that they should not engage in such behavior. Maybe the Loughlin lawyers will now file a motion to dismiss based on Bridgegate. After all, if fraud requires obtaining money or property, then lying to gain college admission may not be enough for wire fraud.

3. There has been lots of criticism for the in the Flynn case. But let's take a step back for a second. Remember that Flynn had moved to vacate his plea because the new DC prosecutors had recently turned over Brady material that had yet to be disclosed. We should be applauding the prosecutors for doing that. (A big shout out to Michael Sherwin, the DC supervisory prosecutor who made sure that disclosure happened after previous prosecutors did not disclose). If the judge had vacated the plea and allowed Flynn to go to trial, would the critics have been happier if the government had gotten spanked at trial? This was a distinct possibility because the lead witness for the government was former agent Peter Strozk. Imagine that cross! Comey would likely have also been a witness... Anyway, let's hope this materiality standard explained by Barr in the Flynn dismissal memo is used across the board for criminal defendants. Wouldn't that be a good thing? Of course our justice system should not be politicized, but there is quite a bit to grab onto in that Flynn motion to dismiss.

4. Some have said that the Flynn judge should deny the motion to dismiss. That is a bad idea and would set a very bad precedent. The Department of Justice brought the case. It's their prerogative to drop the case. That's how the adversary system works. Judges do not dismiss criminal cases when the defense asks. Now they aren't going to dismiss when the prosecutor asks? Rule number 1: never dismiss cases. Rule number 2: when in doubt, see rule number 1.

UPDATE 5. Mary B. McCord, an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote this op-ed in the New York Times, called "Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth." I have to laugh in reading her piece. She complains that the 302 of her interview is "an interesting read" with "colorful adjectives" that "twist[s] her words." Now that's rich. The criminal defense bar has always said that 302 reports summarizing interviews are wholly unreliable and that interviews should be recorded. Prosecutors and investigative agencies like the FBI and DEA refuse to record and judges let agents testify from these reports about their interviews. McCord worked at DOJ for decades. Under her watch, thousands of non-recorded interviews took place and prosecutions relied on 302 and other interview reports to convict people. Now that she is reading her own 302, she complains. Welcome to the defense bar, Ms. McCord.

Blue Angels fly over Ferguson courthouse

First loop around downtown pic.twitter.com/L2AX1yg86z

— David Oscar Markus (@domarkus) May 8, 2020

Blue Angels flying over downtown Miami pic.twitter.com/ZBXcHVRLcp

— David Oscar Markus (@domarkus) May 8, 2020

Bridgegate convictions reversed

9-0 per Kagan.

Another example of the lower courts not stepping up and letting prosecutors run wild using fraud statutes.

Kagan's introduction:

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey. The cause was an unannounced realignment of 12 toll lanes leading to the George Washing-ton Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey. For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days—with predictable consequences—only a single lane was set aside. The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.In fact, they did so for a political reason—to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid. Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity. See 18 U. S. C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property. See §1343 (barring fraudulent schemes “for obtaining money or property”);§666(a)(1)(A) (making it a crime to “obtain[] by fraud . . . property”). The jury convicted the defendants, and the lower courts upheld the verdicts.The question presented is whether the defendants com-mitted property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the offi-cials could violate those laws only if an object of their dis-honesty was to obtain the Port Authority’s money or property. The Government contends it was, because the officials sought both to “commandeer” the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power—something this Court has already held fails to meet the statutes’ property requirement. And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme. We therefore reverse the convictions.

"Last week, likely for the first time in our history, we held no jury trials—not in my courtroom or in any other courtroom across the country."

That's how Judge Roy Altman starts this piece, "What we lose with jury trials on hold," in The Dispatch.  The whole thing is definitely worth a read.  Here's how it starts out:

Last week, likely for the first time in our history, we held no jury trials—not in my courtroom or in any other courtroom across the country. We have had jury trials, in every state in the union, for hundreds of years—since before we ratified the Constitution, before Jefferson wrote the Declaration of Independence. The jury trial is part of the fabric of who we are as a nation: John Adams first became famous for representing British soldiers before a Boston jury; Hamilton and Burr first grew to loathe each other in front of a New York jury; and Lincoln first perfected his plainspoken prose “riding circuit” with the judges and juries of rural Illinois. We will miss our jury trials—now more than ever—because they are, as Adams once called them, the “heart and lungs” of our democracy.
In political elections, our individual vote gets drowned out in a sea of thousands, or tens of thousands, or—in the context of presidential politics—even tens of millions of votes. But, in the jury room, as anyone who has ever seen 12 Angry Men knows, every vote counts—and not just as one vote out of 12. Because a jury’s verdict must (in most cases) be unanimous, in the jury room, any one vote counts as much as all the other votes combined. And that’s true whether the holdout vote is black or white, rich or poor, religious or agnostic.
In my courtroom, when I pick juries, I make it a point to look into the jurors’ faces as I call out their names. And, invariably, I see one unambiguous emotion imprinted there: horror. How—they seem to be thinking to themselves—could I have been this unlucky? Why—out of this cobbled-together collection of human beings—did this judge pick me? But, by the end of the trial, when I go back into the jury room to hand the jurors’ their certificates, and to thank them for their service to their community, I gaze into their faces again. And, this time, I inevitably see an entirely different emotion there—and that is gratitude. Why? Because, however toxic our politics might become—however much the national mood makes us feel as though we’re divided beyond repair—jury service reminds everyday people of how vibrant and alive our democracy truly is.

In other feel good news, you *have* to watch this graduation movie that UM Professor Ricardo Bascuas put together. It is truly incredible:

The law school asked faculty for short videos to mark graduation. Mine is a stringcite to key life lessons and a toast to our #ClassOf2020. #WeDontNeedRoads #WereAlreadyThere #LifeMovesPrettyFast #TakePleasureInTheDetails #BeExcellentToEachOther #DontGetCocky #DontCrossTheStreams pic.twitter.com/Ga7MFknn0k

— Ricardo Bascuas (@rbascuas) May 6, 2020

Finally, I wonder whether this was one of the advocates or one of the Justices.  Either way, I hope this doesn't happen to you during your next telephonic argument, let alone one in the Supreme Court:

LISTEN: Toilet flush during U.S. Supreme Court oral argument (h/t @nicninh) pic.twitter.com/He3QGMzvJI

— Jeremy Art (@cspanJeremy) May 6, 2020

Justice Ruth Bader Ginsburg is in the hospital

And now half the country is holding its breath until November, scared that the Court might tilt even more conservative.  From the AP:

Justice Ruth Bader Ginsburg was hospitalized Tuesday with an infection caused by a gallstone, but plans to take part in the court’s arguments by telephone Wednesday, the Supreme Court said.
The 87-year-old justice underwent non-surgical treatment for what the court described as acute cholecystitis, a benign gallbladder condition, at Johns Hopkins Hospital in Baltimore.
She is resting comfortably and expects to be in the hospital for a day or two, the court said.

But Ginsburg is a tough cookie.  She participated in oral argument yesterday and today, and says she will call in front the hospital tomorrow.  Here’s hoping for a speedy recovery!

It’s been an interesting two days of arguments.  Although I like the free-for-all of judges asking questions when they see fit, this format of asking questions by seniority has led to some interesting exchanges.  And we have seen Justice Thomas ask questions two days in a row!  Justice Sotomayor is all of us as she has forgotten to unmute her phone two days in a row. From AJC:

For a second straight day, Justice Clarence Thomas - who once went more than a decade from 2006-2016 without asking a single question in oral arguments - was instead a veritable legal chatterbox by phone."What has changed since this case was here last?" Thomas asked attorneys, in a case about rules related to federal funding for HIV/AIDS relief by overseas affiliates of U.S. non-profit groups.
***
“Justice Sotomayor?" Chief Justice John Roberts said, indicating that Sotomayor was next up for questions.After eight seconds of silence, the Chief Justice repeated himself."Justice Sotomayor?"There was a noise on the line, and an apology."I am sorry, Chief," Sotomayor said, sounding a bit sheepish. "Did it again."

Oops, I did it again...

May the 4th be with you. (UPDATED)

UPDATE -- the Supreme Court arguments were interesting this morning. The Court didn't collapse because there was live-streaming. The big news was that Justice Thomas asked questions! Here's some coverage.

Thomas asked the questions via audio teleconferencing in a case on whether Booking.com could trademark its namesake.

The last time Thomas, who is the only African-American and the only Southerner on the court, asked a question was in March 2019, in a case involving a black Mississippi death row inmate, Curtis Flowers, who was tried six different times for the 1996 murders of four people in a furniture store.

Before that, Thomas asked one question in 2016, less than two weeks after the death of Justice Antonin Scalia. That question came 10 years after the last time Thomas had chimed in during oral arguments.

"Could Booking acquire an 800 number that's a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?" Thomas asked to the U.S. government's lawyer, Erica Ross.

After Ross' response, Thomas followed up: "That could be true, but I'd like you to compare this to Goodyear," Thomas said, referencing a past case. "In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized."

Live from DC, it's SCOTUS arguments!

The Supreme Court will get back to oral arguments tomorrow, but will do so over the telephone.  And for the first time, that audio will be live-streamed.  Exciting times!  I liked how this Atlantic article set it up:

America’s typical amusements—March Madness, the NBA playoffs, Major League Baseball Opening Day, the U.S. Open, the Masters—have suddenly disappeared. Just in time, though, a new Big League debuts tomorrow, offering a welcome spectacle of bare-knuckle combat, vicious competition, taunts, and trash talk.

The Ultimate Fighting Championship will return on May 9. Until then, the United States Supreme Court is the only show in town.

Starting Monday, the Court will at long last air the audio of oral arguments live. For the first time ever, the public will be able to experience oral argument as it happens. This was formerly the sole prerogative of justices, lawyers, reporters, and the few citizens who are able to gain tickets by waiting for hours (or days).

The format will be rather staid, whether one is watching on C-SPAN or listening via the radio or the internet. I have always thought a Court broadcast should be a cross between TV coverage of Wimbledon and the World Series of Poker—hushed, aristocratic-sounding announcers whispering comments on strategy while an Upshot-like needle moves back and forth, changing the predicted outcome with each question and answer.

How will the Justices take turns asking questions? In order of seniority:

For the forthcoming broadcast arguments, however, the rules will be different. In a press release Tuesday, the Court announced that the two-minute allowance will remain in effect. However, afterward, the justices will question by turns: “The Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority.”

I am not sure that this will work as well as hoped; some of the justices strike me as willing to ask questions for the full 30 minutes of argument, leaving no time for anyone else. Whether Roberts will intervene in such an instance remains to be seen.

Good for Judge Cooke!

The Herald covers her 12 page order which tries to get ICE to actually address the virus in a reasonable way at Krome:

Citing conditions that amount to ”cruel and unusual punishment,” a Miami federal judge ordered U.S. immigration authorities Thursday night to release hundreds of detainees held at three South Florida detention centers.

In a strongly worded 12-page order filed late Thursday, U.S. District Judge Marcia G. Cooke said U.S. Immigration and Customs Enforcement has acted with “deliberate indifference” to the condition of its detainees. She ordered the agency to report to her within three days how it plans to cut its non-criminal and medically vulnerable populations by the hundreds.

The judge also ordered the agency to submit weekly reports on the releases. After 10 days, ICE is to begin filing twice-weekly reports. Within two days, she ordered, ICE shall also provide masks to all detainees and replace them once a week.

“There is record evidence demonstrating that ICE has failed in its duty to protect the safety and general well-being of the petitioners,” Cooke wrote. “Social distancing at Krome is not only practically impossible, the conditions are becoming worse every day. Further, ICE has failed to provide detainees in some detention centers with masks, soap and other cleaning supplies, and failed to ensure that all detainees housed at the three detention centers can practice social distancing.”

She added: “Such failures amount to cruel and unusual punishment because they are exemplary of deliberate indifference.... Accordingly, there is sufficient evidence in this record to determine that the present conditions at the three detention centers constitute a violation of the Petitioners’ Fifth and Eighth Amendment rights.”

The judge said that detainees with non-violent criminal records or underlying health conditions who qualify for release can be subject to detention alternatives like parole, telephone monitoring, physical check-ins or GPS monitoring through electronic ankle bracelets.

All around good guy David Leibowitz to be nominated for Judge Moreno’s seat

I’m biased here since I’ve known him a long time, but David Leibowitz being nominated is great news for the District. He’s smart, hard-working, and well-rounded. 

He’s served as an AUSA in the SDNY (we won’t hold that against him) and in private practice as general counsel for Braman Motors. He went to U Penn for undergrad (where he roomed with former U.S. Attorney Ben Greenberg) and law school, and then got his Ph.D at the London School of Economics.

Rre here: https://www.miamiherald.com/news/local/article242390041.html#storylink=cpy