Monday baby!

A couple quick items to start off your week:

1. Cameras in the federal courtroooms in the SDFLA! But only in civil cases for now. We are part of a pilot program for 14 districts. From the press release:

Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946, and by the Judicial Conference since 1972. In 1996 the Conference rescinded its camera coverage prohibition for courts of appeals, and allowed each appellate court discretion to permit broadcasting of oral arguments. To date, two courts of appeals—the Second and the Ninth—allow such coverage.

Districts volunteering for the pilot must follow guidelines (pdf) adopted by CACM. The pilot is limited to civil proceedings in which the parties have consented to recording.

No proceedings may be recorded without the approval of the presiding judge, and parties must consent to the recording of each proceeding in a case. The recordings will be made publicly available on www.uscourts.gov and on local participating court websites at the court's discretion.

The pilot recordings will not be simulcast, but will be made available as soon as possible. The presiding judge can choose to stop a recording if it is necessary, for example, to protect the rights of the parties and witnesses, preserve the dignity of the court, or choose not to post the video for public view. Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors.

Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946, and by the Judicial Conference since 1972. In 1996 the Conference rescinded its camera coverage prohibition for courts of appeals, and allowed each appellate court discretion to permit broadcasting of oral arguments. To date, two courts of appeals—the Second and the Ninth—allow such coverage. In the early 1990s the Judicial Conference conducted a pilot program permitting electronic media coverage of civil proceeding in six district courts and two courts of appeals.

As I have previously argued on this blog, I see no good reason why cameras shouldn't be allowed in federal court. The public should see what goes on in our courthouses...

2. The NY Times reviews the Supreme Court Term that just concluded. Justice Kennedy was in the majority more than any other Justice, 94% of the time, followed by the Chief Justice, 91%. Ginsburg brought up the rear.

3. Curt Anderson covers the interesting lawsuit between NASA and former astronaut Edgar Mitchell:

NASA is suing former astronaut Edgar Mitchell to get back a camera that went to the moon on the Apollo 14 mission — a historic device Mitchell apparently tried to sell recently at an auction.

The lawsuit filed in federal court contends that the 16mm Data Acquisition Camera is NASA's property and there are no records showing it was transferred to Mitchell. NASA calls Mitchell, one of only 12 humans to walk the lunar surface, "a former NASA employee who is exercising improper dominion and control" over the camera.

"The United States has made numerous requests to defendant and defendant's counsel for return of the NASA camera to no avail," Assistant U.S. Attorney Christopher Macchiaroli wrote in the lawsuit filed Thursday.

"All equipment and property used during NASA operations remains the property of NASA unless explicitly released or transferred to another party," Macchiaroli added.

Mitchell, 80, has a home in the Lake Worth, just south of West Palm Beach, but a phone listing for him was disconnected. His attorney did not immediately respond to a phone message and email. A message was also left with the Institute of Noetic Sciences, which Mitchell founded in 1972 as an organization dedicated to exploring mysteries of the human mind and universe.

NASA contends in the lawsuit that it learned in March that the British auction house Bonhams was planning a "Space History Sale" that included an item labeled "movie camera from the lunar surface." Bonhams also provided a more detailed technical description and four photos of the camera.

The item, according to the auction house description, "came directly from the collection of Apollo 14 Lunar Module Pilot Edgar Mitchell." The camera was one of two that went to the moon's surface on the mission, during which Mitchell and Alan Shepard spent about nine hours collecting 95 pounds of lunar samples.

Happy Birthday to the blog!

The Southern District of Florida Blog was launched July 4th weekend 2005 with this post. Six years later, this is the 1,863 post. The blog is averaging over 500 visitors a day.

I just wanted to thank all of you (defense lawyers, prosecutors, judges, civil lawyers, and others) for stopping by and reading, and for emailing me tips. The blog wouldn't work without you.

This is the most fun district in the country -- we have the best cases, the most trials, and the most interesting stories.

Have a great 4th of July weekend.

Thanks,

--David Oscar Markus

Judge Cooke finds 300+ year mandatory sentence for juvenile unconstitutional

Here's the money passage:

Here, Mathurin faces a mandatory minimum 307-year sentence. Because Congress has abolished the federal parole system, this sentence gives Mathurin no possibility of release based on demonstrated maturity and rehabilitation. A significant portion of this sentence is comprised of mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses. To apply the statute in accordance with the Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary.

Judge Cooke ends up finding the rest of the statute can be saved and sentences James Mathurin to 40 years in prison, meaning he will get out in his 50s, instead of spending the rest of his life in jail. Here's the entire order.

Cooke Finds Sentence Unconstitutional

Vanishing precedent

Rojas isn’t gone only from the Eleventh Circuit’s website. It’s gone from Westlaw and apparently everywhere else as well. The Federal Public Defender has been fielding requests for copies of the mysteriously vanished decision. Here it is:
Rojas

“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.