Cameras in the Supreme Court?

The Senate had hearings today on this issue, and SCOTUS Blog has the scoop here. You know my views -- it makes no sense to me that the court proceedings are closed. Sunshine and all that...

Speaking of the Supreme Court, it heard argument today on another confrontation clause case. Here's Tom Goldstein's summary of what the case is all about:

Tomorrow, the Justices will hear argument in Williams v. Illinois, the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question is whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.

***
One could say with a fair degree of confidence that the five Justices who started the revolution in the Court’s Confrontation Clause jurisprudence in Crawford v. Washington in 2004 and then adhered to their strong view in Melendez-Diaz v. Massachusetts in 2009 would rule for Williams here. As a practical matter, it is hard to say that the underlying DNA report is not being used for its truth. But since then, two Justices in the majority – Justices Souter and Stevens – have been replaced by Justices Sotomayor and Justice Kagan. Although the latter two Justices joined the Bullcoming majority, they may have a lessened commitment to a robust application of the Confrontation Clause. Justice Sotomayor’s concurrence in Bullcoming in particular signals that these facts may approach or pass the end of the line to which five Justices are willing to extend the Confrontation Clause.

Monday notes

1. Judge Cooke will be hearing a dispute filed by the Marley heirs against a half brother. Curt Anderson has the details.

2. Alan Fein is a big-time blogger now, opining on Obamacare and Miami and Judge Marcus.

3. Another big case, another dismissal due to prosecutorial misconduct (via Thomson Reuters):

Matz based his decision on numerous examples of government misconduct, beginning with falsehoods in search-and-seizure warrant applications, extending to false and misleading grand jury testimony by an FBI agent, and compounded by prosecutors' failure to turn over some of that testimony to the defense. Handzlik, Levine, and their teams had alerted the judge to much of the misconduct before the jury reached a verdict, but Matz said the magnitude of the government's behavior became clear only in retrospect.

"When a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees," Matz wrote. "That is what occurred here ... . The government has acknowledged making many 'mistakes,' as it characterizes them. 'Many' indeed. So many, in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry."

Here's the order. It's worth a read.

Guest post by Richard Rosenthal

David is out of town with his family and has invited me to say a few words
about the following event honoring our former boss:

Today the Judges of the Southern District of Florida honored one of their
own by dedicating the Chief Judge Edward B. Davis Jury Assemby Room in the
Ferguson federal courthouse. It was a touching, heartfelt ceremony
remembering the late Chief Judge, who served our community for over two
decades on the federal bench. Several generations of the Davis family,
the Southern District Judges, the Judge's former law clerks, and many
longtime friends attended the midday ceremony, which was presided over
with characteristic grace and good humor by Chief Judge Moreno. At one
point, Chief Judge Moreno joked that he may have to tell the U.S. Marshals
not to allow any votive candles to be placed beneath Judge Davis'
portrait, even though such tributes may well be appropriate to honor
"Saint Ned." Judge Altonaga, who was one of Judge Davis' law clerks,
eloquently recalled the Judge's humanity and kindness toward all, and his
willingness to privately and compassionately mentor young lawyers who
tried cases before him. After Chief Judge Moreno opened the floor for
remarks, several the Judge's family members, law clerks, friends, and
professional colleagues shared warm recollections of an exemplary Judge
and a wonderful, unforgettable man. He is deeply missed.

--Richard B. Rosenthal (Law Clerk to Judge Davis, 1997-1998)

New federal jury room dedicated to Judge Edward B. Davis

Although I was out of town today and couldn't be there, I heard that the dedication for Judge Davis was fantastic. And how well-deserved that that the jury room was named for him. He really loved trying cases, and they really don't make trial judges like EBD anymore. Judges and fellow-former clerks who were there, please use the comments to share what happened at the event.

Conrad Black on American Justice

It's a rant (from jail) worth reading, so I reprint a lot of it below (via National Review):

The United States has six to twelve times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, all prosperous democracies. The U.S. has a much higher percentage of successful prosecutions, a lower hurdle to clear to prosecute (with rubber-stamp grand juries), a greater range of offenses, heavier sentences, and a higher recidivism rate than any of those other countries.

As Sen. Jim Webb of Virginia wrote in his essay “Criminal Injustice” two years ago, either those other countries are less concerned with crime than the U.S., or Americans are more addicted to criminal behavior — both preposterous suggestions — or the U.S. justice system is not working well.

There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)

The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.

Sentences are absurd: A marijuana deliverer is apt to be sentenced to 20 years in prison. There is minimal effort to rehabilitate nonviolent offenders. Private-sector firms are increasingly active in the prison industry and they and the militantly unionized correctional officers, almost all unskilled labor, constantly lead public demands for more criminal statutes and more draconian penalties.

***

I hoped in 2007–08, when rabid prosecutors attacked the chief of staff of the vice president (Scooter Libby) and secured his conviction on a very dubious charge, and other prosecutors convicted and caused the electoral defeat of five-term senator Ted Stevens on what was shortly proved to be a fraudulent prosecution, that the political class would awaken, at least to the danger to itself. When the Terror of the Committee of Public Safety reached its height in 1794, the French National Convention came to its senses, at least to a sense of self-preservation, and sent Robespierre and his whole committee (except for the war minister, Carnot), to the guillotine without a trial, and declared the dawn of the permissive Thermidor.

It would be taking a liberty to claim that American conditions have deteriorated to such a point, but Robespierre wasn’t thumbing the Bill of Rights or swaddling himself in Madisonian expatiations on the pursuit of liberty. The masses were singing the bloodcurdling call to arms of the Marseillaise, not crooning, hand over heart, about the land of the free.

A court-appointed investigation of the Stevens affair has found “serious, widespread, and at times intentional concealment of evidence, but did not specifically urge prosecution for criminal contempt of those responsible, because the trial judge had not precisely ordered the prosecutors to obey the law by turning over exculpatory evidence.”

Even after all I have been put through by the justice system of the United States, I had to rub my eyes and reread newspaper accounts and check them against each other to achieve a comfort level that what I was reading was what was intended, was corroborated, and was accurate. It was. The investigator found the prosecution “permeated by the systematic concealment of significant exculpatory evidence . . . and (other) serious misconduct.” He was neutral on the issue of whether the prosecutors should be charged with obstruction of justice, a catchment American prosecutors routinely use to ensnare, over-punish, and stigmatize frequently unexceptionable conduct — a charge so vague it is almost impossible to defend against successfully.

I have witnessed in the U.S. much sleazy prosecutorial conduct whose authors would have been disbarred in my native jurisdictions of Canada and Britain, and I cannot imagine how the U.S. justice system could have descended to such infamies. The only person in the Stevens outrage who seems to have had any redemptive qualities was Nicholas Marsh, one of the assistant prosecutors in the Stevens case, who committed suicide when the conduct of the prosecutors came to light. Depending on his exact apparent motives, and the sequel to his tragic action, he could play a role analogous to that of the Tunisian street vendor who set off the Arab spring by immolating himself.

The state of American justice is shameful and unspeakable, literally so to judge from the hear-no-evil, see-no-evil, speak-no-evil insouciance of Commentary’s blue-ribbon high table of contemporary critics. Many of them attacked the nihilistic, self-destructive anti-Americanism of the American campuses, absolutely correctly. But if they noticed the fraudulence that has metastasized through the American legal system, their critique would carry greater weight.

The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.

The first line of defense of society as a whole are those whose vocation is to study and espouse public policy. Failure on this scale will make them complicit in this vast crime of the state, if it continues. I am listening for Jefferson’s firebell in the night and all I hear is Gertrude Stein’s sound of one hand clapping.

Congrats to Judge Robin Rosenbaum

President Obama officially nominated her today to serve on the district court:

Judge Robin S. Rosenbaum is a United States Magistrate Judge for the Southern District of Florida, a position she has held since 2007. From 1998 until her appointment to the bench, Judge Rosenbaum was an Assistant United States Attorney in the same district, where she served as Chief of the Economic Crimes Section in the Fort Lauderdale office beginning in 2002. Before joining the United States Attorney’s Office, Judge Rosenbaum clerked for Judge Stanley Marcus on the United States Court of Appeals for the Eleventh Circuit in 1998, worked as a litigation associate at Holland & Knight from 1996 to 1997, and served as staff counsel at the Office of the Independent Counsel in Washington, D.C. from 1995 to 1996. She began her legal career as a trial attorney at the Federal Programs Branch of the United States Department of Justice from 1991 to 1995. Judge Rosenbaum received her J.D. magna cum laude in 1991 from the University of Miami School of Law and her B.A. in 1988 from Cornell University.

Judge Carnes writes another witty opinion

United States v. Gary White starts this way:

“Kleptocracy” is a term used to describe “[a] government characterized by rampant greed and corruption.” The American Heritage Dictionary of the English
Language 968 (4th ed. 2000); see also New Oxford American Dictionary 963 (3d ed. 2010); Random House Webster’s College Dictionary 724 (2d ed. 1998). To that definition dictionaries might add, as a helpful illustration: “See, for example,
Alabama’s Jefferson County Commission in the period from 1998 to 2008.” During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their “service” in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal.1 We have affirmed the convictions of three others who did.2 This is the appeal of the fifth one.

Judge Carnes also ends the opinion with a one-word paragraph "Indeed" after quoting the district court on sentencing:

You see, when someone’s elected to a position of trust as an elected official, they don’t have the right . . . they don’t have a right to have a bag . . . at all. It’s not a function of how big the bag is, they just don’t have a right
to have a bag that they can carry around stuff they get from people that are involved with them in this process. And, so, I think a sentence which is 120 months total is appropriate.

In other news, Curt Anderson covers the $2.1 million payment by the feds in the photo editor's anthrax death. Details here.

"They take off their tops and let the guys touch them."

That's Hugo Rodriguez quoted in this New Times article about the "paralegals" visiting FDC (the federal jail in downtown Miami). More:

But attorneys swear the scam is ongoing. One "discovery room" normally used to discuss trial strategy was recently closed, they say, after guards caught an inmate and a paralegal "discovering" more than legal documents.

Lawyers claim that lax rules have let phony paralegals pamper their narco clients
​"Everyone knows about it," says a private investigator who is familiar with the FDC and asked not to be named. "We call them the 'little hoochie mamas'... They are making a mockery out of the prison system here."

Among the offenses allegedly committed by so-called paralegals: smuggling in a Playboy, feeding alcohol to an inmate by slipping a straw through a grate, and sneaking in $3,000 inside a purse.

In a scene straight out of a porno, one woman was caught on video stripping for an inmate in the jail's Special Housing Unit, attorneys say. The stripper was banned from the FDC.

Money quote from the article:

"If you want some good people-watching, try the FDC," attorney Marc Seitles says. "It certainly beats paying a cover and waiting on lines to get into LIV."

We should treat inmates more humanely (especially first-time non-violent offenders) by letting them have limited internet access and occasional conjugal visits. We should also let them wear their own clothing and eat their own food, like they do in most other countries. There would be lots less violence and abuse. If an inmate messed up, these benefits would be taken away.