Thanks to all my peeps for sending lots of tips the last couple of days. There's lots going on:
1. Judge Zloch is in the news. From not letting Bradley Birkenfeld -- the UBS informant -- push off his surrender date to spanking Loring Spolter. The 60 Minutes gambit by Birkenfeld didn't pay off, I guess. As for Spolter, I'm surprised he's getting as much sympathy as he is: check out Bob Norman's blog here.
2. In the wake of a tough year for DOJ, there are new discovery guidelines for prosecutors. Here are the 3 new memos that criminal practitioners on both sides of the aisle will be reading today:
Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
Requirement for Office Discovery Policies in Criminal Matters
Guidance for Prosecutors Regarding Criminal Discovery
Tom Withers covers the memos here. A snippet from his summary:
The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.
The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”
3. Lots of coverage on the shootings from Las Vegas. Just terrible stuff. Here's the video that is making the internet rounds:
And here's Brian Tannebaum's take:
Today at every federal courthouse security will be a little tighter. People will get a second look, maybe a third. There is no correlation between what happened in Las Vegas yesterday and federal court anywhere else. People get angry at the grocery store, at the post office, and at work. But it's like when someone with a shoe bomb tries to blow up a plane, well, you know the rest.We (those who go to court) all have to deal with what happened yesterday. It will happen again, we all know that. But because we cannot stop a sick, angry litigant from sneaking in with a gun, a shotgun, we have to at least pretend we can. The gunman was dressed in black. Watch "no black" be the next addition to the dress code. We can only sigh and understand that this is the world in which we live.It angers me that today I have to mourn the death of a Court Security Officer, a retired cop now one of the guys in blue jackets that waive familiar lawyers through, and say "how you doin' today counsel?". A guy who just "went to work" right after the new year, and left the courthouse dead. Five seconds before he was probably talking to a prosecutor, defense lawyer, or fellow security officer about his New Year's vacation. or the weekend's football games.Pisses me off.
4. Random thought of the day: Why does Blogger say that internet is misspelled?
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Tuesday, January 05, 2010
Monday, January 04, 2010
Judge Graham and Judge Ungaro go to Uganda
Judges Graham and Ungaro recently participated in a training program for Judges, lawyers, law enforcement personnel, court administrators and others in Jinja, Uganda. Beth Sreenan also participated as the DOJ representative. From what I understand, it was a great experience.In other Monday afternoon news, the DBR covers the honest services fraud debate here. And they even have a video:
AFTERNOON UPDATE -- Very sad news: there's been a shooting at the Las Vegas Federal Courthouse leaving a court security office dead, and a marshal in critical condition. The shooter has been shot dead. The link above is from the local Las Vegas paper, which also has a video. Terrible news.
Sunday, January 03, 2010
Let's hit it -- 2010
Okay, we're back -- Happy New Year!
Batteries charged and all that. Ready for twenty-ten. Not ready for the traffic after the holiday weekend...
Last year we had Ben Kuehne, Scott Rothstein, and of course, Paris Hilton. Who will we have in 2010?
Lots of end-of-year blogging:
The White Collar Blog has some fun end of year posts here and here. The bloggers are really looking forward to seeing what the Supreme Court will do with the honest services cases coming up. More on that from me later.
Even the Chief Justice got into the act with this end-of-year report. Here's the intro:
Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice. Best wishes in the New Year.
While we're on the Supremes, there's more on Scalia's obsession with the (non)word "choate" from the NYT magazine here.
Why does choate get under Scalia’s skin? Bryan A. Garner, who wrote “Making Your Case: The Art of Persuading Judges” with Scalia, told me the justice is “disgusted” by the term’s faulty etymological basis. As Garner himself puts it in his Dictionary of Modern Legal Usage, choate is “a misbegotten word,” since the in- of inchoate is not in fact a negative prefix. Its root, the Latin verb incohare, meaning “to begin, start out,” originated in the metaphor of hitching up a plow, derived from in- (on) and cohum (strap fastened to a yoke).
Stripping the in- from inchoate is known as back-formation, the same process that has given us words like peeve (from peevish), surveil (from surveillance) and enthuse (from enthusiasm). There’s a long linguistic tradition of removing parts of words that look like prefixes and suffixes to come up with “roots” that weren’t there to begin with. Some back-formations work better than others. Unlike Scalia’s improbable analogy of changing insult into sult, back-forming choate is an understandable maneuver for anyone who isn’t a Latin scholar, given that inchoate is in the same semantic ballpark as words that really do have a negative in- prefix, like incoherent and incomplete.
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”
Our previous coverage here.
What would a 2009 roundup be without another story of prosecutorial misconduct, which led to dismissal of the Blackwater case:
The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors should not have used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.
As for me, well, I came in second in the blog fantasy league, losing in the finals to RichRodisCuban (by a measly 5 points). Congrats on a good year. Here are the final results:
League Champion
RichRodisCuban
2nd
SDFLA Blog
3rd
de la Fins
4th
Steel City Crackers
5th
SouthFloridaLawyers
6th
Male Bondage
Over the break, I watched the great movie -- American President. Here's "the speech," which I could watch again and again:
Also saw Avatar, which was unbelievable. I gave it an A.
Batteries charged and all that. Ready for twenty-ten. Not ready for the traffic after the holiday weekend...
Last year we had Ben Kuehne, Scott Rothstein, and of course, Paris Hilton. Who will we have in 2010?
Lots of end-of-year blogging:
The White Collar Blog has some fun end of year posts here and here. The bloggers are really looking forward to seeing what the Supreme Court will do with the honest services cases coming up. More on that from me later.
Even the Chief Justice got into the act with this end-of-year report. Here's the intro:
Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice. Best wishes in the New Year.
While we're on the Supremes, there's more on Scalia's obsession with the (non)word "choate" from the NYT magazine here.
Why does choate get under Scalia’s skin? Bryan A. Garner, who wrote “Making Your Case: The Art of Persuading Judges” with Scalia, told me the justice is “disgusted” by the term’s faulty etymological basis. As Garner himself puts it in his Dictionary of Modern Legal Usage, choate is “a misbegotten word,” since the in- of inchoate is not in fact a negative prefix. Its root, the Latin verb incohare, meaning “to begin, start out,” originated in the metaphor of hitching up a plow, derived from in- (on) and cohum (strap fastened to a yoke).
Stripping the in- from inchoate is known as back-formation, the same process that has given us words like peeve (from peevish), surveil (from surveillance) and enthuse (from enthusiasm). There’s a long linguistic tradition of removing parts of words that look like prefixes and suffixes to come up with “roots” that weren’t there to begin with. Some back-formations work better than others. Unlike Scalia’s improbable analogy of changing insult into sult, back-forming choate is an understandable maneuver for anyone who isn’t a Latin scholar, given that inchoate is in the same semantic ballpark as words that really do have a negative in- prefix, like incoherent and incomplete.
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”
Our previous coverage here.
What would a 2009 roundup be without another story of prosecutorial misconduct, which led to dismissal of the Blackwater case:
The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors should not have used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.
As for me, well, I came in second in the blog fantasy league, losing in the finals to RichRodisCuban (by a measly 5 points). Congrats on a good year. Here are the final results:
League Champion
RichRodisCuban
2nd
SDFLA Blog
3rd
de la Fins
4th
Steel City Crackers
5th
SouthFloridaLawyers
6th
Male Bondage
Over the break, I watched the great movie -- American President. Here's "the speech," which I could watch again and again:
Also saw Avatar, which was unbelievable. I gave it an A.
Wednesday, December 23, 2009
Holiday Blogging
Sorry I haven't been blogging much this week -- I've actually been swamped... Soooo, we're gonna close down the blog until the new year unless something big comes up (For example, if I win the blog fantasy football championship this weekend against RichRodisCuban, I will post about it!). Other than that, though, I need a little break. Have a great holiday season. Happy New Year and see you in 2010.
Sunday, December 20, 2009
Innocent people pleading guilty
It's one of the criminal justice system's dirty little secrets -- innocent people plead guilty because the risk if you lose at trial is too high. The Wall Street Journal covers this phenomenon here:
A surprise twist in the criminal case against Broadcom Corp. co-founder Henry Samueli again raises questions about plea bargains, one of the most important and controversial aspects of the justice system.
In a Santa Ana, Calif., court last week, federal Judge Cormac Carney dismissed the criminal complaint charging Mr. Samueli with lying to the Securities and Exchange Commission in its investigation of whether Broadcom misstated its earnings by improperly accounting for executive stock options. Judge Carney's dismissal came even though Mr. Samueli had stood before him in 2008 and pleaded guilty to that very crime.
Mr. Samueli did what lawyers and legal scholars fear a disturbing number of other people have done: pleaded guilty to a crime they didn't commit or at least believed they didn't commit. These defendants often end up choosing that route because they feel trapped in a corner, or fear getting stuck with a long prison sentence if they go to trial and lose.
The evolution of the criminal-justice system in recent decades has put many defendants "under all but impossible pressure to plead guilty, even if they're not," said Yale law Prof. John Langbein, a critic of the plea-bargain system.
A daughter of a defendant who recently pled guilty in this district says that her dad was innocent but couldn't risk a life sentence when there was a 2-year offer on the table:
But she wants to be pragmatic. Should her father risk spending the rest of his life in prison in an attempt to clear his name? She doesn't think so. Even before a plea bargain was offered, she said her father should consider one if it were offered. "It is really (awful), admitting to something you didn't do," she said. "He doesn't deserve any of this."
David Gerger out of Houston summed up best:
“When the government can increase your sentence tenfold for going to trial, then very few innocent people will have the courage to take that risk,” Gerger said. “They will just plead guilty, and that's wrong.”
There's a lot we can do to fix this, and much of it already has been discussed (even by yours truly -- I testified about this problem before the Sentencing Commission a few months back). For starters, juries -- not probation officers -- should recommend sentences to the Court.
And perhaps our court system should be more open to the public, like the state system is. One move in the right direction -- the 9th Circuit has started a pilot program where non-jury civil trials can be televised.
Video cameras, long banned from most federal courtrooms, could be used in civil trials throughout the West under a new initiative in the federal judiciary’s Ninth Circuit. One of the first cases to be televised could be next month’s hearing over a challenge to California’s same-sex marriage ban.
The move was announced Thursday by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit. Judge Kozinski called the move an “experiment” that “is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”
***
But as Judge Kozinski said in an interview, “a lot has happened since then.” He cited advances in technology, the rise of Internet video transmission and greater experience of successful use of video in state courts and at the federal appeals level. “We thought it was time to take another look,” he said.
Judge Kozinski emphasized that the new initiative was still an experiment, and that it would be dropped “if it in any way impairs the fair administration of justice.” But he also noted that he did not expect to see problems.
“It’s a little bit of an uphill battle” to get courts to adopt technology, he said, adding: “We all have to be much more tech savvy than we really ever were, or particularly wanted to be. It’s just the nature of life in the 21st century.”
So, we have a lot to discuss in the comments -- are innocent defendants pleading guilty? Should we have cameras in the courtroom?
UPDATE -- check out this law.com article about the attorney who was recently acquitted. Apparently the judge isn't too happy with the sweetheart deals given to the snitches:
A federal judge in Columbus, Ga., has slammed federal prosecutors for making "sweetheart plea deals" with drug dealers to further their "relentless pursuit" of a criminal defense attorney whose trial ended last month when a jury acquitted him of drug conspiracy, attempted bribery and money laundering charges.
U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt.
Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney."
"The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.
A surprise twist in the criminal case against Broadcom Corp. co-founder Henry Samueli again raises questions about plea bargains, one of the most important and controversial aspects of the justice system.
In a Santa Ana, Calif., court last week, federal Judge Cormac Carney dismissed the criminal complaint charging Mr. Samueli with lying to the Securities and Exchange Commission in its investigation of whether Broadcom misstated its earnings by improperly accounting for executive stock options. Judge Carney's dismissal came even though Mr. Samueli had stood before him in 2008 and pleaded guilty to that very crime.
Mr. Samueli did what lawyers and legal scholars fear a disturbing number of other people have done: pleaded guilty to a crime they didn't commit or at least believed they didn't commit. These defendants often end up choosing that route because they feel trapped in a corner, or fear getting stuck with a long prison sentence if they go to trial and lose.
The evolution of the criminal-justice system in recent decades has put many defendants "under all but impossible pressure to plead guilty, even if they're not," said Yale law Prof. John Langbein, a critic of the plea-bargain system.
A daughter of a defendant who recently pled guilty in this district says that her dad was innocent but couldn't risk a life sentence when there was a 2-year offer on the table:
But she wants to be pragmatic. Should her father risk spending the rest of his life in prison in an attempt to clear his name? She doesn't think so. Even before a plea bargain was offered, she said her father should consider one if it were offered. "It is really (awful), admitting to something you didn't do," she said. "He doesn't deserve any of this."
David Gerger out of Houston summed up best:
“When the government can increase your sentence tenfold for going to trial, then very few innocent people will have the courage to take that risk,” Gerger said. “They will just plead guilty, and that's wrong.”
There's a lot we can do to fix this, and much of it already has been discussed (even by yours truly -- I testified about this problem before the Sentencing Commission a few months back). For starters, juries -- not probation officers -- should recommend sentences to the Court.
And perhaps our court system should be more open to the public, like the state system is. One move in the right direction -- the 9th Circuit has started a pilot program where non-jury civil trials can be televised.
Video cameras, long banned from most federal courtrooms, could be used in civil trials throughout the West under a new initiative in the federal judiciary’s Ninth Circuit. One of the first cases to be televised could be next month’s hearing over a challenge to California’s same-sex marriage ban.
The move was announced Thursday by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit. Judge Kozinski called the move an “experiment” that “is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”
***
But as Judge Kozinski said in an interview, “a lot has happened since then.” He cited advances in technology, the rise of Internet video transmission and greater experience of successful use of video in state courts and at the federal appeals level. “We thought it was time to take another look,” he said.
Judge Kozinski emphasized that the new initiative was still an experiment, and that it would be dropped “if it in any way impairs the fair administration of justice.” But he also noted that he did not expect to see problems.
“It’s a little bit of an uphill battle” to get courts to adopt technology, he said, adding: “We all have to be much more tech savvy than we really ever were, or particularly wanted to be. It’s just the nature of life in the 21st century.”
So, we have a lot to discuss in the comments -- are innocent defendants pleading guilty? Should we have cameras in the courtroom?
UPDATE -- check out this law.com article about the attorney who was recently acquitted. Apparently the judge isn't too happy with the sweetheart deals given to the snitches:
A federal judge in Columbus, Ga., has slammed federal prosecutors for making "sweetheart plea deals" with drug dealers to further their "relentless pursuit" of a criminal defense attorney whose trial ended last month when a jury acquitted him of drug conspiracy, attempted bribery and money laundering charges.
U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt.
Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney."
"The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.
Friday, December 18, 2009
RIP Joan Grady
Joan Grady -- longtime assistant to Kathy Williams at the FPD's office -- has passed away. Joan was an incredibly hard worker, and was always available to the lawyers in the office and the CJA lawyers looking for help. She was really loved by everyone and we'll all miss her.
Thursday, December 17, 2009
Miami's worst kept secret is out
Rumpole and the DBR finally broke what people have been talking about for weeks now -- that the White House is actively vetting Kathy Williams for the open judge seat and Willy Ferrer for U.S. Attorney.
Congrats to these two very well-deserving candidates. Both are going to be absolutely great....
As an aside, I held off on posting this news for the past couple of weeks because the vetting process is very sensitive and I didn't want anything to slow the process for Kathy or Willy. But now, it's out there, so I am posting it...
Hopefully the official nomination will happen by the end of the year.
Congrats to these two very well-deserving candidates. Both are going to be absolutely great....
As an aside, I held off on posting this news for the past couple of weeks because the vetting process is very sensitive and I didn't want anything to slow the process for Kathy or Willy. But now, it's out there, so I am posting it...
Hopefully the official nomination will happen by the end of the year.
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