Justice Ginsburg is funny!

Here's a recent speech she gave to the Otsego County Bar Association, which I found to be a great read (One example: “I am now delighted to report that not once this term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues.")

JoshBlackman.com summarized some of the questions Justice Ginsburg reviewed from this Term (Ginsburg: “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”):

• “What [did] James Madison th[ink] about video games?” --Justice Samuel A. Alito Jr. in Brown v. Entertainment Merchants Association.

• “What do you think about Satan?” -- Justice Antonin Scalia in Matrixx Initiatives v. Siracusano.

• “Does al-Qaida know all this stuff?” --Justice Antonin Scalia in NASA v. Nelson. (after a lawyer for the employees said they worked in a “campus atmosphere” and they posed little or no security risk).

• “Where is the 9,000-foot cow?” --Justice Stephen G. Breyer in AT&T Mobility v. Concepcion, involving Breyer’s hypothetical involving a Swiss law only allowing the purchase of milk from cattle grazing in pastures higher than 9,000 feet.

Bob Barr and I agree!

Here's an op-ed he just wrote on the over-criminalization problem in America. From the piece:

[F]ailure to address the overcriminalization of America is turning us into a society in which the average citizen is at the mercy of the federal government for fear of running afoul of some criminal law or regulation on any given day, despite having no intention whatsover of doing so.

The explosive growth in the number of federal crimes in recent decades has been nothing short of phenomenal. Three crimes — three — were considered of sufficient importance and of a unique federal nature, to be included specifically in the Constitution. Those three uniquely federal crimes are treason, piracy and counterfeiting. Over the decades, of course, other crimes were added, usually pegged to the infamous “commerce clause.” By 1980, the federal criminal code had mushroomed to about 3,000 separate criminal offenses. What has happened since 1980, however, has been nothing short of phenomenal — the list of federal criminal offenses has exploded to nearly 4,500 offenses; as noted most recently by Gary Fields and John Emshwiller in the Wall Street Journal. This figure does not even include the many more thousands of federal regulations that can be enforced by the government as criminal offenses.

***

The list of such unfair and outrageous instances of abusive federal prosecutions is depressingly long; with many the result of the explosive growth of “environmental crimes” since the birth of the EPA four decades ago. Yet Congress after Congress continues to add crime after crime to the burgeoning federal criminal code, based often on pressure from interest groups and federal agencies themselves.

Finalists for U.S. Marshal

They are: James S. Higgins, Eben Morales and Amos Rojas Jr..

Many of you will remember Jaime Higgins, who is an ATF agent, currently on assignment in Vancouver, Canada. His wife is Celeste Higgins, a former AFPD in Miami.

Florida drug laws ruled unconstitutional

Today Judge Mary Scriven from the Middle District granted a writ of habeas corpus and declared Florida’s drug law unconstitutional. The case is Shelton v. Dept. of Corrections. NACDL filed this amicus brief . Here's the intro to the order:

On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, FLA. STAT. § 893.13, as amended by FLA. STAT. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff’s conviction for delivery of cocaine without the jury being required to consider his intent in any respect and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Petitioner’s request for habeas relief (Dkt. 1), and finds that FLA. STAT. § 893.13 is unconstitutional on its face.

Full disclosure: I was one of the co-signors of the amicus brief for NACDL, authored by Todd Foster.

BREAKING -- JNC sends 4 names to Senators

Your next federal judge will be one of these four people:

Jerald Bagley
John O'Sullivan
Robin Rosenbaum
John Thornton

Two State Circuit judges and two Federal Magistrates. I'm picturing a cage match -- Bagley and Thornton vs. O'Sullivan and Rosenbaum. Who wins that one?

Update-- happy to report that Judge Moreno's letters were cited yesterday in the Senate. Hopefully they will have some impact. Here's the link: http://www.gpo.gov/fdsys/pkg/CREC-2011-07-25/pdf/CREC-2011-07-25-pt1-PgS4860.pdf#page=1

HT: SFL

"Characterizing a government as a pimp is far from advocating violence."

That was Irfan Khan's lawyer Sowmya Bharathi, challenging the strength of the evidence against her client who is accused of helping to finance part of the Pakistani Taliban terror group. Love the quote! Plus it gave me some inspiration for the morning:



More on the case from Curt Anderson's article:

The son of a Muslim cleric in South Florida was a key part of his father's alleged finance network for the Pakistani Taliban terror group and shared the older man's support for violent attacks, an FBI agent testified Tuesday.
Agent Michael Ferlazzo said at a bail hearing that 37-year-old Irfan Khan appears to advocate violence repeatedly on some of the more than 1,000 phone calls the FBI recorded between him and his father, brother and other alleged conspirators.

On one call, Ferlazzo said, Irfan Khan referred to Pakistan's government as “big pimps.”

“They're talking about violent opposition to the government,” Ferlazzo said. On another call, the agent said, Irfan Khan seemed pleased that people feared the Pakistani Taliban “because of how lethal they had become.”
***
But Irfan Khan's attorney, Sowmaya Bharathi, said most of his comments could be chalked up to passionate political talk about Pakistan's government and its troubles, not evidence of support for terrorism.

“There is absolutely nothing wrong with people exchanging information about horrible events in a part of the world they have a connection to,” Bharathi said. “Characterizing a government as a pimp is far from advocating violence.”

She said nearly two dozen people, including members of Irfan Khan's cricket team, were willing to put up cash and property to secure his release on bail. She noted that he has a wife and two young children in Florida and would be able to get a job driving a taxi if released.

“He is going to stay here and fight the charges,” Bharathi said.
Jordan has not said when he will rule on bail for Izhar Khan, who is imam at a mosque in suburban Margate. Hafiz Khan is imam at Miami's oldest mosque.

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.”