"Do letters from the public — often or ever — influence sentencing judges?"

That's the question raised by sentencing guru Doug Berman. In his post, he discusses the Mary McCarty case and the "flood" of letters being filed with Judge Middlebrooks. Here's the Palm Beach Post coverage:

They're hailing Mary McCarty and flailing her.

With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public - some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.

McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."

Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes.

U.S. Attorney's Office still keeping cooperation secret from public

Although Chief Judge Moreno and the rest of the SDFLA court have made plea agreements public again by allowing them to be accessed by PACER, the government is still attempting to keep cooperation agreements secret and off-line.

A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...

But we'll have to see how this plays out.

*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.

Killing your Friday afternoon...

And more fun Friday afternoon stuff here.

Ruining summer vacation

No one respects childhood anymore, you know? Nowadays, it's all about pushing and prodding the kids to get ahead of the brats next door or the Chinese or whomever. And now we're doing that to our incoming batch of UM 1Ls. This showed up in my inbox just about the time my SDFla blogging wrapped up:

This summer we plan to use our orientation blog to begin to explore some ideas about the law through books and films. ... Each week we will have by Monday some discussion questions posted on the blog, and we will see where the conversations take us.

The idea seems to be to use a blog as a diabolical weapon that targets summer fun. Needless to say, I hit "delete" as fast as I could—which is what I gather just about all of my colleagues did because a couple of weeks ago we started getting phone calls. Long story short, I was prevailed upon, as they say, to do this for a little while.

Now, my being a team player doesn't mean I'm not going to do everything my way. I obviously can't work in an oppressive password-protected website cut off from the outside world that doesn't even allow people to post their coarsest thoughts and pejoratives anonymously. As my grandmother says, "Me fuí de Cuba por menos." So, I'm hijacking the kids over to an unofficial open forum called umbricks.com. What's the point of having tenure if you never color outside the lines? (Or sentence below the guidelines?) This way all you members of the Innominate D.O.M.inati—particularly those who are UMSoL alums—can share your comment-space insights on life and law with the wide-eyed eager pups. Go check it out and engage the future of SDFla.

Justice Scalia and Rumpole

Rumpole is getting all hot and bothered by Justice Scalia's recent decision in Montejo v. Louisiana, overruling Michigan v. Jackson. I don't agree with the result either, but I have taken issue with Rumpole's attack on Scalia as a "dangerous" Justice and with Rumpole's defense of stare decisis.

As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:

• Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
• Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
• Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
• Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
• United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
• United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
• I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:

[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.

(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)

And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)

If I had to rank the Justices in order of defense friendly, here's my list:

Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.

Congrats to Alex Acosta

New Dean at FIU.

Congrats Alex.

"Alas, once a sea cow, always a sea cow."

Check out this motion to dismiss filed by John Kallen of Badiak, Will & Kallen, counsel for MarineMax in CLEAR MARINE VENTURES, LTD., v. BRUNSWICK CORP. The case is assigned to Judge Moreno... My bet is that the Chief isn't going to find this too funny. Here's the first section of the motion:

MARINEMAX’S MOTION TO DISMISS COUNT X
OF PLAINTIFFS SECOND AMENDED COMPLAINT

Defendant MarineMax moves to dismiss Count X of plaintiff’s second amended complaint pursuant to Rule 12 (b)(6), Fed.R.Civ.P.

I. Nature of the Action

He first saw the model on line and in a promotional brochure (para. 13-15). [Footnote 1: The following is not intended or meant to titillate, but illuminate the unique relationship that an individual has with a vessel and the special, discriminating and demanding wants and needs of a wealthy individual, who was disappointed and dismayed with his purchase; who, in the eyes of the law. stands in the same crocs as the common consumer who was disappointed that the new Kenmore front-loader washer didn’t eliminate the grass stains on the kids’ shorts as was promised and warranted.] Her glossy exterior, sculpted body, sophistication, bloodlines, not to mention the accolades of how she could perform, intrigued him, piqued his curiosity (para. 13-15; Exs A. and B. to second amended complaint). Needless to say, he needed to know more, meet her, ride her. He was excited (para. 22).

Suitable arrangements were made. Not wanting to push her too fast, he rode her easy (para. 36, 37). With her prominent front pushed up, her rear somewhat down, her performance was somewhat hesitant and resistant. But he was told she was a maiden, that he’d be her first owner (para. 40, 47).

He knew that with the right master, the right equipment, and with promises of better things to come, her performance could only get better, would be as promised (para. 45). Michael Krieger was hooked (para. 43).

However, as others before him had learned in dealing with her identical sisters, (para. 60), he would soon come to the realization that in her family, beauty’s only skin deep. She had been born with a fatal defect (para.26).

When he realized that despite the glamourous exterior, her performance was as fleet and nimble as a manatee, his interest in her waned. Discontented and having spent a significant amount of money to buy, outfit, maintain and service her (para. 46, 113), he complained. Krieger was instructed to take her in for extensive surgery to correct her imperfections -- not once or twice, but three times (para. 53, 61, 67).

Unfortunately, these procedures, which were designed to decrease her weight and trim, and thereby enhance her performance, failed miserably. She got hot and wet, but too wet. (para. 97, 110, Ex. D to second amended complaint). Just as disturbing, what had at one time been a pleasing, cosmetically acceptable body, had now been transformed into a ghastly and unpleasing specimen.

Alas, once a sea cow, always a sea cow.

Disappointed, dismayed and downhearted (para. 112), Michael Krieger sued to get back the investment he had made in a dream that turned into a nightmare.

So dear readers, is this effective lawyering? Talk to me.

UPDATE -- AbovetheLaw has picked up on our post and has interviewed the author.

A Hispanic judge is nominated to the Court...

...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.

I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.

Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...

The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.

It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.

Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!

Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.