Chief Judge starts letter writing campaign for Kathy Williams and Bob Scola

Congrats to Bob Scola, who received a unanimous voice vote today getting out of the judiciary committee.

Now, Chief Judge Moreno has written letters to Senator Mitch McConnell and Senator Harry Reid urging confirmation by the full Senate of Kathy Williams and Bob Scola before the August recess. The intro from the letters:

As Chief Judge of the United States District Court for the Southern District of Florida, I urge you to expedite the Senate's confirmation of Kathleen Williams and Robert Scola to the positions of district judges in our district. I understand that the Judiciary Committee has sent both nominations by unanimous voice vote and is awaiting a vote by the full Senate. Ms. Williams, our district's Federal Public Defender, has been awaiting confirmation for the longest period of any present nominee to the district court in the entire country. State Judge Robert Scola's nomination is of a more recent vintage but the litigants are eagerly awaiting his confirmation.

The judgeship Ms. Williams has been nominated to fill has been vacant for two years! At the present time, our district has three vacancies. Unfilled positions in our Court present an undue hardship on the citizens residing in the Southern District of Florida, particularly those with cases pending in the affected division of the Court. Our district is huge and heavily populated. It includes the most populous counties in Florida, Miami-Dade, Broward (where Fort Lauderdale is located) and Palm Beach Counties. The district also includes Monroe, St. Lucie, Highlands, Okeechobee, Martin, and Indian River Counties.

Now it's our turn. Please follow Judge Moreno's lead and send letters now to get Williams and Scola confirmed.

Why is Lanny A. Breuer attacking the defense bar?

Assistant Attorney General Lanny A. Breuer of the Criminal Division spoke at the National District Attorneys Association Summer Conference in Sun Valley, Idaho today and said the following:

Before I conclude my remarks this morning, and I hope there will be plenty of time left for questions, I want to discuss one other issue with you, on which we are all focused: our ethical obligations as prosecutors.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations. These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward. And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago. And I suspect that is true for many DA’s offices across the country as well.

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate. The steps we have taken go further than what the Supreme Court requires. And they go well beyond what any prior Administration has done. That’s a fact. Do we need to remain vigilant? Absolutely. At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

As prosecutors, we occupy a unique role in the criminal justice system. Our job is not just to win cases, but also to do justice in every case. I think prosecutors are more aware of their ethical obligations today than they may ever have been – and, as far as I’m concerned, that’s a good thing.

How strange, no?

Was this a message to the judge in the Roger Clemens case that he should find that the prosecutors simply made an honest mistake? If you were Roger Clemens, wouldn't you want your lawyer to pursue the issue and fight for no retrial? To bar a retrial, part of what the defense must show is that the behavior of the prosecutors was intentional. Clemens' lawyer would be committing malpractice not to argue that it was intentional after the prosecutors disregarded the judge's order by playing the tape and then leaving the image on the screen during the sidebar. Don't prosecutors argue that defendants have acted in bad faith all of time based on far less circumstantial evidence?

In any event, I challenge Mr. Breuer to a debate on the subject of prosecutorial and defense ethics. Just for starters, I would ask Mr. Breuer why DOJ is opposing a change to Rule 16 (as suggested by the ABA and on July 7, by NACDL) requiring what their guidelines merely suggest.

I have written an op-ed on this subject, as have others.

I do like the part where he says prosecutors must seek justice, not a win. Here's part of what I wrote about that (back in May) in connection with the government's discovery obligations:

The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”

All of this sounded very promising, but actions speak louder than words.

Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.

Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.

Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”

Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.

Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.

Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”

This just makes my blood boil

I guess it shouldn't anymore because I really believe that Brady/Giglio violations happen in just about every trial where there isn't open-file discovery. The latest is a pretty shocking violation in the Casey Anthony case, which (I believe) would have resulted in a new trial had she been convicted. From the NY Times:

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term “chloroform” was searched once through Google. The Google search then led to a Web site, sci-spot.com, that was visited only once, Mr. Bradley added. The Web site offered information on the use of chloroform in the 1800s.

***

“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”

Mr. Bradley, chief executive of Siquest, a Canadian company, said he even volunteered to fly to Orlando at his own expense to show them the findings.

Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.

“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”

“This was a major part of their case,” Mr. Mason added.

In big trial after big trial there continues to be Brady violations. Imagine what happens on a daily basis in state and federal court where there isn't a great deal of scrutiny over what prosecutors do. There really needs to be open-file discovery and more needs to be done when prosecutors do not comply with their constitutional obligations.

Federal Judge interviews in one week

Below is the schedule for next Monday. Any volunteers for a guest blogger to cover the interviews?

Jerald Bagley, 9am
William Thomas, 9:30
Beatrice Butchko, 10
Peter Lopez, 10:30
Robert Levenson, 11
Barry Seltzer, 11:30
John Thornton, Jr. 1pm
Caroline Heck Miller, 1:30
Robin Rosenbaum, 2
Marina Garcia Wood, 2:30
John J. O’Sullivan 3pm

Too many lawyers, not enough judges

The NY Times has the story about the lawyers. The intro:

The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply.

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.

In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.

And BLT has the story about Obama's judicial appointment team. What's wrong with the administration on this?

The article is part of a 42-page package on “Obama’s Judiciary at Midterm,” by political scientists Sheldon Goldman of the University of Massachusetts at Amherst, Elliot Slotnick of Ohio State University and Sara Schiavoni of John Carroll University. (Click here for the Web site of Judicature, which is subscription-only and published by the American Judicature Society.)

The political scientists write that the White House shut out them, too, as they tried to put together the package. Their work is the latest in a long-running series.

“Tellingly, no one from the White House Counsel’s Office was able or willing to meet with us — the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office,” the researchers write.

They add: “While the perspective from the White House Counsel’s Office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president’s judicial selection team. Other sources included interest group participants from groups along the ideological continuum.”

But too many lawyers and lack of federal judges seems like the same ol' stories again and again, no?

To me, the more interesting story is the Clemens trial and what's going to happen now that there was a mistrial. Here's Maureen Dowd's piece from the weekend:

But the trial had barely begun when those lawyers made what Tom Boswell, the Washington Post sports sage, called “the most shocking, inexplicable error in modern baseball history.” An error, Boswell said, that would cause the sports world and the legal community to “oscillate between pity and ridicule, incredulity and laughter, for years.”

With a high, close pitch at the government team, the judge declared a mistrial. “I think that a first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,” he said angrily.

Before the testimony started, Walton had said that an affidavit from Laura Pettitte was inadmissible. She had stated that her husband, Andy, who was Clemens’s teammate, told her that his pal had confided that he used human growth hormone. It was hearsay.

But on day two, the prosecutors played some video of the Capitol Hill hearing in which a congressman talked to Clemens about how compelling Laura Pettitte’s affidavit was. They even left her testimony on the monitors in the jury box while they gathered at the judge’s bench. It was such a chuckleheaded move that no one was sure whether the prosecutors had forgotten the judge’s ruling or were trying to sneak the testimony through a back door. Either way, it was another great day for defense lawyers and their clients who have already been convicted in the public eye.

“Government counsel doesn’t do just what government counsel can get away with doing,” the judge said sternly. “I’m very troubled by this. A lot of government money has been used to reach this point.” He added, “I don’t see how I can unring the bell.”

Should we be going bench more often?

The stats certainly say yes -- there are more federal bench acquittals than jury acquittals on a percentage basis. But the conventional wisdom is to go jury...

In any event, yesterday, Judge Moore said not guilty as the finder of fact in a visa fraud case. AFPDs Vanessa Chen and Helaine Batoff decided to go bench before Judge Moore and after he denied the Rule 29, he said that as the finder of fact he found the defendant not guilty.

“Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this."

Ouch. That was Judge Reggie Walton declaring a mistrial in the Roger Clemens case:

Judge Reggie B. Walton declared a mistrial in the Roger Clemens perjury trial today.

"He's entitled to a fair trial," said Walton. "He now cannot get it."

Lead defense attorney Rusty Hardin had asked for a mistrial because the prosecution revealed a statement to the jury that violated a pre-trial order. The prosecution also violated pre-trial orders when Assistant U.S. attorney Steven Durham talked about the Yankees' drug use during his opening statement.

Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial for the former baseball star who pitched for four teams, including the Red Sox, during his 24-year career. Walton told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.

"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.

He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."

In angry comments directed toward the prosecution, Walton said, “Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this. A lot of government money has been used to reach this point. The government should have been more cautious. I don’t see how I can un-ring the bell.”

By that, Walton meant that he could not figure out how the jury’s exposure to statements by Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, can be erased from their memory so it does not later influence decision-making. Laura Pettitte is someone designed to bolster the credibility of her husband, a former teammate of Clemens who was expected to be a key witness in the trial. Under dispute in the case is whether Clemens mentioned using human growth hormone to Andy Pettitte.

Blog makes news

Pretty cool -- Alyson Palmer of the Daily Report in Georgia wrote a nice story about the Rojas opinion disappearing and reappearing on the 11th Circuit website and our coverage of it:


The case of the missing opinion has been solved.
Court watchers had been scratching their heads after a June 24 sentencing opinion by a panel of the 11th U.S. Circuit Court of Appeals vanished from the court's website. Lawyers interested in reading the decision had to go to other sources, such as the Federal Public Defender's Office in Miami or a Miami lawyer's blog.
On Wednesday, more than one week after the Miami blogger noted on June 28 the opinion's disappearance, the decision reappeared on the court's site with the original June 24 date. A few hours later, a revised opinion was issued, mandating the same pro-defendant result and bearing the explanation that the panel had modified the opinion to reflect recent case law developments in other circuits.
According to Clerk of Court John Ley, the original opinion was withdrawn at the request of the judge who wrote it. (The unanimous three-judge panel was composed of Judges Charles R. Wilson and Beverly B. Martin and Senior Judge R. Lanier Anderson, but the opinion was unsigned.) "It happens every now and then," said Ley, "but then they reissued it once they reviewed their citations."
***
Within days of the opinion's issuance, however, it disappeared from the court's website. Noting the federal public defender's office was fielding requests for copies of the opinion, a University of Miami law professor, Ricardo J. Bascuas, posted the ruling on the blog of Miami attorney David O. Markus.
Lawyers at the federal public defender office that's handling the matter couldn't be reached to discuss what they were thinking when their case appeared in limbo, and federal prosecutors in Miami declined to comment. But others were talking.
"When a decision like that just disappears and there's no explanation and no reason given, it just makes the court look weird—I don't know the right word for it," Bascuas said in an interview Wednesday shortly before the opinion resurfaced on the court's site.
An anonymous comment on Markus' blog mused that perhaps the court was concerned that the upcoming vote by the federal sentencing commission on whether to make changes to the crack sentencing guidelines retroactive, scheduled for June 30, could moot the case. But the commission's decision to extend its guidelines changes even to those who were sentenced years ago didn't, and couldn't, change the mandatory minimums at issue in Rojas' case; the guideline changes would help the many inmates whose crimes involved drug quantities that placed their sentences beyond (often far beyond) the statutory minimums.