“I’m almost speechless. It’s a kinder, gentler day over there. It happens so infrequently.”

That was Judge Altonaga at a hearing on a passport fraud violation for a Navy petty officer after the government offered pretrial diversion. Both the NY Times and the Miami Herald has been covering the case. From the Herald:

While common in state court, pretrial diversions are so rare in the South Florida federal system that Altonaga said it left her “speechless,” and appeared to reflect “a kinder gentler” prosecutorial office.

They happen so infrequently, she added, that it was unclear whether the clerk’s office in the downtown Miami courthouse knew how to process one.

The idea is to give someone facing charges an opportunity to avoid prosecution through a program designed by the U.S. Probation Services, such as doing community service or perhaps taking a civics class.

Without speaking to the specifics of the Dawkins case, Todd W. Mestepey deputy chief of special prosecutions at the Miami U.S. Attorney’s Office, explained it this way Tuesday:

“Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed. Unsuccessful participants are returned for prosecution.”

***

Mestepey said the Department of Justice and U.S. Attorney’s office consult through their chain of command on a “pretrial diversion” package.

“Politics do not play a role in the decision,” he added.

In court, the case prosecutor, Olivia S. Choe, also raised with the judge the issue of what she called “pretrial publicity” in the case. The New York Times, Miami Herald, CNN and Wired magazine had all put a spotlight on the case of the combat vet turned captive, with the Associated Press distributing a version of The Herald’s article.

The judge seemed unconcerned. “I read one,” she replied, without specifying.

I bet it wasn't Wired...

Tuesday News and Notes

1. Mark Cuban files a pretty funny pleading with a picture from the championship.

2. The State AG's office has asked Judge Martinez to reconsider his ruling finding the Florida death penalty unconstitutional.

3. Strangely, the U.S. v. Rojas case (finding the Fair Sentencing Act applied to all defendants sentenced after August 2010) has disappeared from the 11th Circuit website.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat."

Says Justice Scalia in today's 7-2 opinion in California v. Entertainment Merchants Association, striking down a California law that restricted the sale or rental of violent video games to minors.

I wonder if Justice Scalia actually played Mortal Kombat before writing that in footnote 4. At least he ruled for the First Amendment and struck down the statute. More fun from his opinion:

California’s argument would fare better if there were alongstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—orread to them when they are younger—contain no shortageof gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.
High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).FOOTNOTE 4

FOOTNOTE 4: JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causesthe provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not toenjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy,and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as muchentitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).

Big defense wins in the 11th Circuit

Friday afternoon was a rare time in the 11th Circuit -- two published opinions in favor of criminal defendants.

First up is a win by rising star AFPD Sowmya Bharathi in U.S. v. Rojas, No. 10-14662 (11th Cir. June 24, 2011):

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.
***
We conclude that the FSA applies to defendants like Vera Rojas who had
not yet been sentenced by the date of the FSA’s enactment. The interest in
honoring clear Congressional intent, as well as principles of fairness, uniformity,
and administrability, necessitate our conclusion. Accordingly, we reverse and
remand to the district court for re-sentencing.

Next up is a win by Richard Klugh in U.S. v. Ladson, No. 10-10151 (11th Cir. June 24, 2011):

Ladson argues that the Government did not file and serve an information
containing notice of an enhanced sentence in accordance with § 851(a)(1). We agree
that he was not served before trial with a copy of the information in accordance with
§ 851(a)(1), and thus the district court lacked authority to impose an enhanced
sentence on Counts I and II under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), (C), and 846.
We therefore vacate Ladson’s mandatory term of life imprisonment on Count I and
ten-year sentence on Count II, and remand with instructions to resentence Ladson on
Counts I and II without the § 851 sentence enhancement under the second
information. We affirm the judgment of conviction on Counts I, II, and IV.

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.