PROTECT ACT PROVISION DECLARED UNCONSTITUTIONAL

Today, the Eleventh Circuit Court of Appeals, in United States v. Williams, No. 04-15128, handed down a signficant decision holding that the PROTECT ACT's provision that prohibits the promotion of child pornography is facially unconstitutional as overbroad and vague. This case originated in Judge Middlebrooks' division. And Louis I. Guerra preserved the issue and won on appeal.

Here is an excerpt from the decision -

"In the wake of Free Speech Coalition, sexually explicit speech regarding children that is neither obscene nor the product of sexual abuse of a real minor retains protection of the First Amendment. We believe the Court’s decision in Free Speech Coalition leaves Congress ample authority to enact legislation that allows the Government to accomplish its legitimate goal of curbing child abuse without placing an unacceptably heavy burden on protected speech. Certainly Congress took many cues from the Court in drafting the legislation at issue in this case.
Given the unique patterns of deviance inherent in those who sexually covet children and the rapidly advancing technology behind which they hide, we are not unmindful of the difficulties of striking a balance between Congress’s interest in protecting children from harm with constitutional guarantees. However, the infirmities of the PROTECT Act pandering provision reflect a persistent disregard of time-honored and constitutionally-mandated principles relating to the Government’s regulation of free speech and its obligation to provide criminal defendants due process. Because we find the PROTECT Act pandering provision, 18 U.S.C. § 2252A(a)(3)(B), both substantially overbroad and vague, and therefore facially unconstitutional, we reverse Williams’s conviction under that section."

Here's the whole opinion.

Big Money in Torture Case

Judge Joan Lenard ordered that a retired Honduran military officer pay $47 million dollars to victims of torture, murder, and kidnapping. A San Francisco human rights group, the Center for Justice and Accountability, brought the suit against former Lt. Col. Juan Evangelista Lopez Grijalba. Read more from today's Miami Herald.

More on Scalia

I'm not sure why (perhaps I'm catching up from the 6 weeks of trial), but I can't get enough of the Scalia story. So here's some great stuff out there for those that are interested:

1. Scalia's letter to the editor of the Boston Herald. This isn't the first time Scalia has written to an editor. See this!
2. Wonkette (formely Article III Groupie) on Scalia.
3. The Sopranos take on the gesture (I'm not kidding).
4. The best coverage of all, a must-read article by Slate's Dahlia Lithwick.
UPDATE -- 5. The Colbert Report responds to Scalia. Hat tip Richard Rosenthal.
For the more intellectual readers out there, here is some great analysis of the Padilla cert denial.

Enjoy.

Padilla cert denied

The Supreme Court denied cert in Jose Padilla's case this morning, giving the green light to the criminal prosecution here in Miami. It wasn't your ordinary cert denial as it had a number of opinions. Here is ScotusBlog's coverage:

Court refuses to hear Padilla appeal
Posted by Lyle Denniston at 10:02 AM
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an "enemy combatant." The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions.
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president's wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and -- for an extended period -- without a lawyer.
The Administration was so eager to have the case out of Court that it was willing to let the Fourth Circuit decision disappear, which would have been the result of a dismissal of the appeal on mootness grounds.
Three other Justices took the unusual step of issuing an opinion to justify the denial of review. They said that "there are strong prudential reasons disfavoring" Court review. Padilla is due to go on trial on criminal charges in civilian court, and "any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings."
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla "has a continuing concern that his status might be altered again." That, however, "can be addressed if the necessity arises."
Kennedy wrote that "Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts." That, he said, "also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla's current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested."
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case (Padilla v. Hanft, 05-533). Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.

Booker in the Southern District

Julie Kay has a thought provoking (and sobering) story today about sentencings in the Southern District after Booker. The premise of the article is that other than Judge Highsmith (and a couple of others), the Southern District judges are sticking to the guidelines. Although it's hard to argue with the numbers that the article cites, I'm not entirely convinced that our judges are completely sticking to the rigid sentencing guidelines. My experience has been that judges are willing to sentence below (and above) the guidelines in the right cases. The reason, I think, Julie had problems finding lawyers to give stories about particular sentencings outside of the guideline range is that no one wanted to out any judge on this issue because there is (I agree) a fear out there that everyone else is sticking to the guidelines. Hopefully this culture will change. For the best coverage on sentencing, I would go to Prof. Berman's sentencing blog. Here's the intro to the article:


Cover StoryNot so free after all
April 03, 2006
By: Julie Kay
Shelby Highsmith

Then the U.S. Supreme Court gave federal judges more discretion in sentencing defendants, defense attorneys in South Florida rejoiced. But 15 months after the closely divided court issued its landmark rulings in U.S. v. Booker and U.S. v. Fanfan, prosecutors are the ones smiling. Since getting the leeway from the nation’s highest court, federal judges in South Florida have opted to stay mostly within the guidelines. A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5 percent of 1,951 cases sentenced. That’s a significantly higher percentage than in many other districts. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 percent of 65,368 cases. The South Florida rate is also higher than in the middle and northern districts of Florida, where judges sentenced within the guidelines in 65.6 percent and 71.7 percent of cases respectively. In the Booker and Fanfan rulings, by 5-4 votes the justices granted judges greater freedom to tailor sentences to the individual circumstances of cases. The majority held that the tough mandatory federal sentencing guidelines in effect since 1987 should only be used as advisory. The court also said the mandatory guidelines violated the Sixth Amendment right to trial by jury because sentencing under the complex guidelines could be based on aggravating factors not found by the jury. South Florida criminal defense lawyers were thrilled that judges no longer would be allowed to lengthen sentences based on factors not found by the jury. And they hoped judges would use their new discretion to grant more downward departures from the guidelines. But since Booker, South Florida federal judges sentenced below the guideline range — known as departing downward — in 21.4 percent of cases. A breakdown shows 10.1 percent were supported by the government for cooperating witnesses. Slightly more than 2 percent were departures based on previously allowed factors such as mental defect, family status, and age. Nine percent of downward departures were for other reasons. That 9 percent reflects discretionary sentences judges could only make since the Booker ruling. The office of Interim U.S. Attorney Alex Acosta declined to comment on the sentencing commission report.

Scalia to reporters

Here is Scalia's gesture to a reporter asking him about whether he could be impartial about church/state issues as he was leaving church. He denied making such a gesture and then Peter Smith, a freelance photographer, released this picture. Smith was promptly fired!

In other High Court news, there is a move to put cameras in the Supreme Court and all federal courts around the country, which will produce similar gestures from Justices. In fact, two such bills are currently pending and are garnering support. I'm for it because it creates accountability for judges (and prosecutors). Thoughts?

Speaking of cooperators...

Marc has an interesting post below about the "Stop Snitching" campaign. Judge Huck sentenced a very high profile cooperating witness this week, Jack Abramoff.

We previously posted on Jack Abramoff's different hats. Here is the one he wore for Wednesday's sentencing hearing (it looks like the same one he wore at his guilty plea). Those familiar with the Southern District will recognize one of the friendlier court security officers standing in the background of the picture.

What I find much more interesting than all the hoopla about the hats is the 60 page memo (and 260 letters) that his lawyers filed in support of his request for a low-end of the guideline sentence, which TalkLeft praised as creative lawyering.

The debate about cooperators...

Professor Berman over at Sentencing Law & Policy has an interesting post about the USA Today article on the anti-snitching campaign.

This, of course, is a topic of great significance in the Southern District of Florida, and we hope this post results in some interesting dialogue.

Here's the post from Prof. Berman:

Wednesday's USA Today has this extended article about the anti-snitching "campaign" that seems to have become a nationwide issue. Here is a taste:

Omerta, the Mafia's blood oath of silence, has been broken by turncoat after turncoat. But the call to stop snitching — on other folks in the 'hood — is getting louder. Is it an attempt by drug dealers and gangsters to intimidate witnesses? Is it a legitimate protest against law enforcers' over-reliance on self-serving criminal informers? Or is it bigger than that? ...

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, says that, based on federal statistics, one of every four black men from 20 to 29 is behind bars, on probation or on parole, and under pressure to snitch. She estimates one in 12 of all black men in the highest-crime neighborhoods are snitching. She says informers strain the social fabric of poor minority neighborhoods, where as many as half the young men have been arrested....

Hence a backlash — "stop snitching." The slogan appeared in Baltimore about two years ago as the title of an underground DVD featuring threatening, gun-wielding drug dealers... The black community is divided. Rapper Chuck D of Public Enemy has blasted the Stop Snitching campaign on the hip-hop group's website....

Whatever its intent, the Stop Snitching movement has galvanized officials already apoplectic about witness reluctance and witness intimidation.... Stop Snitching T-shirts have been banned from a number of courthouses. Boston Mayor Thomas Menino, whose city recorded the most homicides in a decade last year, threatened to send police into stores to pull them off the shelves. Following the furor over the Stop Snitchin' DVD, Maryland raised witness intimidation from a misdemeanor to a felony, and Baltimore police made a tape of their own, Keep Talking. "People have to snitch," says Peter Moskos, a former Baltimore street cop.