Most quotable AND best dressed

"Their lawsuit is like Castro trying to seize Miami homes from families who fled from Cuba. Their lawsuit, if they win it, will create a precedent that Castro and Chavez can come in and sue every political refugee in Miami and seize their houses." That's Mike Tein on the cover of today's DBR. Plus I love the suit, but could never pull it off.

In other news, the Supreme Court really means what it says in the Confrontation Clause cases. From the WaPo:

The constitutional guarantee that a defendant be able to confront his accusers means prosecutors must produce even the technicians involved in the specific laboratory tests used in his trial, the Supreme Court ruled Thursday.

In a case involving a drunken driver from New Mexico, a majority of the court reinforced its recent decisions that fortified the right of defendants to cross-examine witnesses, established in the Sixth Amendment.

The rulings have scrambled the court’s usual ideological pairings, with Justices Antonin Scalia and Ruth Bader Ginsburg the most vigorous defenders of defendants’ rights in such circumstances.

Ginsburg wrote Thursday’s opinion, which said defendant Donald Bullcoming should have had the opportunity to cross-examine the lab analyst who provided the main evidence in his trial: a lab report showing his high blood-alcohol level. New Mexico prosecutors instead had called another analyst who had no role in performing the specific test.

“The Sixth Amendment does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination,” Ginsburg said.

Scalia and Justices Clarence Thomas, Sonia Sotomayor and Elena Kagan agreed with the decision, but only Scalia joined Ginsburg’s opinion in full.

Florida death sentence overturned as unconstitutional

Judge José Martinez granted a writ of habeas corpus today on the ground that Florida’s death penalty process did not afford due process because a judge, not a jury, decided that Paul H. Evans must die. Rather, a jury had recommended that Evans die by a vote of 9 to 3 without specifying what aggravating factor or factors led to that conclusion. There was no indication that a majority of jurors agreed on the factors that convinced them to recommend the execution.

The Florida Supreme Court had affirmed Evans’ death sentence. Key to its decision was that court’s finding that Evans’ sentence became final in February 2002—before the U.S. Supreme Court decided the seminal capital case Ring v. Arizona. Judge Martinez disagreed:

This is incorrect. Mr. Evans’ death sentence became final (for retroactivity purposes) in October of 2002, when the Supreme Court denied certiorari in Evans v. Florida, 537 U.S. 951 (2002). Ring was decided in June of 2002 which makes it applicable to Mr. Evans’s petitions ... .

Applying Ring, Judge Martinez held that the Florida scheme fell short of due process:

There are no specific findings of fact made by the jury. Indeed, the reviewing courts never know what aggravating or mitigating factors the jury found. It is conceivable that some of the jurors did not find the existence of an aggravating circumstance, or that each juror found a different aggravating circumstance, or perhaps all jurors found the existence of an aggravating circumstance but some thought that the mitigating circumstances outweighed them. ... After the jury's recommendation, there is a separate sentencing hearing conducted before the judge only. ... The defendant has no way of knowing whether or not the jury found the same aggravating factors as the judge. Indeed, the judge, unaware of the aggravating factor or factors found by the jury, may find an aggravating circumstance that was not found by the jury while failing to find the aggravating circumstance that was found by the jury. ... This cannot be reconciled with Ring.

The case is Evans v. McNeil, 08-14402-CIV-JEM. The petitioner was represented by Capital Collateral Regional Counsel.

So you wanna be a federal judge?

Below are the 12 applicants for Judge Gold's seat:

Jerald Bagley
Beatrice Butchko
Marina Garcia Wood
Brian Gilchrist
Robert Levenson
Peter Lopez
Caroline Heck Miller
John J. O'Sullivan
Robin Rosenbaum
Barry Seltzer
William Thomas
John Thornton, Jr.

UPDATE -- I fixed the initial post in which I initially listed the applicants for Marshal. Here they are:

Gwendolyn Boyd
Darin Cooper
James Higgins
Eben Morales
Hector Pesquera
Amos Rojas, Jr.
Michael Roy
David Say, Jr.
G. Wayne Tilman
John F. Timoney
Chadwick E. Wagner

Back to work...

I see that the good professor did a good job last week at the conn.

Some good news to report -- Judge Bob Scola will have his hearing this Wednesday, June 22, 2011 at the Dirksen Senate Office Building, Room 226, at 2:30 p.m. This is good news and it's good to see that his nomination is moving relatively quickly.

Looks like I have some light reading to do now that I'm back -- Judge Carnes issues two lengthy and significant opinions last week -- United States v. Hill and Johnson v. Dept of Corrections(163 pages and 69 pages). Hill is a mortgage fraud case with lots of twists and turns. Here's a quick summary from Business Week:

But the three-judge panel soundly rejected his arguments in a scathing 163-page opinion that traced the plot from its inception to its downfall. The decision painstakingly recounted and then dismissed almost every objection filed by Hill and the others during the 31-day trial, which involved more than 100 witnesses and thousands of pages of documents.

"Without Hill there would have been no conspiracy, no massive amount of mortgage fraud resulting from it, and no ruined lives in the wake of it," read the opinion. "He bore the greatest responsibility for the massive crime and deserved the longest sentence."

Interestingly, Carnes ruled for a state death row habeas petitioner in Johnson based on ineffective assistance of counsel back from 1980. From the intro:

Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.

When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.

Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.

Set a course for the Eleventh Circuit!

Judge Seitz entered a $16.7 million judgment predicated on fraud in the inducement and negligent misrepresentation for Carnival Cruise Lines, represented by Greenberg Traurig and Fowler Rodriguez, against Rolls-Royce PLC. The suit is over a new high-tech steering and propulsion system appurtenant to the Queen Mary II. The jury had also awarded $8 million for breach of an implied warranty of workmanlike performance, but Judge Seitz granted the motion by Rolls-Royce, represented by Black Srebnick et al., for judgment on that claim. The jury rejected Carnival’s claims for breach of both ordinary and specific warranties and for unfair trade practices.

Newspaper articles almost never give either the complete story or a case number, but I found it after abusing D.O.M.’s PACER account just a little bit. The verdict form is 10 pages long and reads a lot like an IRS 1040. As far as I can tell from that document and Judge Seitz’s order, the jury thought Rolls-Royce materially lied about the new technology. I know, I know. How is that not barred by the economic loss rule? According to the order, “Rolls-Royce ignores the fact that the parties did not actually have a contract.” Rather, Carnival bought the ship from a shipbuilder who bought the system from Rolls-Royce. I may be entirely out-of-date on this since it’s been a very long time since I did this kind of thing, but I think there’s a good argument that the economic loss rule applies regardless of whether a contract action lies against any particular defendant. That will be the Eleventh’s problem, I guess. Issues like this almost make me miss commercial litigation. Reviewing the 424-entries-long docket doesn’t.

Quit shooting your mouth off

Judge Marcia Cooke drew the lawsuit sponsored by the Brady Center challenging a Florida law that purports to circumscribe physicians’ conversations about guns. The law is part of a national push by the NRA for such laws in a bunch of states. We are, of course, the first to have one. Even West Virginia voted against it. (They’re trying again.) From the complaint, filed by D.C.’s Ropes & Gray and Miami’s Astigarraga Davis with the Brady Center:

Specifically, the Physician Gag Law expressly restricts health care practitioners, in certain vaguely-defined circumstances, from asking patients questions related to gun safety or recording information from those conversations in patients’ medical records, on penalty of harsh disciplinary sanctions, including fines and permanent revocation of their licenses to practice medicine.

Dr. Michael Hirsh, head surgeon at UMass Memorial Children’s Medical Center, sponsored a resolution by the Massachusetts Medical Society opposing such legislation up there. He seems to think “Florida” is short for floridly insane:

On the Florida law, he said, “I just don’t want to see this wave of stupidity come anywhere where sane people might understand this is going to affect kids.”

Welcome back. Your dreams were your ticket out.

A pot smuggler who skipped the country in 1979 got five years. This is big news today, I guess because 31 years is a long time to be gone, only to find yourself back in front of Judge King. New courtroom, though. New building, too. Named for him, you know.

Episode Two, sponsored by Black’s Law

Roy Black has published a genuinely stirring account of the leader and inspiration that was and is Judge Phillip Hubbart. The essay is poignant and thought-provoking, aspiring to mirror the dedication to excellence personified by its subject. Highly recommended reading, in short.

As a public service, I will encapsulate a significantly more prolix work evincing perhaps not the same commitment to quality as Mr. Black’s. Let’s look just at the majority’s opening line in the en banc Gilbert decision:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

Truly pregnant: There was an error. At sentencing. No one doubts that. Hell, the Supreme Court said so. But this guy, this “federal prisoner”, wants to have it fixed now.He wants us to correct a sentence eleven years later. Well, where’s it going to stop? How many more of he are there?

All that follows is structured in the predictable way: “He” is a hapless, unrepetent, common criminal. The opinion preempts sympathy by pointing out that, even if he has a point, his sentence might well be the same—then graciously allows that it might be less. Ultimately, it erects “finality of judgment” as the bulwark shielding civilized and free society from such incorrigibles, even taking liberties with Justice Powell, having already violated Justice Holmes.

The short answer to all of it: It is just the sentence, not the judgment, being challenged. Finality is not implicated. Once that dawns, lines like this seem ludicrous: “A federal prisoner’s right to have errors in the calculation of his sentence corrected is not without limits.” No? Well, why not? You can’t just apply the new Supreme Court case and reset the sentence? What’s the big deal? It’s not like anyone’s asking for a trial or anything.

What must have driven Judge Hill to write the scathing dissent D.O.M. quoted at some length the other day is this reduction—this cheapening—of the judicial function from guardian of fairness to administrator of burdens. To claim that there is a higher value than ensuring that Americans are not capriciously incarcerated and that value is finality “of judgment” when really you mean “of penalty” is to abandon excellence as an aspiration. (And they know it; by violently distorting Holmes in ¶ 1, the majority seeks to cloak its abdication with excellence-by-association.) The fright for the future and lack of faith in our institutions that this abandonment symptomizes is so commonplace now that it escapes our notice—until we contrapose it with an image like Roy Black has painted with his essay.