Initial Florida Bar vote finds 2255 waivers unethical

Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.

But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.

Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.

The trial tax

Despite this NY Times article about declining trials, this district still tries cases -- Judge Ungaro has closing arguments in a criminal antitrust case this morning; Judge Seitz is in the middle of a lengthy mortgage fraud case; Judge Cooke is starting a trial this morning. That said, the NY Times examines whether the "trial tax" is too high, forcing too many people to plead. The article focuses on state cases in Florida, but here's a snippet on the feds:

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

***

Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

Friday's speed of light edition

1. Are there particles really moving faster than the speed of light? If so, this is the biggest news of our lifetime.

If not, there is still legal news:

2. Is this an effective letter to a sentencing judge by C. Coke?

3. The 11th Circuit says Florida deep-sea explorers must return 17 tons of silver coins from a sunken ship to Spain.

4. Former U.S. Attorney in DC calls federal sentencing "draconian."

5. Watch out for the falling satellite this weekend.

6. FIU posted the highest bar passage rate.

7. Yesterday, the Hispanic Bar honored Judge Jose Gonzalez at the federal courthouse. I heard that Judge Gonzalez gave a beautiful speech.

One judge to another during oral argument: "Shut up."

Remember the tiff between Judges Sparks and Jones over the Kindergarten email sent to lawyers. Well, Judge Jones is in the news again over judicial demeanor and ethics. Above The Law has the whole story and it's a doozy. This time, Judge Jones goes at it with Judge Dennis during an oral argument (here's the recording). Here's the transcript, prepared by ABT:

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….

CHIEF JUDGE JONES: Judge Dennis….

JUDGE DENNIS: … just on the basis of the amount of drugs …

CHIEF JUDGE JONES: Judge Dennis!

JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….

Yikes.

Summary

Lots of news the last few days...

-- New Federal Judges being vetted (Thornton & Rosenbaum)
-- Huge sentences for Medicare fraudsters
-- Judge Jordan's confirmation hearing was today
-- Hung jury after a long mortgage fraud trial (happy for Michael Walsh after how the case began for him)
-- Padilla case decided 2-1

Here's a little more:

-- Pacenti reports on a case in which Nevin Shapiro testified but the defense was not made aware of the pending investigation against him;

-- The NY Times covers the question of whether jurors should be required to sign a pledge under penalties of perjury that they won't search the internet about the case while sitting as jurors, while the NY Post asks whether a prosecutor can work as a dominatrix.

-- I know the feds like to keep lawyers at the podium, but this may be a bit too far -- a judge has given authority to marshals to in their discretion SHOCK a lawyer representing himself if he strays from the podium. An anklet has been installed that will administer the shock. Seriously.

Mistrial in 4 month long mortgage fraud trial

This was trial #2 in the cop mortgage fraud trial, where trial #1 resulted in 4 of the 6 defendants being acquitted. For the second group of defendants, the jury hung, and I'm told it was 10-2 for acquittal. I feel for Judge Cohn, the defendants, their lawyers, and the prosecutors. This was an excruciatingly long trial. Is the government going to retry these defendants? As I've said before, I don't think retrials in cases like these are appropriate:

I'm not sure why a prosecutor should be able to retry a case after he couldn't convince a jury to convict. Isn't that reasonable doubt? To force someone to defend against two federal trials is impossible in every way -- financially and emotionally. The government had its shot in what was a controversial prosecution. Now time to go after a real criminal.

11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

BREAKING -- Rumors regarding district judge openings UPDATE -- Rumors confirmed!

Well, this wouldn't be printed if it were a newspaper or a legitimate publication, but because this is a blog, and I trust my sources, I am going to post the rumor that is being whispered about around town. Again, this isn't confirmed, but if it's being discussed at La Loggia, it can be discussed here too.

As we all know, 4 names were sent up by the JNC to fill Judge Gold's seat. Apparently, the White House is vetting two of those names, John Thornton and Robin Rosenbaum -- one to fill Judge Gold's seat and one to fill Judge Jordan's seat (see below; his confirmation hearing is next week).

If the rumor is true, congrats to Judges Thornton and Rosenbaum!

If anyone out there can confirm or refute this rumor, please email me and it will remain anonymous. Thanks.

UPDATED -- It's confirmed. Congratulations to Judge Thornton and Judge Rosenbaum! Here's hoping that the President and Senate move quickly.